### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecem

ber 10, 200 2
RANDALL EUGENE BEST v. STATE OF T ENNESSEE
Appeal from the Criminal Court for Monroe County No. 01-170 Carroll L. Ross, Judge

No. E2 002-0 0668- CCA-R3 -PC April 30, 2003

The petitione

r, Ra ndall Eugene Best, a

ppeals the trial c ourt’s de nial of hispetition f

or postconviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel at trial and on appeal. The judgment is affirmed.

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

G ARY R. W ADE , P.J., delivered the opinion of the court, in whichJ ERRY L. S MITH , J., joined. J AMES C URWOOD W ITT , J R ., J., n ot par tici patin g.
Steve Mc Ew en , M ou nt ai n C it y, Tennessee (on appeal), and William Donaldson, Assistant District Public Defender

(at tria l), for th e appell ant, Rand all Euge ne Best

. Paul G. Summers, Attorney Gene ral & Reporter; Elizabeth B. Marney , AssistantAttorney Genera l; and Richard Newman, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The petitioner was indicted for especially aggra v ated burglary , premeditated murder, and felony mu rd er in co nn ec ti on wi th th e b ea ti ng de at h o f t he ei gh ty- se ve n- yea r- ol d v ic ti m, Be n R ay. At trial, the state offered proof showed that

the petitioner entered the victim’s residence throug h a window and bea

t the victim with a ha

rd linea r object , possibly

a tire too l. The me dica l examiner testified that there was evidence of thirty to forty blows. The victim remaine d conscious and was able to teleph one his da

ughter and son-in-law, w

ho summone d help. Th

e vic tim ult imately died from his injurie s. The pe

titioner, who rent

ed a hous e from the

victim, ma

intained that on the day of the mu rder , he d

rove his ex- wif

e, Brenda Best, with whom he still resided, to the victim’s residence so that she could cl ea n it. He contended that when he returned two hours later , he used
a tire tool f rom his car to“sneak inside” a window because he suspected that Ms. Best was having
an affair with the victim. The petitioner claimed that when he discovered Ms. Best naked and in bed with th e victim, he “went crazy ” and struck the victim six to eight times. He was convicted o f especia lly aggravated robbe

ry, preme ditated murder, and felony murder . The latter two convictions1 The petit ioner di d not appeal h is es peciall y aggra vated burg lary conviction on dir ect appea l and do es not list it on his p etition for post-c onvic tion relie f. The sentenc e is not in the reco rd o n app eal.

2 The petition er testified that a co ntact visit was not the equi valent of a conju gal visi t; r ather a contact visi t was one i n wh ich th e par ti es w ere al low ed t o spe ak f ace- to- fa ce, wi th outa bar ri er be twe en t

hem.
-2- appear to h ave been merged by the trial court. The jury

fixed punishment at life without parole. 1 On direct a

ppeal, th e peti tion er argued that the evidence was insufficient, that photographs of the victim should have been excluded, and that applicat ion of the felony murde r aggravating circum stance was unconstitutional. This court affirmed the convictions. See State v. Ra ndall E

. Best , No. E1999 -00120-C CA-R3-CD(Tenn. Crim. App., at Knoxville, Sept. 26, 2000), perm app. denied(Tenn. 2001).

On June 15, 2001, the petitioner filed this petition for post-conviction relief, alleging that his murder conviction was based on the use of a coerced c onfes sion and violative of double jeopardy provision s. He also c ontended that he wa s denied t

h e ineff ectiv e assistance of counsel and that newly discover ed evide nce req uired a new trial

. At th e h ea ri ng , t he pe ti ti on er te st if ie d t ha t h e w as in it ia ll y r epresented by Attorney s Jim Stutts and John Cleveland, but was ultimately represente d at trial by Attor ney s Will iam Tallman and Kimberly Parton. He maintained that prior to trial, they

informed him that they had found a medical examiner who would “testify that [the victim] hadn’t been hit . . . more than 10 times at the most.” The medical examiner, however, was not called as a witness. The petitioner also claimed that he had askedhis counse

l to interview the vi ctim’s o ther t enants to determine whether the victim had engaged in additional affairs, but that they had advis ed him tha

t such evi dence w ould

be irrelevant. He contended that his f

irst lawy ers had f iled an un success ful motion t o recuse the trial judge and that he had aske d Attorne

ys T all man and Part on to present the issue a second time. The petitioner asserted that the failure to appealthe denial of the motion to recuse, either by interlocutory

or direct appeal, constituted ineffective assistance of counse l.

The petitioner also maintained that his trial counsel was ineffective for failing to argue

that the delay betwee n his arr est and hi s appear

ance be fore a magistr

ate was a bas is for relief. He complainedthat he wa s in custod y f or ten to tw en ty d ays before

he appe ared be

fore the magistr ate and that, in

consequence, he had made incriminating statements to the police without the benefit of counsel. The petitioner

recalled that heinitially lied to Detective Patrick Upton, claiming that he had been out with some friends and had gotten into a fight. He contende d that he gave a second pre-tria l statement to Tennessee Bureau of

Investigation Ag ent

T.J. Jordan on

ly b ecause

a jailer offere d him
a con tact visit

2 with Ms. B est. He c laimed tha t he was under the

influenc e of alc ohol and d rugs, namely phenobarbital, at the time of both statements. The petitioner alleged that his initial lawy ers were ineffective for

failing to communic ate with M iddle Ten nessee M ental He alth I

nstitute while he was ther

e for ev aluation . He testi fied tha t his docto

r at MTMHI

told him that she w ould

testify
on his behalf, if necessary , but that she “couldn’t properly evaluate [him] wi thout talking to [his attorneys].” I

t was his opinion thathad his at torney s communic ated with his doctor, the results of the mental evaluation would have been different and he would have had a possible insanity defense.-3-

Fi na ll y, the petitioner claimed that he was de nie d a fair trial because he could not have ha d an im pa rt ia l j ur y in Mo nr oe Co un ty. During cross-examination, the petitioner was confronted with court records establishing that he had been arraigned five days afte r his arrest for especially

aggravated burg

lary and three days af

ter his arrest f

or atte mpted first degree murder. He did not deny their accuracy . The petitioner acknowledged

that he me

t with def ense cou nsel twen ty or thirty times prio

r to trial for “sometimes
an hour, sometimes two hours.” He also acknowledged that prior to trial, he had tentatively a greed t o plead guilty with a sentence of life with the possibility of pa role on the cond ition that he b e allowed to apologize to the victim’s family. He conceded that he later chang ed his mind. Attorney William Tall

man, who r

eprese nted the p eti tioner a s lead counsel at tr ial, acknowledged

that prior to trial, Dr. Steve Dunton, the medical examine r f or Fu lt on Co un ty, Georgia, reviewed the autopsy results and c oncluded that the victim had been struck fewer than twenty or thirty times. Attorney Tallman explained, however, that he and his co-counsel decided agains tcalling Dr. Dunton as a witness because the doc tor characterized the victim’s death as involving “a lot of

pain and suffering.” While aware tha t the petitioner had earlier sought the trial judge’s recusal, Attorney Tallman testifi ed tha t afte r he un derto ok rep resent ation , the t rial j udge
never exhibited any bias or pre

judice. It was his opinion that any evidence of other liasons between the victim and his te

nants would have been irrelevant. In his view, it would not have benefitted the defense to “go out and slander” the chara cter of “an 87-y

ear-old man . . . beaten to death in a go ry, gruesome beating.” According to Attorne

y Ta llman, the

re was n o pote ntial issue regar ding the length o f time betweenthe petitioner’s arrest a nd his bein g taken

before a magis trate. H e did rec all unsuc cessfully attempting to gain s uppression o f the petitioner’s pre-trial statements. I n consulting with Dr. Dunton, Attorney Tallman lea rned that any a

lcohol or phenobarbital consumed by the p e titioner would have been

out of his system by

the time the statements were given. He testifie d that he d

id notrepres ent the pe

titioner a t the time o f his evaluation at Middle Tennessee Mental Health Center. By hi s a ss es sm en t, th ey were a ble to impanel a fair jury in Monroe County. Attorney Tallman recalled that they were allowed the use of jury questionnaires and individual voir dire and that they “t o ok quite awh

ile in pick

ing a jur y.” He also te stified th at the pe titioner h ad provid

ed him with inconsiste nt stateme

nts: [The petitioner] kind of

vacillated on his story with us a fe w times. He had told us initially . . . that he went [to the victim’s residence] and th ought B renda [B est] was there and then – he didn’t . . . tell us that he had actually [gone] in and caught them involved in some se

x act until a

short period before the trial, may be a month or two before the trial. His story was just kind of ba ck and forth as to what he went there for. Attorney Tallman s tated tha

t while the

petitione r may have be en attempting toprotect Ms. Best, the best possible d

efense was “to reposition [their] thinking to go with trying to ar gue that it was a heat-4-

of passion killing and try to g et it down to either manslaughter or seco nd degree murder.” He revealed that he was unable to develop any supportive proof that Ms. Best had been at the victim’s residence at th e ti me of the offense s and that

“the big problem [th

ey ] had [was] . . . [the victim’s] blood all ov er [the pet

ition er.]” Kimberly Parton, who acted as Attorney Ta llman’s co-counsel, testified that the petitioner didnot inform themthat he ha d taken ph

enobarb ital prior

to his state

ments topolice un

til the emp ty prescription bottle was discovered on Brenda Be st’s property inventory . M s. Parton, who also represented

the petitioner on the appeal of the convictions, recalled that she c ommunicated with the petitioner by telephone a

nd mail. She stated that they “basic ally raised the issuesthat were . . . [in] the amended motion for

new tria l.” Althou gh she d

id not rec all wheth

er the pe titioner a sked to appeal the denia

l of rec usal, Ms. Parton did testify that it “would have bee n a frivolous issue and . . . would have taken away from any leg

itimate issue.”

At the conclusion of the hearing, the post-conviction court denied relief. I n this appeal, the petiti oner argues that his trial counsel was ineffective for (1) failing to move to supp ress hi s statemen ts to law enf

orceme nt office rs; (2) fail ing to ap peal the trial judg e’s deni al of his motion to recuse; (3) failing to seek a chang e of venue; and (4) faili ng to ar range for the testimony of a me dical expert to r

ebut the s tate’s pr

oof that th

e victim w as struck thirty to forty times.

In a post-conviction proceeding, the petitioner bears the bur den of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). Claims of ineffective assistance
o f counsel are regarded as mixed questions of law and fact. State v. H oneycutt , 54 S.W.3d 762 , 766-67 (Tenn. 2001); State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). On appeal, the findings of fact made by the trial

court are conclusive and will not be disturbed unless the evidence contained in the rec ord prep onderat

es aga inst them. Brooks v . State , 756 S.W.2d 2 88, 289 (T enn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponder ated agai nst t hose finding s. Clenny

v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App . 1978). The credibility of the witnesses and the w eight a nd value t o be afforded

their testimony are que stions to be resolved by the trial court. Bates v . State , 973 S.W.2d 615 (Tenn. C rim. App. 1997). When reviewing the application of law to those factual findings, however, our r eview is de novo, and the tri al cou rt's conclusions of law ar

e given no presum

ption of c orrect

ness. Fields v. State , 40 S.W.3d 450, 457-58 (Tenn. 2 001); see also State v. England , 19 S.W.3d 762, 766 (Tenn. 2000).

When a petitioner seeks po st-co nviction relief on the basis of ineffective assistance of counsel, he mus t firs t esta blis h that the se rvices render ed or t he adv ice giv en were below “the ra nge of competence demanded

of attorneys in criminal ca ses.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the defense.” S tric kland v. Washington , 466 U.S. 6 68, 693 (1 984). Should the pet itioner f ail to establish either factor, he is not entitled to relief. Our supr eme court described the standard of review as follow s:-5- Becau se a petitioner must establish both prongs of the test, a failure to prove either deficiency

or prejudice p r ovides a sufficient basis to deny relief on the ineffective assistance claim. Indee d, a court need not address the componen

ts in any particular order or even ad dress both if the defendant makes an insufficient showing of one co mponent.
Goad v. Sta

te , 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffectiveassistanc e of coun sel, the p etitioner is not entit

led to the benefit of hindsigh t, may not second-gue ss a

reasonably

based trial strategy , and cannot criticize a sound, but
unsucce ssful, tactica

l decision made dur

ing the c ourse of

the proc eeding s. Adkins v. St ate , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deferen c e to the ta ctical decisions of

counsel, however, applies only if the choice s are made after adequate preparation for the case. Coo per v
. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Init ial ly, the petitioner complains that trial counsel was ineffective for f ailing to seek suppress ion of his pre-tri al statem ents. He argues that his statements to police were not voluntary and knowing bec ause

he was under the influence of alcohol and drugs at the time they were made and because there was an unnece ssary del ay between his arrest and his appearance be fore a magistrate. The petitioner also contends that his second statement was the result of coer cion by the state in the form of the pro mise of a “c ontact visit with Brenda Best.” The post-conviction court ruled asfollows:

From the proof, it appears that [the petitioner] was taken before a magis trate in a prompt and timely manner, a fter arrest. This ground is denied.

The court finds no coercion, undue pressure or deceit in the obtaining of [the petitione r’s] statemen

ts. This ground

was extensively addresse d prior to the trial of the case. The ground is denied.

In our view, the evidence does not prepondera te against those findings. The petitioner was taken before the magistrate in a timely manner. Further , the rec ord ref lects tha t trial counsel did, in fact, move for the suppression of the petitioner’s statemen ts to law e nforce ment offi cers. Th

e postconviction court observed that the issue was “extensively addressed prior to . . . trial.”
Moreover, any defic iencies of tria l counsel would not have resulted in prejudice to the petitioner. A defendant’s rights to counsel and against self-incrimination may be waived as long as the wa iv er is ma de “v ol un ta ri ly, knowingly, a nd intelligently.” Miranda v. Arizona , 384 U.S. 436, 479 (1966); State v. Middlebrooks , 840 S.W.2d 317, 326 (Tenn. 1992). There is no evidence in the record that the petitioner’s statements to law enforcement officer s were the produc ts of drugs or alcohol. Dr. Du nton , the m edical exam iner co nsul ted by defe nse co unsel , conc luded that a ny drugs or alcohol consumed by

the petitioner prior to his arrest would not have remaine d in his system at the time of the statements. Although the petitioner claims to have receive d drugs from another-6-

inmate in the interim, there was no testimony at the evidentiar y hearing about the pa rticu lar dr ugs or their effects. Similarly, the re was no evidence presented that a ny delay in the petitioner’s appearance

be fo re a m ag is tr at e r en de re d t he st at em en ts in vo lu nt ar y. F in al ly, the petitioner cites no authority for the p roposition

that his se cond stat

ement wa s involunta

ry because it was basedon the promise o f a visit with his ex-wife, which he received. Although a statement may be rendere d inadmissib le by s uch a pro mise combined with other

coerci ve tactic s, see United States v. Fay , 323 F.2d65 (2d Cir. 1963) (holding that confession after prolong ed interrogation and p romised v isit from wife and chaplain was inadmissible), the trial court rejected that assertion. In our view, the evide nce does not preponderate against that conc lusion.
Next, the petitioner asserts that counsel was ineffective for fail ing to appeal the trial judge’s denial of his motio n to recu se. I n its orde

r, the pos t-conviction cour t found th at co unsel’s performance was not defective a nd that the petitioner had failed to prove prejudice:

The court finds no error in counsel’s actions regarding this court hearing this
case. The relationship between the court and the decedent’s son, Jim Ray , was of a professional natu re when Mr. Jim Ray was a pol

ice off icer an d the judg e was a member of the District Attorney G eneral’s Office. Such relatio nship was some fifteen years a

go, and was fully

explored by counsel. Additionally , ther e was no prejudice to [the petitioner] in any way . This ground is denied.

The record

sugge sts that the motion to recuse was based, at least in part, on a previous work relation sh i p betwe en the trial court and th e vict im’s son. P rior t o the p ost-c onvi ction hearin g, counsel for the petitioner stated that the trial judge, who was a lso the pos t-conviction judg e in this case, “knew the son of the victim” and worked with him at the district attorney’s off ice before taking the bench. At that p oint, the ju dge sta ted as fo llows:
[F]orthe record, we did have a motion, a hearing on this, and I think I stated

at the time I had known –

[the v ictim’s son] worked – I think for Madisonville, and I ’m saying “I th ink” bec ause I

don’t spe cifically r

ecall, either the sheriff’s department or Madisonville, but I guess it was the police de partment in Madisonville. And . . . I prosecuted

here fr om ‘82 toearly 1986, a

nd I don’t know that I

had seen [the victim’s son] until this incident oc curred in that inte

rim, unles s we had casually seen each other on the str

eet or something. And you use d the word “socialize”, and we certain ly have never socialized. I don’t know that I’ve ever

been any where that [the victim’s son] has been except in a courtroom or a jail situation w

hen we w ere both there on a professional basis. And again, that would have been yea rs and yea rs ago, and I had had no contact with him. I knew no other member of his family ; had never seen any of

them until we got to trial . . . .

Late r, at the close of the hear ing, the post-con viction jud

ge ruled as follo ws:-7-

I did not fe el and I

do not fee

l t oday that

in any way

I should have recuse d myself. I don’t feel that any

contact I had with [the victim’s son] was such that would [a]ffect my ability to make

a decision. . . . And . . . as counsel said, they had other issues they raised on appeal, and they did not feel that was a legitimate issue to raise. . . .

Inour view, the record does not prepondera te against the post-conviction court ’s findi ngs that the pe ti ti on er pr ov ed ne it he r d ef ic ie nc y i n h is counsel's per formanc e nor pre

judice in the result. Alth ough the petitioner argues that the issue should have been raised on an interlocutory appeal, he present s no proof t

hat the a ppeal wouldhave been granted or that it would have been suc cessful . Ms. Parton testifie d that she

did not ra ise the iss ue on direct appea l becaus e she con sidered

it to have no merit and did not want

to detract from other issues that could possibly give rise to relief. This was
a reasonable strategy

made after adequate conside ration tha t will not be

second- guesse d by

this cour t. See Adkins , 9 11 S. W.2d at 347. “The g eneral rule is tha

t a trial ju dge should recu se himself whenever his impartiality can rea sonab ly b e in quest ion.” State v. Ca sh , 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993). A t ria l jud ge’s de

nial of a motion to recuse will

be upheld

absent a showing of abuse of discretion. Id. That Attorney Ta llman testified that the trial judge did not exhibit any bias during the course of the trial and that “Judge Ross gave [them] as fair a trial as [he had] had in

any court an ywhere,”sufficie

ntly supports t

he findin gs of the

post-con viction c ourt.
The petitioner next argues that counsel’s failure to seek a c hange of venue co nst ituted the ineffective assistanc e of coun sel. He a sserts tha t a chang e of venu e was ne cessar y du e to pr etrial pu bl ic it y, the severity of the offense , and the f

act that M onroe Cou

nty “is a relati vely

small coun

ty in terms of p opulati o n.” The state responds that the petitioner has failed to show either ineffectiveness or prejudice.
“[V]enue may be cha

nged . . . if it appears to the court that, dueto undue e xcitement a

gainst the defendant in the county where the offense was committed or any other ca use, a fa ir trial p robably could not be had.” Tenn. R. Crim. P. 21(a). Whether to grant or deny a motion for c

hange of venue is a matter of judicial discretion. Rippy v. State , 550 S.W.2d 6 36, 638 (T enn. 1977 ). The a ppellate court will n ot inter fere with the exercise of discretion absent clea r abuse. State v. Melson , 638 S.W.2d 342, 360 (Tenn. 1982). The ultimate test is whether the jurors who actually sat a nd rendered verdi cts w ere prejudiced by the pretrial publicity. State v. Garland , 617 S.W.2d 176, 187 (Tenn. Crim. App. 1981). The burden of proof is on the defendant. See Adams v. St ate , 563 S.W.2d 804 ( T enn. Crim. App. 1978). Prejudice will not be presumed on the mere showing that there was considerable pretrial publicity

. Dobbert v. Florida , 432 U.S. 282, 303 (1977); State v. Kyg er , 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989). Regar ding thisissue, the

post-con viction c ourt found as follo ws:
There wa s n o b as is to ch an ge ve nu e. Th e j ur y poo l was voir dired individua lly as to pre-trial publicity

and prev iously formed o pinions in this case. The results did not indi cate an

y pr oblem with

undue publicity or any

poisoning of the jury pool. This ground is denied.-8-

In ou r v ie w, th e p et it io ne r h as fa il ed to pr es en t s pe ci fi c e vi de nc e o f a ny p re tr ia l p ub li ci ty or any prejudice to the verdict. Attorney Tallman testified that they used questionnaire s and individua l voir dire in selecting the jury

and that the jury they

impaneled was fair. Nothing in the re cord sug gests otherwise.

Fi na ll y, the petitioner contends that trial counsel was ineffect ive for failing to call Dr. Dunton, the Fulton County, G eorgia , medical examiner, as a witness. The post-conviction court found tha t the petit ioner wa s not prej udiced by any failure to call the

witness:
[The petitioner] could

not benefit from testimony that the victim might have been hit as few

as 10 times , or even

4 to 6 to 8 times as [the petitioner] has testified to da y. The proof showed otherwise, [thepetitioner] was covered in blood which was shown to be the victim’s. The victim’s blood was splat tered and shed in two bedroomsof his home and a connectinghallway. [The petitioner’s] statement that he hit the vic ti m repea

tedly with a tire tool matches the state’s proof and the exact number of blows would not

benefit [the petitio ner]. Def

ense counsel c onsulted t

heir own medical examiner in this case. This ground is denied.

Ini ti al ly, because there is no evide nce i n the record to indicate what Dr. Dunton’s trial testimonywould have been, this issue has been waived. See Tenn. Ct. Crim. App. R . 10(b); see also Tenn. R. App. P. 27( a)(7); State v. Hammons , 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987). The record nev erthele ss s upports the trial court’s conclusion that the petitioner would not likely have benefittedfr om th e t es ti mo ny. Attorney Tallman testified tha t defense counsel’s decision not to call Dr. Dunto n as a tria

l witness w as based

on the following:
Well, we met wit

h Dr. Dun

ton[,] . . . [b]ut in meeting wit h [him], the on

ly thing he could

say . . . that w ould possib ly

help us was that . . . the number of blows was less than what [Dr. Harlan, the state’s medical examiner, testified to.] * * * I don’t recall the number

[of blows estimated by Dr. Dunton] being 10, but I’m not going to argue about

that . . . because I just don’t reme mber the exact number. The
reason we didn’t call Dr. Dunton was because , overall, we fel t his testimo ny w ould
n othelp [the p etitioner

]. We were

concer ned that Dr. Dunton

would, wo

uld ma k e a very g ood witness. The onl y prob lem would b e he woul d be a ve ry good wit ness for the [s]tate b ecause

when he talked with us – when he went through the re cords and everything

on . . . [the victim’s ] death was that he mentioned a lot of pain and suffering and howagonizing a death it would be and the injuries and so on, and we
ce rt ai nl y di dn ’t wa nt th at to co me in fr on t o f t he ju ry.
That qualifie s as a re asonable tactica l decision . Furthe

r, as Atto rney Tall man ex plained, issues unrelated to this trial had caused a breach in the relationship betwee n Dr. Harlan and

the prosecution,
a bre ach that

he believed could

possibly inure to th

e benef it of the de

fense. Again , this was a-9-

reasona ble strategy

based upon adequate investigation and prepa ration. Thus, no r

elief is warranted on this ground. Accordingly , the judgment of the post-conviction court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE