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Adams v. State

Court of Criminal Appeals of Tennessee, Nashville

December 20, 2019

TOMMY DALE ADAMS
v.
STATE OF TENNESSEE

          Assigned on Briefs May 7, 2019

          Appeal from the Criminal Court for Wilson County No. 09-CR-681 Don R. Ash, Senior Judge.

         The Petitioner, Tommy Dale Adams, appeals from the denial of his petition for post-conviction relief, wherein he challenged his jury convictions for first-degree felony murder, second-degree murder, and especially aggravated robbery. On appeal, the Petitioner alleges the following grounds of ineffective assistance of trial counsel: (1) failure to present a cohesive defense theory, investigate, interview the Petitioner and witnesses, and explain the sufficiency of the evidence; (2) failure to object to the trial court's ex parte communication with the jury during deliberations; and (3) failure to advise the Petitioner of his right to testify. He also alleges ineffective assistance of appellate counsel and cumulative error stemming from trial counsel's alleged deficiencies. After a thorough review of the record, we affirm the judgment of the post-conviction court.

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

          Kara L. Everett, Carthage, Tennessee, for the Appellant, Tommy Dale Adams.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Tommy Thompson, District Attorney General; and Jason L. Lawson, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall and James Curwood Witt Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE.

         FACTUAL BACKGROUND [1]

         The October 2009 term of the Wilson County Grand Jury charged the Petitioner with first-degree felony murder, second-degree murder, and especially aggravated robbery. See Tenn. Code Ann. §§ 39-13-202(a)(2), -13-210, -13-403. Following a jury trial, the Petitioner was convicted as charged. See State v. Tommy Dell Adams, No. M2013-01080-CCA-R3-CD, 2014 WL 3565987, at *1-2 (Tenn. Crim. App. Jul. 21, 2014), perm. app. denied (Tenn. Dec. 17, 2014). After the direct appeal, the trial court amended the judgments for counts one and two-felony murder and second-degree murders-to reflect the merger of the two counts, nunc pro tunc to the initial date of sentencing. The Petitioner was sentenced to life for felony murder and a concurrent twenty years for especially aggravated robbery. Id. at *2.

         At the trial, Eddie Good testified that on October 3, 2009, Mr. Good hosted a bonfire with the victim, who was visiting Mr. Good for the weekend, and some other friends when the Petitioner, Derrick Blair, Chris Estes, and Chris Cozart arrived uninvited. Adams, 2014 WL 3565987, at *2. Mr. Good had been expecting Mr. Blair to stop by and pick up money Mr. Good owed him, but he did not expect Mr. Blair to be accompanied. Id. The victim had "passed out" inside the house in a chair in the "pool room, "[2] and after some time, Mr. Good asked everyone to leave. Id. Mr. Good acknowledged that he had a "good buzz" from drinking alcohol, smoking marijuana, and consuming a hydrocodone pill. Id. The group of men with Mr. Blair crashed their truck on the way out of Mr. Good's property and borrowed Mr. Good's truck to tow their truck. When that failed, Mr. Cozart and Mr. Estes left in Mr. Good's truck to retrieve a larger truck. Id. The Petitioner and Mr. Blair remained. Id. The men did not return Mr. Good's truck, and although Mr. Good did not recall having argued with them, he remembered "coming to" and sitting by the bonfire with his gun beside him. Id., at *3.

         Mr. Good saw a truck come up the driveway, and three people exited and walked toward the house. Adams, 2014 WL 3565987, at *3. One person looked through a window; another looked through the kitchen window from the porch; and a third person looked through the porch door. Id. Mr. Good yelled at the people and fired two rounds in the air. Id. The "smallest of the three" people fired back at him. Id. He opined that the gun fired in his direction sounded like a .22-caliber gun because it "didn't sound that loud." Id. Mr. Good entered the house and fell asleep in his bedroom, and when he awoke, he discovered the victim's body in the pool room. Id. Mr. Good called his mother, who called the police, and Mr. Good waited on the porch for the police to arrive. Id. Mr. Good's truck was found one week later in a creek bed. Id. Mr. Good had "a scuff mark" on his face "where it appeared that someone had hit him with something," but he did not remember being in a fight. Id.

         Jody Hayes, one of the bonfire guests, testified that around 9:00 p.m., the Petitioner and his group arrived and went inside the house, that Mr. Good did not appear to be "overly intoxicated," and that at some point, Mr. Good asked everyone to leave. Adams, 2014 WL 3565987, at *4. She stated that the four men returned when their truck became stuck, that she refused to let the men use her truck, and that Mr. Good gave them the keys to his truck. Id. Ms. Hayes saw the victim asleep in a chair in the house and "wiggled" him twice throughout the evening in an attempt to rouse him, but he did not stir. Id. Mr. Good allowed two of the men to drive his truck offsite, and Ms. Hayes left the property around midnight. Id. Mr. Good called Ms. Hayes the following afternoon and did not mention that the victim had been killed. Id. at *5

         Chris Cozart testified that after spending time with Mr. Blair, Mr. Estes, and the Petitioner in the afternoon, they went to Mr. Good's house because Mr. Blair needed to collect money from him. Adams, 2014 WL 3565987, at *5. The men saw that Mr. Good was having a party, drove up to the house, and entered. Id. Mr. Cozart recalled seeing the victim playing pool inside. Id. After about one hour, Mr. Good asked everyone to leave. Id. When Mr. Cozart left the house, the victim was awake, alert, and seated in a chair in the corner of the pool room. Id.

         Mr. Cozart testified that Mr. Estes drove his truck into some trees, and after they were unable to tow the truck with Mr. Good's truck, Mr. Cozart and Mr. Estes drove to the Petitioner's house to retrieve Mr. Cozart's truck. Adams, 2014 WL 3565987, at *5. Mr. Estes wrecked Mr. Good's truck, and Mr. Cozart was "not in good shape" after the accident. Id. The two men walked the rest of the way to the Petitioner's house, and although Mr. Cozart's memory of events was not clear after that, he remembered riding with Mr. Estes back to Mr. Good's house, retrieving Mr. Estes's truck, and returning to the Petitioner's house. Id. at *6. Mr. Cozart fell asleep on the Petitioner's couch. Id. When he awoke, the other three men were asleep near him, and Mr. Cozart asked Mr. Estes for the keys to Mr. Cozart's truck. Id. Mr. Estes told him the truck was "messed up," and the truck had "fresh dents, blue paint on the bumper, and a blown-out tire." Id.

         Mr. Blair testified that he pled guilty to the second-degree murder and aggravated robbery of the victim. Adams, 2014 WL 3565987, at *6. His version of events was similar to that of Mr. Cozart. Id. Mr. Blair drank beer, smoked marijuana, and took Xanax at the Petitioner's house. Id. After Mr. Estes had wrecked his truck, Mr. Good approached Mr. Blair and the Petitioner "and began screaming that Mr. Estes had stolen Mr. Good's truck." Id. Mr. Good threatened to kill them, and Mr. Blair and the Petitioner ran to the roadway, where they encountered Mr. Estes and Mr. Cozart in Mr. Cozart's truck. Id. The four men returned to Mr. Good's house to retrieve Mr. Estes's truck, and then they went to the Petitioner's house and continued to drink alcohol and smoke marijuana. Id. Later, the Petitioner stated that he wanted to return to Mr. Good's house and "kick his a--" for threatening them, and the group, minus Mr. Cozart who was asleep, drove to Mr. Good's house in the Petitioner's car. Id. The Petitioner brought a .410-caliber shotgun and a .22-caliber pistol. Id. The Petitioner carried the shotgun, and Mr. Estes carried the pistol. Id. The Petitioner fired a shot into the air and reloaded the shotgun while he ran toward the back door of the house. Id. The Petitioner ran into the house; Mr. Blair went to the back window; and Mr. Estes shot through the back door of the house twice. Id. Mr. Estes handed the pistol to Mr. Blair, who shot through the window four times. Id. The Petitioner ran into the pool room, turned to the right, and fired a shot. Id. Mr. Blair saw the victim leaning over the pool table with blood on him. Id. The Petitioner went out the back door of the house, opened the screen door, and "stuck the gun in there and shot again." Id. at *7 Mr. Blair stated that the additional shot hit the victim. Id. Mr. Blair went inside and saw the victim lying on the floor. Id.

         Mr. Blair took the victim's wallet from his back pocket, thereby ripping the victim's pants. Adams, 2014 WL 3565987, at *7. The three men looked for Mr. Good inside the house but did not find him. Id. Mr. Blair gave the victim's wallet to the Petitioner and Mr. Estes when they reentered the Petitioner's car. Id. The men went back to the Petitioner's house, where the victim's wallet was thrown into a fire. Id. Mr. Blair did not know what happened to the money in the wallet. Id. The men continued drinking alcohol, smoking marijuana, and "snort[ing]" Xanax pills. Id. At some point after the shooting, the three men pulled Mr. Good's truck off an embankment and to a creek behind the Petitioner's house. Id.

         The three men again returned to Mr. Good's house in Mr. Cozart's truck because the Petitioner said they needed to find Mr. Good. Adams, 2014 WL 3565987, at *7. Mr. Blair had the pistol in his waistband, and the shotgun was inside the Petitioner's car. Id. As they approached the house, someone yelled at them and began shooting at them. Id. Mr. Blair fired the pistol at the person; the men left; and Mr. Estes drove them to the Petitioner's house, where Mr. Blair fell asleep. Id. Mr. Cozart's truck had a flat tire from the shooting. Id. In spite of Mr. Estes's admonition not to tell anyone what had happened, Mr. Blair spoke to the police early the next morning and on subsequent multiple occasions. Id. Mr. Blair stated that although he gave multiple inconsistent statements, he was truthful the last time he spoke to the police, and he was certain the Petitioner shot the victim. Id. Mr. Blair noted that on an occasion before the shooting, he stole the Petitioner's .22-caliber pistol and sold it to an individual from whom the Petitioner eventually bought it back. Id.

         Mr. Estes testified that he had been charged with the first-degree felony murder, second-degree murder, and especially aggravated robbery of the victim. Adams, 2014 WL 3565987, at *7. He had no agreement with the State in exchange for his testimony. Id. at *8. Mr. Estes's testimony regarding the sequence of events was similar to that of Mr. Blair and Mr. Cozart. Id. Mr. Estes stated that when the four men first entered Mr. Good's house, he saw the victim asleep in a chair in the pool room. Id. Mr. Estes acknowledged that he wrecked his own truck and later, Mr. Good's truck. Id. Both Mr. Estes and Mr. Cozart were injured in the accident involving Mr. Good's truck. Id. As Mr. Estes and Mr. Cozart drove back to Mr. Good's house in Mr. Cozart's truck, the Petitioner and Mr. Blair ran onto the road outside Mr. Good's driveway and told Mr. Estes that they had to leave because Mr. Good had "threatened him because Mr. Estes had not brought Mr. Good's truck back." Id. After the men retrieved Mr. Estes's truck, they returned to the Petitioner's house, Mr. Cozart passed out inside, and after an interval in which Mr. Estes fell asleep, Mr. Blair woke him up. Id. Mr. Estes was intoxicated "to the passing out point" and followed Mr. Blair and the Petitioner to the Petitioner's car. Id. The Petitioner was carrying "stuff in his hands," and Mr. Estes saw a sawed-off .410 shotgun and a "pistol, revolver" in the car, both of which he knew belonged to the Petitioner. Id. The shotgun was in the front seat, and Mr. Blair had the pistol in the backseat. Id. at *9. Mr. Blair told Mr. Estes that they were going back to Mr. Good's house to "rob them." Id.

         When they arrived, the Petitioner ran to the door near the pool room, and Mr. Blair ran to the pool room window. Adams, 2014 WL 3565987, at *9. The Petitioner ran in the door, shot the shotgun toward the chair where the victim had been sitting previously, and ran back out. Id. Mr. Estes heard the victim moaning in pain. Id. The Petitioner and Mr. Blair spoke, but Mr. Estes did not hear what they said. Id. Mr. Estes saw a "shadow like someone getting up" in the pool room, and Mr. Blair fired the pistol through the window four times. Id. Mr. Estes saw the victim walk slowly to the door, turn, and slide down the door. Id. The Petitioner "opened the door and put the gun in there and leaned back out and pulled the trigger and shot." Id. Mr. Blair and the Petitioner ran back in the house, and Mr. Blair leaned over the victim. Id. Mr. Estes did not enter the house to see what was in the pool room. Id.

         The three men got into the Petitioner's car, and the Petitioner and Mr. Blair ran back into the house a second time, citing the need to find Mr. Good. Adams, 2014 WL 3565987, at *9. They returned; the Petitioner placed the shotgun between the front seats; and Mr. Blair passed the Petitioner a wallet. Id. The Petitioner threatened to kill Mr. Estes and Mr. Blair if they "told on him." Id. at *10. Once they were at the Petitioner's house, the Petitioner and Mr. Blair discussed building a fire, but Mr. Estes did not see a fire. Id. After sitting on the couch for about fifteen minutes, the Petitioner said that they needed to retrieve Mr. Good's truck "because of what had happened" and noted that Mr. Estes's fingerprints would be in the truck. Id. The Petitioner stated that if Mr. Estes "didn't want to go to jail [they] needed to get rid of the truck." Id. Mr. Blair and Mr. Estes towed Mr. Good's truck to a creek behind the Petitioner's house and pushed it in. Id.

         After they had returned to the Petitioner's house, the Petitioner walked out the back door with the shotgun and pistol and said they needed to find Mr. Good. Adams, 2014 WL 3565987, at *10. Mr. Estes drove the three men back to Mr. Good's house in Mr. Cozart's truck. Id. Mr. Estes pulled around behind the house, and as he turned the truck around, he "ran over a TV that was laying in [the] yard and the tire started going flat." Id. Mr. Blair and the Petitioner ran toward the house, and Mr. Estes heard someone yell at them to leave. Id. Mr. Estes heard two "sharp loud rifle shots" from Mr. Good at the bonfire, and "three sharp pistol sounds and a .410 blast" from the Petitioner and Mr. Blair. Id. The three men hurriedly left and returned to the Petitioner's house around 4:30 a.m. Id. Mr. Estes fell asleep on the couch for about one hour before Mr. Cozart awakened him by asking for his truck keys. Id. Mr. Estes informed Mr. Cozart of the flat tire and told Mr. Cozart that Mr. Cozart "was drunk and got up in the middle of the night and drove around . . . then he c[a]me back." Id. at *11.

         Mr. Estes gave three police statements beginning on the evening of October 4, 2009, in which he gave increasing amounts of information about the evening's events. Adams, 2014 WL 3565987, at *11. The last statement included "everything that happened." Id. He told the police that his fingerprints would be on the pistol's barrel because he handed the gun from Mr. Blair to the Petitioner in the Petitioner's car but that he did not possess the pistol at Mr. Good's house. Id.

         Wilson County Sheriff's Deputy Scott Filson testified that he responded to Mr. Good's house the morning of October 4, 2009, and spoke to Mr. Good on his front porch. Adams, 2014 WL 3565987, at *11. Mr. Good indicated that the victim, who was deceased, was inside the house. Id. Deputy Filson noted that the victim's body was in the pool room. Id.

         Detective Jeff Johnson collected the following physical evidence from the scene: "spent .410 shotgun shells outside the pool room door; wadding from .410 shotgun shells in the backyard and inside the pool room . . . and three spent .22-caliber shell casings near the fire pit[, ]" a small piece of cotton type material, and Mr. Good's .22-caliber rifle. Adams, 2014 WL 3565987, at *11-12. He also photographed the victim's body and ripped rear pants pocket, as well as the crime scene generally. Id. at *12. He sent the physical items to be tested by the Tennessee Bureau of Investigation (TBI) laboratory. Id.

         TBI Special Agent Chet Mason testified that he responded to Mr. Good's house, spoke with Mr. Good, and determined that Mr. Blair was a potential suspect. Adams, 2014 WL 3565987, at *12. When Special Agent Mason interviewed Mr. Blair the following day, Mr. Blair showed him a pair of blue jeans with blood on them, confessed to "being a party to the victim's murder," and implicated the Petitioner and Mr. Estes. Id. Special Agent Mason obtained a search warrant for the Petitioner's house, which was executed on October 5 when the Petitioner was not at home. Id. A spent .410 shotgun shell was found near the front sidewalk, two pieces of shotgun wadding were found in the front yard, and two unfired .410 shells were found underneath the couch. Id. The Petitioner was found at another location, and he and his car were taken to his house. Id. On October 7, Special Agent Mason returned to search the fire pit at the Petitioner's house, and the Petitioner signed a "TBI waiver of constitutional rights to a search warrant." Id. Special Agent Mason recovered burned pieces of the victim's voter registration card and insurance card, four .410 shotgun shell brass caps, four .22-caliber shell casings, and three shotgun pellets. Id.

         The Petitioner gave a statement to Special Agent Mason in which he generally recounted the evening's events but omitted any mention of shooting the victim or shooting into the house. Adams, 2014 WL 3565987, at *13. The Petitioner included that three weeks previously, his .410 sawed-off shotgun and .22 caliber pistol, a box of bullets for each firearm, and two ounces of marijuana were stolen from his house. Id. He had no explanation for the victim's insurance card being in his fire pit. Id. at *14. He averred that the last time he had used the fire pit was two or three weeks previously and that he had burned shell casings in the past. Id.

         Special Agent Mason collected the victim's clothing and a blood sample from the medical examiner and took them to the TBI crime laboratory. Adams, 2014 WL 3565987, at *14. Special Agent Mason later took multiple statements from Mr. Estes and Mr. Blair, and he noted that both men's final statements were "consistent with the other facts and evidence." Id. Special Agent Mason reviewed phone records from Mr. Good and Mr. Blair and noted a phone call from Mr. Good to Mr. Blair at 12:18 a.m. on October 4, 2009, which lasted about two seconds. Id.

         Lieutenant Ricky Knight participated in the search of the Petitioner's house and was present when Mr. Estes and Mr. Blair were initially interviewed. Adams, 2014 WL 3565987, at *14. Lieutenant Knight knew Mr. Blair from previous dealings. Id. Lieutenant Knight stated that Mr. Blair directed them to his blood-stained clothing and that Mr. Blair gave a statement to Special Agent Mason. Id. Lieutenant Knight noted that generally, initial statements were not the most complete and that "they don't tell you everything[.]" Id.

         Dr. John Brently Davis of Forensic Medical Management Services performed the victim's autopsy and concluded that the cause of death was multiple shotgun wounds to the head and that the manner of death was homicide. Adams, 2014 WL 3565987, at *16. Dr. Davis noted that there were two wounds-one on the left side of the head at the ear, and the other one below that and behind the ear. Id. The victim's left arm and chest and right hand were also injured by shotgun pellets. Id. The wound to the left ear was a "contact wound" that had been inflicted by a gun pressed to the victim's head, causing massive damage to the skull, brain, and right eye. Id.

         TBI Special Agent Shelly Betts testified regarding collecting the crime scene evidence. Adams, 2014 WL 3565987, at *16. She noted that there was a seven-inch shot pellet pattern on the screen door to the pool room and on the back wall of the pool room, as well as four bullet holes on the screen window and in the wall across from the window. Id. The bullet holes on the screen contained vaporous lead residue, indicating that the firearm had been discharged from less than thirty-six inches from the screen. Id. The bullets had "hit the wall sideways after striking an intermediate target." Id. A rocking chair in the corner of the pool room contained a fired shotgun shell wad and a small amount of blood. Id. The TBI collected samples of the blood stain, a tire impression, a portion of the wall showing the shot pattern and another with the bullet holes, cigarette butts, .22-caliber bullets from the wall opposite the window and the adjoining room, and "reference ammunition" from the house. Id. at *16-17. Agent Betts noted "shot patterns" in the victim's sweatshirt and t-shirt and concluded that "at a minimum, the victim experienced a close contact shotgun blast around his left shoulder area and that he had been shot once around the elbow." Id. The shotgun shell wadding from Mr. Good's backyard, the wadding from the pool room chair and the pool room floor, and the wadding and unfired shells recovered at the Petitioner's house were all consistent with a Winchester .410-caliber firearm. Id. Agent Betts testified that all of the shotgun shell casings from Mr. Good's backyard and "all but one" of the casings from the Petitioner's house were fired by the same gun. Id. Agent Betts stated that two .22-caliber firearms were involved in this case, one being a .22-caliber rifle recovered at the crime scene. Id.

         Former TBI Agent Lauralee Staples collected blood from the Petitioner's car's steering wheel, and she found the victim's driver's license in the backseat floorboard of the Petitioner's car. Adams, 2014 WL 3565987, at *17. Former TBI Agent Patrick Ihrie testified that he tested the blood sample from the Petitioner's car and concluded that it matched the victim's DNA. Id. at *18.

         At the close of the State's proof, the trial court questioned the Petitioner under oath regarding his right to testify. The Petitioner testified that he understood his right to testify or not testify, that he and trial counsel had discussed the advantages and disadvantages of both options, and that he did not want to testify.

         The defense attempted to call Dewy Raymond as a witness, and a jury-out offer of proof occurred, during which Mr. Raymond testified that Mr. Estes threatened to "kill me like he did Crow." The victim was also known by the nickname Crow. The trial court found that the statement was inadmissible hearsay and excluded his testimony.

         During jury deliberations, the jury submitted two questions to the trial court: (1) "Each count is [decided, i.e., ] 1st degree Felony Murder . . . Then 2nd Degree . . . Then Especially Aggravated Robbery. IF Guilty of Each count -- Then No Lesser Offenses are Included?"; and (2) "Under Elements of Felony First Degree Murder -- That the Defendant Took such property From the Person of Another by the use of violence or putting the Person in Fear. Does this mean that [the Defendant] had to be the person that did this Act?"

         Relative to the first question, the trial court read the question aloud to the parties and stated,

Of course, the answer is, that's correct. So I'm going to give you gentlemen an option. I can go back there and tell them that it's clearly in the instructions that if they reach a unanimous verdict on the indicted count, which is in there, then they don't consider any lesser, or if you prefer, I'll bring them out here and give them the answer. But I'm just going to tell them what the instruction is all over again.

         The prosecutor and trial counsel consented to the trial court's going to the jury room to deliver the instruction. Relative to the second question, the court read the question aloud and stated, "Of course, I think the correct answer is, under criminal responsibility, the answer is, no, that it had to be either [the Defendant] or someone [for whom] he was criminally responsible." The court asked trial counsel and the prosecutor if they agreed and if the court could go to the jury room to deliver the instruction. Both parties agreed.

         Upon this evidence, the Petitioner was convicted as charged and sentenced to an effective life sentence. The Petitioner timely appealed and was represented by trial counsel on appeal.

         This court affirmed the convictions on direct appeal, concluding that (1) a photograph of the victim's injuries was properly admitted; (2) the trial court properly excluded Dewy Raymond's testimony; and (3) the evidence was sufficient to support the Petitioner's convictions, specifically that the testimony of Mr. Blair and Mr. Estes was sufficiently corroborated by the physical evidence. Adams, 2014 WL 3565987, at *18-29. This court also noted that the State's theory at trial was one of criminal responsibility for both offenses. Id. at *25-29.

         Relative to Mr. Raymond's testimony, at trial, the Petitioner sought to impeach Mr. Estes with the threat he made to Mr. Raymond, which occurred while Mr. Estes was in jail. Adams, 2014 WL 3565987, at *20. Trial counsel argued that the testimony was a statement by an accomplice and, when questioned by the trial court, did not argue that the statement was not offered for its truth; Mr. Raymond's testimony was found to be inadmissible. Id. at *20-22. This court concluded that the statement would have been admissible as a prior inconsistent statement under Tennessee Rule of Evidence 613(b) if Mr. Estes had been confronted about the inconsistent statement during cross-examination and denied it or claimed not to remember it. Id. Because counsel did not pursue this line of questioning with Mr. Estes, a proper foundation had not been laid. Id. at *23-24.

         The Petitioner filed a July 29, 2015 pro se petition for post-conviction relief, which is not included in the appellate record. In a written order filed on August 10, 2016, the first post-conviction court summarily denied the Petitioner's petition as not having stated more than "bare allegations." This court reversed the order by written order dated December 6, 2016, and remanded the case for a hearing. Tommy Dell Adams v. State, No. M2016-01930-CCA-R3-PC (Tenn. Crim. App. Feb. 17, 2017) (order). Then-Presiding Judge Woodall authored a concurring opinion attached to the order, recommending that the post-conviction court recuse itself because it had already made findings of fact in its order dismissing the petition. Id. (Woodall, P.J., concurring). The first post-conviction court recused itself by written order dated February 10, 2017, and transferred the case to a trial judge in the 15th Judicial District. Our supreme court then issued an order on March 3, 2017, appointing the second post-conviction court (hereinafter "the post-conviction court") to hear the case. The post-conviction court appointed post-conviction counsel, who filed two amended petitions for post-conviction relief, and a hearing was conducted on December 4-5, 2017.

         At the post-conviction hearing, the Petitioner testified that in his opinion, trial counsel was not effective at the trial or appellate level. He stated that on October 5, 2009, TBI agents pulled him over while he was driving. The agents towed the Petitioner's car to his house and transported the Petitioner there. He spoke to TBI Special Agents Mason and Wayne Jackson after being informed of his rights and served with a search warrant. The Petitioner "informed them" of his activities the previous day, and he noted that the agents had searched his home prior to his arrival. The Petitioner did not know what was taken from his house other than his car, a 1995 Buick Regal. The Petitioner was not arrested until sometime later and was initially represented by the Public Defender's Office.

         Trial counsel was appointed to the Petitioner's case after his arraignment. Counsel came to see the Petitioner, the Petitioner gave counsel "[his] statement on what [he] did" on the night in question, and counsel "disclosed some of the discovery" to the Petitioner.

          In particular, counsel showed the Petitioner statements from Mr. Blair and Mr. Estes and "a few other subpoenas as far as phone records[.]" The Petitioner noted, though, that some pages were missing from Mr. Blair's statement and in other parts of the discovery packet.

         Relative to the defense theory, the Petitioner agreed that he and counsel developed the theory together. The Petitioner stated that his theory was as follows: "About two weeks prior to this, I had somebody break in my house. They stole some guns and some dope, and . . . I didn't know at the time who it was . . . but I had to end up buying a gun back from Mr. Blair's ex-girlfriend's aunt." The Petitioner agreed that part of the defense theory was to attack the "elements of criminal responsibility" for the actions of Mr. Blair and Mr. Estes by establishing that the Petitioner was not present with Mr. Blair and Mr. Estes the entire evening, that "little to no forensic evidence" tied him to the crime, and that inconsistencies existed in his co-defendants' statements. The Petitioner noted that Mr. Estes "even admitted to driving my car that night" and that neither Mr. Estes nor Mr. Blair implicated the Petitioner in their initial police statements.

         The Petitioner testified that trial counsel did not attack Mr. Estes's credibility at the trial or impeach his testimony. The Petitioner opined that this was a substantial issue in the defense of the case because Mr. Estes's "testimony [didn't] even match the evidence that was found at the crime scene."

         The Petitioner testified that the forensic evidence consisted of the victim's blood on his steering wheel and the victim's driver's license in the "side of the passenger side" of his car. The Petitioner testified that his fingerprints were not recovered on the shell casings or inside Mr. Good's house and that other than the blood in the Petitioner's car, no forensic evidence tied him to the case other than his co-defendants' statements and "burnt material found in the fire pit of [his] residence." He agreed that "plenty of people" had access to his house and that this fact was "brought out" at trial. The Petitioner also agreed that "plenty of people" had access to his car and that the trial testimony reflected that other people had been seen driving the Petitioner's car. The Petitioner stated that Mr. Estes made a prior statement in which he said he had driven the Petitioner's car, that trial counsel did not bring up the prior statement during Mr. Estes's cross-examination, and that it would have been important to do so because "inconsistencies add up[.]"

         The Petitioner testified that in Mr. Blair's initial police interview, he blamed Mr. Good for the killing. The Petitioner stated that Mr. Good had "lacerations" on his face and that Mr. Good testified that he woke up with a rifle beside him and that he did not remember retrieving the rifle. The Petitioner further stated that photographs were taken of Mr. Good's face and that the photographs were not introduced at the trial because none of the detectives or TBI agents would admit to having taken the photographs. The Petitioner testified that Mr. Good was not asked to identify himself in the photographs. The Petitioner stated that the photographs showed blood on Mr. Good's clothing and that "something happened to him." The Petitioner noted that one of the State's discovery documents showed that Mr. Good's clothing was collected but that at the trial, Special Agent Mason testified that Mr. Good's clothing was not collected or tested. The Petitioner stated that trial counsel impeached Special Agent Mason's testimony to "show the inconsistencies" in his statements. In the Petitioner's opinion, the introduction of the photographs would have led the jury to form reasonable doubt as to his guilt.

         The Petitioner testified that to his knowledge, trial counsel did not "direct an investigation into the co-defendants" or into the physical evidence and that counsel's investigation "was the reports that the State provided" to them. The Petitioner stated that counsel and his investigator interviewed the Petitioner and that counsel visited the Petitioner once every three months prior to the trial. The Petitioner wrote to counsel several times requesting the missing discovery pages and for counsel to file a motion to suppress the "chain of custody on the vehicle." The Petitioner agreed that without the forensic evidence from the car, the only evidence against him would have been his co-defendants' statements, which were inconsistent, and that it would have led to a different jury verdict. The Petitioner did not believe counsel or his investigators interviewed "investigators and potential witnesses" because at the trial, counsel asked one or two witnesses if he had ever spoken to them and they responded negatively. The Petitioner opined that counsel did not effectively cross-examine the witnesses, especially his co-defendants.

         The Petitioner testified that Dewy Raymond was the victim's nephew, that Mr. Raymond was incarcerated with the Petitioner and his co-defendants, and that while in jail, Mr. Estes admitted to Mr. Raymond that he shot the victim. The Petitioner stated that this was contrary to Mr. Estes's trial testimony and prior statements, that Mr. Raymond's testimony would have been beneficial to the Petitioner, and that Mr. Raymond's testimony was excluded at trial on the basis of hearsay. Mr. Raymond was called as a witness during an offer of proof, the State objected, and the trial court excluded the testimony. The Petitioner noted that on appeal, this court concluded that counsel had not laid a proper foundation for the introduction of the testimony and as a result, "they could not rule on" the issue.[3] The Petitioner opined that this testimony would have led to a different jury verdict. The Petitioner opined that trial counsel was ineffective in presenting the defense theory that the Petitioner was not present during the shooting.

         The Petitioner testified that it was important for him to review the full discovery packet because "nobody [knew] except for [the Petitioner], and [he was] locked down all the time, so [he could] review everything and report back to [trial counsel]." The Petitioner stated that he listened "[b]riefly" to audio recordings of statements made to the TBI and that he did not get to listen to Mr. Estes's audio recording. The Petitioner said, though, that he listened to a twenty-minute excerpt of Mr. Blair's interview, which was two hours long. The Petitioner agreed that there was missing audio from Mr. Blair, who had given contradictory statements. Counsel did not "address with [the Petitioner]" how he was going to handle the missing audio at the trial. When asked how counsel explained the evidence to the Petitioner, the Petitioner stated, "He just kept asking me, what's the defense? How can I raise this as far as you not being there?" The Petitioner "show[ed counsel] in different testimony or different statements and different paperwork that at first [he was] not there but then all of a sudden [he was] there." Counsel told the Petitioner that the State had to prove the essential elements of the offenses and criminal responsibility beyond a reasonable doubt in order to convict him. Relative to jury instructions, the Petitioner stated that he and counsel reviewed them during the lunch break on the second day of trial. The Petitioner was concerned about the instruction on "admissions," which stated that the Petitioner's "statement that [he] made [was] acknowledgment of guilt and . . . that [he was] guilty of the crime" without qualifying the nature of the Petitioner's statement. Although the Petitioner did not raise his concern with counsel, he felt counsel should have reviewed the jury instructions and raised the issue at the motion for a new trial or on direct appeal.

         Upon reviewing the trial transcript, the Petitioner learned that during deliberations, the jury had sent two questions to the trial court. The Petitioner was not brought out or informed that the jury had asked questions. The jury was not brought into the courtroom, and "the judge pulled the [prosecutor] and [trial counsel] into the courtroom and instructed them on the question that the jury had." The Petitioner recalled that the first question dealt with criminal responsibility, which was the "crux" of the case. The second question was whether "they [could] find [the Petitioner] guilty on first-degree and second-degree murder," a lesser-included offense. The trial court presented the prosecutor and counsel with two options-the court could speak with the jury in the jury room, or the court could call the jury into the courtroom and instruct them there. The prosecutor and counsel agreed for the court to speak with the jury in the jury room. The Petitioner agreed that counsel did not object and did not "preserve[] a record" of the questions, the answers given by the court, and whether the instructions were "in conformity with Tennessee Pattern [Jury] Instructions[.]" The Petitioner stated that he did not know whether mistakes were made in giving those instructions and that counsel "fell below standard in his representation . . . by not preserving those rights and that record." The Petitioner agreed that if there were a mistake in the jury instructions, it would have been "an issue for appeal[.]"

         The Petitioner testified that although a subpoena had been issued for the telephone records of Mr. Good and Mr. Cozart, the records were never retrieved, and trial counsel did not attempt to obtain the records. When asked why the records were important, the Petitioner stated, "If you look at the phone records that [were] provided to us, Mr. Estes admitted calling people that night. Mr. Blair admitted calling people that night. They made phone calls when the alleged crime took place that could have shown who they called[.]" The Petitioner further stated that Mr. Estes had two telephones, that the police had both telephone numbers, and that only one number had been preserved and the records requested. The text messages from the telephone were not provided in discovery.

         The Petitioner testified that he understood he had the right to testify and that counsel did not prepare him to testify. Counsel told the Petitioner that it would not be beneficial for him to testify and did not explain the benefits of testifying. Although counsel told the Petitioner "that regardless of his opinion" the Petitioner could choose to testify and the Petitioner expressed interest in testifying, because counsel did not prepare the Petitioner to testify, the Petitioner felt counsel "prevented" him from testifying. The trial court reviewed the Petitioner's right to testify with him at a hearing, [4] but the Petitioner stated that he relied on counsel's statements and chose not to testify. The Petitioner stated that if he had testified, he "could have brought up inconsistencies" regarding his statement to the TBI and that hearing a statement was "different than a statement being read from the TBI like a computer." The Petitioner further stated that he had a "story to tell," that he did not feel counsel properly advised him of the benefits and drawbacks of testifying, and that he followed counsel's lead when he signed a waiver of his right to testify.

         The Petitioner testified that he had a prior conviction for simple possession of marijuana and a "pretrial diversion on a theft" that could have been expunged. He stated that he could not have been impeached using his criminal record.

         The Petitioner testified that "a lot of alcohol and some drugs" were used the night of the killing, that intoxication was brought up in the trial testimony, and that "there was no impeachment on it." Counsel's examination regarding intoxication was limited to "asking how intoxicated [were] you, what did you consume that night, how many pills did you take, and how many drinks did you drink." Counsel asked Mr. Blair whether his alcohol or drug consumption could have affected his memory but did not ask Mr. Estes. The Petitioner felt counsel should have questioned Mr. Estes on the effect of his intoxication. The Petitioner stated that individually and cumulatively, he thought that the effect of counsel's errors amounted to ineffective assistance and that he was entitled to a new trial. The Petitioner denied having "hard feelings" against counsel or that his appeal was a personal attack.

         Trial counsel continued to represent the Petitioner on direct appeal. Counsel told the Petitioner that he was appealing "some of the issues that [were] on record for trial[, ]" including the exclusion of Mr. Raymond's testimony. The Petitioner stated that he raised the same issues to counsel that he raised in his post-conviction petition, and that he felt his concerns "fell on deaf ears[.]" In particular, the Petitioner wanted counsel to raise the issue of the trial court's communications with the jury and "issues regarding intoxication and impeachment based on the intoxication[.]" When asked whether the Petitioner asked counsel to raise the issue "with regards to the preservation of the record and the impeachment of Mr. Estes and . . . Mr. [Raymond] where he was not laying proper foundation," the Petitioner responded that he was not aware of "the impeachment process" at that time. The Petitioner agreed that he asked counsel to raise on appeal the prosecutors' statements during closing arguments and Special Agent Mason's remaining in the courtroom during a recess instead of being sequestered from other witnesses.

         On cross-examination, the Petitioner testified that trial counsel was appointed about two months after the Petitioner was indicted in 2009. The Petitioner agreed that counsel filed a bond motion and that a hearing was held about one week after counsel was appointed. The Petitioner agreed that counsel acted promptly in that regard. The Petitioner agreed that counsel visited him and discussed the case, including bringing a copy of the discovery packet "early on[.]" The Petitioner agreed that counsel later brought the "total discovery" including the telephone records and interview recording, but he denied that counsel provided those items prior to trial. The Petitioner stated that he reviewed the full discovery packet in 2015 and that prior to trial, he "received a few items, but the majority of it [he] had to appeal . . . . [He] had to send a letter to the Board of Professional Responsibility in order to receive the rest of my discovery." After that letter was sent, counsel provided his complete file to the Petitioner.

         The Petitioner agreed that although he may not have possessed the full discovery packet, counsel possessed it. The Petitioner also agreed that he received the missing page of Mr. Blair's written statement and "some of the items [he] asked for" before trial and that counsel was responsive to his request. The Petitioner further agreed that he reviewed those materials and made notes, which he copied and sent to counsel. The Petitioner identified a copy of pages from the discovery packet with his handwritten notes. The Petitioner stated that he and counsel briefly spoke about the issues he raised.

         The Petitioner testified that his December 6, 2011 trial was held about two years after trial counsel was appointed and that counsel visited him about eight times before trial, although he did not remember the exact number of visits. The Petitioner agreed that he and counsel spoke about whether the Petitioner would testify and that counsel's advice was that it would not help the Petitioner's case. The Petitioner stated, "[I]t is easier for somebody to explain [themselves] than it is a piece of paper . . . . [or] to hear somebody else reading a statement." The Petitioner identified his written statement. The Petitioner agreed that he would have testified regarding his statement, that his testimony would have had to confirm or be different from the statement, and that counsel advised him of the possibility of being cross-examined by the State. The Petitioner denied, though, that counsel explained "certain aspects of testifying, as far as getting on the stand and testifying." Moreover, the Petitioner agreed that counsel told him that if he made the same statements, it would not help him, but that if he made differing statements, it could be harmful.

         The Petitioner identified the portion of the trial transcript in which the trial court examined him regarding his right to testify. The Petitioner acknowledged that he answered affirmatively when the court explained his right to testify and asked whether the Petitioner had the opportunity to discuss with trial counsel the advantages and disadvantages of testifying and not testifying. The Petitioner further acknowledged that he did not tell the court he had not discussed it with counsel or only discussed it briefly. The Petitioner recognized that he told the court that he had decided not to testify and that it was his choice.

         Relative to his written statement, the Petitioner testified that the statement reflected his position that he was with his co-defendants earlier in the evening but not later, that the State entered the statement into evidence at the trial, and that the jury heard the statement. The Petitioner agreed that he understood he was "locked in on" the position he chose as his defense theory and that if he made a contradictory statement on the stand, "it wouldn't work[.]" The Petitioner agreed that the defense theory came from his written statement and that trial counsel was "going to have to argue what [the Petitioner had] already said[.]"

         Relative to the statements of Mr. Blair and Mr. Estes, the Petitioner stated that both men admitted they were present at the crime scene. The Petitioner stated, however, that their initial statements indicated that the Petitioner was not with them. The Petitioner further stated that Mr. Blair "actually admitted that it could have been Mr. Good." The Petitioner agreed that trial counsel talked to the jury pool during voir dire about "why people might make different statements" and that during his opening statement, counsel highlighted the fact that Mr. Blair and Mr. Estes "change[d] their statements every time they open[ed] their mouth[s.]" The Petitioner further agreed that the prosecutor asked Mr. Blair about his multiple statements and that counsel cross-examined Mr. Blair about the statements "on several pages of the transcript" such that the trial court "stopped the trial and gave an instruction to the jury about prior inconsistent statements in the middle of [Mr. Blair's] testimony[.]" The Petitioner agreed that Mr. Estes was questioned by the prosecutor and counsel regarding his multiple inconsistent statements, although the Petitioner noted that counsel "did not specifically say what the specifics of it was." The Petitioner acknowledged that two of the investigating officers were questioned about why suspects change their statements and that the State and counsel addressed the topic during closing arguments. Specifically, counsel argued that Mr. Blair and Mr. Estes were not credible ...


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