### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs S ep te m be r 23, 200 3

D OL WIN DEO N COR MIA v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Ham ilton Coun ty

No. 238254 Douglas A. Meye r, Judge

No. E2003-00653-CC A-R3- P C F iled Novem ber 28, 2005

A Hamilton Countyjury

convicted the Petitioner, Dolwin Deon Cormia, of f irst deg ree murder a nd

abu se of a c or ps e, and the tr ia l c ou rt

imp os e d a

lif e se nte nc e wi th the po ssi bil ity of pa ro le plu s a
concur rent two y ear

s entenc e. On dire ct appe al, this Court affirmed the conviction, and the Tenne ssee Supre me Court denied t h e P et itioner’s application for permission t o appea l. The Petitioner then soug ht post-conviction rel i ef , alleg ing that he was de nied ef fec tive assistance of counsel. F ollowing a

hearing on the post-conviction petition, the trial court dismi ssed the petition, and this appea l ensued. We af firm the trial c ourt’s dismissal of the petition.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R O B E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES and J A M ES C UR WO OD W I TT , J R ., J J ., joined.

J ohn G. McDoug al, Chattanoog a, Te nnessee , for the a ppellant, Dolwin Deon Cormia.

Pau l G

. Summers, A tt o r n e y G e n e r a l an d Re p o r te r ; M ic h a e l M o o r e , So li c it o r G e n e r a l; Re n e e W. Tu rn e r, As sis ta nt A tto rn e y Ge ne ra l; Wil lia m H

. Cox, I I I
, Di stric t At torne y Ge ne ra l; a nd Rod ne y C. Strong, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F acts

Our Court summarized the under ly ing f acts of the Petitioner’s ca se on direc t appeal as fo llo ws :

I n the light most favor able to the state, the evidenc e at trial demonstrated that the de fe nd a nt, Do lw in D e on “ Luc ky ” Cormia
, a n Ea st L os An g e le s n a tiv e , c a me to Chatta no og a in the Spring of 19 96 wi th C hris “ Ma y -M a y ” Ca me ro n a ndDe re a th-2-

“Malik” Poly dore. Came ron wa s in the marijuana tr ade, and upon learning f rom the de fe nd a nt that ma

ri juana c ou ld b e so ld muc h mo re pr of ita bly in Chatta no og a than in L os Ang eles, he ag ree d to pay the def endant to ac company

him to Chattanoog a and to introduce him around town. The t hree arrived on a Greyhound bus in April 1996. Appar ently , the business deve loped s uitably
, and the three stay ed in C hattanoog a for

a t le a st thr e e we e ks . D uring thi s ti me , th e thr e e liv e d in the apa rt me nt h ome of

Jami e Sammons, the defendant’s g irlfriend. Cameron and the defe ndant sold marijuana during this ti me, and the pr ocee ds we re split equally among these two men a nd Poly dore.

Meanw hile, on Saturday , April 27, 1996, the victim,Welton Green, Jr., called on his fr i end Kirby

Marsha ll at the L ady

Luck B eauty

Salon, which was ow ned by Marsha ll and h i s wi fe. The victim, who was fr om California, wa s driving a larg e, la te mod e l, r e nte d M e rc ury wi th C a lif

ornia lic e ns e plate s. Ma

rs ha ll a nd the vic tim spent t i m e driving around town tha t afternoon and made plans to g o out later that

ev en i n g.

L ater , Marsha ll and the victim went to a nig htclub, The Whole Note, but they

wer e denie d admission because of their attire. They purcha sed alc ohol and sat

ou tsi de in the pa

rking lot c on su min g it u nti l aft e r the c lub c los e d. Th a t sa me
e venin g, the de fe nd a nt, Pol y do re a ndCa me ro n w e re ins ide Th e Who le No te wi th Sammons and other fe mal e compa nions. The def endant a nd Sammons got into an arg ument at the club, and Sammons went home. Af ter the c lub closed, the de fenda nt and Camer on went to a Waff le House.

When they

arrived at the Waff

le House, the y

en co u n t ere d the victim and Marsha ll. The victim and the defe ndant hug g ed ea ch other , althoug h the def endant told the victim he did not know whether he should hug him or kill hi m. Cameron had hear d the def

end an t s p ea k of the victim stealing money from him, so he wa s surprised to see the two hug g ing. Cameron’ s pag er w ent off, and the victim offer ed to le t Ca meron use a ce llular telephone in his car. While the victim was re trieving the telephone , Marsha ll told the defe ndant that the victim ha d a half kilo of cocaine and some money

with him in C hattanoog a. Mar shall also reve aled the location of the victim’s hotel room.

A g roup of y oung women appr oache d, an d a plan wa s soon devised for the victim, the defe ndant, and two of the women to g o to the victim’s hotel room for the

rema inder of the night. Came ron, who ha d b y n o w re t urned the call to his pag er, de c ide d to re turn to Sa mmo ns ’ a pa rt me nt.

The ne x t morning, the defe ndant arrived at Sammons’ apartment and made some telephone calls. Camer on was s t i l l i n bed, but he ove rhea rd the de fenda nt say ing, “ The g uy

is out here,” or “The g uy is here.” After

Cameron a

rose, the-3-

defe ndant inquired whether he would like “to g o on a lick.” I n other words, the defe ndant was i n v i t ing Ca meron to participate in a r obbery . Be cause he wa s tired and had a hang over, Came ron dec lined. Howeve r, Va rian L aSho n “S k i n n y ” F ord

arrive d to pic k u p th e de fe nd a nt.

Acc ordin g to F o r d
, h o w e v e r , h e me t th e d e f e n d a n t at th e B ig O r a n g e Car Wash. The def

endant mad e a t el ephone c all, which F ord under stood was to the vict im

. T h e r e a f

te r , th e v ic ti m s h o w e d u p in h is r e n te d M e r c u ry , a n d F o rd and the defe ndant g ot into the car w ith him. Beca use F ord wa s familiar with Chattanoog a, he drove . The victim was in the front passeng er se at and the de fenda nt was in the back se at. The thre e we re c ruising and heade d in the direc tion of Hamilton Pl ace Ma ll.

Cameron testified that the prete x t which was used to g et the victim to g o on thi s c ar ride wa s th a t F or d, the de fe nd a nt an d an oth e r pe rs on we re g oin g to p ur c ha se
some coc aine f

rom the victim. I n actua lity , the def endant’ s plan was to rob the victim.

Whil e F ord, the de fenda nt and the victim wer e stopped at a traff ic signa l at the intersec tion of L ee Hig hway and Shallowford Road, a woman in a c ar be hind the Me rc ury ob se rv e d th e drive r ( F or d) a ndthe ba c k- se a t pa sse ng e r ( the de fe nd a nt) jump
on th e p e r s o n s e a te d in th e f r o n t p a s s e n g e r s e a t ( th e v ic ti m)

. A t f ir s t, s h e thought they wer e horsing around, but then she saw that two or poss ibly all three of the men had dra wn fire arms. The ey ewitness saw the man in the back seat “kind of a ng ling th e gu n d o wn over the fellow in the pa sseng er se at.” She sa w the re ar- seat pa sse ng e r’ s h a ndje rk

ba c k, a ndsh e pr e su me d th e g un fi re d. Th e n, sh e sa w a g un fl y out the window. The back- seat passeng er casua lly g ot out of the car , re t ri ev ed the g un, and re turned to the car. The car quickly left the sce ne. The driver and the bac kseat pa sseng er pushe d the front- seat pa sseng er dow n onto the floorboar d. The

e y e wi tne ss t e sti fi e d th a t in he r o pinio n, the ba c k- se a t pa sse ng e r w a s n ot a c tin g in self-de fense when he shot the victim; rather, he and t h e d ri v er w ere attacking the vic tim

.

Th ere was e vid e nc e that w he n th e de fe nd a nt f ir st a tte mpt e d to fi re his

wea pon, it did not di schar g e, so he attempted to fire it a second time, whic h cause d the victim’s fata l injury . For d, the driver of t he ca r, testified that a fter the defe ndant shot the victim, the defendant asked the vic tim why he made him do t h at

. The defe ndant also told the victim that he owed him money and should have honore d the debt. The d e f

e n d a n t a n d F o r d r e tu r n e d to th e B ig O r a n g e Ca r Wa s h
, w h e r e they p ar t e d c o m p a n y.

For d purcha sed marijuana and then we nt to his g irlfriend’ s apartment in the Ma ns ion Hi lls c omp le x. L ate r th at eve nin g he me t th e de fe nd a nt at Sa mmo ns ’-4-

apartment. The def

endant wa s driving the victim’s rental c ar. The victim ’s body was not in th e v e h ic le

. F o r d s a w a f lo o r mat o n th e f

r o n t p a s s e n g e r s e a t c o vering the vic tim ’s blo od . F or d wip e d his fin g e rp ri nts fr om the c ar. Th e de fe nd a nt w a nte d to g o to the victim’s motel room, so For d, Cameron and the defendant left in Ford’ s car

.
The defe ndant had a

key which allowe d the three acc ess to the victim’s motel room. I nside, they

sear ched f

or money but wer e unable to locate any

. They took two or three piece s of lug g ag e fr om th e ro o m and re turned to Mansion Hills. That evening , th e d ef

en d an t told C amer on in Ford’ s prese nce w here he had disposed of the victim's body

.

Th e ne xt da y , M ars ha ll v isi te d th e de fe nd a nt at S ammo ns ’ a pa rt me nt. Ma rs ha ll s a w the vic tim ’s lug g a g e in a be dr oo m.

Sometime in late April, the v i ct i m ’s renta l car was discovere d abandone d. A Chattanoog a police of

fice r had it towe d to a private storag e lot, whe re blood wa s discovere d on the front pa sseng er se at.

T h e d e f e n d a n tl e f tC h a t t a n o o g a

a n d w a s f o r a t i m e i n M e m p h i s

. E v e n t u a l l y, he re turned to California.

F or mon ths
, inv e sti g a tio n p ro g re sse d, bu t th e po lic e de pa rt me nt w a s u na

ble to locate the vic tim’s body

. I n J anuary 1997, the police r ece ived information fr om For d which led them to discover the victim’s skeletonized remains in a woode d are a. They also rec eived information from F ord and the defe ndant’s other associate s which led to the cha

rg es ag ainst the defe ndant.

Th e de fe nd a nt d id no t pre se nt e vid e nc e a t tria l; h ow e ve r, thr ou g h c ro ssexamination of witnesses he pre sented hi s t h eo rythat he shot the victim in selfdefe nse bec ause the victim pulled a g un on him while they wer e tussling. The jury reje cted this theory

and convic ted the def

endant of first deg ree murder and abuse of

a cor pse.

State v. Cormia, No. E1999-01504-CA- R2-CD, 2000 WL 343793, at **1-3 (T enn. Crim. App., at Knoxvi lle, April 4, 2000).

A Ha mil ton Cou nty jury c on vic te d the Pe tit ion e r of fi rs t de g re e mur de r andabu se of a c or ps e
on Oc tob e r 9 , 1 99 8, a ndthe tr ia l c ou rt imp os e d a

se nte nc e of

lif e imp ri so nme nt wi th the po ssi bil ity of pa ro le plu s a c on c ur

re nt tw o y e ar se nte nc e

. Th is Cou rt a ff ir me d the c on vic tio n on dir e c t app e a l, and the Te nnessee Supreme Court de nied the Petitioner’s application for permission t o appea l. On October 9, 2001, the Petitioner filed a p ro s e post-convic tion petition. On October 22, 2001, the post-conviction court appointed J ohn McDoug al to repr esent the Petitioner in this post-conviction matter. McD oug al filed a n amendment to Petitioner’s orig inal petition for post-c onviction relief on-5-

Marc h 4, 2002. I n hi s p etition, the Petiti oner a sserted that he should be g rante d post-conviction relief based upon two the ories: (1 ) i n effective a ssistance of c ounsel; and (2) prosec utorial misconduct in that the assistant district atto rn ey gen era l quoted from the B ible during his closing arg ument in violation of the First Amendme nt to the United States Consti tution and to the prejudice

o f the Petitioner. The post-c onviction court conduc ted a he aring on the amende d petition on Dec ember

2, 2002. The trial c ourt enter ed an or der a nd memorandum opinion dismissi ng the Petitioner’s post-conviction petit ion on Fe bruary 18, 2003. The Petitioner filed a timely notice of

app e a l.

The following evidenc e wa s prese n te d at the post-conviction hea ring : The Petitioner testified that he wa s repr esente d by Bill Dobson (“ Counsel”) during his first de g ree murder trial and that he

was subsequently convicted of first deg ree murder. T he Petitioner stated that he filed a pe tition for post-conviction re lief bec ause he felt that “the conviction was a littl e stiff.” He testified that he had

a problem with Counsel’s repr esentation because “ther e we re a couple of witnesses that testified a nd they wer e ac tually

contra dicting themselves whil e they wer e on the witness stand.” The Petitioner testified that a witness, Chris Cameron, “testified befor e when the jury was out that I

wasn’t a g ang
me mbe r, a nd[Cou ns e l] a sk e d h im thr e e dif fe re nt t ime s a ndhe tol d h im n o e a c h ti me, but I a m a g a n g m e m b e r

. ” T h e P e t i t i o n e r e x p l a i n e d t h a t h e i n f o r m e d C o u n s e l o f t h i s c o n tr a d i c t o r y t e s t i m o n y, but Counsel “[t ]ol d me to hold on a sec ond and kept kind of te lling me to be quiet, and he ne ver e ven raised the issue. . . . [C ounsel] just let [t he witness] keep testifying a fter he alre ady lied under oath.”

T h e P et i t i o ner state d that he did not testify at his trial based upon Counsel’s a dvice. The Petitioner expl ained, “ I

wanted to take the stand but [Counsel] strong ly disag ree d.

. . .” He stated that “ it w a s r e a lly

my fi rs t kind of se ri ou s cr ime , an d I did n’ t re a lly kn ow wh a t to do , so I too k h is advice beca

use I felt that h e wa s m o re experience d in the situation.” The Petitioner testified that Cou ns e l me t w ith him

abo ut e ig ht t ime s re g ard ing his de fe ns e , “ bu t it wa sn ’t

. . . e no ug h to re a lly g o o v e r t h e c a s e a n d p o s s i b l y c o m e u p w i t h a s tr o n g d e f e n s e

. ” H e s t a t e d t h a t e a c h s e s s ion wi th Counsel lasted onl y thirty minutes, for a total of four hours of mee tings with Counsel. The Petitioner explained t h at h e at t empted to write a nd call Counsel during this ti me of pre paration, and “sometimes he would r espond and othe r times he wouldn’t.”

The Petitioner testified that Counsel explained the cha rg e of f irst deg ree murder to him and told the Petitioner that his defe nse would be self-defe nse. The P etitioner st ated that Counsel did not

wa nt h im t o te sti fy

be c a us e his g a ng a ff

ili a tio ns a ndc ri min al his tory wo uldbe da ma g ing to h is defe nse. The Petitioner e x plained that if he had testified, h e wo u l d have “ testified to the ac tual

e ve nts that ha

pp e ne d in thec ar o n th a t day .” He state d th a t he wo uldha ve te sti fi e d a s f oll ow s:

Well, I would have testified that my self, Mr. Gr een and Mr. For d wer e in the

car , that we we re trave ling to the , I believe it’s c alled the Hamilton P lace Mall, and on the way

there , that me and Mr. Gre en go t into a dispute about some money he owed, a nd he didn’t like the way I was questioning him a

bout it. He g ot upset, turned around in the se at and thre w a c ouple of punc hes at me.-6- And I rea lly didn’t think he was serious until he ac tually hit me with one, and I responde d back at him, Ihit hi m actua lly harde r than he hit me, and he turne d around holding his face and s ai d something to the f act of , “I ’m not g oing out like that.”

So w he n h e jumpe d b a c k, he jumpe d u p a g a in a nd turne d a ro un d in the se a t,

a ndwh e n h e turne d a

ro un d, he wa s p ull ing his g un up , an d Fo rd se e n it a nd hit his hand and said, “He g ot a gun,” because whe n he first did it and I seen it, I jumped and was g oing to r eac h for the door to ge t out the car

.
And For d knocked the g un out of his hand and he bent down to pick it back up a ndhe wa s c omi ng ba c k u p w ith it, a nd by thi s time I a lr e a dy pu lle d my

g un ou t, and I kind of hesitated for a second beca use I didn’t know what he rea lly was g oing to d o, bu t w he n h e ke pt c omi ng up wi th i t, I jus t sh ot h im.

Th e Pe tit ion e r t e sti fi e d th a t he did no t bel ie ve that Co un se l sp ok e to a ll the wi tne sse s in his

case . The Petitioner stated that he told Counsel about s ome wit nesses who would help his defe nse, bu t st a te d, “ I

do n’ t bel ie ve he c a lle d a ny wi tne sse s. He jus t c ro ss- e xami ne d e ve ry on e that th e Sta te put on.” The Petitioner testified t h at C ounsel did not ex plain to him why he did not call any witnesses. The Petitioner e x plained that he wanted to put on J amie Sammons and the Petitioner’s mother. He stated that at the time of trial, his mother was still in L os Ang eles, but she c ould have flown to the t rial i n Tenne ssee. The P etitioner t estified that Counsel never called his mother a

bout the possibilit y

of her testify ing at the trial. He state d that his mother would have te stified about the frie nd ly re la tio ns hip be tw e e n th e Pe tit ion e r andthe vic tim

.
The Petitioner testif

ie d th at the killing was not pre meditated or intentional be cause “[t] he g un . . . had one bullet and no clip. How could that be an intentional killi ng if, if y ou have one bullet and no clip? ” He stated that he shot the victim bec ause the victim was raising his g un and “I assumed he wa s g oing to shoot me.” The Petitioner testified that Counsel “ probably could have questioned the witnesses a

littl e more . . . .” He stated that Counsel cross-e x amined witnesses using short and simple questions.

The Petiti o n eral s o t es t i fi ed t h at C o u n s el ’s p h y s i ca l h an d i ca p o f b l i n d n es s af fe ct ed C o u nsel’s ability to question witnesses and observe the jury

. He stated that Counsel did not notice a juror who was slee p i n g d u ring his trial because of Counsel’s blindness. The Petitioner further testified that Counsel f ailed to inve stigate whether the Petitioner had any psy cholog ical proble ms or diminis hed mental ca pacity

.

On cr oss-examination, the Petit ioner admitt ed that had he te stified, his criminal history and g ang involvement would have c ome into evidence . He also stated that he would have te stified about how he dumped t he victim ’s body in the woods to conce al t he crime. The Petitioner admitted that Cameron’ s testimonythat the Petitioner was not in a gang actua lly helped the Petiti oner at trial. He ad m i t t ed t h at C o u n s el fi l ed a m o t i o n i n l i m i n e t o e x cl u d e a n y re fe re n ce t o t h e P et i t i o n erb ei n g a-7-

member of

a g ang . The Petitioner admitted that he disc ussed al l p o s s i ble def enses with Counsel prior to trial, and the y

ultimately

decide d that self-de fense was the be st option. He also admitted that Counsel expl ained to him what witnesses the State was g oing to c all and what fac ts the Stat e was go i n g t o use. The Petitioner state d that Counsel thought self- defe nse wa s the best def ense ba sed upon the fa cts and e vidence from the State a nd his discussions with the P etitioner. He a dmitted that Cou ns e l pr e se nte d th e the ory of se lf -d e fe ns e “ rathe r f

or c ibl y ” to th e ju ry . T he Pe tit ion e r a lso ad m i tted that Counsel questioned witnesses about the inc onsistencies in their testimony and challeng ed the witnesse s’ cr edibility

.

T h e P et i t i o n er

s t at ed t h at C o u n s el ex p l ai n ed t h e e l em en t s o f t h e f i rs td egr ee m u rd erch ar ge to hi m pri or to tria l. T he Pe tition e r f urthe r s ta te d th a t he tol d th e tr ia l c ou rt that he c ho se no t to testify at his tria l be cause Counsel a dvised him not to ta ke the stand. He admitted that Counsel had an investig ator with the public de fende r’s off ice wor king on the ca s e. The Petitioner stated tha t Cou ns e l w ou ld c on su lt w ith the inv e sti g a tor a ndhis a ssi sta nt d uring the tr ia l.

Kar la G. Gothard, e x ecutive a ssistant dist rict public def ender , testified that she wa s the supervisor of

the other a ssistant dist rict publ ic defender s in her office at t he ti me of the Petit ioner’s trial. Gothard te stified that Counsel was hired a s a public def ender i n h er o ff

i ce in 1989 and continued as a

public defe nder until his death in May of 2002. She stated t hat prior to being hired

as a public defe nder, Counsel ha d been in private pra ctice a s a criminal defense lawy er f or nine or te n y e ars

. Go tha

rde xpla ine d th a t Co un se l w a s a tr ia l la wy e r i n h e r o ff

ic e a ndwo rk e d in the juv e nil e
c ou rt , g e ne ra l se ssi on s c ou rt a ndc ri min a l c ou rt . Sh e state d th a t Co un se l w a s b lin d, bu t th a t hi s handica p did not prevent him from be ing an eff ective c riminal defe nse lawy er.

Gothard te stified that her office maintains files on every case as part of the business rec ords in her off ice. She e x plained:

[A]f te r the c a se

. . . is clo se d, we ma int a in the fi le . We ha ve n’ t de str oy e d a ny fi le s. We m ov e the m of

f s ite to a rc hiv e s b ut w e ma int a in the m. Es se nti a lly a t th is p oin t,

we ’v e ma int a ine d e ve ry

on e we ’v e e ve r h a d. We m a int a in the m f or pu rp os e s o f p os tconviction petition, for appeals, for historical purposes. I f we g et another client, g et the same c lient in the future, a nd also for those times whe n we ha ve to respond to the B oa rdof Pr of e ssi on al Re sp on sib ili ty

inq uirie s a

bo ut a pa rt ic ula r f ile

. . . . We a lso

ma int a in the m a nd

. . . w e ’r e ve ry op e n w ith the fi le s in sh ari ng the m. I f the re is a post-conviction petition that’s filed, . . . we ’ve ne ver de nied an attorney repr esenting one of our former clients the rig ht to see the file, and

. . . many times I just give the m the file a nd say , “Return it to me when y ou’re done with it,” ra ther than c opy ing the wh o l e t h i n g.

Gothard te stified that her of fice had the f

ile that was g ener ated a s a re sult of Counsel’s repre sentation of the Petitioner, and that this file “was maintaine d as a nece ssary part of [her office ’s] business.” Following this testim o n y , t h e S tate soug ht to introduce the Petitioner’s f ile as an e x hibit. The Petitioner’s post-conviction counse l immediately objected to the introduc tion of this file. G othard-8-

te sti fi e d a bo ut C ou ns e l’ s f

ile a s f oll ow s:

I can te ll y ou that it is the fil e that is maintained in our offic e re g arding [t he Petitioner]. I t’s

. . . a larg e, expandable brown envelope

. There ’s what we call the blue file in her e. It’s the orig inal file t h at ’s o pened, and when the blue file–particularly if y ou’re prepa ring something for trial, we usually take thing s out of the blue file, or if y ou rec eive documents that are too larg e to fit in the bl ue file, w e wi ll p ut that in e xpa nd ing fi le fo lde rs wi th the fi le fo lde r in i t. I ha ve re vie we d, wh ile I ’m sit tin g he re , w hat’ s in thi s f ile

. . . . The fi le, the blu e fi le is i nd ic a te d a s f ile

nu mbe r H -5 11 1.

. . . Th a t’ s the fi le that, the nu mbe r that’ s d e sig nate d w he n it ’s fi rs t opened, and the same f

ile number, H- 5111, is shown on the, the expanding f ile.

Gothard the n testified about the contents of t he Petitioner’s file in de tail. She expl ained that she had not done any

work the Petitioner’ s file. Gothar d testified that she kne w t h at t h e fi l e was the Petitioner’s bec ause he r off ice ha s a deta iled filing sy stem for c lients. She ex plained:

Eac h file has its own separ ate number as well as a blue file with the hea ding on it, and . . . the X on the side o f t h e b l u e fi l e h ere means that it is closed. It’s pla c e d a way

fr om a c tiv e fi le s to e ns ur e , y ou kn ow , its inte g ri ty , for on e thi ng , a ndto

ensure that, y ou know,

. . . once the y ’re closed, be fore they ’re closed, e ach attorney is s up po se d to g o th ro ug h a ndmake su re tha t th e do c ume nts that are in this fi le belong in this file.

Go tha rdfu rthe r t e sti fi e d th a t sh e kn e w this wa s the Pe tit ion e r’ s file be c aus e se ve ra l do c ume nts in the file ha d the Petitioner’s name on them. The P etitioner’s post-c onviction counsel then objec ted to t h e rele vance of the Petitioner’s f ile being admitted into evidence . The trial c ourt admitted the file into evidenc e as a business rec ord but stated t hat Gothard would hold the exhi bit until this Court reque sted the file.

Gothard te stified that she did not wo rk wi t h C o u nsel on the Petitioner’s ca se, but she had worke d with Counsel on many other c ases as b o t h s u p ervisor a nd co-c ounsel. She stated that “I appre ciated ha ving [Counsel] s it as second c hair for me beca use of his insig ht and wisdom, a nd when [C ounsel] had a trial, I

would sit second cha ir for him and hope fully provide a littl e bit of insight a nd wisdom and ac ted as his ey es . . . in ma ny case s.” She explained that Counsel was a sig hted attorne y who lost his ey esig ht after many y ear s of practicing law. Gothard te stified that Counsel’s disabiliti es did not hinder him from being an ef fec tive attorney . She explained:

He ha d . . . other phy sical problems as well over the y ear s. His blindness and the o t h e r p h y s i c a l p r o b l e m s w e r e r e l a t e d t o j u v e n i l e d i ab e t e s , a n d [C o u n s e l] constantly

amazed me in terms of how he f unctioned, that he functioned as well as he did. . . .

I re me mbe r h a vin g a

con ve rs a tio n w ith him

a nda sk e d h im h ow he didit,-9-

“How do y ou come, stand up in front of a jury and do this? ” Imean, I would be too afr aid to do that, I

think. . . . [ Counsel] just alway s said that, “You know , Kar la, what else c an I do? ” And he didn’t say

it in the sense of

, y ou know, I

can’ t do any

other kind of business, but what else is ther e to do except g o and do what y ou can do.

He ha d, I believe, thr ee stroke s during the t ime he wa s in our office and had to be o u t f

o r p e r io d s o f ti me

. [C o u n s e l] a lw a y s c a me b a c k b e f o r e h is doctors

re le a se d h im, qu ite fr a nk ly , I thi nk on on e oc c a sio n, a ndthe oth e r t wo tim e s h e c a me back be fore we e x pecte d him to come back, a lway s anxious to, to be a lawy er, to be a trial law y er.

[Cou ns e l] wa s a

joy to s up e rv ise , b e c a us e if y ou ha d s ome thi ng , a s a supervisor, if I had an assig nment or a particula r case that I ’d need to ta lk to the sta ff

abo ut,

. . . [Co un se l] wo ulda lw a y s v olu nte e r f or thin g s. He ne ve r s hir ke d h is responsibilityin any

way . He’ s quite admirable, I think. . . .

[C ounsel] tried, I

think, more case s than any other a ssistant [ public defe nder] in our offic e eve r tried, including me. He tried many more than I

did.

And as I said, a lot of times he would volunteer to a ssist people in trials or .

. . he so me tim e s ass ist e d by try ing c a se s w he re a c on fl ic t, a

pe rs on a lit y

c on fl ic t aro se be tw e e n a n atto rn e y

a ndthe ir c lie nt, a ndma ny

tim e s [Coun se l] wo uld be the on e to take ove r that ca se, volunteer to do it and try

the ca se.

Go tha rd te sti fi e d th a t Co un se l di d n ot h a ve the mob ili ty sk ill s n or the B raill e sk ill s o f p e op le who lose their e y esig ht at an ear l y age , b u t h er of fice acquir ed funding to provide Counsel with a

re a de r w ho wo ulda ssi st h im. She te sti fi e d, “ I a dmi re d [Cou ns e l] so muc h th a t I c a n o nly of fe r p ra ise for him as a

person a nd as a la wy er.” She stated that Counsel’s g reatest abilitywas in talking to a jury and g etting the jury

to like him. Gothar d explained, “ I think that overa ll, throug h the y ear s that I tried case s with him, I think he was very g ood at building a relationship wit h a jury . . . . I think they felt admiration for him as well, but he wa s .

. . very g ood, persona ble with the jurors.” She stated that Counsel also did an excellent job at focusing o n t h e re al i ssues of a c ase a nd try ing “ a cle an
case ” by not ge tting bog g ed down in side issues. Gothar d testified t hat C ounsel’s sense of hea ring

was so g reat that he could tell when the jur ors wer e stirring around a nd g etting f idge ty . Also, she

e xpla ine d th a t “ [h]e c ou ld he ar pe op le sn or e if the y we nt to sle e p, a nd he wo uld , y ou kn ow , r a ise his voice or ask for a . . . re cess or

something of

that sort.”

Gothard te stified that she did not have a ny knowledg e about wh at happene d at the Petitioner’s trial, but the Petitioner’s file c ontained notes re g arding the tri al an d the dates tha t Counsel visit ed with the Petitioner. She stated that acc ording to the file, Counsel visited with the Petitioner at least eig ht times at the jail to prepar e for trial.-10- II. Ana lys is

I n order to obta in post-c onviction r elief, a petitioner must show that his or her conviction or sentenc e is void or voidable beca use of the abridg ment of a constitutional rig ht. Tenn. Code Ann. § 40-30-203 ( 1997). The pe titioner bear s the burden of proving fac tual alleg ations i n the petition for post-c onviction relief by clea r and c onvincing evidenc e. Te nn. Code Ann. § 40-30

- 2 1 0 ( f ) (1997). A post-conviction court’s fac tual finding s are subject to a de novo r eview by this Court; howeve r, we must ac cord these factual findings a pre sumption of corre ctness, which is ove rcome only when a pre pondera nce of

the evidenc e is contra

ry to the post-conviction court’s fac tual finding s. Fields v. State, 40 S.W .3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law a re subjec t to a p u re l y d e n o v o revie w by this Court, wit h no presumption of cor rec tness. I d. at 457. The Tenne ssee Supre me Court has h eld that the issue of ine ffe ctive assistanc e of c ounsel is a mix ed question of law a nd fac t and, as such, is subjec t to de novo revie w. State v. B urns, 6 S.W.3d 453, 461 (Tenn. 1999)

.

Th e ri g ht o f a

c ri min a lly

a c c us e d to re pr e se ntatio n is g ua rante e d b y

bo th the Sixth Amendment to the United States Constit ution and Article I , section 9, of the T ennesse e Constituti on. I d. ; Ba x t er v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). T his right to re prese ntation includes the rig ht to “rea sonably

eff ective” assistance . Burns, 6 S.W .3d at 461. I n revie wing a cla im of ineffe ctive assistanc e of c ounsel, this Court m ust determine whe ther the a dvice g iven or ser vices

re nd e re d b y

the a tto rn e y

are wi thi n the rang e of c omp e te nc e de ma nd e d o f atto rn e y s in c ri min a l c a se s. Ba x ter, 523 S.W.2d at 936. To preva il on a claim of inef fec tive assistance of counsel, a petitioner must show that “counsel’s r epre sentation fell below an objective standa rd of rea s onablene ss,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and t h at this performa nce pr ejudiced the defe nse, re sulting in a failure to produce a re liable re sult. I d. at 687; Cooper v. State, 849 S.W.2d 74 4, 74 7 (T e nn .1 99 3)

. To sa tis fy the re qu ir e me nt of pr e jud ic e , a pet iti on e r mus t show a re a so na ble pr o b ab i l i t y

t h a t , b u tf

o r c o u n s e l ’ s u n r e a s o n ab l e e rr o r , t h e f a c tf i n d e r w o u l d h a v e h a d r e a s o n able do ub t r e g ard ing the pe tit ion e r’ s g uil t. Str ic kland , 466 U. S. at 695 . T his re a so na ble pr ob abil ity

mus t be “s u f f ic ie n t to u n d e r mi n e c o n f

id e n c e in th e o u tc o me

. ” I d

. a t 6 9 4 ; s e e a ls o H arr is v

. St ate, 875 S.W .2d 662, 665 (Tenn. 1994)

.

W h en ev al u at i n g an i n ef

fe ct i v e a s s i s t an ce o f c o u n s el cl ai m , t h e r ev i ew i n g co urt s h o u l d j u d ge the attorne y ’s per formanc e within the contex t of t he case as a whole, taking into acc ount all releva nt

c ir c ums ta nc e s. Str ic kland , 4 66 U. S. at 69 0; S ta te v. Mit c he ll, 75 3 S.W. 2d 14 8, 14 9 ( Te nn . Crim. App. 1988). The revie wing cou rt m u s t evaluate the questionable conduct f rom the attorne y ’s perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . I n d o ing so, the revie wing court must be hig hly defe rential a nd

“ s h o u ld in d u lg e a s tr o n g p r e s u mp ti o n th a t c o u n s e l’ s c o n d u c t f a ll s w ith in th e w id e ra ng e of

rea sonable prof

essional assistance .” Burns, 6 S.W .3d at 462. Counsel should not be deemed to ha ve been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980).

On appe al, the Petitioner ar g ues the following four issues: (1) that the post-conviction courtI n a dd i t i on t o t es t i f y i ng t hat Co un s el di d not adequat el y meet wi t h h i m p r i or t o t r i al
, t he P et i t i oner t es t i f i ed 1

at t he po s t

- convi ct i on he ar i ng t hat Co un s el f ai l ed t o i nv es t i gat e t he P et i t i oner ’ s com pet enc e t o s t and t r i al
, t hat Co un s el

erroneo usl y ad vi sed hi m no t to t est i f y a t tr i al
, that C o unsel d i d no t o b ject to t he t est i m o ny o f a wi t ness who l i ed on t he
sta n d , an d tha t C o u n se l’s b lind n e ss h a rm e d the P e tit io n e r’s c a se a t t ria l.

-11- e rr e d by fi nd ing that the Pe tit ion e r wa s not de nie d ef fe c tiv e a ssi sta nc e of c ou ns e l; (2 ) that th e po stc on vic tio n c ou rt

e rr e d b y a dmi tti ng Cou ns e l’ s f

ile of the Pe tit ion e r i nt o evi den c e a s a bu sin e ss
re c or d; ( 3) t hat the po st- c on vic tio n c ou rt e rr e d b y a dmi tti ng he ars a y

te sti mon y

of Cou ns e l in to evidenc e; and ( 4) that the post-c onviction court er red by not gr an ting post-c onviction relief ba sed upon the fact that the assis tant district attorney g ener al quoted fr om the bible in his closing ar g ument

a t th e Pe tit ion e r’ s tria l.

First, the Petitioner a

rg ues that the post-c onviction court er red by finding that the Petitioner was not denie d eff

ective a ssistance of c ounsel. I n the post-conviction hea ring , the Petitioner raise d

sever al g rounds re g arding whether Counsel pr ovided the Petitioner with eff ective a ssistance during his trial. Howeve r, in h i s ap p el l ate brief, the Petitioner ba ses his arg ument that he wa s denied

1

e ff e c tiv e a ssi sta nc e of c ou ns e l up on on ly on e g ro un d: “ that c ou ns e l f a ile d to a de qu a te ly

me e t w ith [the Pe tit ion e r] t o a de qu a te ly pr e pa re him fo r tr ia l and to dis c us s p ro c e du re s andtr ia l st rate g ie s w ith him.” Be cause the Petitioner failed to r aise the othe r issues re lating to his ineffe ctive assistanc e of counsel c laim in his appellate brief
, the Petitioner has wa ived those issues. Tenn. R. App. P. 13(b); Nichols v. State, 90 S.W .3d 576, 607 (Tenn. 2002)

. During the post-conviction hearing, the Petitioner testified that Counsel met with him about

e ig ht t ime s r e g ard ing his de fe ns e , “b ut it wa sn ’t

. . . en ou g h to re a lly g o ove r the c a se a ndpo ssi bly

c ome up wi th a str on g de fe ns e .” He state d th a t e a c h s e ssi on wi th C ou ns e l la ste d o nly thi rt y min ute s, for a total of four hour s of meeting s with Counsel. The S tate presented proof, t hroug h the testimony of Go tha rd , w hic h c or

ro bo rate d th e Pe tit ion e r’ s a sse rt ion that Co u n s e l m e t w ith the Pe tit ion e r at le a st eig ht times. The S tate also presented pr oof that Counsel’s assistant and investig ator visited with the Pe tit ion e r o n v ari ou s o c c a sio ns prior to the tr ia l. T he Pe tit ion e r fa ile d to pre se nt any pr oo f tha t th is amount of conf

ere nce time wa s in s u ff

i ci ent for Counsel to prepare the Petitioner’s def ense. Furthermore , the Petitioner failed to pr esent any proof that the l ack of visits with Counsel somehow prejudice d him at trial. To the contrary
, the P etitioner t estified that Counsel expl ained the c harg es ag ainst him, which defe nses would be be st at trial, and who would testify ag ainst him at t rial. The Petitioner also testified t hat C ounsel discussed t he possibilityof the Petitioner testify ing at trial and advised the Petit ioner not to take the stand. Acc ording ly
, we conclude that Counsel’s performance in defe nding the Petitioner “fa lls wi t h i n the wide r ang e of r easona ble profe ssional assistance.” Burns, 6 S.W .3d at 462. Furthermore , the Petitioner has fa iled to prove that Counsel’s pe rformance prejudice d his defense , resulting in a failure to pr oduce a reliable result. Strickland, 466 U.S. at 687; Cooper, 849 S.W.2d at 747. Theref ore, w e conc lude that the P eti tioner has f ailed to prove ine ff e c tiv e a ssi sta nc e of

c ou ns e l by

c le ar andc on vin c ing e vid e nc e , a ndthe po st- c on vic tio n c ou rt did

no t e rr by fi nd ing that th e Pe tit ion e r r e c e ive d e ff e c tiv e a ssi sta nc e of

c ou ns e l.

Ne xt, th e Pe tition e r ar g ue s tha t the po st- c on vic tio n co urt er re d b y a dmi tti ng Cou ns e l’ s f

ileW e no t e t hat t he P et i t i o ner al so argues i n hi s ap p el l at e b ri ef t hat “ any st at em ent s b y [Co unsel ] ar e 2

p ro h ib ited b y the D e a d M a n ’s A c t

. . . w h ic h re n d e rs c e rta in t e stim o n y b y

. . . p e rs o n s n o w d e c e a s e d ina d m issib le .” T en ne ssee C o d e A nn o t ated sec t i o n 2 4

- 1

- 2 0 3 (2 0 0 0 ) st ates as fo l l o w s:

In a c tio n s o r p ro c e e d ing s b y o r a g a ins t ex e c u to rs , ad m inistra to rs , o r g u a rd ia n s, in w h ic h ju d g m e n ts

-12- on the Pe tit ion e r i nto e vid e nc e a nda llo wi ng Go tha rdto t e sti fy

abo ut i ts conte nts . T he po stconviction court admitted the file into evidenc e based upon the business rec ords hea rsay exception. The a dmissibi lityof evide n ce is a matter within the discre tion of the trial court and will be overturne d only

when ther e is an a

buse of that discr etion. State v. J ames, 81 S.W.3d 751, 760 (Tenn. 2002); State v. DuB ose, 953 S.W.2d 649, 652 (Tenn. 1997) ; Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W .2d 439, 442 (Tenn. 1993). Tenne ssee Rul e of Evidence 803( 6) provides that the following

are not excluded by

the hea rsay rule:

Re c or ds of

Re g ula rl y Con du c te d A c tiv ity

. A m e mor a nd um, re po rt , r e c or d, or data compilation in any form of acts, eve nts, conditions, opini ons, or diag noses made at

or nea r the time by or from information transmitted by a person with knowledg e and a business duty

to rec ord or transmit i f k ep t in the course of a re g ularly

conducte d b u s iness activity

and if it was the r eg ular pra ctice of that business activity

to make the memora ndum, report, r ecor d, or data compilation, all as shown by the testimony of the c us tod ia n or oth e r qua lif ie d witn e ss or by c e rt if

ic a tio n th a t c omp lie s w ith Rul e 902(11) or

a statute pe rmitting certification, unless the source of information or the method or circ umstances of prepa ration indicate lack of trustworthiness. The term “b u siness” as use d in this parag raph inc ludes business, instit ution, profession,

oc c up a tio n, a ndc a lli ng of e ve ry kin d, wh e the r o r n ot c on du c te d f or pr of it.

I n order for the r ecor ds to have sufficie nt indicia of trustworthiness to qualify as a business r ecor d, “the r ecor d must have been made i n the ‘reg ular practice of t hat bus iness activity ,’ and it must have been ‘ kept in the cour se of a reg ularly conducte d business activity .’” Neil P

. Cohen et al., Tennessee Law of Evidenc e, § 8.1 1 [6] (4 th ed . 200 0) ; see a lso Sta te v. De a n, 76 S.W. 3d 35 2, 36 5 (T e nn . Crim. A p p

. 2 0 0 1 )

. Wh il e r e c o r d s p r e p ar e d f o r a n ir r e g u la r p u rp o s e w ith li ti g a ti o n in mi n d “ may n o t be

ma de in the re gular cours e of bu sin e ss andma y

be ina dmi ssi ble a s a

bu sin e ss r e c or d u nd e r R ule 803 ( 6 )
, ” in v e s ti g a ti v e a c c id e n t r e p o r ts c o mp il e d a s a r o u ti n e matt e r b y a b u s in e s s “ s h o u ld n o t be excluded solely beca

use litigation sometimes e nsues following an acc ident.” Cohen, supra, at § 8.11 [6]

.
We conclude that the post-conviction court did n o t ab u s e it s discretion by admitting Counsel’s file of the Petitioner into evide nce a s a business re co r d. Kar la Gothar d, executive assistant district public defe nder, te stified about her offi ce ’s policies and proc edure s conce rning the

m ai n t en an ce o f t h e c l i en t s ’ f i l es

. Go t h ar d d em o n s tra t ed ex t en s i v e k n o wl ed ge a b o u tt h e f iling sy stem

a n d t e s t i f i e d t h a t t h e f

i l e s w e r e c r e a t e d i n t h e o r d i n ar y c o u r s e o f b u s i n e s s a th e r

o f f i c e

. A c c o r d i n g l y, Go tha rdsuffi cie nt lya uth e nti c a te d Co un se l’ s f ile a s a bu sin e ss r e c or d. F urthe rm or e , th e po stc on vic tio n c ou rt

didno t e rr

by a llo wi ng Go tha

rdto t e sti fy

abo ut the con ten ts o f C ou ns e l’ s f ile beca use the file w as prope rly

admitted into evidence as a business r ecor d. 2m a y b e re n d e re d fo r o r a g a ins t t h e m , ne ithe r p a rty sh a ll b e a llo w e d to tes tif y a g a ins t t h e o the r a s to

an y t r an s ac t i on w i t h or s t at eme n t by t h e t es t at or , i n t es t at e, or wa r d, un l es s ca l l ed t o t es t i f y t h er et o by the o p p o site p a rty.

B y i t s exp ress term s, t he “D ea d M an ’ s S t atute” o nly ap p l i es “[i ]n a cti o ns o r p ro ce ed i ng s b y or a ga i nst exe cu t o rs, admi n i s t r at or s , or g u ar di an s

. ” I n t h i s ca s e, t h e Pet i t i on er di d n ot f i l e an a ct i on a g ai n s t a n e s t at e, r at h er h e f i l ed a pet i t i on for pos t

- convi ct i on r el i ef

. T her efore, t he “ D ead M an’ s St at ut e” i s i nappl i cabl e t o t hi s ca s e.

-13- The Petitioner’s ne x t issue on appea l is whether the post-conviction court err ed in allowing the hea rsay testimony of C ounsel into evidenc e. Howeve r, t he P etitioner does not cite to the r ecor d to i nd ic a te wh a t “he ars a y te sti mon y ” he ob je c ts to on ap pe a l. Te nn e sse e Cou rt of Cr imi na l A pp e a ls Rule 10(b) states that “[i] ssues which a re not supporte d by

arg ument, citation to authorities, or appropriate re fer ence s to the record will be treated as waived in this court.” See also Te nn. R. App. P. 27(a) (7); S tate v. Rhoden, 739 S.W.2d 6, 14 (Tenn. Crim. App. 1987). The ref ore, w e conc lude that the Petitioner has wa ived this issue.

Finally , the Petitioner arg ues that the post-conviction court err ed by not gr anting relief

based upon the P etitioner’s assertion that “the Defe nse C ounsel in the original appeal never brought up the

err or that the state used [ B]iblical quotations in his closing arg ument.” The post-conviction court found that the P etitioner’s prosecutorial mis conduct claim had been waived beca use the Petitioner failed to r aise the claim on direc t a ppeal. Te nnessee Code Annotated se ction 40-30-206( g ) (1997) pr ov ide s th a t:
A g round for

relief is w aived if the petitioner per sonally or throug h an attorne y

failed to present it for de termination in any proce eding befor e a co u rt of compe tent jurisd ic tio n in wh ic h th e g ro un d c ou ld h a ve be e n p re se nte d u nle ss:
(1) The claim for relief is ba sed upon a constitutional rig ht not recog nized as exi sting at the time of trial if e ither the fe dera l or state constitution require s retro ac t ive application of tha t rig ht; or

(2) The failure to present the g round wa s the result of state action in violation of the fede ral or state constitution.

The Petitioner’s g round for relief that the assis tant district attorney g ener al improperly

quoted from scripture in his closing ar g ument should have be en broug ht on direct a ppeal, a nd this claim for re lief is not “based upon a

const i tutional right not re cog nized as exi sting at the time of trial.” Also, the Pe tit ion e r’ s f

a ilu re to p re se nt thi s cla im o n d ir e c t app e a l w a s n ot “ the re su lt o f s ta te a c tio n in vio lation of the fe dera l or state constitution.” Acc ording ly , we c onclude that the post-c onviction court did not err

in f inding that the Petitioner w aived this issue. Furthermore , we c onclude that the Petitioner has waived this iss ue bec ause he failed to c ite to any authorities in support of his arg ument in his appellate brie f. Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a) (7).-14- III. Conclusi on

I n acc ordanc e with the forg oing authorities and rea soning, we AFF I RM the post-conviction

c ou rt ’s jud g me nt.

___________________________________ ROBERT W. WEDEMEYER, J UDGE