IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 20, 2018 Session

THOMAS EDWARD CLARDY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2006-B-1065 Seth W. Norman, Judge

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No. M2017-01193-CCA-R3-PC

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Petitioner, Thomas Edward Clardy, appeals the denial of his petition for post-conviction 

relief from his convictions for first degree murder, two counts of attempted first degree 

murder, and three counts of reckless endangerment. Petitioner argues that he received 

ineffective assistance counsel, that he is actually innocent, and that the trial court erred by 

denying him the opportunity to make an offer of proof at the post-conviction hearing. 

After a thorough review, we conclude that Petitioner has failed to establish that he 

received ineffective assistance of counsel and failed to prove that he is actually innocent. 

Though Petitioner should have been given the opportunity to make an offer of proof, we 

hold that this error by the post-conviction court was harmless. Accordingly, we affirm 

the judgment of the post-conviction court. 

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS,

JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Thomas Edward Clardy.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Leslie E. Price, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

10/17/2018
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On July 29, 2005, a group of men fired shots at Kirk, Melissa, and Kent Clouatre

at an automobile body shop in Madison, Tennessee.1 State v. Thomas Edward Clardy, 

No. M207-02729-CCA-R3-CD, 2009 WL 230245, at *1 (Tenn. Crim. App. Feb. 2, 

2009), perm. app. denied (Tenn. June 15, 2009). One man’s shots killed Kirk and 

wounded Melissa, Kirk’s wife. Id. Another man’s shot wounded Kent, Kirk’s twin 

brother. Id. During the shooting, Kirk and Melissa’s two children and another child were 

sitting in a car at the body shop. Id. The group of men retreated to their vehicle and fled

the scene. Id. Police recovered several spent cartridge casings, live rounds, and 

projectile fragments from the scene but did not recover any weapons believed to belong 

to the assailants. Id. at *7-8.

The identification of the perpetrators was the central issue during the investigation 

and at trial. Kent testified about his identification of Petitioner and testified regarding his 

descriptions of the other men. At trial, Melissa did not remember giving descriptions of 

the suspects to the police, even when confronted with her statements to the police. 

Kent said that a man whom he knew as “T” fired the shots that killed Kirk and 

struck Melissa. “T” was the only one of the three suspects that Kent had seen before.

Kent identified Petitioner as “T” in a photographic lineup and at trial. Kent testified that 

“T” used a “[s]emiautomatic .40 caliber” pistol. At the beginning of the investigation, 

Melissa gave police officers the initial “D” when attempting to identify one of the

perpetrators, but later the initial changed to a “T.” Kent used the initial “T” every time 

that he was interviewed by Officer Cynthia Quirouette. Officer Quirouette maintained 

that “T” was the initial that came out through the rest of the investigation. However, she 

was not confident in the truthfulness of the witnesses during the investigation. 

When describing the suspect who shot at him, Kent said, “He’s a little bit heavy 

set man, little shorter. He had gold, I guess in his teeth, diamonds were set sideways, 

when he gritted [sic] at me.” He described the weapon used by this man as a .38 caliber 

revolver. Kent described the third individual as a taller, thin guy. Melissa only described 

the third man. Her description was limited to the fact that he was wearing a blue shirt. 

When describing this suspect’s gun, Kent was unsure of the caliber, but stated that it was 

semiautomatic. However, neither Kent nor Melissa recounted this individual firing a 

weapon.

Melissa described the vehicle used by the suspects as a “’96 or ’97 Sable or 

Taurus, blue with an oval back.” Melissa also described the color as “blue or possibly 

green.” According to Officer Quirouette, Kent described the vehicle as an “’84 to ’86 

four-door Buick Century or Celebrity, silver or gunmetal gray.” Officer Quirouette 

 

1

For the purposes of clarity, this opinion will refer to each victim by his or her first name. We 

intend no disrespect. 
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admitted that the descriptions were “totally different.” However, at trial, Kent disavowed 

any statement that the car was a Buick and asserted that the vehicle was a “forest green 

Ford Taurus.” Royleesha Mason, Petitioner’s wife at the time of the crime, owned a teal 

green 1996 Mercury Sable, which is very similar in appearance to a Ford Taurus. That 

car was frequently driven by Petitioner. 

After hearing these identifications along with other evidence of the crime, a jury 

convicted Petitioner for the first-degree murder of Kirk in Count One, the attempted firstdegree murder of Kent in Count Two, the attempted first-degree murder of Melissa in 

Count Three, and the reckless endangerment of the three children in Counts Four through 

Six. Id. at *1. Petitioner appealed. This Court affirmed his convictions, and our 

supreme court denied review. Id. In December of 2009, Petitioner filed a timely pro se 

petition for post-conviction relief. Multiple amendments and seven attorneys later, a 

post-conviction hearing commenced in September of 2016. The evidence adduced at the 

hearing will be discussed in detail in our analysis of the issues addressed on appeal. The 

post-conviction court denied relief, and this timely appeal soon followed. 

Analysis

Post-conviction relief is available for any conviction or sentence that is “void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to 

prevail in a claim for post-conviction relief, a petitioner must prove his or her factual 

allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 

S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no 

serious or substantial doubt about the correctness of the conclusions drawn from the 

evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a 

post-conviction court’s findings of fact are conclusive unless the evidence preponderates 

otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions 

concerning witness credibility, the weight and value to be given to testimony, and the 

factual issues raised by the evidence are to be resolved by the post-conviction court, and 

an appellate court may not substitute its own inferences for those drawn by the postconviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However, 

the post-conviction court’s conclusions of law and application of the law to the facts are 

reviewed under a purely de novo standard, with no presumption of correctness. Fields v. 

State, 40 S.W.3d 450, 458 (Tenn. 2001). 

I. Ineffective Assistance of Counsel

Both the Sixth Amendment to the Constitution of the United States and article I,

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective 

assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392–93 (Tenn. 2014). In 
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order to sustain a claim of ineffective assistance of counsel, a petitioner 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 the two 

prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner 

must prove that counsel’s performance was deficient and that the deficiency prejudiced 

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

that the same standard for determining ineffective assistance of counsel applied in federal 

cases also applies in Tennessee). Because a petitioner must establish both elements in 

order to prevail on a claim of ineffective assistance of counsel, “failure to prove either 

deficient performance or resulting prejudice provides a sufficient basis to deny relief on 

the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need 

not address the components in any particular order or even address both if the [petitioner] 

makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 

(Tenn. 1996) (citing Strickland, 466 U.S. at 697). Whether a petitioner has been denied 

the effective assistance of counsel presents a mixed question of law and fact. State v. 

Burns, 6 S.W.3d 453, 461 (Tenn. 1999). This Court will review the post-conviction 

court’s findings of fact “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, 960 

S.W.2d at 578). 

The test for deficient performance is whether counsel’s acts or omissions fell 

below an objective standard of reasonableness under prevailing professional norms. 

Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the 

questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629 

S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance.” Burns, 6 

S.W.3d at 462. This Court will not use hindsight to second-guess a reasonable trial 

strategy, even if a different procedure or strategy might have produced a different result.

See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Williams v. State, 

599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, 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).

Even if a petitioner shows that counsel’s representation was deficient, the 

petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain 

relief. The question is “whether counsel’s deficient performance renders the result of the 

trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 

364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient 

to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting 
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Strickland, 466 U.S. at 694). “An error by counsel, even if professionally unreasonable, 

does not warrant setting aside the judgment of a criminal proceeding if the error had no 

effect on the judgment.” Id. (quoting Strickland, 466 U.S. at 691). 

A. Investigation and Presentation of Evidence Relating to Alternate Suspects

Petitioner first argues that trial counsel was ineffective because she failed to obtain 

independent ballistics testing of the cartridge casings found at the crime scene and failed 

to present evidence of alternate suspects based upon that ballistics testing. The State 

contends that trial counsel’s choice to eschew ballistics testing was a tactical decision 

because the State had no evidence, other than eyewitness testimony, tying Petitioner to 

the crime scene. Accordingly, trial counsel chose to forego any scientific testing that 

might possibly inculpate Petitioner. Additionally, the State asserts that it is unclear how 

trial counsel would have prepared differently for Petitioner’s case if she would have 

known that the cartridge casings in this case matched guns used in two other shootings 

less than a year later. We agree with the State’s assessment of trial counsel’s tactical 

decision. 

With regard to the description of the suspects, Officer Quirouette recalled Melissa 

giving different heights and weights for each suspect and changing the number of 

suspects from four to three. At one point, Kent gave police the name “Darrell.” 

Melissa’s notes contained the name “Darrell” as well. During an interview, Melissa 

identified an individual from a photographic lineup that was not Petitioner.

Pursuant to an agreed order entered by the post-conviction court in November of 

2015, Bridget Chambers, a forensic firearms examiner with the Metro Nashville Police 

Department, reexamined cartridge casings of three different calibers that were recovered 

from the crime scene. Upon reexamination, she discovered a match for the two .40 Smith 

and Wesson caliber cartridge casings. Ms. Chambers matched those casings to a Glock 

23 handgun that was used in a July 5, 2006 crime by an individual named Dantwan

Collier, who had “gold teeth.” Additionally, Ms. Chambers matched the two 9mm 

cartridge casings recovered from the crime scene to other 9mm cartridge casings that 

were found at the scene of a January 5, 2006 homicide involving Dantwan Collier’s 

cousin, Thomas Collier. Finally, Ms. Chambers matched the .380 auto cartridge case to a 

Hi-Point pistol chambered in .380 auto that had been used in a 2006 case. No 

explanation was given for the significance of the match of the .380 auto cartridge. 

Prior to Petitioner’s trial in July of 2007, trial counsel did not request any ballistics 

testing in Petitioner’s case. Trial counsel explained, “I didn’t want to give the State an 

opportunity to find something they may have missed if [Petitioner’s] DNA was there. 

The ballistics, nobody had tied – nothing had been tied to [Petitioner.]” Trial counsel did 

not recall a weapon being associated with Petitioner and did not recall Petitioner having 
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any prior convictions for possession of a firearm. Had trial counsel known that the 

ballistics from the cartridge casings would match weapons used in two other crimes prior 

to trial, she “probably” would have used that information as part of Petitioner’s defense.

The post-conviction court found that trial counsel’s decision to decline ballistics 

testing of the cartridge casings recovered from the crime scene was not deficient 

performance. The post-conviction court attributed to hindsight Petitioner’s argument that 

an alternate suspect could have been developed from ballistic testing. The postconviction court surmised that ballistics results linking the recovered cartridge casings to 

a gun used by another person would not necessarily rule out Petitioner’s involvement in 

the crime because there were three suspects. 

Like the post-conviction court, we recognize that hindsight is always twentytwenty. Now that ballistics testing has been conducted, revealing exculpatory evidence, 

it is easy to look back at trial counsel’s decision to forego ballistics testing with a critical 

eye. However, if the ballistics testing had revealed a match to a firearm registered to 

Petitioner, then Petitioner would have had abysmal chances of prevailing at trial. We 

evaluate trial counsel’s actions “from the attorney’s perspective at the time,” see Hellard, 

629 S.W.2d at 9, and at the time there was no physical evidence linking Petitioner to the 

crime scene. At the time that she was preparing for trial, there was a chance that 

ballistics testing might reveal either exculpatory or inculpatory evidence. Rather than 

take a risk, trial counsel made the tactical decision to play it safe and argue that Kent’s 

identification, the only thing linking Petitioner to the crime, was inaccurate and incorrect. 

As the United States Supreme Court has recognized,

strategic choices made after thorough investigation of law and facts 

relevant to plausible options are virtually unchallengeable; and strategic 

choices made after less than complete investigation are reasonable precisely 

to the extent that reasonable professional judgments support the limitations 

on investigation. In other words, counsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular 

investigations unnecessary. 

Strickland, 466 U.S. at 690-91. At the time that trial counsel decided to forego ballistics 

testing, she made a reasonable decision. Therefore, we decline to hold that trial counsel’s 

representation was deficient.

B. Investigation of the Blood Trail

Petitioner claims that trial counsel was deficient because she did not investigate a 

trail of blood that led away from the crime scene. The State counters this argument by 

stating that it is unclear how this evidence could have helped Petitioner impeach Kent at 
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trial. Also, the State contends that Petitioner has pointed to nothing in the record 

showing how trial counsel should have investigated the blood trail or how she could have 

used that information at trial. We agree with the State. 

At the post-conviction hearing, Officer George Bouton, a crime scene investigator 

with Metro Police, noted that there was a blood trail at the crime scene. He collected 

samples of blood from the trail at various points. Rachel Mack, a forensic scientist with 

the Metro Police Crime Laboratory, compared several swabs of bodily fluids recovered 

from the crime scene to the DNA profiles of Petitioner and Kirk. Testing revealed one 

partial DNA profile from all fourteen swabs that was consistent with the profile of Kirk. 

Ms. Mack opined that if Kirk had an identical twin, then that would be relevant to the 

analysis of the partial DNA profile.2 Petitioner’s DNA did not match any of the DNA 

profiles recovered from the crime scene.

The post-conviction court did not find trial counsel deficient for not having the 

blood trail tested for DNA. According to the post-conviction court, it was apparent that 

the blood trail was from one of the victims because no testimony indicated that any of the 

suspects were injured. As a result, the post-conviction court did not think that DNA 

evidence from the blood trail would be probative. Furthermore, the post-conviction court 

considered this decision to be a trial tactic because a DNA match of the blood trail to 

Petitioner would have been “cataclysmic for the defense strategy of mistaken identity.” 

Though we conduct a de novo review, we agree with the post-conviction court’s 

reasoning. There was no evidence that any suspect was injured. Thus, it was likely, even 

without DNA testing, that the blood belonged to one of the victims. Trial counsel was 

not deficient for foregoing DNA testing of the blood trail. Kent testified that he stayed at 

the shop after the shooting, and a match of the DNA from the blood to Kent may have 

given trial counsel another point on cross-examination. But, it would not have affected 

the outcome of the trial. Thus, trial counsel was not deficient, and Petitioner was not 

prejudiced. 

C. DNA Testing of “Various Objects”

Petitioner claims that trial counsel was ineffective because she failed to obtain 

DNA testing of “various objects.” Petitioner argues that he has always maintained his 

innocence to trial counsel, so her testimony that she did not conduct DNA testing on 

“various materials” out of fear that it may lead to incriminating evidence against 

Petitioner is illogical. The State counters by pointing out that Petitioner does not identify 

what these “various materials” are or how DNA testing would have been useful. We 

 

2 The record reveals that Kirk and Kent Cloautre were twins, but it does not specify if they were 

identical or fraternal twins. 
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agree with the State. Because Petitioner presented no evidence of what DNA testing 

should have been conducted and/or how it would have benefitted him, he failed to 

demonstrate any prejudice. See Davis v. State, 912 S.W.2d 689, 698 (Tenn. 1995). 

D. Failure to Provide Alibi Notice for Royleesha Mason

Petitioner claims that trial counsel was deficient for failing to file an alibi notice 

for his wife, Royleesha Mason. The State contends that this claim must fail because 

Petitioner was able to present an alibi via a different witness. We agree with the State. 

At trial, Kent estimated that the shooting occurred between 10:15 and 10:30 p.m. 

However, Chrystal Waltz, a private investigator hired by Petitioner’s counsel, revealed at 

the post-conviction hearing that the 9-1-1 call occurred at 10:48 p.m., and Melissa’s 

testimony at trial makes it appear as though she made the 9-1-1 call immediately after the 

shooting. 

The State objected to Ms. Mason’s statement on direct examination that Petitioner 

was at home playing video games at the time of the crime. The State argued that this was 

alibi testimony and that Petitioner had not given notice that Ms. Mason would be an alibi 

witness. Trial counsel did not see Petitioner’s wife as a credible alibi witness, and did not 

file a notice of alibi witness for Petitioner’s wife. At any rate, practically the same 

information was admitted, without objection, during the State’s cross-examination of Ms. 

Mason when the prosecutor asked, “[I]t’s your testimony that you know that [Petitioner] 

was home at your house on Buena Vista that whole day and that whole evening?,” to 

which Ms. Mason responded, “Yes, he was.” 

Shakisha Thompson was able to testify as an alibi witness for Petitioner at trial. 

She testified that she picked up one of Ms. Mason’s sons to take him bowling. When she 

returned at around 10:30 or 11:00 p.m., Petitioner answered the door. Ms. Thompson 

recalled Petitioner being calm and neatly dressed. Trial counsel remembered filing a 

notice of alibi witness for Ms. Thompson. Trial counsel thought Ms. Thompson was 

“level headed,” “didn’t have a dog in the hunt,” and “wasn’t . . . taking sides.” 

Petitioner has failed to show that he was prejudiced by this decision made by trial 

counsel. Ms. Mason essentially presented an alibi for Petitioner on cross-examination 

when she stated that Petitioner was at home with her the “whole day” and “whole 

evening” of the crime. Also, Petitioner presented Ms. Thompson as an alibi witness and 

she offered testimony placing Petitioner at home. Petitioner has failed to show that more 

specific testimony from Ms. Mason providing an alibi would have changed the outcome 

of the trial. Thus, prejudice has not been proven, and Petitioner is not entitled to relief on 

this claim. 
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E. Failure to Effectively Cross-Examine Kent

Petitioner argues that trial counsel did not effectively cross-examine Kent because 

she did not inquire about the alleged drug activity at the body shop. The State responds 

that this was a reasonable trial tactic on the part of trial counsel. We agree with the State. 

At the post-conviction hearing, trial counsel divulged that her strategy was to steer 

clear of any mention of drugs at trial. She stated, “I found out that the victim and his 

surviving twin were dealing drugs out of the auto shop . . . I didn’t want [Petitioner] 

associated in the jurys’ (sic) minds with drugs.” She further explained, “Back in 2007 

here is a young black male, with a predominately white jury, and to hear the word 

drugs[,] I was afraid that was all they were going to hear.” “I made a conscious decision 

tactically because I did not want [Petitioner] associated in any way with the drug 

business,” she added when speaking about a different piece of testimony. 

After reviewing this testimony, it seems clear to us that trial counsel made a 

reasonable strategic decision to avoid the mention of drugs. This was not deficient. 

However, even if it were, Petitioner has failed to establish a reasonable probability that 

the outcome of the case would have been different had trial counsel cross-examined Kent 

on those points. 

F. Failure to Procure an Eyewitness Expert

Petitioner claims that trial counsel was ineffective by failing to procure an 

eyewitness identification expert. The State contends that Petitioner was not prejudiced 

by trial counsel’s failure. We agree with the State. 

Realizing that the only testimony directly linking Petitioner to the crime was the 

identification by Kent, trial counsel attempted to get an expert on eyewitness 

identifications. However, she could not get an eyewitness expert because there were 

difficulties determining how the expert witness would be paid. On one occasion, trial 

counsel gave an expert a ride to the airport to see if she would take Petitioner’s case, to 

no avail. Looking back, trial counsel said “I apparently should have gotten an expert 

witness but I decided to go ahead with it.” Trial counsel claimed she called “everybody” 

on the Tennessee Association of Criminal Defense Lawyers’ list of expert witnesses, and 

she could not find an expert that Petitioner could afford or that would work for the fee 

paid by the State for expert witnesses working for indigent clients. Trial counsel offered 

clarification by saying she did not file a request for funds from the trial court because she 

“wanted to have one lined up before [she] did.”

Dr. Jeff Neuschatz, an expert in psychology, testified at the post-conviction 

hearing and gave his opinion about the eyewitness identifications in this case. He said 
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that the presence of a weapon would impair a person’s memory compared to a situation 

where a weapon was not present. He also pointed out that it is more difficult to give an 

accurate cross-racial identification than an identification of a person of the same race. He 

added that a head covering which covers the hairline on a person’s head makes it more 

difficult to give an accurate identification. Finally, he spoke of “unconscious 

transference,” which occurs when someone associates an unrelated individual with an 

event because they are familiar with that person from the same time and place as the 

event. 

Dr. Neuschatz opined that Petitioner potentially suffered from a case of 

unconscious transference because Kent was familiar with Petitioner from Petitioner’s 

previous visit to the shop. He also testified that the presence of a weapon, the presence of 

a head covering, and the cross-racial identification all affected the identification of 

Petitioner. On cross-examination, Dr. Neuschatz admitted that he could not form an 

opinion as to whether Kent’s identification of Petitioner was correct or incorrect.

In conclusory fashion, Petitioner states in his brief, “If a jury had heard Dr. 

Neuschatz’s information regarding eyewitness identification, both in general and in 

relation to [Petitioner’s] case in particular, it would have reached a different conclusion.” 

We disagree. Dr. Neuschatz could not opine as to the correctness of Kent’s 

identification. Merely giving a jury more information to consider without negating the 

identification does not establish a reasonable probability, sufficient to undermine the 

outcome, that the result of the proceeding would have been different. 

G. Waived Claims

On appeal, Petitioner argues that trial counsel was ineffective because she failed to 

impeach Detective Satterfield effectively and that trial counsel was ineffective because 

she was unaware that Melissa had identified a different suspect. However, these claims 

were not presented in the numerous petitions filed in this case nor were these claims 

argued at the post-conviction hearing. Thus, these claims are waived. See State v. 

Turner, 919 S.W.2d 346, 356-57 (Tenn. Crim. App. 1995) (stating “A party may not raise 

an issue for the first time in the appellate court.”). 

H. Cumulative Error

Petitioner also alleges cumulative error. “Reversals for cumulative error are rare.” 

State v. Herron, 461 S.W.3d 890, 910 (Tenn. 2015). Our supreme court has summarized 

the doctrine as follows: 

The cumulative error doctrine is a judicial recognition that there may be 

multiple errors committed in trial proceedings, each of which in isolation 
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constitutes mere harmless error, but which when aggregated, have a 

cumulative effect on the proceedings so great as to require reversal in order 

to preserve a defendant’s right to a fair trial.

State v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010). In the post-conviction context, “a 

petititoner cannot successfully claim he was prejudiced by [trial] counsel’s cumulative 

error when the petitioner failed to show [trial] counsel’s performance was deficient.” 

James Allen Gooch v. State, No. M2014-00454-CCA-R3-PCm 2015 WL 498724, at *10 

(Tenn. Crim. App. Feb. 4, 2015). Petitioner has failed to prove that trial counsel was 

deficient or that he was prejudiced by any of the deficiencies alleged in his brief. 

Therefore, the cumulative error doctrine does not apply in this case. 

II. Actual Innocence

Petitioner also claims that he is actually innocent because he had an alibi for the 

time of the crime and there was a viable alternate suspect, Dantwan Collier. The State 

contends that Petitioner has failed to show his innocence with clear and convincing proof. 

We agree with the State. 

A free standing claim of actual innocence may be brought under the Tennessee 

Post-Conviction Procedure Act. Dellinger v. State, 279 S.W.3d 282, 291 (Tenn. 2009) 

(citing T.C.A. §§ 40-30-102(b)(2) and -117(a)(2)). However, those claims are limited to 

claims based on newly discovered scientific evidence. Id. Petitioner must prove his 

claim by clear and convincing evidence. Id. 

The only newly discovered scientific evidence put on at the post-conviction 

hearing was the ballistic testing of the cartridge casings at the scene of the crime. The 

ballistic testing revealed that a .40 caliber cartridge casing found at the crime scene 

matched a weapon used in a subsequent shooting by Dantwan Collier and the two 9mm 

cartridge casings matched a weapon used in a subsequent shooting by Thomas Collier. 

This evidence, while certainly exculpatory, does not prove Petitioner’s innocence by 

clear and convincing evidence. There were three individuals who participated in the 

shooting in this case. This newly discovered evidence suggests that Dantwan Collier

and/or Thomas Collier may have been involved. However, it does not mean that 

Petitioner was not one of the three men. Furthermore, it is possible that Petitioner 

possessed one of the firearms before Dantwan or Thomas Collier. So, even though the 

evidence is exculpatory, it does not prove Petitioner’s innocence by clear and convincing 

evidence. 

III. Photographs of an Alternate Suspect
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Petitioner claims that the post-conviction court erred by refusing to admit a 

photograph of an alternate suspect and by denying him the opportunity to preserve for 

appellate review pictures of an alternate suspect via an offer of proof. The State counters 

that the offered evidence was “plainly irrelevant.” We agree with Petitioner that the 

photograph should have been admitted and that he should have been given the 

opportunity to make an offer of proof, but ultimately, we find this error to be harmless. 

During Ms. Waltz’s testimony about alternate suspects, post-conviction counsel 

sought to introduce pictures of Dantwan Collier. According to Ms. Waltz, Dantwan 

Collier’s picture from social media revealed that he had gold teeth and tattoos with clear 

cutouts in them. The State objected to the introduction of the pictures on the ground of 

relevance. Post-conviction counsel argued that the pictures were relevant because 

Dantwan Collier, subsequent to this crime, possessed a firearm that matched the ballistics 

of a cartridge casing found at the crime scene. Post-conviction counsel requested the 

opportunity to give an offer of proof or to include the excluded exhibits in the appellate 

record, but the post-conviction court denied those requests. As the basis for his ruling,

the post-conviction court stated:

Because they were made too far after this and there is no connection in this 

record other than a weapon between this individual and this case, and that 

weapon could have been passed around to 40 different people between now 

and then. It is too remote and I will not allow it. 

Evidence is relevant when it has “any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less probable 

than it would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence is 

admissible unless it is barred by some other rule of law. Tenn. R. Evid. 402. However, 

relevant evidence “may be excluded if its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 

considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence.” Tenn. R. Evid. 403. “[Q]uestions concerning the admissibility of evidence 

rest within the sound discretion of the trial court, and this [C]ourt will not interfere in the 

absence of abuse appearing on the face of the record.” Pylant v. State, 263 S.W.3d 854, 

870 (Tenn. 2008). 

Ordinarily, a picture of an alternate suspect would be irrelevant at a postconviction hearing. However, when a claim of actual innocence is presented, as was the 

case here, evidence which might ordinarily be irrelevant may indeed be relevant. Here, a 

picture of an alternate suspect who possessed a firearm linked to the crime might be 

relevant because it could be compared to the description of the suspect given by the 

victims. Thus, the introduction of a picture of the alternate suspect might have a 

tendency to make it more or less likely that Petitioner was actually innocent. However, 
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because the post-conviction court did not allow Petitioner to make an offer of proof, there 

was neither identification nor authentication of the proffered exhibit submitted as proof 

nor do we have a copy of the picture to review. As such, we cannot determine whether 

the ruling by the post-conviction court was correct.

Generally, it is error to deny a party the opportunity to make an offer of proof. 

Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App. 1994). However, it is not error 

for the trial court to refuse to grant an offer of proof when “it is obvious from the record 

that the proffered evidence could, under no circumstances, be relevant to the issues.” Id.

at 816. Such is not the case here, where the record shows that a picture of the alternate 

suspect might have indeed been relevant and admissible. Thus, the post-conviction court 

should have allowed Petitioner to make an offer of proof identifying the exhibit, 

authenticating the exhibit, marking the exhibit for identification only, and including the 

exhibit in the record on appeal. See State v. Goad, 707 S.W.2d 846, 852-53 (Tenn. 1986) 

(“In order for an appellate court to review a record of excluded evidence it is fundamental 

that such evidence be placed in the record in some manner. When it is a document or 

exhibit, this is done simply by having the exhibit marked for identification only and not 

otherwise introduced.”). 

Ultimately, we determine this error to be harmless. In conducting a harmless error 

analysis, we must determine whether the error “more probably than not affect[ed] the 

judgment or would result in prejudice to the judicial process.” State v. Rodriguez, 254 

S.W.3d 361, 374 (Tenn. 2008). A picture may be worth a thousand words, but at least 

some of those words were revealed through the testimony of Ms. Waltz, specifically that 

Dantwan Collier had gold teeth and tattoos, which is the pertinent information that could 

be gathered from viewing the social media photograph. Even armed with this 

information, this Court would not likely reach a different conclusion because it does not 

undermine Kent’s identification of Petitioner. Kent described the suspect that shot at him 

as the person with gold teeth. According to Kent, “T” was the suspect who shot Kirk and 

Melissa. At trial, Kent denied that he described “T” as having tattoos, and “T” is the 

suspect that Kent identified as Petitioner. Petitioner has failed to show that the postconviction court’s error of refusing to allow Petitioner to make an offer of proof

prejudiced the judicial process in this case. 

Conclusion

For the aforementioned reasons, we affirm the judgment of the post-conviction 

court. 

____________________________________

TIMOTHY L. EASTER, JUDGE