Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 7, 2019
from the Criminal Court for Wilson County No. 09-CR-681 Don
R. Ash, Senior Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
L. Everett, Carthage, Tennessee, for the Appellant, Tommy
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
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall and James Curwood Witt Jr., JJ.,
KELLY THOMAS, JR., JUDGE.
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.
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,
" 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.
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.
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
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.
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."
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.
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.
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
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?"
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.
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.
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
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
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.
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.
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.
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
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.
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
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."
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[.]"
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.
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
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. 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
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.
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[.]"
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.
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,
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
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
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.
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.
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 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.
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.
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.
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]
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 ...