IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 16, 2018 Session

JAMES ALLEN POLLARD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2006-D-2820 Monte Watkins, Judge

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No. M2017-01595-CCA-R3-PC

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The Petitioner, James Allen Pollard, appeals the post-conviction court’s dismissal of his 

petition for post-conviction relief, arguing that he received ineffective assistance of 

counsel. After thorough review, we affirm the dismissal of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROBERT H. MONTGOMERY, JR., JJ., joined.

Richard Lewis Tennent and Jodie A. Bell, Nashville, Tennessee, for the appellant, James 

Allen Pollard.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Glenn R. Funk, District Attorney General; and Deborah M. Housel, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

On February 12, 2009, the Petitioner was convicted of first-degree felony murder, 

first-degree premeditated murder, and especially aggravated robbery. The first-degree 

felony murder and first-degree premeditated convictions were later merged, and the 

Petitioner was sentenced to life imprisonment plus eighteen years. State v. James Allen 

Pollard, No. M2011-00332-CCA-R3-CD, 2012 WL 4142253, at *1 (Tenn. Crim. App. 

Sept. 17, 2012), aff’d, 432 S.W.3d 851 (Tenn. 2013). This court affirmed his convictions 

and sentence lengths, but remanded the case for a new sentencing hearing to determine 

11/08/2018
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whether his sentences should be served consecutively. Id. at *21. Our supreme court 

affirmed this court’s ruling, and on remand, the trial court determined that the Petitioner’s 

sentences should be served concurrently. This court cited the facts underlying the 

Petitioner’s case as follows on direct appeal: 

Suppression hearing

Detective Jeff Wiser, of the Metropolitan Nashville Police 

Department, testified that he responded to the victim’s apartment, where the 

victim had been found dead from gunshot wounds. In working with 

Detective Michael Windsor, also of the Metro Nashville Police 

Department, to develop a suspect for the shooting, Detective Wiser 

subpoenaed the victim’s phone records, which showed calls to Lakesha 

Hooten around the time of the victim’s death. The detectives interviewed 

Ms. Hooten. Ms. Hooten initially denied any knowledge of the murder and 

robbery but later gave detectives the names of two men she claimed were 

the shooters. The detectives learned that information was false, and Ms. 

Hooten “finally broke down and told [them] that it was her boyfriend [the 

Petitioner] who had committed the murder.” [The Petitioner] voluntarily 

agreed to speak to detectives. Detective Wiser read [the Petitioner] his 

Miranda rights, and [the Petitioner] signed a waiver of his rights. [The 

Petitioner] then admitted to shooting the victim and taking a PlayStation 

video game system from the victim’s apartment. Detectives subsequently 

arrested [the Petitioner].

Trial

The victim’s mother, Marilyn Branhan, testified that she last saw her 

son on March 22, 2006, when he visited her home on his lunch break from 

work. He had plans to come back to her house that night to sign documents 

for his upcoming house purchase, but he did not show up. Ms. Branham 

was unable to contact the victim the following day. On March 24, 2006, 

she drove to the victim’s apartment and waited beside his car until it was 

time for the victim to leave for work, but the victim never came out of his 

apartment. Ms. Branham then asked the apartment manager to go inside to 

check on him, while Ms. Branham drove to her home and called the police. 

Shortly thereafter, the apartment manager called Ms. Branham and asked 

her to return to the apartment and told her that she had found the victim.

Officer Michael Clark was the first officer to respond to the shooting 

at the victim’s residence on March 24, 2006. Officer Clark discovered the 
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victim’s body lying in the floor of the living room inside the victim’s 

apartment. The victim had been shot. Officer Clark testified that it did not 

appear that the victim’s apartment had been forcibly entered. He noticed 

electronic equipment that appeared to have been pulled out away from the 

TV stand, but there were no other signs of a struggle.

Detective Wiser also responded to the victim’s residence on North 

8th Street. He testified that the victim was lying on his back in the living 

room, and he had two gunshot wounds to his head. The victim’s apartment 

did not appear to be ransacked, but Detective Wiser noticed that it appeared 

as if something had been removed from the TV stand.

Several months into the investigation, the detectives developed [the 

Petitioner] as a suspect in the shooting. Detective Wiser interviewed [the 

Petitioner] about the incident. Initially, [the Petitioner] “vehemently denied 

taking anything” from the victim’s apartment. [The Petitioner] later 

admitted that he took a gun and a PlayStation.

Officer William Kirby testified that he was called to the crime scene 

in order to assist with searching for and processing evidence. Officer Kirby 

testified that he had worked for the Metropolitan Police Department for 

approximately 13 years and that he had processed “at least” one thousand 

crime scenes. Officer Kirby took several photographs of the crime scene. 

He testified that there was blood “directly behind the victim’s head against 

the wall and pooled beneath [the victim’s] right cheek.” He testified that 

there was no blood on the front of the victim’s shirt. There were two pools 

of blood on the carpet beside the victim’s head, and there was no other 

blood found anywhere else in the apartment. Officer Kirby observed “a bit 

of blood spatter” on the wall that was eight to ten inches away from the 

victim’s head. Officer Kirby testified that small blood droplets, indicative 

of high velocity impact, were up the wall as high as six to eight inches 

above the carpet. Without objection by [the Petitioner], Officer Kirby 

testified that, based on the direction and location of the blood spatter, his 

opinion was that the victim was lying on the ground at the time he was shot.

Officer Kirby testified that there was a note found on the victim’s 

car, which was parked on the street in front of the victim’s apartment. The 

note read, “Urgent, call me as soon as you get this message, Momma.” He 

testified that, other than an overturned beer bottle and electronics pulled off 

of the TV stand, nothing in the victim’s apartment appeared to be askew. 

Officer Kirby testified that the murder did not appear to be drug-related 
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because he did not find anything in the victim’s apartment that was 

indicative of the victim having sold drugs.

Reshena Barnes was dating the victim at the time of his death. She 

met the victim while they were students at Tennessee State University. She 

lived with the victim from February 17, 2006, to March 17, 2006. She 

moved out in order to avoid any confrontation between her ex-boyfriend, 

Joseph Stewart, and the victim. She had an order of protection granted 

against Mr. Stewart because he had previously threatened her. Ms. Barnes 

testified that the victim worked at Autozone and that he was excited about 

buying his first house. Ms. Barnes testified that she never knew the victim 

to sell marijuana. The victim owned a gun that he kept in his bedroom 

closet.

Detective Windsor testified that the door to the victim’s apartment 

was locked, and there was no sign of forced entry. Detective Windsor 

obtained the victim’s phone records and determined that Lakesha Hooten 

had been one of the last people to call the victim prior to his death. 

Detective Windsor interviewed Ms. Hooten. Detective Windsor 

investigated the information provided by Ms. Hooten and concluded that 

“she was possibly being deceptive” because he was unable to verify that 

information. Detective Windsor testified that the gun owned by the victim 

was a 9 millimeter semi-automatic, which would have ejected a cartridge 

casing if it were fired, and investigators did not find any fired cartridge 

casings at the crime scene. Investigators also did not find any projectile 

strikes, or holes caused by the firing of a gun, inside the apartment.

Investigators found an empty gun holster in the victim’s bedroom.

Detective Windsor interviewed [the Petitioner] about the shooting.

Detective Windsor testified that [the Petitioner] voluntarily met with him 

and that during the interview, [the Petitioner] signed a Miranda waiver 

form. Detective Windsor testified, over [the Petitioner]’s objection, that he 

did not believe [the Petitioner] killed the victim in self-defense because he 

“did not feel that the injuries sustained by the victim lined up with the 

Petitioner’s] account of the shooting.” Detective Windsor further explained 

that [the Petitioner] had stated that the victim, while lying on the floor, 

raised his arm and pointed a gun at [the Petitioner], and Detective Windsor 

did not believe that [the Petitioner] would have moved “closer to the 

victim, closer to being in danger” to shoot the victim a second time. [The 

Petitioner] also demonstrated to Detective Windsor the distance from which 

[the Petitioner] shot the victim the second time, but Detective Windsor 
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believed that the evidence showed that [the Petitioner] “was a lot closer [to 

the victim].”

Anthony Bowers, [the Petitioner]’s cell mate, testified that [the 

Petitioner] told him that [the Petitioner]’s girlfriend “Keisha” set the victim 

up to be robbed by [the Petitioner]. Mr. Bowers testified that [the 

Petitioner] told him that Keisha drove [the Petitioner] to the victim’s house 

in order to “rob him for some marijuana,” and that once inside the victim’s 

apartment, the victim “looked like he was getting kind of suspicious” 

because he asked [the Petitioner] for money, but [the Petitioner] did not 

have money to purchase the marijuana. [The Petitioner] then pulled out a 

gun and he and the victim “started tussling, and in the middle of the tussle 

[the Petitioner] shot [the victim] in the head.” [The Petitioner] told Mr. 

Bowers that he thought the victim was trying to get a gun. After he shot the 

victim, [the Petitioner] searched the victim’s apartment for valuables and 

took a cell phone, a pistol, and some marijuana, and “before he left [the 

Petitioner] shot [the victim] again because [the Petitioner] said [the victim] 

was still—he was still alive and he didn’t want him to be able to identify 

him.” Mr. Bowers testified that [the Petitioner] told him that he shot the 

victim in the head twice. He testified that [the Petitioner] had stated that he 

shot the victim with a .38 caliber revolver and that [the Petitioner] “several 

times [ ] would always comment that that was the gun you use if you were 

going to murder someone ... [b]ecause it didn’t leave any shells.”

[The Petitioner] told Mr. Bowers that he had been arrested after 

detectives questioned [the Petitioner]’s girlfriend about phone calls she 

made. Mr. Bowers testified that [the Petitioner] told his girlfriend to tell 

detectives that someone else had taken her phone and that she had taken 

“some guys” over to the victim’s house and they robbed him. Detectives 

tried to verify that information and discovered it to be false. Then 

detectives “broke [[the Petitioner]’s girlfriend] down and she wound up 

telling the truth, that [the Petitioner] was the one that had done it.” [The 

Petitioner] did not tell Mr. Bowers that he took the victim’s PlayStation.

Mr. Bowers testified that he was not offered anything by the 

prosecution in exchange for his testimony. About coming forward with this 

information, Mr. Bowers testified:

[A]t first I had a hard time coming forward because me and 

[the Petitioner] we become [sic] friends, but I constantly 

reflect back on the time when I was out dealing drugs and 
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realized that the same thing could have easily happened to 

me. And if my family had to go through that, I would wish 

that someone would have the courage to step up and give any 

information that they have.

Mr. Bowers was incarcerated in federal prison having been 

convicted of “drug conspiracy.” Mr. Bowers had previously been 

convicted for “drugs and reckless endangerment.” On cross-examination, 

Mr. Bowers testified that he did not recall [the Petitioner] making any 

statements to him about the victim having a gun, but he “believe[d] they 

were wrestling.” Mr. Bowers testified “[the Petitioner] was tussling with 

[the victim] and [the Petitioner] shot [the victim].”

Medical examiner Thomas Deering performed the victim’s autopsy. 

Dr. Deering testified that the victim sustained two gunshot wounds to the 

head. The victim was shot in his chin, and Dr. Deering testified that the 

stippling pattern around that wound indicated that the shot was fired from 

between six inches to two feet away. Dr. Deering testified that the shot to 

the victim’s chin caused significant bleeding and that the victim swallowed 

and aspirated “a moderate amount of blood” from that wound, indicating 

that the victim was still living after the shot. The victim was also shot in 

his left temple, which was the fatal shot, and the soot and stippling around 

that wound indicated that the shot was fired from within six inches of the 

victim’s head. The bullet that entered the victim’s temple traveled a 

straight path “for the most part” from the victim’s left to right and fractured 

the victim’s skull and brain. Dr. Deering recovered both bullet jackets and 

some bullet fragments. Dr. Deering testified that the toxicology report 

revealed that the victim’s blood alcohol level was .04 percent and that he 

had a “very small amount” of Carboxy–THC, a byproduct of marijuana, in 

his system.

On behalf of [the Petitioner], Earl Campbell testified that he was a 

former Metro Nashville Council Member and worked at the Davidson 

County Clerk’s Office. He knew [the Petitioner] “when he was a young 

boy” and [the Petitioner] had helped his father clean at the Madison Church 

of Christ. Mr. Campbell testified that [the Petitioner] was “a good kid” and 

that he worked hard. Mr. Campbell testified that “back then [the Petitioner] 

seemed to be very honest.”

[The Petitioner]’s father, James Pollard, Sr., testified that [the 

Petitioner] had been working for him at his cleaning service company full-
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time for four years. [The Petitioner] had lived with Mr. Pollard, and Mr. 

Pollard testified that [the Petitioner] had “a couple of PlayStations.” On 

cross-examination, Mr. Pollard testified that he knew about [the 

Petitioner]’s charges, and [the Petitioner] “didn’t show [him] no remorse 

about nothing.” [The Petitioner]’s mother, Cherrion Pointer, testified that 

[the Petitioner] had lived with her until he was 18, 19, or 20 years old, 

when he began living with his father. She testified that [the Petitioner] was 

a reliable person and [the Petitioner] had just received a graduation 

certificate from Cornerstone Christian Academy.

Sentencing hearing

At the sentencing hearing, a presentence report was entered into 

evidence. The victim’s mother, Marilyn Branham, and brother, James 

Branham, testified that the victim’s murder had greatly affected their family 

and had caused a substantial amount of grief. [The Petitioner] did not 

testify or present any other proof at the sentencing hearing.

Motion for new trial

At the hearing on [the Petitioner]’s motion for new trial, the 

Assistant District Attorney General Deborah Housel, who prosecuted [the 

Petitioner]’s case, testified that on January 5, 2007, in response to a 

discovery request from [the Petitioner], she reported that there was no 

exculpatory evidence known to the prosecution at that time. In a letter 

dated January 29, 2009, General Housel notified defense counsel of four 

additional witnesses, including “Anthony Bowers (federal inmate),” which 

the State intended to call at trial. She also prepared and filed a writ of 

habeas corpus ad testificandum in order to have Mr. Bowers transported to 

[the Petitioner]’s trial scheduled for February 9, 2009, and she faxed a copy 

to defense counsel.

General Housel testified that she called defense counsel on February 

2, 2009, and “had a long and lengthy discussion.” She told defense counsel 

that Mr. Bowers’ attorney had contacted her and told her that Mr. Bowers 

had “information regarding admissions that were made by [the Petitioner] 

to him.” General Housel also told defense counsel that she had interviewed 

Mr. Bowers along with Detective Windsor, and that the State had initially 

elected not to use Mr. Bowers’ testimony at [the Petitioner]’s trial because 

Mr. Bowers had been accused of raping another inmate. However, General 

Housel also told defense counsel on February 2, 2009, that Mr. Bowers had 
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since “been cleared of all wrongdoing concerning [the rape allegation],” 

and that the State intended to have Mr. Bowers brought to court, although 

she “had no clue whether or not he was going to testify for [the State] or 

not.” General Housel testified, however, that in light of the strength of the 

State’s case against [the Petitioner], she did not believe she needed to call 

Mr. Bowers as a witness. General Housel invited defense counsel to “feel 

free to come by, look at all the file, and the letter [written to General Housel 

by Mr. Bowers], and all the information regarding the rape.” General 

Housel recalled that defense counsel “came over to [her] office one day and 

[she] gave him the box with all the information in it.” She testified that she 

showed defense counsel the letter from Mr. Bowers.

General Housel testified that she met with defense counsel again on 

February 6, 2009, and she “brought the entire file for [defense counsel] to 

look through. [She] opened it, showed him everything” and gave defense 

counsel the opportunity to make copies of the file, which included the letter 

from Mr. Bowers and information regarding the rape allegation and 

investigation. General Housel testified she was “one hundred percent 

positive that [she] went into great detail with [defense counsel], all of the 

allegations that were made and the letter [Mr. Bowers] sent [her].”

General House[l] testified that she believed that Mr. Bowers “was 

going to get consideration for his testimony,” but that she did not know 

what relief, if any, he received in federal court. She testified that she did 

not tell defense counsel that Mr. Bowers was eligible for a sentence 

reduction in exchange for his testimony “because [she didn’t] know that 

that’s true.” She told defense counsel that all she could do for Mr. Bowers 

was “put in a good word” for him to Assistant United States Attorney 

Blanche Cook, who was assigned to Mr. Bowers’ case. General Housel 

acknowledged that she sent an email to Ms. Cook following [the 

Petitioner]’s trial, advising Ms. Cook that Mr. Bowers “did a fabulous job” 

and General Housel wrote, “I know I can’t help Mr. Bowers but if I could, I 

would certainly give him any consideration and break I could. He provided 

crucial testimony.”

General Housel testified that she met with Mr. Bowers on November 

30, 2007. Another Assistant District Attorney, Katie Miller, accompanied 

her to that meeting to discuss a case in which Mr. Bowers offered some 

information. Ms. Housel did not know of any other cases in which Mr. 

Bowers had provided assistance to the prosecution. Ms. Housel testified 
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that Mr. Bowers “was not a possible witness until [she] found out that he 

had been cleared of the rape allegation.”

Attorney Jack Seaman testified that he represented Mr. Bowers in 

federal court at a hearing on a “Rule 35” motion to reduce Mr. Bowers’

sentence in 2008, prior to Mr. Bowers having testified at [the Petitioner]’s 

trial. Mr. Seaman explained that a Rule 35 motion is filed by the 

government in order to seek a reduction in a defendant’s sentence based on 

assistance he provided to the government. In Mr. Bowers’ case, the motion 

was denied. Mr. Seaman testified that he represented to the federal court 

that Mr. Bowers “provided information and assistance regarding at least 

five people that got convicted” and in one case in which the [the Petitioner]

pled guilty, and that Mr. Bowers “provided assistance in the prosecution of 

a couple of people but he [was] not called as a trial witness.” At the time of 

Mr. Bowers’ resentencing hearing, Mr. Seaman did not believe that Mr. 

Bowers would be called as a witness in [the Petitioner]’s case “because of 

accusations he was involved in a gang rape.”

On cross-examination, Mr. Seaman testified that he contacted 

General Housel “[m]ultiple times” to offer Mr. Bowers’ assistance in [the 

Petitioner]’s case, and Ms. Housel advised that the State was not interested 

in Mr. Bowers’ testimony “because the case was so strong .” Mr. Seaman 

recalled a conversation with General Housel after Mr. Bowers was accused 

of rape in which General Housel advised Mr. Seaman that she was 

“absolutely” not going to call Mr. Bowers to testify. Mr. Seaman 

acknowledged that General Housel contacted him in January, 2009, to 

inquire about the rape allegation, and Mr. Seaman informed her that the 

rape allegation was false. General Housel then asked Mr. Seaman to find 

out whether Mr. Bowers would still testify, and Mr. Seaman was doubtful 

that Mr. Bowers would testify because he had already had his resentencing 

hearing. Mr. Seaman testified that Mr. Bowers did not benefit from his 

testimony in [the Petitioner]’s case. Mr. Seaman also testified that he did

not inform General Housel about other cases in which Mr. Bowers provided 

assistance.

[The Petitioner’s trial counsel] testified that he became aware of 

Anthony Bowers on January 30, 2009, when he received a fax from 

General Housel that listed four additional potential State’s witnesses. [The 

Petitioner’s trial counsel] testified that in a “subsequent conversation,” 

General Housel disclosed that Mr. Bowers’ testimony was regarding a 

“jailhouse confession” and that there had been “a rape case against Bowers 
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but he was exonerated on that.” General Housel stated that she was unsure 

whether Mr. Bowers would be called to testify. [The Petitioner’s trial 

counsel] testified that if he had more time, he “would have done everything 

[he] could to have tried to follow up on this.” [The Petitioner’s trial 

counsel] acknowledged that General Housel had “been very open and very 

forthcoming, as she always is in every case” and that she had offered for 

[the Petitioner’s trial counsel] to copy her file which was “probably eight to 

nine inches thick.” He testified that General Housel told him that her file 

was “basically the same as [his],” and [the Petitioner’s trial counsel] did not 

look through the file, although he did not think that General Housel “would 

have objected had [he] gone through it line by line, sheet by sheet.”

[The Petitioner’s trial counsel] testified that he was not made aware 

of the letter from Mr. Bowers to General Housel; however, on crossexamination, he acknowledged that General Housel told him that she had 

received a letter from Mr. Bowers and that he remembered General Housel 

“paraphrasing the contents of the letter.” [The Petitioner’s trial counsel] 

testified, “General Housel and I had spoken pretty regularly about Bowers, 

and—even to the fact that she didn’t know whether he would testify[.]” 

[The Petitioner’s trial counsel] testified that he listened to the audiotape of 

General Housel’s interview with Mr. Bowers on the morning before Mr. 

Bowers testified. [The Petitioner’s trial counsel] was aware of the 

allegations against Mr. Bowers and that “he had been cleared.” However, 

[the Petitioner’s trial counsel] was “not aware, or made aware, of the 

factual basis” for the allegation, and had he known, he would have crossexamined Mr. Bowers about it. [The Petitioner’s trial counsel] testified, “I 

would have used anything I could have to have shown any possible motive 

on his behalf other than the goodness of his heart.”

[The Petitioner’s trial counsel] was not aware that Mr. Bowers had 

provided assistance in any prosecutions other than the one in which 

Assistant District Attorney Katie Miller also met with Mr. Bowers with 

General Housel present. [The Petitioner’s trial counsel] testified that he 

“distinctly remembered” General Housel telling him that “there was 

nothing that [she] could do to help [Mr. Bowers].” [The Petitioner’s trial 

counsel] testified, “General, in my opinion you told me—you disclosed 

everything that you knew.” [The Petitioner’s trial counsel] testified that he 

believed that “the most damning testimony” was that of the medical 

examiner and the firearms expert. He testified, “I would say these two 

coupled together were the things that we just weren’t able to overcome.” 
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Id. at *1-7. 

The Petitioner filed a timely petition for post-conviction relief on December 2, 

2014, in which he argued, as in this appeal, that he received ineffective assistance of 

counsel because trial counsel failed to effectively challenge the testimony of Anthony 

Bowers, failed to sufficiently litigate his motion to suppress, and failed to object to the 

testimony of Officer Wayne Kirby as a “blood splatter” expert. The post-conviction 

court conducted evidentiary hearings on the Petitioner’s issues on August 3, November 9, 

and December 15, 2015.

 

August 3, 2015 Post-Conviction Hearing

At the August 3, 2015 evidentiary hearing, the Petitioner’s trial counsel testified 

that he had been an attorney for forty-five years and had handled over a hundred criminal 

trials, both in state and federal court. Trial counsel testified that he was familiar with the 

federal electronic case filing system and further conceded that he did not look through the 

State’s discovery “page by page” because he and the State had “basically, the same 

file[.]” He affirmed that he did not see an email from an Assistant United States Attorney 

referencing Mr. Bowers’ testifying and seeking a reduction in his prison sentence, and he 

further stated that he was not made aware that Mr. Bowers would be testifying until the 

night before trial. He also affirmed that he was unaware that Mr. Bowers had previously 

provided information to the government against other defendants and that he had 

assaulted a fellow inmate. Trial counsel testified that if he had known about the 

circumstances surrounding Mr. Bowers’ testimony, he would have used it to crossexamine him. However, trial counsel also explained that although he did not know about 

the specific circumstances surrounding Mr. Bowers, during cross-examination he asked

Mr. Bowers about his drug use and criminal history and during closing argument he 

portrayed Mr. Bowers as “a snitch and a liar” and told the jury not to be surprised if Mr. 

Bowers and his attorney later “ask[ed] for a modification of his sentence” based on his 

testifying. When asked whether he believed the evidence against the Petitioner was 

overwhelming, even without Mr. Bowers’ testimony, trial counsel responded that he 

“would certainly agree that there was a factual basis for the jury to find what they found.” 

Trial counsel also testified regarding his actions during the suppression hearing. 

When asked why he did not call the Petitioner to testify regarding whether officers had 

illegally seized him, trial counsel stated that the Petitioner had declined to testify, even 

after trial counsel explained that the issue was “something [the Petitioner] was going to 

have to substantiate.” Further, trial counsel stated that even if the Petitioner had testified 

at the suppression hearing, he did not believe the Petitioner would have testified that 

there was “any show of force by the police that compelled him to come to the police 

station” because he had never mentioned a show of force to trial counsel. Trial counsel 
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explained that he chose to rely on the videotape of the Petitioner’s interview with police 

as substantive proof at the suppression hearing based on the Petitioner’s unwillingness to 

testify. Trial counsel conceded that the Petitioner “changed his story” multiple times 

during his interview with police and even asserted that he had shot the victim twice in 

self-defense after the victim shot at him, though no other “bullet strikes or casings” were 

found at the victim’s apartment. Trial counsel also conceded that “one of the big 

thing[s]” at the suppression hearing was that the Petitioner was both “allowed to leave 

during the interview to go down the hall” and to “leave after the interview.” 

Trial counsel was finally questioned about the “blood splatter” trial testimony of 

Officer Kirby. When asked why he did not object to Officer Kirby’s testimony, trial 

counsel explained that: 

I felt the best choice was to draw as little attention as possible to that; and, 

just simply to not go into that. There is – in my opinion, most jurors feel 

that a person in the police department that has worked with these types of 

programs, and has processed many crime scenes, that these people know 

what they’re talking about. . . . It was a matter of trying to lessen the 

impact. 

Though trial counsel conceded that he had not read the specific cases mentioned by 

appellate counsel, he testified that he read “digests . . . on the issue of blood splatter” and 

“felt strategically it would be better not to [object].” 

November 9, 2015 Post-Conviction Hearing

At the November 9, 2015 post-conviction hearing, attorney Kathleen Morris gave

expert testimony, over the State’s objection, regarding how “non-deficient” defense 

counsel should operate. Ms. Morris testified that a non-deficient attorney would look 

through discovery given by the State. She also stated that a non-deficient attorney would 

call his client to testify at a suppression hearing regarding whether his client was illegally 

seized by police. Ms. Morris testified that a non-deficient attorney would look through 

an inmate’s file after being told he was going to testify against his client and stated that 

she was personally able to find Mr. Bowers’ file and his previous efforts to obtain 

sentencing reductions. She finally testified that a non-deficient attorney would object to a 

police officer giving “blood splatter” testimony without first being qualified as a “blood 

splatter” expert and would move for a mistrial. 

Mr. Bowers also testified at the November 9, 2015 hearing. He affirmed that he 

had previously received a reduction in his sentence length for his assistance in the State’s

prosecuting a drug dealer. He further affirmed that he had provided information against 
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multiple other cellmates and had sought a sentence reduction in those cases. He also 

offered to provide information for federal cases in Kentucky and Florida and for three 

cases in Nashville, including the Petitioner’s. Mr. Bowers conceded that prior to the 

Petitioner’s trial, a federal judge denied a motion to reduce his sentence because of his 

assault of a fellow inmate and found Mr. Bowers to be “not credible on th[o]se issues.” 

He testified that although he had been questioned about his motives by trial counsel, if he 

had been specifically asked about his desire for a sentencing reduction, he would have 

conceded that it was his motive in testifying against the Petitioner. Mr. Bowers also 

stated that the only time he had testified regarding the information he tried to provide was 

at the Petitioner’s trial, and he verified that he had not been promised any sentence 

reduction by the State or federal government and that his testimony “didn’t help [him,]” 

but affirmed that it was truthful. 

December 15, 2015 Post-Conviction Hearing

At the December 15, 2015 post-conviction hearing, Detective Wiser testified that 

Ms. Hooten implicated the Petitioner in the murder of the victim after falsely accusing 

two other men. Based on Ms. Hooten’s previous incorrect statements, Detective Wiser 

testified that he did not get an arrest warrant for the Petitioner, but rather decided first to 

interview him. Detective Wiser testified that he and Detective Windsor located the 

Petitioner in the parking lot of Ms. Hooten’s apartment. Although he did not remember 

whether he put his hand on his gun, he stated that he had a gun on his hip “[a]s [officers] 

always do[,]” but that he “typically d[idn’t]” keep his hand on his gun. He testified that 

the Petitioner agreed to “voluntarily com[e] down to the police station for an interview” 

and that they transported the Petitioner to the police station after frisking him for 

weapons, as was “standard procedure.” He further explained that although he could not 

remember exactly why they transported the Petitioner to the police station, it was “not 

uncommon” for them to give rides to people who needed to go to the police station, “like 

a courtesy.” Detective Wiser further affirmed that his interaction with the Petitioner was 

not hostile, but was a “civil conversation . . . [t]here w[eren’t] any direct commands, or 

nothing [] like that.” 

The Petitioner also testified at the December 15, 2015 hearing. He testified that 

Detective Wiser “reached for his gun” when he and Detective Windsor approached the 

Petitioner in the parking lot of Ms. Hooten’s apartment. He stated that the detectives 

would not allow him to go back to his apartment to tell “the kids” he was leaving, called 

for a police car, and “never gave [him] [the] choice” to walk away from them. The 

Petitioner further testified that he “never left custody” of the detectives after getting in the 

police car, though he affirmed he was not handcuffed. He stated that he relayed this 

information to trial counsel, and he responded, “Not that I recall” when asked whether 

trial counsel talked to him about testifying at the suppression hearing. On cross-
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examination, the Petitioner affirmed that trial counsel had “done his homework” and 

presented a recently-decided case at the suppression hearing that was similar to the 

Petitioner’s. He further affirmed that trial counsel met with him “many, many times[,]” 

“showed [him] all the discovery in this case[,]” and “successfully was able to keep [the] 

pictures of [the] dead [victim] out[.]” He also testified that trial counsel “went over 

possible defenses” with him, and he chose not to testify at trial. The Petitioner also 

agreed that trial counsel had put on character witnesses on his behalf, made many 

objections, and “involved [him] in many discussions” regarding the trial. 

At the close of the final evidentiary hearing, the post-conviction court entered a 

written order denying and dismissing the Petitioner’s post-conviction petition, finding 

that he was not entitled to relief. The Petitioner now appeals. 

ANALYSIS

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

and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary 

hearing is held in the post-conviction setting, the findings of fact made by the court are 

conclusive on appeal unless the evidence preponderates against them. See Tidwell v.

State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely 

factual issues, the appellate court should not reweigh or reevaluate the evidence. See

Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). However, review of a trial 

court’s application of the law to the facts of the case 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, which presents mixed questions of fact and law, is reviewed de 

novo, with a presumption of correctness given only to the post-conviction court’s 

findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 

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

The Petitioner argues that trial counsel was deficient for failing to investigate Mr. 

Bowers before he testified, insufficiently arguing during the motion to suppress hearing, 

and failing to object to Officer Kirby’s “blood splatter” testimony. We initially note that 

the post-conviction court failed to specifically address the Petitioner’s arguments 

regarding the motion to suppress and the failure to object to Officer Kirby’s testimony. 

The post-conviction court only found that “trial counsel’s failure to investigate Mr. 

Bowers prior to trial did not prejudice the defense of [the Petitioner].” The court did not 

specifically address any other arguments, and instead concluded that,

[The] Petitioner ha[s] failed to demonstrate by clear and convincing 

evidence ineffective assistance of counsel in violation of a constitutional 

right to render his conviction and sentence void or voidable under the Post 
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Conviction Relief Act. Moreover, the Court finds the [P]etitioner’s 

testimony not to be credible. Accordingly, the Court finds that [the] 

Petitioner has failed to show that he was prejudiced by counsel’s allegedly 

deficient conduct. 

I. Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel, the petitioner has the 

burden to show both that trial counsel’s performance was deficient and that counsel’s 

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. 

Crim. App. 1997) (noting that same standard for determining ineffective assistance of 

counsel that is applied in federal cases also applies in Tennessee). The Strickland

standard is a two-prong test:

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.

The deficient performance prong of the test is satisfied by showing that “counsel’s 

acts or omissions were so serious as to fall below an objective standard of reasonableness 

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) 

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., 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.

Courts need not approach the Strickland test in a specific order or even “address 

both components of the inquiry if the defendant makes an insufficient showing on one.”

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either 

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

assistance claim.”).
- 16 -

A. Testimony of Anthony Bowers

The Petitioner argues that trial counsel was deficient in not investigating Mr. 

Bowers before he testified at trial. He further argues that trial counsel’s crossexamination of Mr. Bowers “caused the defense more harm than would have no crossexamination at all.” The Petitioner relies on Peoples v. Lafler, 734 F.3d 503 (6th Cir. 

2013), for his apparent assertion that trial counsel’s failure to impeach Mr. Bowers was 

per se ineffective assistance of counsel. However, the facts in Lafler greatly differ from 

those of the instant case. In Lafler, trial counsel was given a police report and other

supporting documentation showing that two of that defendant’s accomplices were lying

about a particular fact of the crime, and trial counsel did not ask them about that fact or 

apparently even mention it in opening statement or closing argument. Further, the Lafler

court specifically noted that trial counsel’s whole strategy was to cast doubt on the 

credibility of the two accomplices, and his failure to impeach the two accomplices was 

therefore particularly harmful to the defense, even more so because the two accomplices’ 

testimony was the only evidence linking that defendant directly to the actual crime. 

Lafler, 734 F.3d at 507, 513.

The Petitioner fails to recognize the important differences between Lafler and the 

instant case. As we have laid out, the post-conviction court found that trial counsel’s 

failure to investigate Mr. Bowers did not prejudice him. The record supports such a 

conclusion. Although trial counsel did not impeach Mr. Bowers’ claim that he was 

testifying because it was the right thing to do, he did reference his previous drug 

convictions and criminal history and during closing argument he portrayed Mr. Bowers 

as a “snitch and a liar” and told the jury not to be surprised if he sought a reduction in 

sentencing in exchange for his testimony. Further, although the Petitioner argues that 

trial counsel “actively worked to bolster the credibility of the prosecution’s key 

witness[,]” the Petitioner ignores trial counsel’s portrayal of Mr. Bowers as a “snitch and 

a liar” and his mentioning to the jury that it was possible Mr. Bowers would seek a 

reduction in his sentencing. Unlike the Lafler case, Mr. Bowers’ testimony was not the 

only evidence the State possessed against the Petitioner, and Mr. Bowers received no 

actual benefit from his testimony, unlike the accomplices in Lafler. Although trial 

counsel might not have investigated Mr. Bowers as thoroughly as Ms. Morris suggested 

he should have, there is nothing in the record to suggest that the jury accredited Mr. 

Bowers’ testimony or that the jury would have decided differently had trial counsel 

impeached Mr. Bowers in a different manner. 

Finally, the Petitioner argues that the State’s other evidence against him would not 

have been sufficient to sustain his conviction without Mr. Bowers’ testimony, namely 

because the Petitioner’s assertion that he acted in self-defense would not have been 

contradicted. However, as we have laid out, despite the Petitioner’s claim to detectives
- 17 -

that he shot the victim in self-defense after the victim first fired a shot at him, there is no 

evidence that anyone but the Petitioner fired a gun. Further, the medical examiner, Dr. 

Deering, testified that the first shot to the victim was made from between six inches and 

two feet away, while the second, fatal shot was made from only six inches away, 

demonstrating that the Petitioner moved closer to the victim after the first shot, just as he 

stated to detectives. Dr. Deering testified that it was possible the first shot knocked the 

victim unconscious. Thus, the only evidence supporting the Petitioner’s claim of selfdefense is his own assertion. We agree with the post-conviction court’s conclusion that 

the Petitioner did not suffer prejudice as a result of trial counsel’s failure to impeach Mr. 

Bowers. 

B. Motion to Suppress

The Petitioner also argues that trial counsel was ineffective in failing to present 

proof at the motion to suppress hearing that the Petitioner was seized by detectives. 

Although the Petitioner asserts that trial counsel never talked to him about testifying at 

the suppression hearing, trial counsel testified that he told the Petitioner that this was an 

issue that would have required the Petitioner’s testimony in light of the other evidence, 

namely the video of the Petitioner’s interview and subsequent confession and the 

testimony of detectives. Trial counsel testified that the Petitioner elected not to testify at 

the suppression hearing, and trial cousnel was thus forced to rely on the other available 

evidence to support the argument that the Petitioner’s confession should have been 

suppressed. He further testified that the Petitioner never discussed with him that 

detectives had used force. Instead, trial counsel affirmed that the video of the Petitioner’s 

interview showed that he was not handcuffed and was allowed to leave the room and 

walk down the hall during the interview. 

Contrary to the Petitioner’s testimony at the post-conviction evidentiary hearing 

that Detective Wiser approached him with his hand on his gun, Detective Wiser testified 

that he did not remember having his hand on his gun and would have only done so in a 

dangerous situation, and Detective Wiser affirmed that his interaction with the Petitioner 

had been civil, not threatening. Detective Wiser also testified that Detective Windsor had 

spoken to the Petitioner about voluntarily coming to the police station to be interviewed. 

He also affirmed that it was not unusual for them to provide transportation to the police 

station to witnesses or victims. Further, Detective Wiser stated, and the Petitioner 

conceded, that the Petitioner had not been handcuffed in the patrol car or during the 

interview. Instead, he had been allowed to leave the interview and walk down the hall by 

himself. 

Except for the Petitioner’s own assertions, there is nothing in the record to 

support a finding that he was seized by detectives. In fact, even without any strong 
- 18 -

evidence, trial counsel argued for suppression and presented a recently-decided case in 

support of the Petitioner. Although he was not able to keep the Petitioner’s confession 

out, he was able to keep graphic photographs of the victim’s bullet wounds out. Trial 

counsel testified that the Petitioner was unwilling to testify at the suppression hearing, 

despite his explanation of the necessity of doing so. Without the Petitioner’s testimony, 

trial counsel lacked the evidence necessary to present proof that the Petitioner was seized. 

It is true that had the Petitioner’s confession been suppressed, the State would have had a 

weaker case and, as Ms. Morris suggested, trial counsel would have been deficient if he 

unilaterally decided that the Petitioner would not testify at the suppression hearing. 

However, the post-conviction court accredited the testimony of trial counsel and the 

detectives over that of the Petitioner. The record suggests that trial counsel would have 

called the Petitioner to testify at the suppression hearing had he been willing, but even so,

the testimony of the detectives and of trial counsel suggest that the Petitioner was not 

seized, regardless of whether or not he testified at the suppression hearing. Further, this 

court noted on direct appeal that the Petitioner had conceded that he voluntarily met with 

the detectives at the police station. See State v. James Allen Pollard, 2012 WL 4142253, 

at *13. The Petitioner fails to establish that trial counsel’s performance was deficient or 

that he suffered prejudice as a result of the alleged deficiency. 

C. Testimony of Officer Wayne Kirby

The Petitioner also contends that trial counsel was ineffective in failing to object 

to Officer Kirby’s testimony regarding blood spatter, despite his not being qualified as an 

expert witness. As we have laid out, Officer Kirby testified that, based on his thirteen 

years of experience with the police department and his observations of blood spatter at 

the crime scene, he believed the victim was lying down on the ground when he was shot. 

On appeal, the Petitioner raised the issue of the trial court’s admission of Officer Kirby’s 

testimony. Because the Petitioner had not raised the issue in the trial court, this court 

utilized plain error analysis and found that no plain error existed. See id. at *19. This 

court specifically found that “Officer Kirby might not have been an expert in blood 

spatter; however, because [the Petitioner] did not object, there is not a sufficient basis to 

make that conclusion.” Id. Because the post-conviction court did not address Officer 

Kirby’s testimony, we review this issue de novo. 

The Petitioner argues that “trial counsel was unable to provide any strategic 

explanation for why he failed to object” to Officer Kirby’s testimony and “admitted that 

he had not read” the specific cases the Petitioner referenced. Additionally, Ms. Morris 

testified that a non-deficient attorney would have objected to the testimony. However, 

trial counsel testified that he chose not to object to Officer Kirby’s testimony in order to 

“draw as little attention as possible” to his testimony that the victim was on the ground 

when he was shot and stated that his strategy was to “lessen the impact” of Officer 
- 19 -

Kirby’s testimony. He further testified that he had read “the digests” on blood spatter. 

Although the Petitioner seems to assume that trial counsel’s objection would have kept 

Officer Kirby’s testimony out completely, as this court noted on direct appeal, there is 

nothing in the record to support the conclusion that Officer Kirby undoubtedly would not 

have been qualified as an expert had trial counsel objected; in that scenario, the same 

testimony would have been introduced to the jury, except with the added impact of it 

coming from an expert witness. Moreover, the Petitioner offered no evidence of Officer 

Kirby’s qualifications as an expert, or lack thereof, during the post-conviction evidentiary 

hearings. 

The Petitioner further asserts that Officer Kirby’s testimony was “the only direct 

evidence (other than the testimony of Mr. Bowers), which directly cast doubt on [the 

Petitioner]’s claim” that he shot the victim while they were struggling. However, the 

Petitioner’s own version of events in his reply brief state that, during his interview with 

detectives, “[The Petitioner] demonstrated how [the victim] immediately fell to the 

ground following the first shot . . . and . . . [the Petitioner] fired a second shot into the left 

side of his head.” Though the Petitioner questioned trial counsel as to why he would 

“let[] proof come out that [the victim] was effectively executed lying on the ground[,]” he 

fails to realize that his own version of events demonstrated such a scenario. The 

Petitioner again fails to establish that trial counsel’s performance was deficient or that he 

suffered prejudice as a result of the alleged deficiency. 

II. Cumulative Error

The Petitioner requests this court to consider the cumulative effect of the errors he 

has alleged above in deciding whether to grant him relief in this post-conviction appeal. 

Because we have found no single instance wherein trial counsel was deemed ineffective, 

there is no basis to conclude that any cumulative error resulted in an unfair trial. 

CONCLUSION

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

petition.

____________________________________

 ALAN E. GLENN, JUDGE