IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 9, 2002 Session

JOHN PARKER ROE v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Shelby County

No. P-22397 Joseph B. Dailey, Judge

No. W2000-02788-CCA-R3-PC - Filed November 20, 2002

The Defendant, John Parker Roe, was convicted by a jury of first degree premeditated murder. His

conviction was affirmed on direct appeal. See State v. John Parker Roe, No. 02C01-9702-CR00054, 1998 Tenn. Crim. App. LEXIS 39 (Jackson, Jan. 12, 1998), perm. appeal denied (Tenn., Jan.

4, 1999). The Defendant subsequently filed for post-conviction relief, alleging that he received

ineffective assistance of counsel at trial. After an evidentiary hearing, the post-conviction court

denied relief. This appeal followed. We affirm.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES

CURWOOD WITT, JR., JJ., joined.

Douglas A. Trant, Knoxville, Tennessee, for the appellant, John Parker Roe.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

In this appeal from the trial court’s denial of post-conviction relief, the Defendant’s primary

contention is that his trial lawyers were ineffective. However, he also claims that he was denied due

process because one of his jailers sat on the jury that convicted him, and that the State committed

prosecutorial misconduct by failing to disclose certain information about a witness and by making

certain statements during closing argument. 

STATUTE OF LIMITATIONS

As a preliminary matter, we address the State’s contention that the petition was filed outside

the statute of limitations. The State did not raise an issue about the timeliness of the filing in its

response to the petition; rather, the State raised this issue for the first time on appeal. The State
1

This Court allowed the filing of the supplemental record because we viewed the trial court’s order to be one

which corrected a clerical mistake. Clerical mistakes in the record and errors in the record arising from oversight or

omission may be corrected by a court at any time. See Tenn. R. Crim. P. 36. 

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bases its contention solely on the filing date stamped on the face of the petition, which indicates that

the petition was filed outside the one-year limitations period.

During the oral argument of this case, counsel for the Defendant stated that the issue

concerning the filing date had been discussed by the parties in open court prior to the hearing on the

petition. The Defendant’s counsel further stated that the trial court determined, after questioning the

court clerk, that the filing date stamped on the petition was incorrect and that the petition had in fact

been timely filed. Counsel further stated that the Assistant District Attorney General who

represented the State in the post-conviction proceedings in the trial court agreed that the petition was

timely filed. In response to the Defendant’s lawyer’s statements, the Assistant Attorney General

representing the State during oral argument asserted that the State simply relied upon the date which

was stamped on the petition. At oral argument, this Court suggested to the Defendant’s counsel that

he consider seeking to supplement the record to reflect that the petition had been timely filed.

Subsequent thereto, this Court ordered that the record be supplemented with a copy of the trial

court’s order dated April 19, 2002 which stated that the trial court had previously found that the

petition was “received by the Clerk’s office on December 31, 1999 and was considered filed at that

time, that simply a clerical error in the Clerk’s office resulting in the petition being stamp filed

January 12, 2000, . . . .”1 

The State subsequently requested this Court to reconsider the order allowing the record to

be supplemented with the trial court’s order. The State argued that our order made improper use of

Rule 36 and improperly allowed the trial court to “re-write history” in this case. Given the State’s

insistence that a factual dispute remained in the case, we granted the State’s request and remanded

this matter to the trial court for the purpose of conducting a hearing and allowing the parties to

present evidence and be heard on the issue of the timeliness of the filing of the Defendant’s petition

for post-conviction relief. 

The trial court conducted the hearing on July 19, 2002. The trial court subsequently entered

an order, much of which we deem appropriate to incorporate herein:

The Court conducted an evidentiary hearing pursuant to the

Order of the Court of Criminal Appeals entered on May 24, 2002.

The Petitioner called three witnesses as well as introducing four

exhibits.

First, the Petitioner called Lasherrie Harris, who is and was at

the end of 1999 and in the beginning of the year of 2000 employed in

the mailroom which receives all mail for the Shelby County Criminal

Court Clerk. A log book is kept for all UPS packages which are

received. Ms. Harris brought with her and a copy was introduced of

a log entry from January 3, 2000, which showed a UPS package
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having been received from the office of Douglas A. Trant to the

Criminal Court Clerk. This log book i[s] kept in the normal course

of business and the entry was made by Ms. Harris herself.

The Petitioner next called Joe Warren who is a Deputy

Criminal Court Clerk. One of his responsibilities is maintaining the

files of this Court in the normal course of business. He brought with

him the file in this case which is Docket Number 22397. Within that

file were located four documents of particular pertinence to this

hearing. First, there were two copies of a letter dated December 30,

1999 from Douglas A. Trant to the Criminal Court Clerk. Those

letters were cover letters stating that enclosed with the letter was the

Petition for Post Conviction Relief for filing and stated that in the

abundance of caution the Petition was being sent by two means, UPS

and Express Mail, in order to insure that it would be filed before the

statute of limitations ran on January 4, 2000.

Also within the file were the two envelopes from UPS and,

also, the Express Mail envelope which showed that it had been

mailed from Douglas A. Trant’s office on December 30, 1999 and

was received by the mailroom on behalf of the Clerk on December

31, 1999 with a receipt signature by the addressee.

Petitioner next called Pat Vincent who at the time of these

events was head of operations for the Criminal Court Clerk’s office

and had been for some 26 years. He testified in the normal course of

business the Clerk’s office retrieved its mail from the mailroom at

least once and often twice a day. He said when the issue of this filing

arose he checked into the matter and discovered that the stamp filed

date on the Petition of January 12, 2000 was a clerical error and that,

in fact, the Petition had been received by the Clerk on December 31,

1999 as was evidenced by the matters previously referred to above in

the file of the Criminal Court Clerk.

The State introduced no evidence.

It is clear from the evidence introduced that the Petitioner not

by one but two methods made sure that his Petition was timely filed

and did so prior to the expiration of the statute of limitations on

January 4, 2000. The Petition was addressed to the Criminal Court

Clerk at its appropriate address and was received by the Clerk’s

agent, the mailroom. If the mailroom or the Clerk did not route it to

its appropriate place, that is not the fault of the Petitioner who did

everything he could to make sure that it was timely filed. He sent it

to the appropriate address within the appropriate period of limitations

and the Petition was received not once, but twice, by the agent of the

Clerk’s office within the statute of limitations. To adopt the State’s

argument that Petitioner would be responsible for making sure that it
2

The procedural history of this case gives this court an opportunity to note our concerns about the State raising

the statute of limitations defense for the first time on appeal. Pursuant to the 1995 Post-Conviction Act, “[n]o court shall

have jurisdiction to consider a petition filed after” the one-year statute of limitations has run, absent unique circumstances

not pertinent to this case. Tenn. Code Ann. § 40-30-202(b)(1). Furthermore, the Act imposes an affirmative duty on

trial courts to dismiss petitions “[i]f it plainly appears from the face of the petition, any annexed exhibits or the prior

proceedings in the case that the petition was not filed . . . within the time set forth in the statute of limitations . . . .” Id.

§ 40-30-206(b). Because the timely filing of the petition is a “jurisdictional” fact, we are hesitant to consider the issue

waived if not raised in the trial court. In this case, the statute of limitations ran on January 4, 2000. The petition was

stamped “filed”on January 12, 2000. The State did not raise an issue about the timeliness of the filing in its response

to the petition. The record of the original hearing on the petition contains no reference to the statute of limitations issue.

At the commencement of the hearing on remand, the trial court stated that the statute of limitations issue had been

discussed prior to the original hearing on the merits of the petition, and that the court determined at that time that the

petition had been properly and timely filed. Unfortunately, that discussion was not included in the record brought before

this Court. On appeal, for the first time, the State contended that the petition must be dismissed as untimely. Given the

jurisdictional nature of the timely filing requirement, it behooves the State to raise this issue at the trial level because,

(continued...)

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got to the mailroom to the Clerk’s office would be a travesty of

justice and certainly undermine the intent of the legislature and the

Supreme Court and the enactment of our statutes and rules governing

post-conviction petitions and their filing.

The Court holds, now for the third time, that this Petition was

timely filed. . . .

It is ordered that the clerical error of the filing date of the

Petition be corrected to indicate that the Petition was filed on

December 31, 1999. Tenn. R. Crim. P. 36

. . . . 

Taking issue with the trial court’s findings of fact and conclusions of law, the State argues

that the Defendant has failed to demonstrate by clear and convincing evidence that his petition for

post-conviction relief was received by the clerk on or before January 4, 2000. The State contends

that the record does not establish that the mailroom was an “agent” of the clerk; rather, the evidence

merely establishes “habit evidence that employees of the clerk’s office routinely went to the

mailroom at least once and maybe twice a day to retrieve the mail.”

We find the State’s argument unpersuasive. The proof adduced at the hearing established

that the mailroom for the Criminal Court Clerk’s office received an Express Mail envelope from

defense counsel on December 31, 1999 and a UPS package from defense counsel on January 3, 2000.

Testimony further established that the court clerk retrieved its mail from the mailroom at least once

a day. Finally, the director of operations of the criminal court clerk’s office testified that he

investigated the matter and determined that the package “was here timely.” A post-conviction

petition filed by an attorney is “filed when it is received by the clerk of court.” Tenn. Sup. Ct. R. 28,

§ 2(G). The proof contained in the record supports the trial court’s conclusion that the petition in

this case was filed timely, and this issue is therefore without merit.2
2

(...continued)

as in this case, findings of fact may become necessary to determine whether a petition was, in fact, filed timely. See, e.g.,

Sup. Ct. R. 28, § 2(G) (“If papers required or permitted to be filed by these rules are prepared by or on behalf of a pro

se petitioner incarcerated in a correctional facility and are not received by the clerk of the court until after the time fixed

for filing, filing shall be timely if the papers were delivered to the appropriate individual at the correctional facility within

the time fixed for filing.”). It becomes apparent that the date stamped on the face of a petition for post-conviction relief

is not necessarily the date which determines whether the petition was timely filed. Whether a petition is timely filed

involves issues of fact. When the State asserts the statute of limitations as a defense, a petitioner should have the

opportunity for an evidentiary hearing on the issue. This Court cannot make findings of fact and an assertion of an

untimely filing made for the first time on appeal may, as in this case, require this Court to remand the matter to the trial

court in order to determine whether the trial court had jurisdiction to entertain the petition. Otherwise, in order to accept

the State’s argument on appeal, we would be placed in the position of having to assume that the trial court exceeded its

jurisdiction, without giving the petitioner an opportunity to demonstrate facts establishing jurisdiction. Here, we

conclude that assumption would have been incorrect.

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We turn now to the issues raised by the Defendant in this appeal. First, however, a brief

review of the facts adduced at trial will be helpful.

FACTS

The Defendant was a police officer with the Memphis Police Department. At about seven

o’clock on the morning of September 16, 1994, the Defendant called fellow officer Carl Fowler and

asked him to come to the Defendant’s house. Mr. Fowler testified that the Defendant told him over

the phone that Michelle, the Defendant’s wife, had run off. When Fowler arrived about an hour

later, he noticed that Michelle’s car was there. Fowler asked the Defendant where Michelle was, and

the Defendant replied, “It’s worse than you think.” The Defendant then told Fowler that he had shot

Michelle and that she was in “the bottoms,” an area of scrubland behind the Defendant’s house. The

Defendant told Fowler that he and Michelle had been hunting rabbits, and that he accidentally shot

her in the head with his service revolver. When Fowler told the Defendant that they needed to call

the police, the Defendant adamantly refused.

Mr. Fowler was a good friend of the Defendant and had spent considerable time with him,

both on and off the job. Fowler testified that he “thought [he] knew [the Defendant] very well, and

the person [he] ran into that day was not the John [he’d] ever met.” Fowler explained that he had

smelled an odor of alcohol on the Defendant. Fowler testified that, in his opinion, the Defendant was

“mentally ill” that morning, and explained that earlier that week, the Defendant had told him that he

had heard voices coming out of the heating vent. Fowler described the Defendant’s behavior on the

morning in question as “weird” and “strange.” Convinced that the Defendant could not control his

own behavior, Mr. Fowler became fearful for his own life and left.

Mr. Fowler flagged down Deputy William Hughes with the Shelby County Sheriff’s

Department and told him about the shooting. When Deputy Hughes arrived at the Defendant’s

house, he found the Defendant sitting on the tailgate of his truck drinking a beverage. Hughes asked

the Defendant where his wife was, and the Defendant replied, “[S]he could be anywhere.” Hughes

noticed that the Defendant was perspiring very heavily.
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Officer Anthony Chambers arrived as back-up and entered the Defendant’s house. There he

found Michelle’s body lying on the bed. She had been shot in the head and a towel was draped over

the wound. Hughes subsequently arrested the Defendant who, according to Hughes, appeared

“[v]ery calm.” The Defendant’s profuse sweating concerned Hughes, however, and Hughes asked

a paramedic to check his vital signs. Paramedic Randall Wayne Rhodes testified that the

Defendant’s heart rate and respiration were higher than normal, and that he appeared disoriented, or

“spaced out.” The Defendant denied having taken any drugs and told Rhodes that he had been under

a lot of stress.

Sergeant F. B. Roberts arrived on the scene and spoke with the Defendant as he sat in the

squad car. Roberts testified that the Defendant “seemed very confused” and never told him what had

happened. He described the Defendant’s conversation as “irrational.” In the house, Roberts found

an empty bottle of whiskey and four bottles of an over-the-counter drug called “Mini-Thins” in the

trash. Other bottles of Mini-Thins containing pills were found throughout the house. 

Larry Graham, a long time friend of the Defendant, visited the Defendant while he was in jail.

There, the Defendant told Mr. Graham both that the killing had been accidental and that he didn’t

know/remember what had happened. Graham stated that the Defendant had appeared “glaze-eyed,”

and “wasn’t the person that [he] knew.” 

Daniel Kaltreider testified that he met the Defendant through his cousin, John Barnette. Mr.

Kaltreider attended a bar-b-cue in the spring of 1994 that the Defendant and Michelle also attended.

There, he testified, the Defendant told him “that he had a tremendous amount of rage at his wife,”

and that he was going to kill her. Kaltreider testified that the Defendant asked him if he thought the

Defendant could “get away with it” if the Defendant “said it was an accidental discharge.” When

Kaltreider replied no, because he would have to testify against the Defendant, the Defendant stated,

“Then I’ll have to kill you.” The conversation continued, according to Kaltreider, with the

Defendant stating, “Well, I’ll just have to play crazy for about seven -- six months.” 

John Barnette had known the Defendant several years and testified that the Defendant’s

marriage with Michelle was “rocky.” He stated that the Defendant had told him that the Defendant

wanted to divorce Michelle and also spoke of wanting to kill her. The Defendant told him that he

had choked Michelle at one point and thought about killing her then. 

On cross-examination, Mr. Barnette testified about the massive amounts of Mini-Thins that

the Defendant was taking in 1994. Barnette testified that he saw the Defendant taking ten to fifteen

of these tablets at a time. He explained that these pills, combined with the Defendant’s drinking,

caused the Defendant to develop a Dr. Jekyll/Mr. Hyde personality. Barnette testified that the

Defendant spoke to him about hearing voices and seeing ghosts. The Defendant became very

paranoid and suspicious about Michelle. During the summer of 1994, Barnette testified, the

Defendant’s conversations became incoherent, irrational, and “bizarre.” Barnette described the

Defendant as “out of his head” and testified that he became “deeply concerned” about the Defendant

because of his increasingly irrational behavior.
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Peter Connelly was one of Michelle’s teachers at the college which Michelle attended. Mr.

Connelly testified that, two days before her death, Michelle told him that the Defendant had abused

her and threatened to kill her. She wrote down her parents’ phone number and asked Connelly to

call them if she did not show up for her next class. When Michelle failed to attend her next class

on the morning of her death, Connelly called her parents. Michelle’s mother subsequently went to

the Defendant’s house, arriving while Officer Fowler was there. 

Expert testimony established that Michelle was killed by a single gunshot to her head, fired

from twelve to twenty-four inches away. The bullet was fired from the Defendant’s police service

revolver.

Dr. O’Brian Cleary Smith, who performed the autopsy on Michelle, was asked on crossexamination about ephedrine, the active ingredient in Mini-Thins. Dr. Smith testified that, when

taken fifteen tablets at a time, “it has the same effect as an overdose of amphetamine. It can be an

irritant to the heart and set up cardiac arrhythmia -- in other words, irregular heartbeat. It can also

be very stimulating to the central nervous system of the brain causing the person to act in an

irrational manner, to have hallucinations or to see things or feel things that aren’t there.” 

Elton Douglas, one of the Defendant’s jailers, testified on behalf of the Defendant. He

explained that the Defendant was on suicide watch for five days after his arrest. During this time,

the Defendant was confused and engaged in incoherent mumbling, refusing regular conversation.

When asked to compare the Defendant’s behavior during his first month in jail to the several months

preceding trial, Mr. Douglas stated, “[I]f I was to ask him a question [recently], he would answer it;

where then, if I was talking to him, there was no reply or no thought process involved.” 

Clyde William Keenan of the Memphis Police Department also testified on behalf of the

Defendant. He had supervised the Defendant for approximately two years. When called to the

scene, he found the Defendant lying in the back of the squad car, “half way on the seat and half way

into the floorboard.” When the Defendant sat up, Keenan testified, he had a “wild look about him”

and was sweating profusely. The Defendant asked Keenan, “[W]hat’s going on?” and stated,

“[E]verything is breaking up.” Keenan testified that he concluded at the time that the Defendant had

“completely snapped” and was mentally ill. He told the sheriff’s deputies at the scene that “[t]his

young man is over the edge.” He also testified that, at the time, the Defendant had not been capable

of consenting to a DUI test.

Ted Hansom, the Defendant’s first attorney, testified that he saw the Defendant when the

officers initially brought him into the station. He stated that the Defendant was “unable to

communicate,” “not coherent,” and “not oriented.” He testified that the Defendant had been “unable

to understand what was going on.”

INEFFECTIVE ASSISTANCE OF COUNSEL

The Defendant’s primary complaint about his trial lawyers is that they failed to put on

adequate proof about his mental state at the time he killed his wife. He contends that, had they put
3

At the time the Defendant shot and killed Michelle, first degree premeditated murder required that the killing

be done intentionally and with premeditation and deliberation. See Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1994).

4

At the time the Defendant killed Michelle, insanity was an absolute defense to a crime if “at the time of [the

crime], as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness

of the person’s conduct or to conform that conduct to the requirements of the law.” Tenn. Code Ann. § 39-11-501(a)

(1991). See also State v. Jackson, 890 S.W.2d 436, 440 (Tenn. 1994). 

5

The introduction of this type of evidence is frequently mischaracterized as a “diminished capacity defense.”

See State v. Phipps, 883 S.W.2d 138, 143 (Tenn. Crim. App. 1994).

-8-

on physical evidence and expert testimony about the effects of ephedrine, he would have been able

to successfully defeat the State’s proof that he killed his wife with premeditation and deliberation.3

To sustain a petition for post-conviction relief, a defendant must prove his or her factual

allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-

30-210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not

reweigh or reevaluate the evidence below; all questions concerning the credibility of witnesses, the

weight and value to be given their testimony, and the factual issues raised by the evidence are to be

resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,

960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for postconviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the

evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d

at 578-79. 

The State sought the death penalty in this case. Accordingly, the Defendant was represented

at trial by two lawyers, Edward Witt Chandler and Wayne Emmons. Mr. Chandler has been licensed

since 1967, practicing primarily in criminal defense. He testified at the post-conviction hearing that

he has handled more than one hundred murder trials and numerous death penalty cases. Mr.

Emmons has been licensed since 1970 and also focuses on criminal defense. He, too, had handled

capital cases prior to the Defendant’s.

Both lawyers testified that they wanted to pursue a defense of insanity4 and to

introduce evidence that the Defendant lacked the specific intent necessary to commit premeditated

murder,5

 based on the Defendant’s cycle of drug and alcohol abuse. When they filed their notice to

do so, the trial court ordered the Defendant to submit to an evaluation by Dr. Lynn Zager. On trial

counsel’s advice, the Defendant refused to submit to this evaluation. As a result, the trial court ruled

that the Defendant could put on no expert proof concerning his mental state at the time of his wife’s

death.

At the post-conviction hearing, the Defendant testified that at the time he killed his wife, he

was taking thirty to forty ephedrine tablets a day, followed by six Sominex tablets and up to a fifth

of alcohol to sleep. Dr. Jonathan Lipman, a neuropharmacologist, testified that one of the effects

of chronic abuse of ephedrine is “paranoia. The individual starts to hallucinate . . . [and does not]
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know that [he is] hallucinating. [The individual] actually hear[s] . . . voices. Typically the voices

come from a place that you can’t see . . . for instance, behind a door; or you hear it through a wall.”

Dr. Lipman testified that the syndrome resembled “a form of the endogenous condition called

schizophrenia. And people in this condition become very frightened. They believe that people are

plotting against them. They have the delusion of persecution. They don’t sleep because the drug

keeps them awake.”

Dr. Lipman testified that the amount of ephedrine the Defendant was taking was “a

ridiculously-large dose.” Dr. Lipman was able to confirm the dosage consumed by the Defendant

by analyzing the ephedrine content of a sample of the Defendant’s hair. The analysis revealed that

the Defendant had a record high level of ephedrine in his system at the time he killed Michelle: so

high that “the lab ha[d] never seen anything like it.” Combining ephedrine with alcohol, according

to Dr. Lipman, “can have the unfortunate effect of unleashing [the user’s] response to [the]

unreasonable fear [arising from the ephedrine-induced paranoia].” Dr. Lipman also testified that six

Sominex tablets a night was a “crazy” dose.

When Dr. Lipman was asked if, in his expert opinion, the Defendant was, at the time he shot

his wife, able to form the mental culpability required to commit premeditated murder, Dr. Lipman

replied, “I believe he wasn’t in such a state of clear consciousness that he could have been

considered culpable.”

Dr. Pamela Auble, a psychologist, also testified at the post-conviction hearing. She met with

and evaluated the Defendant in the fall of 1999, and reviewed documents prepared by Dr. Lipman.

She was provided with information about the Defendant’s use of ephedrine, alcohol and Sominex

in conjunction with her evaluation. She found that there was “significant” alcohol abuse and

ephedrine abuse starting in the early 1990s and escalating up until the time of the killing. She

testified that the combined use of ephedrine, alcohol and Sominex “with [the Defendant’s]

personality and the factors going on at the time, would have affected his functioning.” One of the

“factors,” she explained, was sleep deprivation, which aggravated the Defendant’s “impairments in

reasoning and judgment and impulse control.” Additional factors causing psychological stress

included the Defendant’s difficult marriage, his dislike of his job, and a house that the Defendant

was working on at the time. Dr. Auble testified that, in her professional opinion, the Defendant was

not capable of forming the intent required for premeditated murder due to his chronic mental disease.

Mr. Chandler, one of the Defendant’s two trial lawyers, testified that he advised the

Defendant not to talk to Dr. Zager because he was convinced that she would testify that the

Defendant had no mental illness or disease, that he knew what he was doing when he shot Michelle,

and that he was able to control his behavior. One of the reasons for Mr. Chandler’s decision was that

Dr. Zager and the prosecutor were “big personal buddies,” and he believed that Dr. Zager would find

whatever the prosecutor wanted her to find with respect to the Defendant’s mental state. Mr.

Chandler explained that he knew Dr. Zager “from a number of cases” and felt that she was

“extremely biased against defendants.” Mr. Chandler testified that Dr. Zager’s anticipated testimony

that the Defendant was sane would cause them to lose “the best defense [they had]” and “would
6

At the time the Defendant was tried, the State was required to prove a defendant’s sanity beyond a reasonable

doubt upon the defendant adducing proof that he was insane at the time of the crime. See State v. Jackson, 890 S.W.2d

436, 440 (Tenn. 1994). The Defendant’s lawyers’ trial strategy was to put on sufficient lay proof of the Defendant’s

insanity to shift the burden of proof to the State to prove his sanity. 

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knock out the defense.” Mr. Chandler stated that he did not think that Dr. Lipman’s testimony would

overcome Dr. Zager’s anticipated testimony, and for that reason, he decided that the better strategy

was to argue to the trial judge at the close of the State’s proof that the State did not carry its burden

of proving the Defendant sane.6

 Mr. Chandler testified that, in his experience, jurors do not like the

insanity defense. Accordingly, he stated, he “was trying to win the case with the trial judge.” Mr.

Chandler stated that he “was absolutely convinced” that they were going to create an issue of sanity

with their lay witnesses. In hindsight, Mr. Chandler admitted, his advice to the Defendant regarding

Dr. Zager might have been a mistake. However, he also testified that “there wasn’t any doubt in

[his] mind at the time [they] were doing the right thing.” 

Mr. Emmons also testified that the trial strategy was to put on sufficient lay proof of the

Defendant’s insanity to shift the burden of proving the Defendant’s sanity to the State. He explained

that they had three very strong lay witnesses with which to accomplish this goal. 

At the close of the State’s proof at the Defendant’s trial, Mr. Chandler moved to acquit the

Defendant of first degree premeditated murder on the grounds that the State had not adduced

sufficient proof that the Defendant had killed Michelle with premeditation and deliberation, and on

the grounds that the State had “failed to prove sanity sufficient enough to send the case to the jury.”

The trial court overruled the motion.

Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the

Tennessee Constitution guarantee a defendant the right to representation by counsel. See State v.

Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This

right to counsel includes the right to effective counsel. See Strickland v. Washington, 466 U.S.

668, 686 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

To determine whether counsel provided effective assistance at trial, the court must decide

whether counsel’s performance was within the range of competence demanded of attorneys in

criminal cases. See Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.

App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears

the burden of showing that counsel made errors so serious that he or she was not functioning as

counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced

the defendant resulting in a failure to produce a reliable result. See Strickland, 466 U.S. at 687;

Burns, 6 S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must

show a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have

had reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This

reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see
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also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.

Crim. App. 1999).

When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to

second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they

were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983

S.W.2d at 246.

In its order denying post-conviction relief, the trial court stated, “It is this Court’s opinion

that the explanations set forth by Mr. Chandler and Mr. Emmons are very plausible and demonstrate

that they provided outstanding representation to Mr. Roe both before and during his trial. . . . [T]he

representation provided byMr.Chandler and Mr. Emmons was professional and appropriate in every

regard. . . . It is this Court’s opinion that the petitioner in this cause received outstanding

representation in every regard by his trial counsel.”

This Court has carefully reviewed the transcripts of both the trial and the post-conviction

hearing. There is no doubt that the Defendant’s trial lawyers provided him with reasonable and

competent representation. There is also no doubt that the Defendant’s trial lawyers deliberately

chose a course of action which precluded their putting on the witness stand two very powerful expert

witnesses. Defense counsel had a very difficult tactical decision to make about how best to present

the Defendant’s defense of insanity and evidence of his diminished capacity to form the required

mens rea of premeditation and deliberation. In hindsight, Mr. Chandler admitted that perhaps they

chose the wrong alternative. However, hindsight is not the proper lens thorough which to view a

claim of ineffective assistance of counsel. The Defendant’s trial lawyers made a strategic decision

after a thorough investigation into the facts and legal theories, and after repeated pretrial efforts to

maintain their defense while avoiding an evaluation by Dr. Zager. “The fact that a particular strategy

or tactic failed or hurt the defense, does not, standing alone, establish unreasonable representation.”

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). While the Defendant and his trial lawyers may

wish that they had chosen a different course of action following the Defendant’s conviction, this

Court is not inclined to criticize strategic trial decisions made in conjunction with the level of legal

skill brought to bear in this case. To do so would be to call into question almost every strategic

decision made on behalf of criminal defendants in this state. Post-conviction relief on the basis of

ineffective assistance of counsel is aimed at addressing incompetent representation; not

representation that simply fails to defeat the State’s case. In short, the Defendant has failed to prove

by clear and convincing evidence that his trial lawyers’ performance fell below the standard of

competence demanded by our constitutions. Accordingly, this issue is without merit.

The Defendant raises as a separate issue that his trial lawyers were ineffective “for not

developing physical evidence to support the abuse of ephedrine with a hair sample.” The Defendant

argues that his hair sample was not tested for ephedrine until after his trial, and that his attorneys

erred in not having it analyzed before trial. However, such evidence would have required expert

testimony for its introduction and explanation. Such expert testimony was precluded by the trial
7

At the post-conviction hearing, the witness identified himself as Tracey Johnson. For reasons which are not

clear from the record, Mr. Johnson is referred to by the parties as Tracey Gossett.

8

For the same reasons, we reject the Defendant’s contention that his attorneys were ineffective for not

introducing into proof the receipts from the Defendant’s shopping trip and dinner with Michelle the night before her

death.

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court’s pretrial order and, given that we have concluded that the Defendant’s trial lawyers were not

ineffective in pursuing the strategy that resulted in that order, we further conclude that they were not

ineffective in failing to perform scientific tests that they knew they would not be able to introduce

at trial. Accordingly, this issue is without merit. 

The Defendant also contends that his trial lawyers were ineffective in allowing one of his

jailers to sit on the jury. When asked about this decision, Mr. Chandler testified that he “knew it was

a little bizarre” to have one of the Defendant’s jailers on the jury, but he explained that they had a

“world-famous” jury consultant who advised keeping that particular juror. Mr. Chandler testified

that, although the Defendant objected to keeping this juror, he decided to follow the consultant’s

advice. Mr. Emmons also testified that, based on the consultant’s advice, that juror was not

challenged.

Again, decisions regarding jury challenges are tactical decisions not subject to being secondguessed by this Court. This claim of ineffective representation is also without merit.

The Defendant also complains that his trial attorneys did not call witnesses James Hughes

and Tracey Johnson7 at trial. Hughes testified at the post-conviction hearing, stating that he had seen

Michelle on the evening before her death; that he saw no bruises on her face; and that she and the

Defendant planned to spend that evening together shopping and attending the Defendant’s birthday

party. Tracey Johnson was one of the Defendant’s fellow officers and had known the Defendant

since high school. He testified at the post-conviction hearing about the Defendant’s heavy ephedrine

use.

Mr. Chandler testified that he did not call these witnesses because of concern about their

credibility. He also stated that he didn’t think Sgt. Johnson “painted [the Defendant] as a really nice

guy.”Mr.Emmons testified that he didn’t think Hughes’s testimony would have assisted the defense.

The Defendant’s attorneys’ decisions not to call these witnesses were made after reviewing

their proposed testimony and after making a reasonable, informed judgment call that these witnesses

would not be beneficial to the defense. This Court will not second-guess these strategic decisions.

This issue is without merit.8

OTHER ALLEGATIONS 

In addition to claiming that he was denied the effective assistance of counsel, the Defendant

contends that he was denied due process because one of his jailers sat on the jury. Larry Collins, one

of the deputy jailers where the Defendant was housed pre-trial, testified at the post-conviction
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hearing that he had seen the Defendant in jail prior to serving as one of the Defendant’s jurors. Mr.

Collins stated that he worked on the floor where the Defendant was housed “a couple of times.” He

also stated that his having seen the Defendant in jail factored into his verdict “[s]omewhat.”

However, Mr. Collins also testified that he listened to and looked at all the evidence and followed

his oath as juror. Mr. Collins disclosed his status as one of the Defendant’s jailers during voir dire.

We disagree with the Defendant that Mr. Collins’ service as one of his jurors violated his due

process rights. Although Mr. Collins testified that his prior contact with the Defendant affected his

verdict “somewhat,” the record does not reflect in what way his verdict was affected. Defense

counsel hoped that Mr. Collins would prove a sympathetic juror because the Defendant had been on

suicide watch for several days while in jail. Indeed, we may speculate that Mr. Collins was more

reluctant to convict the Defendant than other jurors just as readily as we may speculate that he was

more prone to convict the Defendant. However, this Court cannot find a constitutional violation

based on speculation. It is the Defendant’s burden to prove his allegations by clear and convincing

evidence. The Defendant has not done so. Nor has he cited this Court to any rule of law holding that

a jailer subsequently serving as a juror is, perse, a due process violation. Accordingly, we find this

issue to be without merit.

Finally, the Defendant argues that the State committed prosecutorial misconduct during his

trial. He first contends that the State improperly argued “missing witnesses” during closing

argument; that is, the State posed the rhetorical question, “What witness -- not lawyer -- what witness

testified to what psychosis even is, let along that the defendant had one? -- what witness?” However,

this issue could have been raised on direct appeal. Accordingly, this issue has been waived. See

Tenn. Code Ann. § 40-30-206(g).

The Defendant also contends that the State committed prosecutorial misconduct when it

failed to divulge to him prior to trial that Michelle’s parents had signed a movie contract concerning

the case. The Defendant claims that this information was exculpatory and should have been

disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The Defendant argues that such

information proved bias on the part of Michelle’s mother, who testified at trial, and therefore would

have been useful in cross-examination. 

We acknowledge, of course, that the prosecution is required to disclose to a criminal

defendant evidence which is favorable and material to his or her guilt, including evidence which may

be used to impeach the State’s witnesses. See generally, id., 373 U.S. at 87; Johnson v. State, 38

S.W.3d 52, 55-56 (Tenn. 2001). To establish a Brady violation, an aggrieved defendant must prove

four things: (1) that he or she requested the information (unless the information is obviously

exculpatory — in which case the State must disclose it whether requested or not); (2) that the State

suppressed the information; (3) that the information was favorable to the defendant; and (4) that the

information was material. See Johnson, 38 S.W.3d at 56. 

Here, the Defendant testified that he became aware that Michelle’s parents had signed a

movie contract after reviewing a copy of the district attorney’s file in conjunction with filing his
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post-conviction petition. No copy of any document from the district attorney’s file was introduced

in support of this allegation. Even accepting this testimony at face value, however, the Defendant’s

claim of a Brady violation fails because the information does not meet the definition of “material.”

UnderBrady, withheld evidence is material “only if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682 (1985). Here, the “withheld” evidence could have been

used to impeach Michelle’s mother. However, Michelle’s mother was not a key witness to the

prosecution, and her bias was already established by her relationship to the victim. Furthermore,

although Mr. Chandler testified that the information would have been “great cross examination,” we

fail to see how it would have helped the Defendant’s case even if Michelle’s mother’s credibility had

been completely destroyed at trial. Her testimony was simply not that important to the State’s case.

Accordingly, this issue is without merit.

In summary, the Defendant has failed to prove his allegations by clear and convincing

evidence, and we therefore affirm the judgment of the trial court. 

___________________________________ 

DAVID H. WELLES, JUDGE