Darius Jones v. State of Tennessee

Jackson, TN - Criminal defense attorney represented Darius Jones with second-degree murder, first-degree felony murder, especially aggravated kidnapping, reckless endangerment, and two counts of aggravated kidnapping charges.

I. Trial Proceedings

A Shelby County jury convicted the petitioner of second-degree murder, first-degree

felony murder, especially aggravated kidnapping, reckless endangerment, and two counts

of aggravated kidnapping. Tenn. Code Ann. §§ 39-13-103; -202(a)(2); -210(a)(1); -302(a);

304(a)(5); -305(a)(1). The trial court imposed a sentence of life plus forty-nine years,

eleven months, and twenty-nine days, and the petitioner appealed. Upon its review, this

05/27/2021- 2 -

Court affirmed the petitioner's convictions and summarized the facts of the petitioner's

crimes, as follows:1

The [petitioner's] convictions arose from the April 11, 2011 murder

of the victim, Cortessa Chambers, at her home in Memphis. The victim died

from a single gunshot wound to the head. At trial, the [petitioner] conceded

that he shot the victim but insisted that the killing was accidental and was the

result of a struggle between the victim, the [petitioner], and the victim's

mother, Berthine Chambers.2

At trial, Ms. Chambers testified that the victim was the eldest of her

four children and that on April 11, 2011, Ms. Chambers was living on Lagena

Street with her four children and four grandchildren. Two of the

grandchildren living with her were the victim's children, a girl, who was

twenty-two months old, and a boy, who was three years old at the time. She

additionally testified that the victim was dating the [petitioner] at the time,

that he was not the father of either of the victim's children, and that the

[petitioner] had been staying at the Lagena Street house for the past three or

four months. Ms. Chambers stated that the [petitioner] was also known by

the nicknames "Day-Day” and "Bear.”

. . . .

Andrea Nichols testified that she and the victim were childhood

friends. She testified that in April 2011, the victim had been dating the

[petitioner], whom she knew by the nickname "Bear.” When asked to

describe generally the relationship between the [petitioner] and the victim,

she stated that she could only judge the relationship based on what the victim

had told her, which was that "[the] [petitioner] was going to kill [the victim]

and that [they] had been fighting.” According to Ms. Nichols, the victim was

upset when she related this information to Ms. Nichols, and the victim had

been telling her about problems with the [petitioner] "during the whole

month of April.”

. . . .



1 The proof presented at trial and this Court's summary of the same was extensive. Thus, we have

only included the portions of our prior summary which are relevant to the issues on appeal.

2 All references to "Ms. Chambers” in this opinion refer to the victim's mother, Berthine Chambers.- 3 -

Ms. Chambers testified that on April 11, 2011, the victim had plans to

go to the store with Ms. Nichols. Sometime between 11:00 a.m. and noon,

the victim entered Ms. Chambers's bedroom and asked to borrow an ink pen.

The victim went back into her own bedroom and five to ten minutes later, reentered Ms. Chambers's bedroom with a note in her hand. According to Ms.

Chambers, the victim "was nervous, . . . and shaking and stuff,” and the

[petitioner] was standing in the doorway to the bedroom "demanding [the

victim] . . . give [Ms. Chambers] the letter” and cussing the victim. Ms.

Chambers "snatched the paper out of [the victim's] hand” and set it on the

dresser. During trial, the State entered the letter into evidence. The letter

read as follows:

To Whom This May Concern:

Everyone know it's nothing like understanding.

Me and [the victim] have argued, fought and

everything else since we been together. I have

told her everything about me, [a]ll my deepest

secret[s] and everything. When she gets high she

forget who I am and what I am capable of. I told

her several time[s] what this would lead to if she

did not honor my wishes. As for her family, they

all know her condition. I am very tired of every

one calling my bluff. I always say what I mean

and mean what I say[.] I have no other choice.

She took $100,000 from me and laughed[.]

Next, the victim said that she was going to the store and asked Ms.

Chambers whether she needed anything. Ms. Chambers heard Ms. Nichols

honk her horn outside the house, and the victim left.

Ms. Nichols testified that on April 11, 2011, she went to Ms.

Chambers's house to take the victim and the [petitioner] to the store and that

she drove a white Impala at the time. She testified that her cousin, Justin

Montgomery, was in the car with her. When she arrived at the house, she

exited her car and knocked on the front door. She testified that the

[petitioner] answered the door and said, "We straight.” When Ms. Nichols

asked where the victim was, the [petitioner] answered, "She straight. We

good.” Ms. Nichols testified that at that point, the victim walked out from the

back of the house, and the [petitioner] stepped outside the house.- 4 -

Ms. Nichols stated that she and the victim got into the Impala but that

the [petitioner] pulled the victim out of the car. She said that "[w]hen he

pulled her out of the car, the victim got away again and [the] [petitioner]

pointed the gun at the victim.” Ms. Nichols exited the car and tried to calm

the [petitioner] and the victim down. According to Ms. Nichols, the

[petitioner] "pointed the gun[,][a]nd when he pointed the gun, [she] got back

in the car, and click, click, [the gun] didn't go off.” Ms. Nichols returned to

her car and watched as the [petitioner] "dragg[ed] the victim in the house”

through the back door.

. . . .

Ms. Chambers testified that she heard the victim come back into the

house and that she was calling, "Mom, mom.” Ms. Chambers went into the

victim's bedroom to see what was going on. She saw that the [petitioner]

had the victim in the headlock and was holding a gun down by his leg. The

[petitioner] was cussing the victim, calling her "b***hes” and

"motherf**kers.”

Ms. Chambers testified that she stepped in between the victim and the

[petitioner] and that the [petitioner] released the victim from the headlock.

The victim got behind Ms. Chambers, and the [petitioner] said, "B***h you

think I won't kill you?” and "B***h give me my damn money.” The victim

raised her head up from behind Ms. Chambers's back, and the [petitioner]

said, "B***h you think I won't kill you 'bout my mother**king money?”

The victim responded, "Why?,” and then the [petitioner] shot the victim

"execution style, in her head.”

The [petitioner] then looked at Ms. Chambers, "recocked” his gun,

and pointed it at her. Ms. Chambers shoved the [petitioner] out of her way

and ran out of her house and across the street to a neighbor's house. Ms.

Chambers testified that neither she nor the victim ever touched the gun and

that her grandchildren were standing in the doorway of the victim's bedroom

when she was shot, that they saw what happened, and that they stayed in the

house when she ran across the street. Ms. Nichols testified that she saw Ms.

Chambers run out of the house saying, "Call the police. He killed my baby.

He killed my baby.”

. . . .- 5 -

Latasha Davidson testified that Cynthia Poole is her mother and

Felecia Swift is her aunt. She was living with her aunt, her mother, and her

grandmother on April 11, 2011.

. . . .

[After recounting her version of events which was similar to that of

Ms. Nichols], Ms. Davidson testified that she made the phone call to 911 and

that Ms. Chambers said, "Call--call 911. He shot my baby in the head. He

shot my baby in the head.” She said that while on the phone, the police asked

her what she saw, and she told them she saw "two kids standing in the door.

Like just . . . terrified, just standing in the door.” While Ms. Davidson was

on the phone with police, the [petitioner] came out of the house and said "I

told her, I told her, I told her, I told her. Man, I told her.” Then, the

[petitioner] said, "Better not be calling the police 'cause my folks the police.”

Upon hearing this, Ms. Davidson hung up the phone.

. . . .

Cynthia Poole testified that she was at home on the day of the shooting

and that she was in her room when her sister, Ms. Swift, "holler[ed]” for her.

She immediately went into her mother's room at the front of the house and

saw Ms. Chambers run across the street. She testified that Ms. Chambers

was "hysterical” and was saying, "He shot her. He shot my daughter. He

shot her.” At that point, Ms. Poole looked across the street and saw the

[petitioner], whom she knew by the nickname "Bear,” standing in the

doorway of the victim's house. She also saw a "little bitty boy” standing in

the doorway next to the [petitioner] and watched as the [petitioner] put a gun

"on top of the little boy's head” while the "little boy was covering his ears,

and . . . hollering.” Ms. Poole testified that the [petitioner] then "pushed the

little boy back” and shut the front door. Next, Ms. Poole saw the [petitioner]

come outside the house with a gun in his hand. He waved the gun around

and said, "I told her, I told her, I told her” before retreating back inside the

house. Ms. Poole estimated that at the time these events occurred, she was

about one hundred feet from the [petitioner] and stated that her view was

unobstructed.

. . . .

Sergeant Thomas McDaniel testified that he was one of the first

responders to the shooting on April 11, 2011. When he arrived at the victim's - 6 -

house, he heard screaming from across the street and went over to investigate.

He noticed a woman, later identified as Ms. Chambers, who was very upset

and told him that her daughter had been shot by her boyfriend. Sergeant

McDaniel then radioed the dispatcher that there was a person in the house

with some children and that a woman had been shot. Sergeant McDaniel

looked back across the street towards the house and saw a man open the door,

look out, and then the man turned back around and closed the door. He

testified that the police set up a perimeter around the house to ensure the

safety of all involved and also to prevent escape. The Tactical Apprehension

Containment Team (TACT) arrived on the scene, and the [petitioner] was

eventually apprehended.

. . . .

Officer Davin Clemons testified that he was employed by the

Memphis Police Department as part of the TACT unit and also that the

[petitioner] was his first cousin. On April 11, 2011, Officer Clemons was at

school when he received several phone calls back to back from his

grandmother, the [petitioner], and his supervisor. He testified that his

grandmother was "hysterical” and "nervous” and was "yelling” and

"screaming,” saying that the [petitioner] had shot his girlfriend. His

grandmother also told Officer Clemons that the [petitioner] told her "that he

blew that b***h [sic] brains out.”

The [petitioner] called Officer Clemons and asked him to "come over

[to the house] and get [the] [petitioner] out of the house,” saying that he

would not come out unless Officer Clemons was there and that he had

"twenty minutes, to get over there . . . or he was going to hurt himself or . . .

those kids.” Officer Clemons went straight to the scene, arriving within

twenty minutes, and stayed on the phone with the [petitioner]. He testified

that he did not enter the house immediately upon arrival as per his

supervisor's instructions. Officer Clemons said that the [petitioner] was

afraid the police were going to shoot him if and when he came out of the

house. Officer Clemons testified that the [petitioner] "didn't sound like

[himself] on the phone.” Officer Clemons told the other officers at the scene

that he had "never known [the] [petitioner] to act this way.”

. . . .

Dr. Karen Chancellor, the Chief Medical Examiner for Shelby

County, testified that the victim's cause of death was a single gunshot wound - 7 -

to the head, which would have been rapidly, if not immediately, fatal. In Dr.

Chancellor's opinion, the gunshot was a contact wound, meaning that the

barrel of the gun was touching the skin when it was fired. She made this

determination based on "sooty residues” that were present on the edge of the

wound, as well as inside the scalp tissue and on the outside of the skull where

the bullet entered the brain. Dr. Chancellor testified that the presence of soot

residue in these areas only occurs when there is a contact wound. On crossexamination, Dr. Chancellor agreed that there were no indications that the

victim had lacerations on her head and also stated that when a person is struck

by a blunt object, like a gun, the skin will break. She testified that the gunshot

wound was the only head injury indicated on the autopsy report. On re-direct

examination, Dr. Chancellor testified that blunt objects do not always leave

lacerations but instead could produce a bruise or abrasion, or, if not much

force was used, might not produce an injury at all.

The [petitioner] testified that he had been dating the victim for about

one year before the "accident.” When they first began dating, the [petitioner]

was living in a duplex in Memphis, and the victim lived with him there for

"a while.” About four months before the shooting, the [petitioner] and the

victim moved into the house on Lagena Street. The [petitioner] owned a gun

before he met the victim, and he testified it was the same as that used to kill

the victim. He said that he bought the gun for "protection” and "safety.”

The [petitioner] testified that he and the victim had a place in their

bedroom where they "stashed” their cash, which he estimated was about

$1,000. On Friday, April 8, 2011, the [petitioner] removed the couple's cash

from its usual hiding place because the victim had spent some of the money

and he did not want her to take any more. The victim discovered that the

money had been moved and called the police. When the police arrived, the

victim told them that the [petitioner] had taken her money. The [petitioner]

denied slapping the victim after the police left and testified that everything

returned to normal between him and the victim by the next day.

The [petitioner] testified that on Sunday, April 10, 2011, he awoke to

find that the victim had taken the money from their stash. He called the

victim multiple times and also called Ms. Nichols, but neither answered. The

[petitioner] said that he was "upset” that the money was missing. According

to the [petitioner], the victim returned to the house around 6:00 p.m. that

evening. He asked the victim where she had been and where the money was,

and she replied that she had been with Ms. Nichols and that she had spent

some of the money on a tattoo. The victim also told the [petitioner] that she - 8 -

had allowed Ms. Nichols to "hold onto” the rest of the money. The

[petitioner] testified that he and the victim went "back and forth” about the

money, but the victim told him not to worry about it because she was going

to get the rest of the money back. The [petitioner] again called Ms. Nichols,

but she did not answer.

The [petitioner] testified that later that night everything had calmed

down. He denied taking the victim to any park and also denied choking her

"or anything like that.” . . .

On April 11, 2011, the [petitioner] and the victim had plans to go buy

a new phone, and Ms. Nichols was supposed to take them to the store to get

the phone. The [petitioner] testified that when he got up that morning, he

again asked the victim about how much money she had spent and how much

was left. The victim told the [petitioner] not to worry about it and that they

would get the money back. The victim then walked toward the back of the

house.

The [petitioner] walked back into their bedroom and heard the victim

outside on her phone. He told the victim to tell the person on the phone "that

[the] [petitioner] was tripping on her over the money.” When the victim

came back inside, she told the [petitioner] that Ms. Nichols was going to take

her somewhere and that Ms. Nichols would take both of them to the store

later. At this point, the [petitioner] testified that he "started getting

frustrated” and told the victim "that she was BS'ing” and that "if she'd just

give [him] the money, [they could] split it up and he would leave.”

According to the [petitioner], the victim told him that "if he was going to

leave, he would be gone already.” Frustrated, the [petitioner] threatened to

call the victim's parole officer and report that the victim was using cocaine

and pills.

The [petitioner] testified that he went into the kitchen and got some

paper to write a note. According to the [petitioner], he "didn't have no certain

meaning when [he] wrote it. . . . [He] was just frustrated, and . . . trying to

get [the victim] to take [him] serious, and . . . wanted her to think that [he]

was going to do something to [himself]” so that "she would stop acting like

she was acting.” The [petitioner] testified that the victim walked by and

grabbed the note, and the [petitioner] asked her to give it back. The victim

took the note into Ms. Chambers's bedroom, and Ms. Chambers "snatched”

it out of the victim's hand. Ms. Chambers read the letter and asked, "What

y'all got going on?” The [petitioner] told Ms. Chambers that the victim had - 9 -

his money, but the victim denied this was true. The [petitioner] testified that

Ms. Nichols then entered the house and walked into the bedroom. Ms.

Chambers asked Ms. Nichols whether the victim had given her any money,

and Ms. Nichols responded that she had not. The victim then left the room

and walked back into her bedroom, where she exited the house through the

patio door.

The [petitioner] testified that he went into the bedroom after the victim

and that he noticed the "comforter on the bed . . . was up . . . where [he] kept

his gun.” The [petitioner] exited through the patio door, and when he

rounded the corner of the house, he saw the victim with the gun heading

towards Ms. Nichols's car, which was parked in the driveway. According to

the [petitioner], there were two men in Ms. Nichols's car: her boyfriend,

Kevin Robinson, and another male, whom he later learned was her cousin,

Justin Montgomery. The [petitioner] walked up to the victim, grabbed her

by the arm, and took possession of the gun. Ms. Nichols then exited the

house, got into her car, and began reversing out of the driveway. The victim

asked Ms. Nichols to wait, but she "sped off out of the driveway in reverse.”

The [petitioner] and the victim then walked back towards the house.

The [petitioner] denied ever putting the victim in a headlock, although he did

admit that he "was cussing and stuff like that, but how everything was

happening, everything was a big frustration.” The [petitioner] and the victim

entered the house through the back patio door that led directly into their

bedroom. According to the [petitioner], Ms. Chambers came into the room

and asked him what he was doing "with that d**n gun” and told him to "[p]ut

the d**n gun down.”

The [petitioner] testified that Ms. Chambers walked toward him, "got

right up on [him],” and grabbed his arm. Ms. Chambers "was slapping [his]

hand, trying to get [him] to put the gun down.” The [petitioner] testified that

he did not put the gun down and that he and Ms. Chambers continued to

struggle. According to the [petitioner], the victim was screaming, telling

both Ms. Chambers and the [petitioner] to stop fighting. The [petitioner]

testified that he was holding the gun in his right hand, Ms. Chambers was

holding onto his wrist, and "[t]hen the gun went off.” The [petitioner] "went

in a state of shock” because he "knew [the victim] was gone.”

The [petitioner] denied chasing Ms. Chambers out of the house. He

testified that after the victim was shot he attempted to "unchamber” the gun

and then placed the gun on the dresser. Ms. Chambers "struck out, running - 10 -

out of the patio.” The [petitioner] heard the victim's son calling his name

from the hallway. He denied ever pointing the gun towards either of the

victim's children and claimed the only time he touched the gun after the

shooting was when Officer Clemons asked him where the gun was and told

the [petitioner] to "[m]ake sure the gun [was] in another room.” The

[petitioner] then took the gun into Ms. Chambers's room and set it on the

dresser. The [petitioner] claimed that he walked into the living room, with

the children tagging along behind him, and looked out the door to see the

first police car arriving.

According to the [petitioner], he was afraid because he saw the police

outside with guns and he "didn't know what to do” and "couldn't think

straight.” He called his grandmother because she "was the first person that

came to [his] mind when [he] picked [his] phone up.” He told his

grandmother that he shot the victim and asked her to call his cousin "to come

get [him] before they kill[ed] [him].” He also called his cousin, Officer

Clemons. Officer Clemons asked the [petitioner] whether the victim was

dead and where the children were, and he then instructed the [petitioner] to

close the bedroom door so that the children would not see the victim. The

[petitioner] testified that he had no intention of hurting the children and that

he did not remember saying he was going to hurt the kids but that he knew

he must have said it because Officer Clemons had no reason to lie.

On cross-examination, the [petitioner] again denied that he had ever

slapped the victim. He testified that he was "pretty sure [the victim] didn't

tell [Ms. Nichols]” that he had threatened her before. He said that the only

time an altercation between him and the victim "got physical” was before he

moved into Ms. Chambers's house. He recalled that the victim had come to

his house and saw another woman there, that the victim tried to fight him,

and that he ended up "pushing her on the ground.”

. . . .

The [petitioner] maintained that the victim was trying to pull Ms.

Chambers away from him when the gun went off and that he never aimed the

gun at the victim. He further testified that he "didn't have any control over

the situation” and wished he would have just left the room instead of

struggling over the gun with Ms. Chambers. The [petitioner] testified that he

did not check on the victim or try to help her because "[it] was too late.”- 11 -

State v. Darius Jones, No. W2013-02010-CCA-R3-CD, 2015 WL 112793, at *1-10 (Tenn.

Crim. App. Jan. 8, 2015), perm. app. denied (Tenn. May 18, 2015) (footnote omitted).

II. Post-Conviction Hearing

The petitioner subsequently filed a pro se petition for post-conviction relief alleging

the ineffective assistance of trial counsel. The post-conviction court appointed counsel,

and the petitioner filed two amended petitions. In doing so, the petitioner generally alleged

that trial counsel failed to: (1) "[b]e adequately prepared for the case;” (2) "[f]ully

investigate the circumstances surrounding the case;” (3) "[p]roperly communicate the

factual and legal aspects of the case;” (4) [i]nvestigate and call all appropriate witnesses;”

and (5) "[f]ile and litigate all appropriate motions.” In addition, the petitioner alleged the

following claims regarding the ineffective assistance of both trial and appellate counsel:

Specifically [the] petitioner alleges that trial counsel was ineffective for

failing to develop a proper strategy, fully investigate police and witness

statements, request and investigate discovery, and properly explain all the

evidence against [the] [p]etitioner in a timely manner. If trial counsel had

properly prepared, [the] [p]etitioner would have received a fair trial.

Trial counsel failed to properly communicate with [the] [p]etitioner

regarding the 911 audio tapes and failed to secure those tapes within the

normal retention time of the maintaining agency.

Trial counsel failed to provide any closing argument in opposition to the

kidnapping allegations, which ultimately resulted in the felony murder

conviction.

Trial counsel also failed to obtain pictures that were collected during the

investigation and provide that discovery to [the] [p]etitioner in advance of

trial.

[The] [p]etitioner (sic) failed to do any sort of trial preparation with [the]

[p]etitioner regarding his testimony.

Trial counsel failed to properly communicate with [the] [p]etitioner and seek

funds, an expert, or secure evidence regarding gun-shot-residue testing on

the victim's hands.

Appellate counsel failed to mention or argue the 404(b) ruling on appeal.- 12 -

The post-conviction court held an evidentiary hearing to address the allegations on August

22 and 23, 2019, during which the prosecutor, trial counsel, and the petitioner testified.

The prosecutor began handling the petitioner's case in General Sessions Court in

April 2011. At the time, the petitioner was represented by the public defender's office to

whom the prosecutor provided a paper copy of the discovery in the petitioner's case. The

prosecutor stated that trial counsel was not appointed to represent the petitioner until

September 27, 2012, and as such, the prosecutor presumed trial counsel obtained the

discovery file from the public defender's office. The prosecutor did not recall making a

separate copy of the discovery for trial counsel.

Regarding the contents of the discovery, the prosecutor recalled that during the

investigation, the Memphis Police Department ("MPD”) took gunshot powder residue

swabs from the petitioner's and the victim's hands. The swabs, however, were not tested.

The prosecutor explained that "the test is relatively unreliable” and was irrelevant in this

case as there was "an eyewitness standing in between [the petitioner] and [the victim] to

tell [the prosecutor] who had the gun and what happened.” Further, the prosecutor testified

that Ms. Chambers stated the petitioner "put the gun around her shoulder to [the victim's]

temple and pulled the trigger one time,” and the petitioner did not dispute holding the gun.

Based upon this evidence, the prosecutor expected there would have been gunshot residue

on the victim because "if you are in a room when someone pulls the trigger, such as [the

petitioner] putting that bullet in [the victim's] brain, you will more than likely have gunshot

powder residue on you.”

Regarding the 911 calls made after the shooting, the prosecutor stated he did not

recall if the petitioner called 911 but did recall that the petitioner called his grandmother

and cousin. The prosecutor reviewed a print-out of the February 22, 2013 request for the

911 audio recordings related to the shooting made by the district attorney's office and the

MPD information request for all of the 911 calls made in relation to the shooting. Both

documents were entered into evidence.

According to the prosecutor, the print-out showed that on the day of the shooting,

MPD requested the audio recordings for any 911 calls made from the address where the

shooting occurred. This request, however, was unsuccessful though the prosecutor did not

know why and did not recall receiving audio recordings of any 911 calls in the petitioner's

case.

The request made by the district attorney's office was also unsuccessful. The

prosecutor explained that the request was made over eighteen months after the date of the

shooting and as such, any recordings that did exist were no longer available. The

prosecutor stated the request by his office was likely not made until February 2013, - 13 -

"probably in preparation for trial,” and indicated he was unaware of the eighteen-month

policy at the time the request was made.

The petitioner also testified, stating trial counsel met with him approximately three

or four times with each meeting lasting around thirty minutes. During the meetings, the

petitioner recalled "going over statements of the witnesses,” learning his trial had been

reset, discussing whether the petitioner would testify during trial, and "explain[ing] to [trial

counsel] that it was an accidental shooting.” The petitioner also wrote trial counsel four or

five letters but only received one response from trial counsel informing him of trial

counsel's appointment "and that [trial counsel] had motions that he had filed on [the

petitioner's] behalf.”

Generally, the petitioner testified he and trial counsel did not discuss any defense

strategies; therefore the petitioner felt like he went into trial "blind,” "unprepared,” and

like trial counsel was depriving him of all of the favorable evidence to build his defense.

Regarding discovery, the petitioner stated he received "a few documents” from his initial

attorney, including a copy of the indictment, motions filed on the petitioner's behalf,

witness statements, and transcripts of the preliminary hearing. However, as it relates to

trial counsel, the petitioner stated he did not "receive any actual discovery until after my

trial when I wrote the Board of Responsibility about not having any discovery to file my

appeal.” As a result, in April 2016, trial counsel mailed the petitioner "what [trial counsel]

said was all he had dealing with [the petitioner's] case.” The discovery file included

transcripts of the preliminary hearing, a chronology of 911 calls, the investigator's reports,

and witness statements. A copy of this discovery file was entered into evidence, and the

petitioner stated he provided this discovery to post-conviction counsel but was unsure if

any documents were missing from the discovery.

The petitioner next identified twenty-seven photographs, each of which was entered

into evidence during the petitioner's trial, and the photographs of the trial exhibits were

entered into evidence during the evidentiary hearing. According to the petitioner, trial

counsel did not review the trial exhibit photographs with him before trial.

The petitioner also discussed the handwritten note that was introduced during trial.

The petitioner stated he had not seen the note prior to trial and did not discuss the note with

trial counsel other than trial counsel's asking him who wrote the note and why Ms.

Chambers would claim the victim wrote the note.

Regarding the 911 tapes, the petitioner stated he called 911 after the shooting. As

he and trial counsel discussed the indictment, the petitioner stated, "'Man, it's impossible

for them to have got me for kidnapping the kids when I was on the phone with the

dispatcher for 30 minutes in the house while I was inside of the house.'” However, when - 14 -

the petitioner asked trial counsel to obtain the 911 recordings upon trial counsel's

appointment, trial counsel stated, "'Well, you didn't call 911. The people across the street

called 911.'” After this discussion, the petitioner believed trial counsel "ignored

everything [he] said about the 911 calls or anything of that nature.” The petitioner believed

his 911 call would demonstrate "that it wasn't a kidnapping, that I was not holding the kids

against they will inside of the house.”

In addition, the petitioner disputed his trial testimony concerning the call he made

to his grandmother after the shooting, stating that he actually called 911 before calling his

grandmother and he did not tell his grandmother that he "blew” the victim's "brains out.”

The petitioner explained he did not tell the jury that he called 911 during his trial testimony

because he was "overwhelmed” and "couldn't get all this stuff out.” Referring to the trial

transcript, however, post-conviction counsel noted the petitioner did in fact testify that he

called 911 after the shooting. The petitioner then also agreed that he called his grandmother

and asked her to call his cousin, Officer Clemons. The petitioner stated he also called

Officer Clemons while on the phone with 911 dispatch and the police were outside the

home. The petitioner denied telling Officer Clemons that he would hurt the victim's

children if Officer Clemons did not arrive soon. Ultimately, the petitioner acknowledged

that he testified during trial that he was on the phone with 911 when Officer Clemons

arrived but did not agree that he testified about the conversation he had with dispatch.

The petitioner explained his claims of ineffectiveness against trial counsel regarding

a potential witness, Mr. Clark,3 who was quoted in a newspaper article that the petitioner

received in the discovery file after trial, as follows:

So Mr. Clark said something that was consistent with what I said, that it was

an accidental shooting. You know, I didn't -- I didn't have [the victim] in a

headlock. She was attached to me, trying to calm me down. And that's what

-- if he said that -- it was consistent with what I said -- the jury might have

accepted what I said happened. And they -- you know, it would have been

probably in my favor and I would have had a different outcome at trial.

Regarding the gunshot residue swabs, the petitioner stated that his hands were

swabbed after being arrested and that he learned the victim's hands were swabbed upon

receiving the discovery file after trial. The petitioner believed the swabs needed to be

tested in order "to determine who all hands was on the gun when the gun went off.” The

petitioner explained that "if the results show that [the victim] had gunshot residue on her



3 The record is absent additional evidence regarding the substance of the alleged testimony that Mr.

Clark would have offered during trial or the newspaper article which forms the basis of the petitioner's

claim. - 15 -

hands as well, that's my proof that [the victim's] hands and all three of our hands was on

the gun as well.” According to the petitioner, however, trial counsel told him that a gunshot

residue expert would not be permitted during trial.

The petitioner discussed hiring a gunshot residue expert with post-conviction

counsel, who provided the petitioner with a quote from the expert for the cost to complete

the tests and provide in-court testimony. But, the post-conviction court denied the

petitioner's request for expert funding, and the petitioner was unable to obtain other funds

to hire the expert.

At this point in the hearing, the post-conviction court allowed the petitioner to detail

numerous, additional allegations of ineffectiveness against trial counsel that were not

specifically raised in his petition. The petitioner's additional claims of ineffectiveness

included, in part, trial counsel's alleged failure to call witnesses, effectively cross-examine

witnesses, present evidence in his defense, or challenge the indictment. Though the postconviction court permitted the petitioner's testimony "out of an abundance of caution,” it

also stated that "the [post-conviction] [c]ourt has agreed that there's not been an amended

petition that was filed” in relation to these claims.

During this portion of the hearing, the petitioner also disputed the testimony at trial

regarding prior threats he made against the victim. The petitioner explained:

As well as a statement that Ms. Chambers or one of the witness under the

prior -- acts of prior acts of wrongdoing that they entered, they said that I that

the witness had -- or the victim had said that I threatened to kill her or

something like that. The witness -- the -- I mean the victim is deceased. The

witness is not here to testify to these things. They making this stuff up. So

how would these statements enter into [] evidence for the jury to hear? And

all that prejudice me because it put a picture in they head that oh, he did this.

He did this on purpose. He meant to do this.

Regarding his appeal, the petitioner generally stated that he did not know what

issues appellate counsel raised because appellate counsel did not "afford[]” him any

"proof.”

The petitioner further stated that he only testified during trial because trial counsel

explained that would be the only way to get the petitioner's side of the story presented to

the jury. Thus, trial counsel "convinced [the petitioner] to testify thinking that it was going

to help me.” The petitioner claimed trial counsel did not prepare him to testify at trial, and

his decision to testify was a "bad” one because "the prosecutor switched a lot of things up

that I said and confused me and I don't feel like I was prepared.” The petitioner - 16 -

acknowledged he was in the room when the gun fired and "[t]he gun was in all three of our

hands.”

Finally, trial counsel testified, stating he has practiced law since 1997 and had

handled in excess of forty murder trials prior to representing the petitioner. When he was

appointed to the petitioner's case in 2012, the case was already set for trial. As such, trial

counsel "acquired the discovery materials, [] reviewed the discovery materials, [] obtained

an investigator, and prepared for trial.” In doing so, trial counsel met with the petitioner

four or five times in jail and twice in the courtroom for a total of approximately four to six

hours. However, meeting with the petitioner was "[n]ot very important” to trial counsel

because the petitioner "wasn't particularly articulate or very helpful, he had anger issues,

and wanted an offer of 15 years.”

Regarding the 15-year offer, trial counsel approached the prosecutor but the offer

was "flatly rejected.” As a result, the petitioner "became angry,” and trial counsel stated

that "speaking with [the petitioner] was not a productive use of [trial counsel's] time.”

Trial counsel also recalled that the petitioner wrote to him "fairly frequently” while the

petitioner was in jail but did not recall how many times he responded to the petitioner's

letters.

Trial counsel reviewed the bill he submitted to the State for his attorney's fees, a

copy of which was entered into evidence, and agreed that based upon his billing record he

spent approximately 251 hours on the petitioner's case. Trial counsel also reviewed a

document showing the times he and initial counsel visited the petitioner in jail. The

document was entered into evidence and showed trial counsel visited the petitioner four

times.

Regarding the discovery, trial counsel explained that when he began representing

the petitioner, he assumed the petitioner already had a copy of the discovery which

consisted of approximately two hundred pages. Trial counsel, however, did not recall

providing or not providing the discovery to the petitioner though he did recall providing

the discovery to Rachel Geiser, the court-appointed investigator. Trial counsel thought the

petitioner's case file was lost when he moved offices in 2014, and it was possible he mailed

the petitioner his file upon the petitioner's request after trial. In reviewing the discovery

file entered into evidence during the hearing, trial counsel stated the file was missing

supplements from Ms. Geiser, and "[t]here may be other documents that are missing.” An

email sent from post-conviction counsel to trial counsel regarding the petitioner's case file,

which consisted of 284 pages, was also entered into evidence.

Regarding the defense theory at trial, trial counsel explained that based upon the

facts of the case, there was not "a viable theory of defense” as to the petitioner's first-- 17 -

degree murder charge and told the petitioner that they did not "really have a defense.” As

to the kidnapping charges concerning the victim's children, trial counsel stated the defense

theory "was that it was not a kidnapping” but "we didn't really have a defense.” Regarding

the defense theory for the especially aggravated kidnapping of the victim, trial counsel

stated, "our theory was that, again, it was not a kidnapping. We tried to convince the jury

that it was more of a struggle rather than a kidnapping, but I don't believe that to have been

a very viable defense.” Regardless, trial counsel attempted to illicit testimony to show

"there was (sic) no injuries relating to a pistol-whipping” in order "to maybe undermine

that witness's testimony that [the petitioner] had beaten [the victim] about the head with

the gun.” Ultimately, trial counsel stated: "The facts, looking back, were fairly clear. We

tried to make mountains out of mole hills, so to speak. . . . We succeeded to a certain

extent, and that's how [the petitioner] was convicted of second[-]degree murder in the

premeditated count. That's how he was convicted of reckless endangerment in the

attempted murder count.” However, trial counsel noted "there was no getting around the

idea that [the petitioner] had held [the victim] and put a gun to her head.”

Furthermore, trial counsel stated, "[t]here were no surprises” at trial and there were

no witnesses of whom he was aware that were unavailable for trial. Trial counsel did not

recall when he obtained crime scene or autopsy photographs but stated he did not provide

any photographs to the petitioner and did not spend much time reviewing the photographs

as they were "graphic” and "troubling” and the case did not hinge on the photographs.

Regarding the handwritten note introduced at trial, trial counsel recalled "some discussion

about whether the note was a suicide note or not, but it doesn't really stand out.” Trial

counsel emphasized that the photographs and the note "were not the issue in this case. The

issue in this case was whether [the petitioner] had kidnapped [the victim] and the children

and whether he had killed [the victim] during the perpetration of that kidnapping.”

Trial counsel also discussed the 911 audio recordings and the gunshot residue

swabs. Trial counsel did not recall whose hands were swabbed, he did not know why the

swabs were not analyzed during the investigation, and it was not important to trial counsel

in which hand the petitioner held the gun. Trial counsel explained: "I would have assumed

that both [the victim] and [the petitioner] would have had gunshot residue, but I'm not an

expert.” Trial counsel also did not recall if he discussed the gunshot residue swabs and

lack of testing with the petitioner, he did not discuss hiring a gunshot residue expert with

the petitioner, and he did not petition the court for expert funds in this case. Trial counsel

also did not recall listening to any 911 audio recordings and did not attempt to obtain any

911 audio recordings because the 911 call "wasn't what the case would rise and fall on”

though trial counsel did review a "911 log.”

Regarding the petitioner's decision to testify, trial counsel explained that the case

did not rest with the petitioner's testimony and as such, it was "[n]ot very” important to - 18 -

trial counsel to prepare the petitioner as he did not believe the petitioner would make a

good witness due to his anger issues. Upon questioning from the post-conviction court,

trial counsel stated the petitioner made the decision to testify, noting "[i]t was completely

his decision.”

During cross-examination, trial counsel stated he did not recall how many pages the

petitioner's file contained. However, trial counsel was not surprised by any evidence

presented during trial and believed he received all of the discovery from the State.

Regarding the available strategies for the defense, trial counsel stated "[t]here was no

mental health defense” and "[t]here was no controversy about what had happened or who

did what. The question was why.” Trial counsel also noted that Ms. Geiser's investigation

"did not support an accidental shooting” nor did the close contact wound to the victim's

head. As such, trial counsel presented the theory that the shooting was an accident through

his cross-examination of Ms. Chambers and the defendant's testimony, noting that the

defendant's demeanor "was not helpful.”

Furthermore, trial counsel stated that whether the defendant called 911 after the

shooting was not important but recalled questioning the petitioner during trial about the

911 call and the petitioner's intent not to harm the children. Trial counsel also explained

he likely would have been unsuccessful in obtaining the 911 recordings as he was

appointed to represent the petitioner approximately eighteen months after the shooting and

the recordings were only maintained for a period of eighteen months.

Trial counsel did not think expert services were necessary to support the defense.

Specifically, trial counsel did not think he would have been successful in obtaining a

gunshot residue expert because trial counsel believed "that everyone would have been

covered with gunshot residue, given how close the shot was. Plus, [the victim] was shot in

her head. I don't think she would have accidentally shot herself at close range in her head.”

After arguments by the parties, the post-conviction court orally denied the petition

and issued a written order denying relief on November 14, 2019. In the written order, the

post-conviction court made the following findings for the purpose of appellate review: (1)

"[t]he [p]etitioner failed to produce the 911 operator to show how the phone call could have

made any difference in his trial;” (2) "[t]he [p]etitioner failed to produce any witnesses

referenced in news reports;” (3) "[t]he [p]etitioner failed to produce any witnesses whom

the [p]etitioner believed were helpful in contradicting the State's proof;” (4) the petitioner

failed to show how trial counsel was ineffective in his communication with the petitioner;

(5) "the [p]etitioner has not shown how additional experts would have been beneficial to

the petitioner's defense;” (6) "the [p]etitioner has failed to prove how he was prejudiced

by the negligent destruction of [the] 911 tape recording;” (7) "[t]he decision of the - 19 -

[p]etitioner's appellate counsel to only include those issues that he believed was

meritorious in a motion for new trial and in the Rule 11 application is a proper tactical

decision;” (8) "all other issues, for which evidence has not been presented at the evidentiary

hearing, have been waived;” and (9) "[t]he [p]etitioner has wholly failed to establish any

deficiency by trial or appellate counsel.” The petitioner timely appealed.

Analysis

On appeal, the petitioner contends the post-conviction court erred in finding he

received the effective assistance of both trial and appellate counsel. Specifically, the

petitioner argues trial counsel was ineffective for failing to adequately communicate with

him, failing "to seek a Ferguson instruction for [the] destroyed 911 tapes and gunshot

residue testing,” and failing to investigate additional witnesses and "other issues.” The

petitioner asserts appellate counsel was ineffective for failing "to appeal the admission of

prior bad acts under [Tennessee Rules of Evidence Rule] 404(b).” The State submits the

petitioner has failed to meet the burden required of him, and therefore, is not entitled to

relief. Upon our review of the record and the applicable law, we affirm the ruling of the

post-conviction court.

The petitioner bears the burden of proving his post-conviction factual allegations by

clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact

established at a post-conviction evidentiary hearing are conclusive on appeal unless the

evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).

This Court will not reweigh or reevaluate evidence of purely factual issues. Henley v.

State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court's

application of the law to the facts is de novo, with no presumption of correctness. See Ruff

v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel

presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

Thus, this Court reviews the petitioner's post-conviction allegations de novo, affording a

presumption of correctness only to the post-conviction court's findings of fact. Id.; Burns

v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner must show

both that counsel's performance was deficient and that counsel's deficient performance

prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting the standard

for determining ineffective assistance of counsel applied in federal cases is also applied in

Tennessee). The Strickland standard is a two-prong test:- 20 -

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the "counsel” guaranteed the defendant by

the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel's

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the

Strickland test must be satisfied. Id. Thus, courts are not required to even "address both

components of the inquiry if the defendant makes an insufficient showing on one.” Id.; see

also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that "a failure to prove

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim”).

A petitioner proves a deficiency by showing "counsel's acts or omissions were so

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

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

v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the Strickland test is

satisfied when the petitioner shows there is a reasonable probability, or "a probability

sufficient to undermine confidence in the outcome,” that "but for counsel's unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at

694. However, "[b]ecause of the difficulties inherent in making the evaluation, a court

must indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action 'might be considered sound trial

strategy.'” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

I. Trial Counsel

a. Communication and Preparation

The petitioner asserts the post-conviction court erred in denying his petition because

"[t]rial counsel's inadequate communication prejudiced the outcome of [the] [p]etitioner's

trial.” In support of this claim, the petitioner argues that trial counsel "billed over 250

hours to the State on this case, and less than five of those hours included direct or indirect

communication with [the] [p]etitioner” and "[t]rial counsel logged over three hours

reviewing pictures, but then never shared those pictures with [the] [p]etitioner.” The

petitioner further asserts that trial counsel's "lack of communication impacted the trial

globally, in [the] [p]etitioner's decision to testify and in the quality of the testimony itself.”

In response, the State contends that "some of the petitioner's factual claims are contradicted - 21 -

by the record, the post-conviction court found others not to be credible, and the petitioner

has failed to point to any particular way in which any particular lack of communication or

preparation affected his decision to testify, his testimony, or the outcome of his trial.” Upon

our review, we agree with the State.

The record indicates trial counsel was appointed to the petitioner's case after it had

been set for trial. Upon his appointment, trial counsel obtained and reviewed the discovery,

utilized an investigator, met with the petitioner numerous times, discussed the petitioner's

theory of the case with the petitioner, and prepared a corresponding defense. The record

shows trial counsel visited the petitioner four times in jail and twice in the courtroom, and

the petitioner testified he met with trial counsel several times. During these meetings, the

petitioner and trial counsel discussed the indictment, the witness statements, the

handwritten note presented at trial, the petitioner's "accidental shooting” defense theory,

the 911 call the petitioner made and its relation to the kidnapping charges against the

victim's children, and whether the petitioner would testify during trial. In addition, trial

counsel testified that he took the petitioner's request for a 15-year guilty plea offer to the

district attorney's office, the offer was rejected, and the petitioner became angry. As a

result, trial counsel explained that communicating with the petitioner was no longer helpful

as he prepared for trial. Regardless, trial counsel presented the petitioner's defense theory

to the jury through both his cross-examination of the State's witnesses and the petitioner's

testimony. And, in trial counsel's opinion, the defense was relatively successful as the

petitioner was convicted of several lesser-included offenses against his victims. While trial

counsel admittedly encountered difficulties in communicating with the petitioner, largely

due to the petitioner's anger issues, the record demonstrates that trial counsel engaged in

adequate communication with the petitioner throughout his representation. Furthermore,

nothing in the record indicates that trial counsel failed to adequately prepare for trial as it

is clear trial counsel met with the petitioner numerous times, reviewed the discovery,

worked with an investigator, and logged over 250 hours on behalf of the petitioner in

preparing the defense. Therefore, we conclude the petitioner has failed to establish that

trial counsel's communication or preparation was deficient. Goad, 938 S.W.2d at 369.

The petitioner is not entitled to relief.

Within this claim, the petitioner also asserts that he "felt forced to testify” at trial,

he was not prepared to testify, and he "only testified because trial counsel and the trial court

told him that any other evidence he had to corroborate his version of events would be

hearsay.” However, trial counsel explained that he presented the petitioner's defense

theory to the jury through his cross-examination of the State's witnesses and that he in no

way forced the petitioner to testify. Instead, trial counsel advised the petitioner against

testifying, and the petitioner admits in his brief that trial counsel "thought it was a bad idea

for [the] [p]etitioner to testify.” Trial counsel also stated that the petitioner's testimony

was not essential to the defense and that he did not think the petitioner would make a good - 22 -

witness. Furthermore, the record indicates the trial court conducted a Momon hearing after

which the petitioner chose to testify on his own behalf. Though the petitioner claims trial

counsel forced him to testify, trial counsel denied this assertion, and the post-conviction

court accredited trial counsel's testimony over that of the petitioner. Nothing in the record

preponderates against the post-conviction court's factual findings. See Tidwell, 922

S.W.2d 500. Accordingly, the petitioner cannot meet his burden of showing how trial

counsel was deficient as to this issue. Goad, 938 S.W.2d at 369. The petitioner, again, is

not entitled to relief.

b. The 911 Tapes and Ferguson Instruction

The petitioner also argues trial counsel was ineffective for failing "to obtain

evidence or request a missing evidence jury instruction pursuant to Ferguson.”

Specifically, the petitioner asserts "the 911 tapes destroyed eighteen months after the

beginning of the [S]tate's investigation and shortly after the appointment of trial counsel

were essential to the defense because they would have portrayed [the] [p]etitioner's

demeanor in the immediate aftermath of the shooting” and "would have supported [the]

[p]etitioner's theory of an accidental shooting, and perhaps would have obviated the need

for [the] [p]etitioner to testify.” The petitioner argues that "[o]nce trial counsel determined

that the recordings had been destroyed, he should have requested a Ferguson instruction

from the trial court” as the instruction "would have told jurors that the absence of the tapes

is not a coincidence or accident, but rather should arouse some suspicion that the tapes

went missing because they could in fact be exculpatory.” The petitioner argues that "[b]ut

for trial counsel's error, the jury would have been directed toward a gaping hole in the

state's case, and would likely have returned a lesser-included verdict.” We disagree.

Initially, we note, the petitioner raises the claim that trial counsel was ineffective

for failing to request a Ferguson instruction regarding the unavailable audio recording of

the petitioner's 911 call for the first time on appeal. Issues not raised in the postconviction petition cannot be raised for the first time on appeal. Tenn. Code Ann. § 40-

30-104(d); Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004) ("[A]n

issue raised for the first time on appeal is waived.”). Accordingly, this issue is waived, and

the petitioner is not entitled to relief.

As it relates to trial counsel's alleged ineffectiveness for failing to obtain the audio

recording of the petitioner's 911 call, the post-conviction court stated:

"At the time this case was set for trial, the tape had already been destroyed. The State was

under no duty to preserve the 911 tape, as the call had no apparent exculpatory value at the

time the tape was routinely destroyed by the 911-call center.” As noted, the record

indicates the 911 recordings related to the shooting in this matter were destroyed prior to

trial in accordance with the policy of the Memphis Police Department wherein recordings- 23 -

are destroyed after eighteen months. Trial counsel's appointment coincided with the

eighteen-month policy, and the record shows the State did not separately retain any 911

recordings related to the shooting. As a result, there were no recordings available for trial.



Because the 911 recordings had been destroyed and no longer existed, the petitioner

cannot establish deficient performance or prejudice. Furthermore, trial counsel explained

that the audio recording of the 911 call "wasn't what the case would rise and fall on,” and

the record indicates the petitioner testified about the 911 call during trial. Accordingly, the

petitioner's claim is without merit, and the petitioner is not entitled to relief.

c. Witnesses

i. Gunshot Residue Expert

The petitioner argues trial counsel was ineffective for failing to "require the State to

test the gunshot residue swabs, have the swabs tested, or request funds for testing.” The

petitioner claims "[w]ith a critical fact discrepancy of who had who's hands on the gun at

discharge, the [p]etitioner's trial outcome was prejudiced because the jury was unable to

consider whether the presence of gunshot residue on the victim's hands was inconsistent

or corroborating with the conflicting testimony.” The State contends the post-conviction

court properly denied this claim because the petitioner failed to present "any expert to

testify at the post-conviction hearing about the results of the gunshot residue testing.” We

agree with the State.

Here, the petitioner has failed to establish how trial counsel's failure to have the

swabs tested or to retain a gunshot residue expert resulted in deficient performance or

prejudice. Both trial counsel and the prosecutor testified that gunshot residue testing is

unreliable, and they assumed, based upon discussions they had with gunshot residue

experts, that the petitioner, the victim, and Ms. Chambers all would have had gunshot

residue on their person as a result of the close contact wound and their physical proximity

to one another when the petitioner fired the gun. In addition, trial counsel testified that not

only did the defendant admit to holding the gun, but also Ms. Chambers testified that the

petitioner fired the shot that killed the victim.

The petitioner acknowledges that he did not produce a gunshot residue expert at the

evidentiary hearing, noting he "was unable to obtain funds for [gunshot residue] testing

because the post-conviction court denied [his] request.” However, in Davis v. State, 912

S.W.2d 689, 696 (Tenn. 1995), our supreme court explained that "[a] person's right to

counsel ends at the conclusion of the first stage of direct appeal” and that "[i]n the absence

of a Constitutional right to counsel, there can be no Constitutional right to support services

at state expense.” But, in order "[t]o succeed on a claim of ineffective assistance of counsel - 24 -

for failure to call a witness at trial, a post-conviction petitioner should present that witness

at the post-conviction hearing.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn.

2008) (citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). "As a general

rule, this is the only way the petitioner can establish that . . . the failure to have a known

witness present or call the witness to the stand resulted in the denial of critical evidence

which inured to the prejudice of the petitioner.” Id. By failing to produce a gunshot residue

expert at the hearing, the petitioner has failed to present evidence to meet the burden

required of him. Accordingly, the petitioner cannot show that trial counsel was deficient

by not obtaining gunshot residue testing or a gunshot residue expert. The petitioner is not

entitled to relief.

ii. Witness Listed in a Newspaper Article

The petitioner also argues trial counsel was ineffective for failing to "investigate

potential witnesses that were listed in a newspaper article in the possession of trial counsel,

but never provided to [the] [p]etitioner.” The petitioner asserts "[t]his lack of investigation

by trial counsel prejudiced the [p]etitioner's trial outcome because the statement made to

the newspaper conflicted with witness testimony used against [the] [p]etitioner, and

therefore would be favorable to [the] [p]etitioner.”4

As noted above, in order "[t]o succeed

on a claim of ineffective assistance of counsel for failure to call a witness at trial, a postconviction petitioner should present that witness at the post-conviction hearing.” Pylant,

263 S.W.3d at 869 (citing Black, 794 S.W.2d at 757. Because the petitioner failed to

present any witnesses to support this claim, the petitioner has not met his burden, and this

issue is without merit.

iii. Other Issues

Finally, in his brief, the petitioner states: "[The] [p]etitioner also listed many other

issues in his pro se petition that he explained further through his testimony that he wants

the Court to consider.” We, however, decline to do so as the petitioner has failed to provide

any argument supporting the "other issues” alleged and has failed to cite to any authority

in support of these "other issues.” Tenn. R. App. P. 27(a)(7); 27(h). The petitioner is

entitled to no further relief for claims of ineffectiveness alleged against trial counsel.

II. Appellate Counsel



4 The record is absent any evidence to support this claim other than the petitioner's testimony that

a witness made a statement to a newspaper that corroborated the petitioner's claim that the shooting was

accidental. The petitioner, however, failed to detail the alleged witness statement, provide the newspaper

article upon which this claim relies, or explain how the alleged witness statement corroborated his defense

theory. - 25 -

The petitioner argues appellate counsel was ineffective for failing to appeal "the

trial court's admission of prior acts of violence between [the] [p]etitioner” and the victim

in violation of Rule 404(b), asserting "but for [appellate counsel's] deficiency, it is likely

that [the] [p]etitioner would have already been granted a new trial.” The State submits the

post-conviction court correctly determined that appellate counsel provided effective

assistance as this "issue lacked merit, because the trial court properly found that the

evidence was admissible, and appellate counsel was not ineffective for failing to raise a

meritless issue.” We agree with the State.

The test used to determine whether appellate counsel was constitutionally effective

is the same test applied to claims of ineffective assistance of counsel at the trial level.

Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004). To establish a claim of ineffective

assistance of counsel, the petitioner must show that: 1) counsel's performance was

deficient; and 2) counsel's deficient performance prejudiced the outcome of the

proceedings. Strickland, 466 U.S. at 687; see Carpenter, 126 S.W.3d at 886.

When a petitioner bases his claim of ineffective assistance of counsel on counsel's

failure to raise an issue on appeal, the petitioner proves deficient performance by showing

that "this omission was so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Carpenter, 126 S.W.3d at 887. The petitioner

satisfies the prejudice prong of the Strickland test by showing there is a reasonable

probability, or "a probability sufficient to undermine the confidence in the outcome,” that

but for counsel's deficient performance, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694.

"Appellate counsel is not constitutionally required to raise every conceivable issue

on appeal.” Carpenter, 126 S.W.3d at 887 (citing King v. State, 989 S.W.2d 319, 334

(Tenn. 1999)). Generally, appellate counsel has the discretion to determine which issues

to raise on appeal and which issues to leave out. Id. Thus, courts should give considerable

deference to appellate counsel's professional judgment with regard to which issues will

best serve the petitioner on appeal. Id. Appellate counsel is only afforded this deference,

however, "if such choices are within the range of competence required of attorneys in

criminal cases.” Id.

When a claim of ineffective assistance of counsel is based on the failure of appellate

counsel to raise a specific issue on appeal, the reviewing court must determine the merits

of the issue. Id. "If an issue has no merit or is weak, then appellate counsel's performance

will not be deficient if counsel fails to raise it.” Id. Similarly, if the omitted issue has no

merit then the petitioner suffers no prejudice from counsel's decision not to raise it. Id. If

the issue omitted is without merit, the petitioner cannot succeed in his ineffective assistance

claim. Id. - 26 -

Here, the petitioner claims that appellate counsel was ineffective for failing to

appeal the admission of 404(b) evidence at trial. However, the petitioner has offered no

evidence to support this claim. Rather, the petitioner testified generally that "Ms.

Chambers or one of the witness[es]” testified that "the victim had said that [the petitioner]

threatened to kill her or something like that,” and the petitioner questioned the admissibility

of this testimony. But, the petitioner also stated that he was unaware of what issues

appellate counsel raised on direct appeal and provided no evidence to show how the

allegedly inadmissible 404(b) evidence prejudiced his trial. The post-conviction court held

the admissibility of the 404(b) evidence was fully litigated at the trial stage, and the record

is absent any evidence to support the petitioner's claim against appellate counsel. Absent

any evidence, the petitioner cannot meet the burden of proving his allegation against

appellate counsel by clear and convincing evidence and cannot succeed in his ineffective

assistance claim. Strickland, 466 U.S. at 687; Tenn. Code Ann. § 40-30-110(f). The

petitioner is not entitled to relief on this issue.

Based on the foregoing reasoning and authorities, we affirm the judgment of the

post-conviction court.