IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 12, 2015

JAMES DREW FREEMAN v. STATE OF TENNESSEE

Appeal from the Criminal Court for White County

No. CR-3544 Leon C. Burns, Judge

No. M2014-02141-CCA-R3-PC – Filed November 13, 2015

The Petitioner, James Drew Freeman, appeals from the denial of post-conviction relief by 

the Criminal Court for White County. He was convicted of second degree murder of his 

mother and sentenced to seventeen years‟ imprisonment. On appeal, the Petitioner argues 

that he received ineffective assistance of counsel because trial counsel failed to locate and 

call a witness. Upon review, we affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Daniel J. Barnes, Sparta, Tennessee (on appeal), and Larry G. Bryant, McMinnville,

Tennessee (at hearing), for the Petitioner, James Drew Freeman.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; 

Randall A. York, District Attorney General; and Gary S. McKenzie and Philip A. Hatch, 

Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

This case arises from the shooting death of the victim, Zella Freeman, on August

2, 2008. As a result, the Petitioner, James Drew Freeman, was indicted by the White

County Grand Jury for second degree murder. After a jury trial, the Petitioner was 

convicted as charged for his mother‟s homicide. He was subsequently sentenced to 

seventeen years‟ incarceration, to be served at 100 percent as a violent offender. A full 

recitation of the underlying facts can be found in this court‟s opinion on direct appeal. 

See State v. James Drew Freeman, Jr., No. M2011-00184-CCA-R3-CD, 2012 WL 

1656975, at *1-9 (Tenn. Crim. App. May 9, 2012), perm. app. denied (Tenn. Oct. 17, 

2012). 
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The evidence at trial established that shortly before 8:00 p.m. on August 2, 2008, 

Peggy and Dewey Swindell observed a body being dumped at Old Bon Air Cemetery. 

Id. at *1. The witnesses further reported seeing a small, maroon vehicle leave the scene. 

Id.

Investigators from the White County Sheriff‟s Department and the Tennessee 

Bureau of Investigation (TBI) responded to the scene and observed the body of an elderly 

woman lying in the gravel driveway of the cemetery. Id. at *1, *5. The victim “was 

lying on her back in a pool of blood” and had sustained leg injuries from tire tracks. Id.

at *3. TBI Agent Dan Friel testified that “none of the forensic evidence suggested that 

more than one vehicle had been involved in dumping the victim‟s body and causing her 

injuries.” Id. at *1.

At 9:17 p.m. that evening, the victim‟s neighbor, Larry Johnson, called 911 to 

report that the Petitioner “was on his front porch” and had informed Johnson that “his 

mother had been shot with a shotgun at the Old Bon Air Cemetery.” Id. at *3. Until 

Johnson‟s call, the authorities did not have any information that a shotgun was involved 

in the incident. Id. The call was also significant because law enforcement could not 

identify the victim. They did not discover the victim‟s shotgun wound on her back until 

around 11:30 p.m. when the body was turned over. Id. at *5. 

At trial, Johnson testified that he saw the Petitioner and his two sisters at the 

victim‟s home early on the day of her death. Id. at *2. The victim‟s daughters left the 

residence after lunch. Johnson did not observe any vehicles in the victim‟s driveway at 

around 6:00 p.m. He subsequently heard “a car door slam” around 8:30 or 9:00 p.m. 

Johnson said that the Petitioner came to his front door and repeatedly stated, “Mama‟s 

dead. Mama‟s dead. Mama‟s dead.” The Petitioner reportedly told Johnson that “a real 

estate man” had shot the victim in the back and that she was dressed in a pink nightgown

and was located at the Old Bon Air Cemetery. Id. After Johnson called 911 to inquire “if 

there was a lady shot and run over at the cemetery[,]” detectives told him to keep the 

Petitioner at his home. Id.

Upon arriving at the victim‟s residence, White County Sheriff‟s Department

detectives observed the Petitioner standing in the yard with his hands in his pockets. 

They patted the Petitioner down as a safety precaution and found “two sets of car keys, 

some pill bottles, and . . . a shotgun shell.” Id. at *3. Detective Chris Isham informed the 

Petitioner of his Miranda rights at that point and questioned him. Id. Because the 

Petitioner relayed information that was only known to law enforcement and the 

perpetrator, Detective Isham questioned the Petitioner further about the “man” who had 

allegedly harmed his mother. The Petitioner never provided Detective Isham with an 

identity, and the victim was dressed exactly as the Petitioner had described. Id. The 
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Petitioner also admitted that he owned a shotgun and that his friend had a .20 gauge 

shotgun. Id. at *4. During a search of the victim‟s residence, Detective Isham observed 

the Petitioner‟s small, maroon Buick parked in the driveway. Id. Law enforcement 

subsequently towed the vehicle, and TBI agents conducted various forensic tests on it. 

Id. at *4, *5, *8. Six days after the homicide, law enforcement recovered the following 

items in the weeded area near the victim‟s property: the victim‟s purse, a .20 gauge 

shotgun, and a box of shotgun shells with three missing shells. Id. at *4. Detective 

Isham stated that the box of shells matched the shotgun shell found in the Petitioner‟s 

pocket. Id.

Forensic evidence established that the victim suffered a single shotgun wound to 

her back and fractures to her lower legs. Id. at *5. In its opinion on direct appeal, this 

court summarized some of the expert testimony as follows: 

Former TBI Special Agent Laura Lee Staples testified that she 

performed deoxyribonucleic acid (“DNA”) testing on several items in 

conjunction with the investigation into the victim‟s death. Testing on stains 

on the tires of the [Petitioner]‟s vehicle “„indicated the presence of blood[ ] 

but failed to indicate a stain of human origin.‟” Additionally, stains on the 

undercarriage of the vehicle proved to be blood of non-human origin. A 

stain on the muffler, however, was human blood, but Ms. Staples was 

unable “to obtain a DNA profile due to insufficient or degraded DNA.”

Gravel taken from the cemetery driveway tested positive for the presence of 

the victim‟s blood. The [Petitioner]‟s clothing tested positive for the blood 

of “an unknown male contributor.”

TBI Special Agent Dan Royce, who was certified as a firearms 

expert, testified that he examined “a .20 gauge shot shell and shot shell 

case” as well as “112 shot pellets from the victim, a plastic shot wad from 

the victim, a pink nightgown from the victim, a blue and white striped 

housecoat from the victim, a Harrington & Richardson .20 gauge shotgun, a 

fired .20 gauge shot shell case, and a box containing 22 unfired Remington 

.20 gauge shot shells.” Agent Royce testified that the fired shot shell 

recovered from the [Petitioner]‟s residence was “basically 

indistinguishable” from the intact shell recovered from the [Petitioner]‟s

pocket on the night of the victim‟s murder. He said that the pellets 

recovered from the victim‟s body were consistent in “size and weight 

specifications” with the shot in the live shot shell recovered from the 

[Petitioner]‟s pocket, as was the .20 gauge plastic shot wad. Agent Royce 

testified that he performed tests to determine whether the fired shell 

recovered from the [Petitioner]‟s residence had been fired from the gun 
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recovered near the victim‟s residence. He said that “the fired shot shell had 

the same shape and contour and size of firing pin impression on it” but that 

the primer on the fired shot shell case “was so corroded” that he could not 

match it specifically to the shotgun found by Detective Isham. Based upon 

tests he performed on the victim‟s clothing, Agent Royce concluded that 

the victim was shot from a distance “greater than four feet, but less than 

eight feet.” Agent Royce testified that, because of its design, the shotgun in 

this case would only eject gunshot residue from the muzzle, making it 

“much less likely” that the shooter‟s hands or clothes would test positive 

for gunshot residue.

Id. at *6-7. The State introduced the Petitioner‟s version of the events through the 

testimony of Detective Ruben Hormilla of the White County Sheriff‟s Department. Id. at 

*7. An audio recording of the Petitioner‟s interview was played for the jury. This court 

summarized the State‟s evidence as follows:

During the interview, the [Petitioner] told Detective Hormilla that 

the victim told him that she planned to meet with “a man” about “some 

annuities” on the day that she was murdered. He said that he spent part of 

the day with the victim and his sisters and that at approximately 10:30 or 

11:00 a.m., his sisters drove him to his residence to pick up some dogs. 

The [Petitioner] said that his car “never even moved” at any point on the 

day of the victim‟s murder and that [his sisters] left from his house to go 

directly to Charlotte, North Carolina.

The [Petitioner] denied telling Mr. Johnson that the victim was dead 

and maintained that Mr. Johnson had “told a lie on” him. The [Petitioner]

claimed, however, that “someone at Mapco” had told him before he went to 

Mr. Johnson‟s that “somebody that was kin” to the [Petitioner] was “up on 

the mountain and they didn‟t know” if the person was dead or alive. The 

[Petitioner] said that he “didn‟t know how” the man at Mapco knew that the 

victim had been killed. He said that he walked from the Mapco to the 

victim‟s residence and sat on the porch after realizing that the victim was 

not home.

The [Petitioner] said that he last spoke with the victim via telephone 

at approximately 1:00 p.m. He insisted that the victim “went off with a 

man because of that house down there plus he was with the annuities.” The 

[Petitioner] said that he did not ask the victim the identity of the annuity 

man because he “did not get into” the victim‟s “business.” He also said “a 

robbery could be involved in this” because an “IB” card had been stolen 
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from the victim on the day before she was killed and because the victim 

“had a lot of money.” The [Petitioner] said he was “so mixed up” on the 

day of the victim‟s death because of the poor condition of his feet, the fact 

that dogs were being killed, and the fact that he had not seen his sister Nell 

“in five or six years.”

Regarding the .20 gauge shotgun and shells discovered in 

conjunction with the investigation, the [Petitioner] said that a “guy from 

Charlotte” whose name he could not recall and who was “dead by now,” 

had left them at his residence. He claimed that he found the shotgun shell 

that officers found in his pocket next to a bench he likes to sit on near his 

residence.

Id. at *7-8. Detective Hormilla testified that his investigation did not reveal that robbery 

was a motive in the victim‟s murder. A Mapco employee testified that she was working 

on August 2, 2008, and she did not recall anyone entering the store to report that there 

was a body at Old Bon Air Cemetery. Id. at *8.

The defense called multiple TBI forensic scientists to support its theory that the 

Petitioner‟s vehicle was not connected to the crime. Id. Special Agent Linda Littlejohn 

did not find any matches between hair and fiber samples collected from the victim and 

from the exterior of the maroon Buick. Special Agent Miranda Terry “found a paint chip 

on the victim‟s housecoat that did not match the paint of the [Petitioner]‟s vehicle.” Id. 

Special Agent Elizabeth Reid examined “a shotgun, a shot shell case, and a box of shells”

and did not find any latent fingerprints. Id. 

On direct appeal, the Petitioner argued that the evidence was insufficient to 

support his conviction and that the trial court erred by allowing a doctor to testify

regarding an autopsy that he did not personally perform. Id. at *1. The Petitioner further 

asserted that the prosecutor‟s closing argument was improper and inflammatory. Id. 

This court affirmed the conviction, concluding in part that the evidence was sufficient to 

establish the Petitioner‟s identity as the perpetrator. Id. at *16. The Tennessee Supreme 

Court denied the Petitioner‟s application for permission to appeal on October 17, 2012.

On October 9, 2013, the White County court clerk received a letter from the 

Petitioner requesting assistance with filing his case “to a higher court” to avoid the 

October 17 deadline. On October 15, 2013, the Petitioner‟s trial counsel filed a motion 

asking the trial court to appoint post-conviction counsel for the Petitioner. The court 

treated the filings as a pro se petition for post-conviction relief and appointed counsel for 

the Petitioner. The Petitioner subsequently filed a pro se petition for post-conviction 
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relief and an amended petition with the assistance of counsel. The evidentiary hearing 

occurred on October 14, 2014.1

Post-Conviction Hearing. The Petitioner testified that in preparation for trial, he 

informed trial counsel that a man had worked on his car at a muffler shop. According to 

the Petitioner, a woman had rear-ended his car “just weeks prior” to his mother‟s death. 

The man had to repair the tail lights and the rear section of the vehicle. Because there 

was some sharp metal, the man cut his hand and bled on the car‟s muffler. The Petitioner 

believed that trial counsel should have called the mechanic to testify at trial. 

On cross-examination, the Petitioner acknowledged that trial counsel was assisted 

by a former prosecutor who had thirty years of experience. He agreed that the theory of 

the defense was that his car was not involved in the homicide. He told trial counsel to 

look for the mechanic at the muffler shop, but he did not provide the employee‟s name or 

a physical description. He said he gave the employee‟s work phone number to trial 

counsel. The Petitioner stated that he met with counsel “about seven” times.

Shoney Tongate testified that he had been working at Coffman Muffler for six 

years and that he was acquainted with the Petitioner as a customer. He said that he had

repaired the Petitioner‟s taillights after the vehicle had been hit from behind. According 

to Tongate, “[t]he exhaust was bent up” and “had to be cut and replaced.” He then cut his 

hand while “putting the pipe together.” He agreed that in January 2014, post-conviction 

counsel called Coffman Muffler and spoke with the owner about the instant case. He also 

agreed that he returned the attorney‟s call within ten minutes. Tongate did not recall 

when he worked on the Petitioner‟s vehicle. He said that the bleeding incident “could 

have been a few months” but not as long as a year before the homicide, and only his 

brother knew about it.

Trial counsel testified that he had been practicing law for nearly two decades. He 

said that he was briefly employed as an assistant district attorney and that he spent most 

of his career in private practice. He had experience in “numerous” criminal 

investigations and trials, including six homicide trials. Trial counsel was retained in this 

case after two other attorneys had initially been involved. He stated that the Petitioner‟s 

sister previously hired an investigator, Ken Guidara, who had conducted an extensive

investigation. After counsel was retained, he hired the same investigator to work for him. 

He estimated that he “spent probably 100 hours or so” discussing the case with the 

 

1 On appeal, the Petitioner raised the sole issue of ineffective assistance of counsel regarding the 

failure to locate and call Shoney Tongate to testify at trial. Accordingly, we only address testimony from 

the hearing relevant to this issue. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by 

argument, citation to authorities, or appropriate references to the record will be treated as waived in this 

court.”).
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Petitioner in the year leading up to trial. The defense team included trial counsel, the 

investigator, the Petitioner, and an experienced former prosecutor. 

Trial counsel said that the Petitioner informed him of the incident concerning the 

muffler, but the Petitioner did not provide a name or a description of the person who cut 

his hand. Counsel never located the witness, and he did not know the identity of Shoney 

Tongate until post-conviction counsel found the witness. He believed that “[e]very drop 

of blood in the homicide investigation . . . [wa]s significant.” He recalled that the human 

blood on the muffler was degraded and could not be linked to any particular individual or 

gender. He agreed that the State adopted the position that the blood on the muffler came 

from the victim. When asked whether he should have called a witness to refute the 

State‟s theory, trial counsel responded:

I would have called that witness, no question, and it would have 

been important for me to do that. I would also say, though, that -- and 

that‟s why we looked so diligently for that witness. [The Petitioner] had

identified, or had made the representation to me, that there -- the spot of 

human blood on the muffler could be from the mechanic from Coffman‟s, 

which is why we launched an investigation to search for him. I called

personally to Coffman‟s and stopped by there after court one afternoon 

looking for somebody who would own up to the fact that they had bled on 

the muffler. I was not successful. I don‟t know whether people didn‟t want 

to come forward, didn‟t want to get involved. That‟s obviously normal in 

our business. But I couldn‟t get any human being to tell me that they had 

bled on the muffler. At which point, I began to correspond with, and 

essentially plead with, [the Petitioner] and his family to go find the person 

for me, bring them in, give me -- give me their name, give me a phone 

number, something. Let me -- aid me in connecting with this person who 

has this valuable testimony. I even wrote a letter to the Freemans in July of 

„09, I think it was, asking for just that information. And even though I 

spent over a year with them, working with them on a weekly basis, and 

have hours and hours of one-on-one time with [the Petitioner] and his 

family, they were never able to do that for me, and I hate it. I could have 

called the gentleman as a witness, and it would have been one more 

indication that this car had nothing to do with this murder, and I -- I

believed that during trial, and I believe it here today, that it had nothing to 

do with this murder.

Trial counsel described in detail the attempts that he and his investigator 

undertook to locate an alleged alibi witness named Cecil Lawson. Despite their efforts, 

they were unsuccessful. They also could not find any witness from Mapco who had 
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informed the Petitioner about his mother‟s death. Trial counsel stated that he personally 

interviewed several witnesses regarding the operability of the Petitioner‟s vehicle. He 

concluded that the testimony of the detectives and the next door neighbor supported the 

fact that the car was operable. He noted that multiple forensic scientists examined the 

Petitioner‟s car in detail and that “[t]here was absolutely no scientific or forensic 

evidence that connected that vehicle to this crime.” Counsel said that the Petitioner‟s 

version of the events was encapsulated in the official statement to Detective Ruben 

Hormilla. 

Kenneth Guidara testified that he was a private investigator who was initially hired 

by the Petitioner‟s sister. Before he started working for trial counsel, he had conducted at 

least fifty hours of investigation in the Petitioner‟s case. At first, the Petitioner provided 

him with a list of witnesses; subsequently, trial counsel asked him to locate witnesses. 

Guidara was not involved in locating a possible witness from Coffman‟s Muffler. He 

testified that if trial counsel personally went to a location to find a witness, there was 

nothing more that he could have done as an investigator. He said that it would not be 

possible to find a witness without a name, telephone number, or description of the 

individual. He estimated that he spent a total of seventy-five hours investigating the 

Petitioner‟s case.

At the conclusion of the hearing, the post-conviction court made oral findings of 

fact and conclusions of law and denied relief on all claims. The court specifically found 

that the Petitioner “was afforded effective counsel” and that “there was no prejudice to 

the extent that it would have changed the outcome of the trial.” On October 27, 2014, the 

court entered a written order denying post-conviction relief. The Petitioner filed a timely 

notice of appeal.

ANALYSIS

On appeal, the Petitioner argues that trial counsel was ineffective in failing to 

locate and call Shoney Tongate to testify at trial. He contends that the witness could have 

explained the presence of human blood on the muffler of the Petitioner‟s vehicle. He

further asserts that the evidence preponderates against the post-conviction court‟s 

findings that trial counsel conducted a reasonable investigation because post-conviction 

counsel was able to easily locate Tongate within minutes of calling the muffler shop. The 

Petitioner argues that trial counsel‟s omission prevented him from presenting exculpatory 

evidence that could have altered the outcome at trial. We conclude that the court

properly denied post-conviction relief.

Post-conviction relief is only warranted when a petitioner establishes that his or 

her conviction or sentence is void or voidable because of an abridgement of a 
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constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

A post-conviction court‟s findings of fact are conclusive on appeal 

unless the evidence preponderates otherwise. When reviewing factual 

issues, the appellate court will not re-weigh or re-evaluate the evidence; 

moreover, factual questions involving the credibility of witnesses or the 

weight of their testimony are matters for the trial court to resolve. The 

appellate court‟s review of a legal issue, or of a mixed question of law or 

fact such as a claim of ineffective assistance of counsel, is de novo with no 

presumption of correctness. 

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation 

marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State, 

303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of 

proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); 

Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.

2009). Evidence is considered clear and convincing when there is no serious or 

substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316 

S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). 

Vaughn further repeated well-settled principles applicable to claims of ineffective 

assistance of counsel: 

The right of a person accused of a crime to representation by counsel 

is guaranteed by both the Sixth Amendment to the United States 

Constitution and article I, section 9, of the Tennessee Constitution. Both 

the United States Supreme Court and this Court have recognized that this 

right to representation encompasses the right to reasonably effective 

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

criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotation marks and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner 

must establish that (1) his lawyer‟s performance was deficient and (2) the deficient 

performance prejudiced the defense. Id. (citing Baxter v. Rose, 523 S.W.2d 930, 936 

(Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)). “[A] failure to prove 

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

assistance claim. Indeed, a court need not address the components in any particular order 

or even address both if the [petitioner] makes an insufficient showing of one component.” 
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Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697). 

A petitioner successfully demonstrates deficient performance when the petitioner 

establishes that his attorney‟s conduct fell “below an objective standard of reasonableness 

under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688; 

Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the 

petitioner establishes “„a reasonable probability that, but for counsel‟s unprofessional 

errors, the result of the proceeding would have been different. A reasonable probability 

is a probability sufficient to undermine confidence in the outcome.‟” Id. at 370 (quoting 

Strickland, 466 U.S. at 694). 

We note that “[i]n evaluating an attorney‟s performance, a reviewing court must 

be highly deferential and should indulge a strong presumption that counsel‟s conduct falls 

within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 

453, 462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular 

set of detailed rules for counsel‟s conduct can satisfactorily take account of the variety of 

circumstances faced by defense counsel or the range of legitimate decisions regarding 

how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, 

this “„deference to matters of strategy and tactical choices applies only if the choices are 

informed ones based upon adequate preparation.‟” House v. State, 44 S.W.3d 508, 515 

(Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

In denying relief based on trial counsel‟s failure to call Shoney Tongate, the postconviction court found that the witness could not recall when he had worked on the 

Petitioner‟s vehicle. It further found that there was no evidence at trial regarding the 

source of the human blood on the muffler. The court specifically accredited trial 

counsel‟s testimony that he made the effort to locate the witness by calling and visiting 

the muffler shop, though he was unsuccessful in identifying the individual. The court 

noted that trial counsel conducted a reasonable investigation and that his inability to 

locate the witness could not be attributed to ineffective assistance where no one would 

admit to bleeding on the muffler. The court opined that although Tongate‟s testimony 

“might have been some help,” the evidence would not have made a difference in the 

outcome of the trial. The court concluded that the Petitioner received effective assistance 

of counsel and that “counsel was not derelict in the presentation and investigation of the 

case.”

We agree that the Petitioner has failed to demonstrate deficient performance based 

on counsel‟s failure to procure Shoney Tongate as a witness. At the evidentiary hearing, 

Tongate testified that he cut his hand when he worked on the Petitioner‟s car. He 

recalled that the incident may have occurred a few months before the victim‟s death and 

that he only told his brother about it. Trial counsel testified that he would have called 
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Tongate at trial if he could have identified him during the investigation. He personally 

called Coffman Muffler and visited the business to inquire about the blood stain, but 

witnesses were reluctant to come forward or be involved. Counsel also sought help from 

the Petitioner and his family to locate the witness, but he did not receive any assistance. 

Private investigator Ken Guidara stated that he would not be able to locate a witness 

without a name, phone number, or a physical description. He said that if trial counsel

personally searched for a potential witness, then there was not more that he could 

contribute to the investigation. The Petitioner testified that he did not provide counsel 

with the name of the mechanic or any identifying characteristics. However, he did give 

counsel the name and telephone number of the business. Although post-conviction 

counsel located Tongate six years after the victim‟s homicide, the post-conviction court 

accredited trial counsel‟s testimony regarding his prior efforts to identify the witness. 

Based on our review of the record, we cannot conclude that counsel‟s investigation fell 

below an objective standard of reasonableness. See Goad, 938 S.W.2d at 369 (citing 

Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936). 

We further note that the Petitioner has not demonstrated prejudice arising from

trial counsel‟s alleged deficiency. While Tongate‟s testimony would have explained the 

presence of human blood on the Petitioner‟s muffler, we cannot say that its omission

would have altered the outcome of the trial given the abundance of inculpatory evidence. 

See James Drew Freeman, Jr., 2012 WL 1656975, at *16 (summarizing the evidence 

presented at trial establishing the Petitioner‟s identity as the perpetrator). Accordingly, 

the Petitioner has not shown a reasonable probability that the result of the proceeding 

would have been different, and he is not entitled to relief.

 

CONCLUSION

Upon review, we affirm the judgment of the post-conviction court.

_________________________________ 

CAMILLE R. McMULLEN, JUDGE