Court of Criminal Appeals of Tennessee, Nashville
Session Date: February 14, 2018
from the Criminal Court for Davidson County No. 92-B-961 Seth
2003, a Davidson County jury convicted the Petitioner, Claude
Francis Garrett, of first degree felony murder. On direct
appeal, this court affirmed the Petitioner's convictions.
See State v. Claude Francis Garrett, No.
M2004-02089-CCA-R3-CD, 2005 WL 3262933, at *1 (Tenn. Crim.
App., at Nashville, Dec. 1, 2005), perm. app. denied
(Tenn. May 1, 2006). This court denied the Petitioner's
subsequent petition for post-conviction relief, Claude F.
Garrett v. State, No. M2011-00333-CCA-R3-PC, 2012 WL
3834898, at *1 (Tenn. Crim. App., at Nashville, Sept. 5,
2012), perm. app. denied (Tenn. Feb. 25, 2013),
following which he filed a petition for a writ of error coram
nobis that is the subject of this appeal. The trial court
issued an order summarily dismissing the petition. We affirm
the trial court's judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
A. Simmons, Hendersonville, Tennessee, for the appellant,
Claude Francis Garrett.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, State of Tennessee.
W. Wedemeyer, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr.,
W. WEDEMEYER, JUDGE
case arises from the Petitioner lighting his residence on
fire after locking the victim, his girlfriend, in a utility
closet. The Petitioner was indicted for first degree felony
murder and a Davidson County jury convicted him as indicted.
His conviction was vacated on appeal when this court
determined that the State had withheld exculpatory evidence.
Claude F. Garrett, 2012 WL 3834898, at *1. The
Petitioner was tried a second time and again convicted and
sentenced to life in prison. Claude Francis Garrett,
2005 WL 3262933, at *1. The Petitioner filed direct appeals
following both his first and second trial, as well as filed
two petitions for post-conviction relief and appealed those
judgments. As a result, this court has filed four separate
opinions in this matter and summarized the facts in each one.
See State v. Claude Francis Garrett, No.
01C01-9403-CR-00081, 1996 WL 38105 (Tenn. Crim. App. Feb.1,
1996); Claude Francis Garrett v. State, No.
M1999-00786-CCA-R3-PC, 2001 WL 280145 (Tenn. Crim. App. March
22, 2001); State v. Claude Francis Garrett, No.
M2004-02089-CCA-R3-CD, 2005 WL 3262933 (Tenn. Crim. App.
Dec.1, 2005), perm. app. denied (Tenn. May 1, 2006);
Claude F. Garrett v. State, No.
M2011-00333-CCA-R3-PC, 2012 WL 3834898, at *1 (Tenn. Crim.
App., at Nashville, Sept. 5, 2012), perm. app.
denied (Tenn. Feb. 25, 2013). In the interest of
judicial efficiency, we will include excerpts from the
procedural history of the case and recitation of the facts,
relevant to the issues the Petitioner raises in this appeal,
contained in this court's most recent opinion affirming
the denial of the Petitioner's second post-conviction
petition as it pertains to the Petitioner's second trial:
The Petitioner's conviction for first degree murder arose
from a charge that on February 24, 1992, he set fire to the
Davidson County home that he shared with the victim, Lori
Lance. The victim, who was the Petitioner's girlfriend,
was found by firefighters behind a closed door inside a
utility room in the rear of the house. She died from smoke
and gas inhalation. The State's evidence showed that the
utility room door was latched from the outside and that an
accelerant was used to start the fire.
The Petitioner originally was convicted by a jury in 1993 of
first degree felony murder and sentenced to life
imprisonment. The Petitioner's conviction was affirmed on
direct appeal. He subsequently filed for post-conviction
relief, alleging that the State had withheld exculpatory
evidence. On appeal from the trial court's denial of
post-conviction relief, this Court determined that the State,
in fact, had withheld exculpatory evidence, and we vacated
the Petitioner's conviction and sentence and ordered a
new trial. At his second trial, in 2003, a jury again
convicted the Petitioner of first degree felony murder, and
he was sentenced to life imprisonment. This Court affirmed
the conviction on direct appeal.
On April 17, 2007, the Petitioner filed a pro se petition for
post-conviction relief, which was amended by appointed
counsel on April 6, 2010. The amended petition, which
incorporated the pro se petition by reference, set forth
three principal grounds for post-conviction relief: (1) that
new scientific evidence established that the Petitioner was
innocent of the offense for which he was convicted; (2) that
the Petitioner received ineffective assistance of counsel at
his second trial; and (3) that the trial court abused its
discretion in allowing the State's expert witness, James
Cooper, to testify.
After an evidentiary hearing held August 30, and October 13,
2010, the post-conviction court denied the petition, and the
Petitioner now appeals. On appeal, the Petitioner's sole
argument is that he received ineffective assistance of
counsel at his second trial. From our review of the
Petitioner's appellate brief, we discern three facets to
his ineffective assistance of counsel claim: (1) that trial
counsel failed to present evidence that in the ten years
between the first and second trials, the methods by which the
State's expert witness Cooper reached his conclusion of
arson had been discredited by the scientific community; (2)
that trial counsel failed to advance the defense theory of an
accidental fire by not calling the treating physician, Dr.
Robert Roth, as a witness regarding the burn patterns on the
bodies of the Petitioner and the victim; and (3) that trial
counsel failed to move for a mistrial when the State and the
State's witnesses referenced the Petitioner's prior
A more thorough summary of the facts adduced at trial can be
found in this Court's opinion on direct appeal. In the
interest of clarity and conciseness, we will limit our
recitation of the facts below to those relevant to the issues
the Petitioner raises on appeal.
. . ..
James Cooper testified that he had retired as an agent of the
United States Department of Treasury Bureau of Alcohol,
Tobacco and Firearms (ATF). As an ATF agent, he had been a
certified fire investigator and a fire-cause and origin
specialist. Because local authorities had requested that he
assist in investigating the fire that killed the victim, he
inspected the house on the evening of February 24, after the
fire department had washed the flooring with a booster hose.
He opined that the washing did not obstruct or hamper his
observation of the burn pattern. He concluded that the fire
began in the front room. He found no evidence of an
electrical or other accidental cause of the fire. A kerosene
heater found in the bedroom was not the cause of the fire. He
discovered a saturation of kerosene in the kitchen. The
utility room door was closed during the fire. Mr. Cooper
testified that [Metro Fire Department Captain] Otis Jenkins
told him that he had "had to use two hands to slide the
bolt on the latch to the other side to open the door."
Mr. Cooper testified that he collected material from beneath
the baseboard in the front room because liquid spilled in the
floor would typically run under a baseboard and because the
flooring beneath the baseboard was free of foot traffic
occurring during and after the firefight. Also, he found a
"V" pattern on the baseboard, which to him was
"like a red flag waving at you, " indicating an
accelerated fire. Mr. Cooper presented a number of pictures
and slides of the fire scene. He opined, "[T]his was a
deliberately set fire, arson. Somebody went into the house,
and their design, their intent, was to spread the fire from
the front room to the back where the victim was."
Defense counsel engaged Mr. Cooper in a rigorous
cross-examination, during which the witness testified that
the kitchen floor contained "[q]uite a bit of water,
" that a portion of the liquid on the bedspread was
water, and that he relied upon Detective Miller's report
of his interviews of the firefighters and did not interview
them personally other than to talk with Otis Jenkins. Mr.
Cooper did not see the house before the booster-hose
cleansing and did not see the front-room furniture in its
pre-fire position. He insisted, however, that the flooring in
the front room evinced a "pour pattern, "
indicating that a liquid accelerant had been poured in the
floor. He admitted that polyester from furniture could melt
onto the floor and simulate a pour pattern but maintained
that he could distinguish a pour pattern from a polyester
meltdown. He admitted that one photograph showed that the
latch bar was dark, as if it was coated in carbon, which
might indicate that the bar was not inserted into the latch
housing during the fire.
For purposes of this opinion, we supplement our prior summary
of Cooper's testimony with the following relevant facts.
During cross examination, trial counsel asked Cooper to
describe "flashover." Cooper explained that flashover
occurs when "everything in [a] room reaches its
combustible ignition." As a fire in a room grows,
superheated gases rise until they become trapped by the
ceiling and begin to bank down towards the floor. Eventually,
the "whole room will be in fire, from the ceiling down
to the floor. That is a flashover." Cooper acknowledged
that the living room in this case appeared to have been fully
involved in fire. Cooper also acknowledged that flashover can
occur with or without the use of an accelerant and that the
radiant heat caused by flashover can create burn patterns on
the floor because the heat ignites the floor.
Trial counsel asked Cooper whether he could distinguish burn
patterns on a floor caused by radiant heat from those created
after pouring and igniting an accelerant on the floor. Cooper
[R]adiant heat normally, normally, will burn, coming from the
ceiling down, uniformly, even. A pour pattern will be
irregular and into the floor[, ] into the wooden material.
But the radiant heat can, also, indicate a pour pattern if
the air movement changes. As an investigator you have to
realize that. And that's why you have to be careful not
to jump the gun. I am satisfied in front of that door, inside
the front door, is radiant heat. I am satisfied in the center
of the living room, near that window, there is a pour
Trial counsel asked Cooper on what scientific basis he formed
his opinion that a pour pattern existed on the living room
floor. Cooper replied that he used his experience and
training in determining the presence of a pour pattern.
I have set fires . . . pouring things. I have spilt [sic]
things, to see the difference in an accidental spill and a
deliberate pour. I have talked to other investigators, where
they call radiant heat arson. They call it a pour pattern.
Through my training, I can make that distinction from pour
pattern versus radiant heat. Now radiant heat can be
irregular. It all depends on what is going on inside the
interior of that building at the time.
asked about the possibility of error in his analysis, Cooper
I don't know. I mean, all I can testify to is, I've
done pours. I've done accidental spills. I have been on
another fire fatality where another investigator called
radiant heat a pour pattern, and I actually said, it is
radiant heat. Just through my training and experience.
. . . [I]f I'm proven wrong I will admit I am wrong. But
on this one, no sir. I was there. I saw it with my eyes. And,
I know the difference in radiant heat and a pour pattern,
counsel then asked Cooper whether he performed his fire
investigations using the scientific method, which trial
counsel defined as "defining a problem, collecting
relevant data, and then analyzing that data and applying it
to the problem." Cooper replied that he did so in this