IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 20, 2015

GREGORY HILL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 97595 Mary Beth Leibowitz, Judge

No. E2014-01686-CCA-R3-PC – Filed September 10, 2015

The Petitioner, Gregory Hill, appeals from the Knox County Criminal Court‟s denial of his 

petition for post-conviction relief, wherein he challenged his jury convictions for two counts 

of aggravated assault and resulting sixteen-year sentence. In this appeal as of right, the 

Petitioner contends that he received the ineffective assistance of trial counsel in the following 

ways: (1) because trial counsel advised him to reject a favorable guilty plea with a six-year 

sentence and for which he could apply for probation, opining to the Petitioner that there was 

a strong chance of acquittal if he proceeded to trial; (2) because trial counsel advised him

against testifying on his own behalf, and his decision to do so, based upon that advice, 

severely limited the evidence put forth to the jury supporting his claim of self-defense; and 

(3) because, following the trial court‟s ruling excluding the Petitioner‟s brother‟s testimony

about a similar act of violence by one of the victims, trial counsel failed to make an offer of 

proof of said testimony. Discerning no error, we affirm the judgment of the post-conviction 

court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined. 

J. Liddell Kirk (at hearing and on appeal) and Albert Newman, Jr. (on petition), Knoxville, 

Tennessee, for the appellant, Gregory Hill. 

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; 

Randall E. Nichols, District Attorney General; and Patricia A. Cristil, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND
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A Knox County grand jury indicted the Petitioner for four counts of aggravated assault

against the two victims, Rodney Jones and Andrew Veals, following the Petitioner‟s 

involvement in a March 13, 2007 fight at Brownie‟s Bar. Respectively, counts 1 and 3 

alleged that the Petitioner caused serious bodily injury to each victim, and counts 2 and 4 

alleged that he assaulted each victim by use or display of a deadly weapon, to wit, a baseball 

bat. See Tenn. Code Ann. § 39-13-102(a). After a two-day trial in January 2008, a jury 

convicted the Petitioner of aggravated assault in counts 2, 3, and 4 as charged and of the 

lesser-included offense of felony reckless endangerment in count 1. The trial court merged 

the verdicts for counts 1 and 2 and counts 3 and 4, respectively, and ordered the Petitioner to 

serve two consecutive eight-year sentences in the Department of Correction. See State v. 

Gregory Lynn Hill, No. E2008-02521-CCA-R3-CD, 2009 WL 3711993 (Tenn. Crim. App. 

Nov. 6, 2009), perm. app. denied (Tenn. Apr. 14, 2010).

A detailed summary of the evidence establishing the aggravated assaults can be read 

in this court‟s opinion on direct appeal. See id. at *1-6. Briefly, the State and the Petitioner 

presented opposing theories to the jury regarding the impetus for the Petitioner‟s actions that 

March 13, 2007 evening at Brownie‟s. The State called both victims, two bar patrons who 

witnessed the fight, and the Knoxville Police Department officer who investigated the case to 

testify. The Petitioner did not contest that he was involved in the altercation, but he argued 

that he acted in self-defense. He called his girlfriend, Denise Swatzell, and his brother 

Martin Dwayne Hill, to testify on his behalf. 

The evidence at trial, viewed in a light most favorable to the State, established that the 

victims approached a vehicle, while the Petitioner appeared to be burglarizing it. Although 

Mr. Veals admittedly raised his voice, the Petitioner, within a very short time, struck the 

unarmed Mr. Veals with a baseball bat, causing unconsciousness and a large “knot” on his 

head. Hill, 2009 WL 3711993, at *8. Further, the jury clearly did not credit Ms. Swatzell‟s 

testimony regarding the victims‟ pulling the Petitioner out of her vehicle then beating him. 

Id. Moreover, Mr. Jones testified that, upon seeing the Petitioner attack his friend, Mr. 

Veals, he grabbed the Petitioner, and a brawl ensued. Id. at *9. The jury clearly found that 

the Petitioner was the initial aggressor against Mr. Veals and that Mr. Jones rushed to 

friend‟s defense, thereby rejecting any claim of self-defense. Id. at *8-9.

On direct appeal, the Petitioner challenged the sufficiency of the convicting evidence; 

the denial of his motion for a mistrial because the State‟s witnesses violated the rule of 

sequestration; the refusal of the trial court to instruct the jury on defense of another; the trial 

court‟s exclusion of the Petitioner‟s brother‟s testimony as to the violent characteristics of 

one of the victims; and the imposition of his sentence, both in term length and its consecutive 

nature. Hill, 2009 WL 3711993, at *7. This court affirmed the Petitioner‟s convictions and 
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sentence, and our supreme court denied the Petitioner‟s application for permission to appeal.

See generally id.

The Petitioner‟s pro se petition for post-conviction relief was filed with the court clerk 

on July 13, 2011. To this petition, the Petitioner attached a sworn affidavit, stating that he 

had placed the original copy of his post-conviction petition “in the institution-approved 

mailbox” on April 8, 2011, that he had affixed sufficient postage to the envelope containing 

the petition, that the envelope was properly addressed to the Knox County Criminal Court 

Clerk, and that said envelope had not been returned to him. He also attached a prison trust 

fund account withdrawal request, which showed that his account was charged a notary fee on 

April 8, 2011. When the Petitioner failed to receive any confirmation of filing, he contacted 

the court clerk, who informed him by letter dated June 1, 2011, that the original petition had 

not been received. This letter was also attached to the petition. The Petitioner then resent the 

petition on July 6, 2011, asserting therein that, based upon these facts, his petition should be 

considered as timely filed. 

The post-conviction court entered a preliminary order appointing counsel, stating that 

the Petitioner presented a colorable claim “if he ha[d] filed in a timely manner.” Postconviction counsel was further ordered to “investigate the timel[i]ness of filing and provide 

additional evidence if any regarding the timely filing of this petition.” An amended petition 

was filed, alleging that the Petitioner was denied the effective assistance of counsel at trial. 

No further mention was made of the timeliness of the petition, other than a broad statement 

that the “petition [was] not time barred.”1 As specific allegations of hisineffective claim, the 

Petitioner stated the following: (1) the Petitioner “believe[d]” that trial counsel failed to 

advise him of a plea offer, instead advising him “only . . . to go to trial, as [trial] counsel 

believed, this was an easy case to win on self-defense grounds or defense of [the] Petitioner‟s 

girlfriend”; (2) trial counsel‟s advice to the Petitioner not to testify at trial due to the 

 

1 Although neither the parties nor the post-conviction court questioned the timeliness of the post-conviction 

petition again, we are mindful that the statute of limitations for filing a post-conviction petition is 

jurisdictional. See Tenn. Code Ann. § 40-30-102(b) (“No court shall have jurisdiction to consider a petition 

filed after the expiration of the limitations period unless [certain statutory prerequisites are met].”). Our 

supreme court has held that “the one-year statutory period is an element of the right to file a post-conviction 

petition and that it is not an affirmative defense that must be asserted by the State.” State v. Nix, 40 S.W.3d 

459, 464 (Tenn. 2001). Thus, “it is incumbent upon a petitioner to include allegations of fact in the petition 

establishing either timely filing or tolling of the statutory period,” and the “[f]ailure to include sufficient factual 

allegations of either compliance with the statute or [circumstances] requiring tolling will result in dismissal.” 

Id. In this case, the Petitioner included in his amended petition allegations of fact that ostensibly established 

the timeliness of the petition, and because the issue was not addressed further in the post-conviction court, we 

will likewise address the petition on the merits. However, in the future, we encourage additional development 

of the issue.
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Petitioner‟s prior criminal record was deficient, according to the Petitioner, because the trial 

court had previously ruled that trial “counsel could not present the issue of defense of 

another, and [trial] counsel also could not call [the Petitioner‟s] brother to testify about the 

many prior violent propensity‟s [sic] of the victim[,]” and therefore, “this advice not to 

testify, in effect, prevented [the Petitioner from] presenting his only viable defense” of selfdefense; and (3) trial counsel failed to make “an offer of proof regarding the brother[‟]s

testimony to preserve the issue for appeal.”2 

A hearing was held in the post-conviction court, at which only the Petitioner and trial 

counsel testified. According to the Petitioner, trial counsel told him that his case was “a slam 

dunk” based upon a theory of self-defense and, thus, there was no need to engage in plea 

bargain negotiations. Despite the allegation in the amended petition that trial counsel never 

conveyed any plea offer to the Petitioner, the Petitioner now admitted that trial counsel 

relayed an offer from the State of a six-year sentence and which allowed him to “apply for 

probation.” According to the Petitioner, trial counsel said that he “was old drinkin‟ buddies” 

with the prosecutor and opined that there was a strong chance of acquittal at jury trial. 

Although the Petitioner considered this offer, and even went as far to speak with someone in 

the probation office about applying for probation in this case, he ultimately rejected the offer 

based upon trial counsel‟s advice to do so and proceeded to trial. The Petitioner testified that, 

but for this advice, he would have accepted the plea offer, rather than expose himself to the 

much longer sentence he ultimately received. 

The Petitioner stated that he met with trial counsel, and they briefly discussed how the 

theory of self-defense would be presented to the jury. Trial counsel planned to call the 

Petitioner‟s brother and Ms. Swatzell to establish a claim of self-defense and advised the 

Petitioner not to testify based upon his prior criminal record. 

The Petitioner testified that, after his brother, Martin Dwayne Hill, learned of the 

Petitioner‟s arrest, Mr. Hill informed the Petitioner of an incident where one of the victims 

had acted aggressively toward Mr. Hill at the same bar. Mr. Hill was called to testify at trial. 

After Mr. Hill testified about having a prior criminal conviction, he was prohibited from 

testifying about the similar incident at Brownie‟s Bar. The Petitioner claimed that he wanted 

this evidence in front of the jury to support his claim that the victims were the initial 

aggressors. According to the Petitioner, he did not remember having any further discussions 

 

2Although the Petitioner‟s amended petition for post-conviction relief raised additional grounds of ineffective 

assistance and incorporated by reference the grounds raised in the pro se petition, his brief before this court is 

limited to these three allegations. Because the Petitioner has abandoned his other claims, we will limit our

recount to the facts relevant to the issues of ineffective assistance presented. 
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with trial counsel about his decision to testify at trial, not even after Mr. Hill‟s testimony was 

excluded. 

The Petitioner confirmed that Ms. Swatzell‟s testimony was correct according to his 

recollection of the trial. He also agreed that Ms. Swatzell had already testified that the 

victims were aggressive. 

The Petitioner stated that he understood that if he did not testify at trial, then the jury 

would not know of his criminal record, but he claimed that he “would have rather testified 

and let the . . . jury know the whole truth than just one side.” The Petitioner acknowledged 

that he had at least three prior convictions for aggravated assault and aggravated robbery and 

was sentenced as a Range II, multiple offender in this case. The Petitioner could not recall 

being asked any specific questions by the trial court regarding his decision not to testify. 

Trial counsel was next to testify. Due to the passage of time, trial counsel could not 

recall whether the State ever made the Petitioner a plea offer of six years with an option to 

apply for probation, although acknowledging that such an offer would have been favorable to 

the Petitioner. However, in trial counsel‟s opinion, it was unlikely that such an offer was 

made given the Petitioner‟s “three or four violent felonies” that were used to establish his 

Range II classification. According to trial counsel, the Petitioner had another ongoing case at 

that time, and he believed that the Petitioner might be confusing the two. If someone were to 

speak with the probation office about a case, it would only be by referral from the trial court, 

according to trial counsel.

In accordance with his regular practice, trial counsel would have communicated any 

offer to the Petitioner, “[g]iven him the pluses and minuses of this case,” and told him that 

the ultimate decision was Petitioner‟s alone to make. Trial counsel averred that he never 

made promises to clients and would not have referred to this case as a “slam dunk.” 

According to trial counsel, this case was a “bar fight,” which amounted to witness credibility 

and a determination by the jury of whom they believed. He further opined that the credibility 

of all of the witnesses, both from State and the defense, was a “little sketchy[.]”

Trial counsel was certain that the incident at Brownie‟s Bar involving the Petitioner‟s 

brother occurred after these offenses. Trial counsel recalled speaking with Mr. Hill, and Mr. 

Hill informing him that he had been threatened at this bar by the same victims.3 Trial counsel 

 

3 It is unclear whether this incident involved both of the victims. The direct appeal opinion references only one 

victim, Mr. Veals. The testimony that Mr. Hill did give at trial before his testimony was excluded indicates 

that only Mr. Veals was present at the bar on this occasion.
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opined that Mr. Hill‟s testimony would have been helpful as “corroboration” and “as having 

character for . . . not being peaceful.” Trial counsel acknowledged that he did not make an 

offer of proof following the trial court‟s ruling prohibiting Mr. Hill from testifying about the 

incident. 

Trial counsel also recalled interviewing Ms. Swatzell and presenting her as a trial 

witness and believed that her trial testimony supported the theory of self-defense. Trial 

counsel confirmed that he advised the Petitioner against testifying, believing it to be 

imprudent because the Petitioner had been convicted of violent crimes in the past, including 

an aggravated assault “just like he was charged with in this case.” However, trial counsel 

could not remember if the court ever ruled “as to what convictions would come in if [the 

Petitioner] decided to testify[.]” In trial counsel‟s opinion, the theory of self-defense was 

adequately presented to the jury through Ms. Swatzell‟s testimony alone. Trial counsel 

recalled the trial court specifically asking the Petitioner questions about his decision not to 

testify. 

Thereafter, the post-conviction court denied relief, concluding that the Petitioner had 

failed to establish his claim of ineffective assistance of counsel. This timely appeal followed.

ANALYSIS

On appeal to this court, the Petitioner contends that trial counsel failed to provide the 

effective assistance of counsel at trial guaranteed to him by the United States and Tennessee 

constitutions. Specifically, he submits that trial counsel was ineffective in the following 

ways: (1) trial counsel advised him to reject a favorable guilty plea with a six-year sentence

and for which he could apply for probation, opining to the Petitioner that there was a strong 

chance of acquittal if he proceeded to trial; (2) trial counsel advised him against testifying on 

his own behalf, and his decision to do so, based upon that advice, severely limited the 

evidence put forth to the jury supporting his claim of self-defense; and (3) following the trial 

court‟s ruling excluding Mr. Hill‟s testimony regarding a similar attack by one of the victims, 

trial counsel failed to make an offer of proof of that testimony. We will address each issue in 

turn.

Petitions for post-conviction relief are governed by the Post-Conviction Procedure 

Act. Tenn. Code Ann. §§ 40-30-101 to -122. To obtain relief, the petitioner must show that 

his conviction or sentence is void or voidable because of the abridgement of a constitutional 

right. Tenn. Code Ann. § 40-30-103. The petitioner must prove his factual allegations 

supporting the grounds for relief contained in his petition by clear and convincing evidence.

Tenn. Code Ann. § 40-30-110(2)(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
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2009). Evidence is clear and convincing when there is no substantial doubt about the 

accuracy of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 

(Tenn. Crim. App. 1998).

The post-conviction court‟s findings of fact are conclusive on appeal unless the 

evidence in the record preponderates against them. See State v. Nichols, 90 S.W.3d 576, 586 

(Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)); see also Fields v. 

State, 40 S.W.3d 450, 456-57 (Tenn. 2001). The petitioner has the burden of establishing 

that the evidence preponderates against the post-conviction court‟s findings. Henley v. State,

960 S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or reevaluate the evidence 

or substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d 

at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded 

their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973 

S.W.2d 615, 631 (Tenn. Crim. App. 1997).

Ineffective assistance of counsel claims are regarded as mixed questions of law and 

fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). Thus, the post-conviction‟s 

findings of fact underlying a claim of ineffective assistance of counsel are reviewed under a 

de novo standard, accompanied with a presumption that the findings are correct unless the 

preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458 (citing Tenn. R. App. 

P. 13(d)). The post-conviction court‟s conclusions of law are reviewed under a de novo 

standard with no presumption of correctness. Id.

Under the Sixth Amendment to the United States Constitution, when a claim of 

ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that 

counsel‟s performance was deficient and (2) that the deficiency was prejudicial. Strickland

v. Washington, 466 U.S. 668, 687 (1984); see Lockart v. Fretwell, 506 U.S. 364, 368-72

(1993). In other words, a showing that counsel‟s performance was deficient is not enough; 

rather, the petitioner must also show that but for counsel‟s deficient performance, “the result 

of the proceeding would have been different.” Strickland, 466 U .S. at 694. The Strickland

standard has also been applied to the right to counsel under article I, section 9 of the 

Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after 

satisfying both prongs of the Strickland test. See Henley, 960 S.W.2d at 580. The 

performance prong requires a petitioner raising a claim of ineffectiveness to show that 

counsel‟s representation fell below an objective standard of reasonableness or was “outside 

the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. The 

prejudice prong requires a petitioner to demonstrate that “there is a reasonable probability 
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that, but for counsel‟s professional errors, the result of the proceeding would have been 

different.” Id. at 694. “A reasonable probability means a probability sufficient to undermine 

confidence in the outcome.” Id. Failure to satisfy either prong results in the denial of relief. 

Id. at 697.

Both the United States Supreme Court and the Tennessee Supreme Court have 

recognized that the right to such representation includes the right to “reasonably effective” 

assistance, that is, within the range of competence demanded of attorneys in criminal cases. 

Strickland, 466 U.S. at 687 (1984); Burns, 6 S.W.3d at 461; Baxter v. Rose, 523 S.W.2d 930, 

936 (Tenn. 1975). In reviewing counsel‟s conduct, a “fair assessment of attorney 

performance requires that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel‟s challenged conduct, and to evaluate 

the conduct from counsel‟s perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the 

fact that a particular strategy or tactic failed or even hurt the defense does not, alone, support 

a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.

1992). Deference is made to trial strategy or tactical choices if they are informed ones based 

upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

First, the Petitioner submits that trial counsel was ineffective for advising him to reject 

a plea bargain offer which would have resulted in a total effective sentence of six years and 

allowed him to apply for probation. Trial counsel could not recall such an offer ever being 

made by the State, but he admitted that if such an offer had been made, then it would have 

been favorable to the Petitioner. In trial counsel‟s opinion, however, it was unlikely that such 

an offer was ever made considering the Petitioner‟s prior criminal record. Trial counsel also 

opined that the Petitioner was likely confusing this case with another case of his that was 

pending at the same time and noted that the Petitioner would have only gone to the probation 

office for this case by a referral from the trial court. Furthermore, trial counsel stated that, 

pursuant to his regular practice, he would have conveyed the offer to the Petitioner, discussed 

the advantages and disadvantages of proceeding to trial, and allowed the Petitioner to make 

his own decision. Contrary to the Petitioner‟s testimony, trial counsel stated that he never 

made promises to a client and did not tell the Petitioner that his case was a “slam dunk.” The 

post-conviction court clearly accredited trial counsel‟s credibility in this regard, and we will 

not disturb that determination on appeal. Deficient performance by trial counsel on this 

ground has not been established. 

As his next ground for relief, the Petitioner contends that trial counsel was ineffective 

for advising him not to testify in his own defense. He continues, “Though some prior 

criminal conduct may have come into evidence to impeach the Petitioner‟s testimony, it was 

still necessary for the Petitioner to tell his side of the story in order to properly present a 
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credible claim of self-defense to the jury.” The Petitioner notes that, while his prior criminal 

record was “a legitimate concern in evaluating the question of whether [he] should testify, 

use of the Petitioner‟s prior aggravated assault convictions could have been challenged [by 

trial counsel] as marginally probative of credibility and unduly prejudicial in a case where he 

was charged with the offense of aggravated assault.” 

The true nature and extent of the Petitioner‟s criminal record is unclear because the 

presentence report is not included in the direct appeal record. However, the certified 

judgments used to establish the Petitioner‟s Range II, multiple offender classification are: 

one armed robbery conviction, two aggravated robbery convictions, and one aggravated 

assault conviction. All of these convictions are likely within the ten-year time limit of Rule 

609,4although that too is not entirely clear from the record. Moreover, at the sentencing 

hearing, the trial court found that the Petitioner had additional criminal convictions in 

addition to those necessary to establish his Range II classification, stating, “[H]e has 

additional convictions. A lot of them. Over and above the appropriate range. Mostly 

misdemeanors, but some of the[m] involving assaults and alcohol abuse, which [was] part of 

the problem here. And also involving possession with the intent to go armed. Driving under 

the influence.” Nonetheless, there is no indication, from the record before us, that the State 

ever filed a notice of intent to use such evidence at trial or that the trial court ever ruled on 

the Petitioner‟s motion to suppress “all bad character evidence[,]” including “impeachment 

evidence of conviction of crimes more than [ten] years” old. It does not appear, as such, that 

the trial court ever made any determination about whether the probative value of any of the 

Petitioner‟s convictions on credibility outweighed their unfair prejudicial effect on the 

substantive issues.5

 

4Rule 609(b) provides the following time limit for use of prior convictions: 

Evidence of a conviction under this rule is not admissible if a period of more than ten years 

has elapsed between the date of release from confinement and commencement of the action or 

prosecution; if the witness was not confined, the ten-year period is measured from the date of 

conviction rather than release. Evidence of a conviction not qualifying under the preceding 

sentence is admissible if the proponent gives to the adverse party sufficient advance notice of 

intent to use such evidence to provide the adverse party with a fair opportunity to contest the 

use of such evidence and the court determines in the interests of justice that the probative 

value of the conviction, supported by specific facts and circumstances, substantially 

outweighs its prejudicial effect.

5

See Tennessee Rule of Evidence 609(a)(3):

If the witness to be impeached is the accused in a criminal prosecution, the State must give 

the accused reasonable written notice of the impeaching conviction before trial, and the court 

upon request must determine that the conviction‟s probative value on credibility outweighs its 

unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of 

such proof prior to the trial but in any event shall rule prior to the testimony of the accused.
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Regardless of the admissibility of the Petitioner‟s prior convictions pursuant to Rule 

609, the possibility existed that evidence of the prior convictions may have been admitted 

into evidence had the Petitioner chosen to testify at trial. See Michael Braxton v. State, No. 

M2006-01894-CCA-R3-PC, 2007 WL 1988141, at *4 (Tenn. Crim. App. July 10, 2007). In 

State v. Kendricks, 947 S.W.2d 875, 883 (Tenn. Crim. App. 1996), this court held that 

“irrespective of admissibility under Rule 609 [of Tennessee Rules of Evidence], a conviction 

may be used to contradict a witness who „opens the door‟ and testifies on direct examination 

that he or she has never been convicted of a crime, or to counter some other facet of direct 

testimony.” In addition, the Petitioner‟s convictions may have been used as substantive 

evidence under Rule 404(b) to rebut his claim of self-defense or to show his intent. See

Braxton, 2007 WL 1988141, at *4 (citing Tenn. R. Evid. 404(b)). Therefore, trial counsel‟s 

advice that the Petitioner should consider the possibility that his prior convictions could be 

used against him if he were to testify was not without legal merit. We agree with the postconviction court‟s findings, after reviewing the Momon6

hearing, that the Petitioner 

affirmatively stated that he had discussed his decision about whether to testify with trial 

counsel; that he knew that if he did take the stand and testify, then his prior criminal record 

might be used against him; and that he alone made his decision not to testify. We conclude 

that trial counsel properly advised the Petitioner of his right to testify and merely informed 

him of a possible drawback of his potential testimony. 

Moreover, trial counsel testified that Ms. Swatzell‟s testimony sufficiently raised the 

claim of self-defense and that, based upon her testimony alone, an instruction on self-defense 

was given to the jury. According to trial counsel, although he hoped to use Mr. Hill‟s 

testimony to further support a theory of self-defense, he did not consider the exclusion of Mr. 

Hill‟s testimony as a basis for reconsidering whether the Petitioner should testify on his own 

behalf. Trial counsel‟s decision in this regard was a strategic one, which will not be secondguess on appeal. The reality of the Petitioner‟s prior criminal record being introduced into 

evidence remained unchanged. Thus, the Petitioner has failed to show that trial counsel was

deficient and is not entitled to relief on this issue.

 

Finally, the Petitioner argues that trial counsel was ineffective for failing to make an 

offer of proof regarding the proposed testimony of Martin Hill after the trial court‟s ruling 

excluding the testimony. At trial, the Petitioner‟s brother, Martin Dwayne Hill, testified that 

he had a prior conviction for aggravated burglary. He also attempted to testify to an incident 

at Brownie‟s Bar in December 2007 involving Mr. Veals‟ propensity for violence. 

Apparently, the Petitioner planned to offer this proof of the victim‟s character trait pursuant 

 

6 Referring to the prophylactic procedure outlined in Momon v. State, 18 S.W.3d 152 (Tenn. 1999), which is 

designed to insure that a defendant‟s waiver of his right to testify is voluntary, knowing, and intelligent.
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to Tennessee Rule of Evidence 404(a)(2). However, following an objection by the 

prosecution, the trial court excluded the propensity evidence which occurred after the case at 

hand, and Mr. Hill was excused from the stand. Defense counsel made no attempt, 

thereafter, to obtain an offer of proof regarding Mr. Hill‟s testimony. The Petitioner 

challenged the trial court‟s ruling excluding the testimony on direct appeal to this court, but 

the issue was deemed waived due to trial counsel‟s failure to present any proof to the trial 

court regarding the specific instance of conduct. See Hill, 2009 WL 3711993, at *11.

In his brief in this post-conviction appeal, the Petitioner essentially concedes that he 

has again waived appellate review by not calling Mr. Hill to testify at the post-conviction 

hearing. Generally, “[w]hen a petitioner contends that trial counsel failed to discover, 

interview, or present witnesses in support of his defense, these witnesses should be presented 

by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990). A petitioner must generally elicit favorable testimony from a witness at 

the evidentiary hearing, as a post-conviction court may not speculate “on the question of 

what a witness‟s testimony might have been if introduced” at trial. Id. As such, the 

Petitioner cannot meet his burden of demonstrating prejudice in this regard.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, we conclude that the 

post-conviction court did not err by denying the petition for post-conviction relief. The 

judgment of the post-conviction court is affirmed.

________________________________

D. KELLY THOMAS, JR., JUDGE