IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 25, 2005

TIM HOLT v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Hancock County

No. CR-2491 James E. Beckner, Judge

No. E2005-00587-CCA-R3-PC - Filed January 27, 2006

The Appellant, Tim Holt, appeals the judgment of the Hancock County Criminal Court denying postconviction relief. Holt was convicted of first degree murder and sentenced to life imprisonment.

On appeal, Holt argues that he was denied his Sixth Amendment right to the effective assistance of

counsel. After review, the judgment of the post-conviction court is affirmed. 

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE, JJ., joined.

Wayne R. Stambaugh, Morristown, Tennessee, for the Appellant, Tim Holt.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;

C. Berkeley Bell, District Attorney General; and Connie Trobaugh, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

Procedural History

The Appellant’s incarceration stems from his jury conviction for the first degree murder of

William Marshall Haas on August 21, 2001, in Hancock County. The proof at trial established that

the Appellant “followed the victim for three miles, pulled beside the victim’s vehicle and shot him.”

State v. Tim Holt, No. E2002-02471-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Nov. 17, 2003).

After shooting the victim at close range with a shotgun, the Appellant returned home and mowed his

yard. Id. The Appellant confessed to a TBI agent that he killed the victim. Id. The Appellant’s wife

testified that her thirty-six-year-old husband had been using methamphetamine for the past year and

believed that the victim was an undercover agent who was spying on their house. Id. However, the

proof established that the victim drove by the Appellant’s residence daily because he delivered

newspapers. Id. After the victim was murdered, it was learned that the victim was also a Hancock
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County constable. Id. A mental evaluation established that the Appellant was competent to stand

trial and that an insanity defense could not be supported. Id. 

The Appellant filed a pro se petition for post-conviction relief alleging, among other grounds,

ineffective assistance of counsel. Counsel was appointed, and an amended petition was filed on

November 29, 2004. A post-conviction hearing was held on December 6, 2004, at which the

Appellant, trial counsel, and an investigator in the case testified. 

The Appellant testified that at the time of the homicide, he had a drug problem for which he

had been previously treated and that he believed that certain individuals were brainwashing him and

threatening his family. The Appellant admitted that he met with trial counsel and his investigator

on several occasions priorto trial and discussed possible defenses to the charges against him, as well

as various aspects of the case. The Appellant did not dispute that during their first meeting he told

trial counsel that he had in fact shot the victim and had made a statement to that effect to law

enforcement officers. The Appellant admitted that he refused to plead guilty in the case and that he

chose to testify, although he said the decision was reached because trial counsel told him it would

“work out better in court.” Nonetheless, the Appellant acknowledged that the trial court reviewed

his rights with him prior to his testimony and that he told the judge that his decision to testify was

voluntary. Nonetheless, the Appellant stated that “I feel like there should have been a lot more

investigating went on” in the case. 

Lawrence Smith, an investigator with the public defender’s officer, testified that he met with

the Appellant on numerous occasions and discussed the case. Smith testified that he fully

investigated all claims made by the Appellant, including claims against law enforcement officials

and various drug dealers in the community. However, Smith stated that he found no proof to support

the Appellant’s accusations of threats by any individuals. As a result of their investigation, Smith

and trial counsel received death threats, but Smith stated that the threats did not affect their

investigation in any manner. 

Trial counsel, who was appointed to represent the Appellant, testified that he assembled a

defense team which included his investigator, a neuropsychologist, a jury consultant, and a firearms

expert. Counsel noted that both he and his investigator met with the Appellant several times in order

to ensure face to face communication because of the Appellant’s inability to read and understand.

Trial counsel said that he and his team spent “hundreds of hours” preparing for trial. Counsel stated

that his trial strategy was based upon the Appellant’s actions: “I assumed that [the Appellant] would

testify in the manner he said he was going to testify, and the strategy was to convince the jury that

he did not intend to kill Mr. Haas, that it was basically a mistake.” He further developed a mitigation

strategy to utilize at trial which involved the use of the psychologist, whose tests revealed that the

Appellant was borderline mentally retarded. Counsel further explained that it was the Appellant who

wanted to testify and tell his side of the story to the jury. Counsel also related that the death threats

he and his investigator received had no effect on his handling of the case. At the conclusion of the

hearing, the post-conviction court denied the petition. 
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Analysis

On appeal, the Appellant has raised the single issue of ineffective assistance of counsel,

asserting that trial counsel’s representation was deficient because: (1) trial counsel failed to properly

prepare for trial; (2) trial counsel abandoned a previously filed motion for change of venue due to

pretrial publicity; and (3) trial counsel failed to formally object to the State’s use of a void

indictment. To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the

burden of establishing the allegations set forth in his petition by clear and convincing evidence.

T.C.A. § 40-30-110(f) (2003). The Appellant must demonstrate that counsel’s representation fell

below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984), the Appellant must establish (1) deficient performance and (2) prejudice resulting from the

deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a

reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made

during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994). This deference to the tactical decisions of trial counsel is dependent upon a showing that the

decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992). 

It is unnecessary for a court to address deficiency and prejudice in any particular order, or

even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104

S. Ct. at 2068). 

The issues of deficient performance by counsel and possible prejudice to the defense are

mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of

ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with

a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960

S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law, are reviewed under a purely de novo

standard with no presumption that the post-conviction court’s findings are correct. Id. 

I. Trial Preparation

First, the Appellant alleges that trial counsel was ineffective in that he failed to properly

prepare for trial. Specifically, the Appellant argues that trial counsel: (1) failed to interview key

defense witnesses due to threats made against trial counsel and his staff; (2) failed to properly

instruct the Appellant regarding his constitutional right to testify, as well as properly prepare the

Appellant to give testimony at trial; and (3) failed to properly administer and/or conduct ballistic

tests on the alleged weapon used by the Appellant. 
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(a) Failure to Interview Witnesses

The Appellant alleges that trial counsel failed to interview certain key witnesses regarding

the alleged death threats which were made against the Appellant and his family by methamphetamine

dealers because of death threats against trial counsel and his office staff. Smith testified that despite

the sometimes confrontational events, every single allegation made by the Appellant was

investigated. 

In denying the Appellant’s petition, the post-conviction court found: 

As to whether or not counsel . . . was effective in his representation of the

petitioner, this Court finds that [trial counsel] and his defense team . . .

communicated with the petitioner face to face on a regular basis, spending many

hours discussing every possible strategy, piece of evidence, witness, avenue of

investigation, motion, plea bargain, and anything else that could possibly or

conceivably be pursued. No stone was left unturned. No strategy or theory was left

uninvestigated.

We find nothing in the record to preponderate against the post-conviction court’s findings.

Moreover, the Appellant’s argument must also fail because the Appellant has failed to present any

proof at the post-conviction hearing, other than his own bare assertions, as to whom trial counsel

failed to interview and what they would have testified to had they been called. When a petitioner

claims that trial counsel failed to interview or present a witness in support of his defense, the

Appellant should present that witness at the evidentiary hearing. Black v. State, 794 S.W.2d 752,

757 (Tenn. Crim. App. 1990). Because the Appellant failed to produce the witnesses, or even

produce their names, it would be speculative to conclude that their testimony would have affected

the outcome of the trial. Thus, this allegation falls far short of clear and convincing evidence. 

(b) Right to Testify

Next, the Appellant asserts that trial counsel failed to instruct him of his constitutional right

to testify or not testify in his own defense. He asserts that he testified because trial counsel wanted

him to do so. 

Trial counsel testified that the Appellant insisted upon going to trial and placing his side of

the story before the jury. Counsel testified that he reviewed and explained the Appellant’s right to

him in great detail, going so far as to prepare a written document, written in a way which was

understandable, which was signed and acknowledged by the Appellant. Trial counsel specifically

testified that the document was read to the Appellant, going “through every one of those words,”

prior to him signing it. In an abundance of caution, trial counsel also requested the trial court voir

dire the Appellant regarding his right to testify, prior to his taking the stand, which the court did. 
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We find nothing in the record to suggest that the Appellant did not personally make the

decision to testify in his case. Included in the record is a signed document which specifically states

that the Appellant knew he could refuse to testify if he so chose. Trial counsel testified that he

reviewed this document with the Appellant, explaining it in great detail, despite the fact that the

Appellant testified he did not recall this occurring. Moreover, the Appellant admitted that the trial

court reviewed his rights with the Appellant prior to his testifying. As such, we find this issue

without merit. 

(c) Ballistic Testing

The Appellant also asserts that trial counsel was ineffective for failing to properly administer

and/or conduct ballistic tests on the alleged weapon used by the Appellant in the homicide.

Specifically, the Appellant asserts that “[o]ne of the most crucial parts of that investigation was to

properly conduct ballistic tests on the alleged murder weapon through different methods of fragment

identification and whether it was possible that particular weapon could have been fired at the angle

as alleged by the State of Tennessee in it’s theory of prosecution. It was critical for [trial counsel]

to test the actual possibility of the firing of the alleged murder weapon at a certain rate of speed and

angle to determine whether [the Appellant’s] alleged discharge was the one who did end the life of

the victim.” 

In finding that trial counsel was not deficient, the post-conviction court made the following

findings:

Much has been said about the investigation of and establishment of physical

evidence having to do with the positions of the vehicles and whether or not they were

moving and at what position the weapon was fired and under what circumstances.

The most that anyone had to go on regarding that was the confession of the

[Appellant].

As [trial counsel] correctly answered, nothing else imaginable could have

been done and, in fact, . . . no suggestion has been made as to what could have been

done that wasn’t done. And there is a good reason for that, because there is nothing.

We find nothing in the record to preponderate against the post-conviction court’s findings.

As previously noted, trial counsel stated that he employed a firearms expert to investigate the case.

That expert concluded that the weapon recovered was the murder weapon as itsshot pattern “fit with

the evidence.” Moreover, the Appellant testified at trial that the shotgun introduced into evidence

“was the one that he used to shoot on August 21 , 2001.” st

(2) Withdrawal of Motion for Change of Venue

Next, the Appellant contends that trial counsel was ineffective by abandoning his pursuit of

a change of venue after filing a “Motion for Extension of Time to file Motion for Change of Venue.”
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The motion was ultimately withdrawn by trial counsel. The Appellant argues that trial counsel

should have pursued the motion because the victim was an elected law enforcement official and was

well known within the community, specifically arguing that even though there was no undue amount

of publicity regarding the case, the mere fact that the alleged victim was a duly elected law

enforcement official would be grounds enough to pursue a motion for a change of venue. 

At the post-conviction hearing, trial counsel testified and explained his reasoning behind

withdrawing the motion:

We had no real basis to ask for a change of venue. . . . First, a personal preference.

I really like Hancock County juries. Secondly, there is no major single news media

coming out of Sneedville that barrages people day to day about cases that . . . tend to

pollute the juries. And Hancock County is a large county. I felt we could get a fair

trial.

The post-conviction court, in denying the Appellant’s petition, found:

Included in those pretrial motions was one for change of venue. This Court has ruled

that the matter would be taken under advisement to see if a fair jury could be

obtained in Hancock County, Tennessee, and although that motion was later

withdrawn by defense counsel, the jury selection process shows beyond any doubt

that the petitioner was able to obtain a fair jury in Hancock County, Tennessee.

The Appellant has failed to introduce any proof which would preponderate against the court’s

finding. Clearly, trial counsel was aware of possible venue problems and filed the appropriate

motion. However, after review, trial counsel determined that he had no basis for seeking a change

of venue. Clearly, the post-conviction court found no prejudice as it concluded that the Appellant

obtained a fair and impartial jury. Thus, this issue is without merit. 

(3) Lack of Objection to Void Indictment

Lastly, the Appellant complains that trial counsel was ineffective in that he failed to object

to the State’s use of a void indictment. Specifically, the Appellant asserts that trial counsel should

have filed a motion to dismiss the first degree murder indictment because “it included the word

‘deliberate’ which represented an ‘additional element.’” As the State asserts, this issue is waived due

to the Appellant’s failure to include a copy of the indictment in the record. See Tenn. R. App. P.

24(b). Moreover, the Appellant fails to present any legal argument as to why the indictment is void

because it contains the word “deliberate.” See Tenn. R. Ct. Crim. App. 10(b). Accordingly, this

issue is waived. Notwithstanding waiver, we conclude the issue is without merit. 

The proof at the post-conviction hearing established that the first degree murder indictment

included the word “deliberate.” The post-conviction court entered the following findings relevant

to this issue:
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It is alleged that the indictment was void for a fatal defect in containing the

requirement that the act of murder be found to be deliberate. . . . 

. . . . 

[T]his Court finds that the indictment is not void because it required an extra element

of acting deliberately. That would inure, in fact, to the petitioner’s benefit if it were

so charged but it was not charged to the jury. If a motion had been raised to dismiss

the indictment because of that, the motion would have been denied and no different

result would have occurred. 

The inclusion of the word “deliberate” in the indictment was mere surplusage and did not

affect the validity of the indictment. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Indeed,

the trial court properly instructed the jury with regard to the requisite elements of premeditated first

degree murder; thus, no prejudice resulted.

CONCLUSION

For the foregoing reasons, the Hancock County Criminal Court’s dismissal of the Appellant’s

petition for post-conviction relief is affirmed. 

___________________________________ 

DAVID G. HAYES, JUDGE