IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 12, 2015

JASON CURTIS JOHNSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Wilson County

No. 02-0928 John D. Wootten, Jr., Judge

No. M2015-00258-CCA-R3-PC – Filed December 30, 2015

_____________________________

Jason Curtis Johnson (“the Petitioner”) was convicted of one count of first degree 

premeditated murder and one count of second degree murder for the shooting death of 

Christy Waller and her unborn child. He was sentenced to life plus twenty-five years. In 

this post-conviction proceeding, the Petitioner argues that he received ineffective 

assistance of counsel for the following reasons: (1) trial counsel‟s “inadequate trial 

preparation and performance”; (2) trial counsel‟s “errors concerning [the] Petitioner‟s 

Sixth Amendment right to a fair and impartial jury”; (3) trial counsel‟s failure to have 

evidence tested; (4) “trial errors”; (5) trial counsel‟s failure to object to a State‟s witness 

commenting on the Petitioner‟s right to testify; (6) trial counsel‟s failure to object to 

“prosecutorial misconduct”; (7) trial counsel‟s failure to present proof as to the viability 

of the fetus and appellate counsel‟s failure to present the issue on appeal; (8) appellate 

counsel‟s failure to “fully raise the issue of sufficiency of the evidence”; and (9) trial 

counsel‟s failure to put on any evidence of mitigating factors during the sentencing 

hearing. Additionally, the Petitioner claims that (1) his Fifth Amendment rights were 

violated because his Miranda waivers and confessions were not voluntary; (2) his Sixth 

Amendment right to counsel was violated because that right had attached before the 

police questioned the Petitioner; and (3) his “Sixth Amendment right to a jury trial was 

violated by the use of Tennessee‟s unconstitutional sentencing scheme.” Following a 

hearing, the post-conviction court denied relief. Upon review of the record and the 

applicable law, we affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which NORMA 

MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.
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A. Ensley Hagan, Jr., and Andrea Hagan, Lebanon, Tennessee, for the appellant, Jason 

Curtis Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; Tom P. Thompson, District Attorney General; and Howard Lee Chambers, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

Trial

The Petitioner was charged with two counts of first degree premeditated murder 

for the death of Christy Waller and her unborn child.1 At trial, the State presented proof 

that Mrs. Waller was shot twice in the head from a distance of six inches to two feet. The 

proof also showed that, at the time of the shooting, Mrs. Waller was either squatting or 

kneeling on the floor and had her arm held in front of her face. 

The Petitioner made numerous statements to others admitting that he shot the 

victim, including four written statements to police. The Petitioner‟s written statements 

contradicted each other as to the details of who was with the Petitioner when he shot Mrs.

Waller and how he disposed of the gun and the clothes he was wearing at the time of the 

shooting. However, the statements consistently said that the Petitioner came to Mrs. 

Waller‟s house, followed her into the bedroom, and shot her twice. The State asserted 

that the Petitioner‟s motive for shooting Mrs. Waller was the failure of Mr. Waller to pay 

a $900 drug debt. 

Dr. John Gerber, an expert in forensic pathology, testified that Mrs. Waller‟s fetus 

was twenty-three to twenty-four weeks gestational age and weighed 500 grams. Based 

on that information, Dr. Gerber opined that the fetus was viable, meaning that it could 

survive outside the mother‟s body with the assistance of a ventilator and incubator. 

However, Dr. Gerber acknowledged that the fetus was “at the lower edge of viability.” 

On cross-examination, Dr. Gerber qualified his testimony regarding viability, stating, 

“[I]t could have survived, it could not have survived. It depends. Five hundred grams is 

a very critical point.” On redirect examination, Dr. Gerber maintained that his 

examination indicated that the fetus was viable at the time of the shooting.

 

1 To assist in the resolution of this proceeding, we take judicial notice of the record from the 

Petitioner‟s direct appeal. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 

2009); State ex rel Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).
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The Petitioner was convicted of first degree premeditated murder for the death of 

Mrs. Waller and second degree murder for the death of Mrs. Waller‟s unborn child. 

Following a sentencing hearing, the trial court ordered consecutive sentences of life plus 

twenty-five years. This court affirmed the Petitioner‟s convictions and sentences on 

direct appeal. State v. Jason Curtis Johnson, M2003-03060-CCA-R3-CD, 2006 WL 

407767, at *21 (Tenn. Crim. App. Feb. 17, 2006), perm. app. denied (Tenn. June 26, 

2006).2

Post-Conviction Proceedings

The Petitioner filed a timely Petition for Relief from Conviction or Sentence and a 

subsequent amended petition (collectively, “the Petition”). In the Petition, the Petitioner 

claimed that he received ineffective assistance of counsel and listed numerous alleged 

instances to support his claim. Additionally, the Petitioner averred that his Fifth 

Amendment rights were violated because his confessions were coerced; his Sixth 

Amendment right to counsel was violated because he was denied counsel during the 

police interrogation; comments made during the State‟s opening and closing arguments 

constituted prosecutorial misconduct and trial counsel was ineffective for failing to object 

to such comments;

3

and the Petitioner‟s Sixth Amendment right to a jury trial was 

violated “by the use of Tennessee‟s unconstitutional sentencing scheme.”

At the post-conviction hearing, the court admitted into evidence the deposition 

transcript of Dr. Feng Li. In that deposition, Dr. Li stated that he was present during the 

autopsy of Mrs. Waller and her fetus. In preparation for the deposition, Dr. Li had 

reviewed the autopsy report, Dr. Gerber‟s testimony, and tables Dr. Li commonly used to 

determine the gestational age of a fetus.4 Dr. Li concurred with Dr. Gerber‟s conclusion 

that Mrs. Waller‟s fetus was twenty-three to twenty-four weeks gestational age and 

weighed 500 grams. Dr. Li assumed that Dr. Gerber had relied on Mrs. Waller‟s clinical 

history when reaching his conclusion; however, Dr. Li did not know if Dr. Gerber relied 

on any of Mrs. Waller‟s medical records during the autopsy. Dr. Li explained that the 

most important factor for determining viability was the fetus‟s lungs. Dr. Gerber had 

noted that the lungs had three lobes on the right and two lobes on the left, which indicated 

to Dr. Li that the lungs were developing normally. Dr. Li stated that he could not 

determine whether the fetus was alive or dead at the time of Mrs. Waller‟s death just by 

 

2 A more detailed summary of the proof presented at trial can be found in this court‟s opinion 

from the Petitioner‟s direct appeal. In this opinion we will address the facts presented at trial as they are 

relevant to the Petitioner‟s claims for post-conviction relief.

3

In the Petition, the Petitioner sets forth a free-standing claim alleging that he was denied due 

process by improper comments in the State‟s closing argument. He relegates to a footnote the claim that 

trial counsel was ineffective for failing to object to the allegedly improper argument.

4 The tables are not included in the record on appeal.
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examining the fetus. Dr. Li explained that, under the legal definition of viability, “any 

gestation age beyond [twenty-two] week[s] and above 500 grams is defined as viable.”5 

However, Dr. Li explained that it was not possible to determine whether any one 

individual fetus was viable because there were too many variables. Dr. Li admitted that a 

fetus‟s viability might be affected if the mother used drugs such as cocaine, but he could 

not say “which direction it would affect.” On cross-examination, Dr. Li agreed with Dr. 

Gerber‟s testimony that the fetus was “right at the edge, it could have survived, it could 

have not survived. It depends. 500 grams is a very critical point.”

Appellate counsel testified that he did not recall raising on appeal the issues of the 

State‟s witness commenting on the Petitioner‟s right not to testify or the sufficiency of 

the evidence as to the viability of the fetus. Appellate counsel explained that he raised 

the issues that he thought were supported by the record and were raised in the motion for 

new trial. On cross-examination, appellate counsel noted that this court addressed the 

sufficiency of the evidence regarding the viability of the fetus on direct appeal and 

determined that there was sufficient evidence to support the Petitioner‟s conviction for 

second degree murder.

Lieutenant Detective Ricky Knight testified that he participated in the 

investigation of Mrs. Waller‟s death. Detective Knight also admitted that he was the 

half-brother of one of the witnesses in the case, Leah Mendoza. During the investigation, 

Detective Knight learned from his father that Ms. Mendoza wanted to talk to Detective 

Knight about the case. Detective Knight notified his supervisor, and his supervisor spoke 

with Ms. Mendoza. Detective Knight stated that he had not seen Ms. Mendoza‟s 

statement wherein she claimed that Detective Knight threatened to have her “locked up” 

if she did not cooperate with the police. Detective Knight denied making such threat. 

Detective Knight read a portion of Ms. Mendoza‟s testimony from the trial where she 

said, “Well, Friday they called my house and said that they was tired of playing games

with me and if I didn‟t pick my subpoena up, they were going to lock me in jail until the 

court date. That‟s what my brother told my stepmother.” Detective Knight denied 

threatening Ms. Mendoza by way of her stepmother.

During the Petitioner‟s interview, Detective Knight, along with another detective, 

transported the Petitioner to a location where the Petitioner claimed he had disposed of 

the murder weapon. There was a large rock at that location, and the Petitioner claimed 

that he had beaten the gun against the rock to destroy it and threw the gun into a field. 

Detective Knight recalled that there were “some scratches” on the rock but that they 

could not locate the weapon in the field. Detective Knight recalled that the Petitioner was 

behaving normally and appeared alert during the car ride. Apart from that interaction, 

Detective Knight did not have any other contact with the Petitioner.

 

5 Dr. Li does not identify where he found this “legal definition” of viability.
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Trial counsel testified that he was licensed to practice law a little over one year 

before the Petitioner‟s trial. Trial counsel had tried three or four jury trials prior to his 

representation of the Petitioner, but this case was the first time trial counsel had 

represented someone charged with first degree murder. The Petitioner was originally 

represented by the public defender‟s office, but the Petitioner‟s family retained trial 

counsel “four to six months prior to trial.” Although trial counsel had been retained, the 

trial court ordered that the public defender remain on the case to sit as second chair 

during the trial. Trial counsel stated that he “absolutely” discussed the case with the 

public defender prior to trial. Trial counsel acknowledged that the Petitioner‟s trial was 

scheduled to take place on November 12-13, 2003. Trial counsel filed a substitution of 

counsel and made an oral motion for continuance on September 17, 2003, but the trial 

court denied the motion. Although trial counsel filed the agreed order for substitution of 

counsel two months before trial, he explained that he had been retained and was working 

on preparations for the case four to six months before trial and that there was a delay 

before he filed the agreed order for substitution of counsel. Trial counsel stated there was 

no particular reason for the delay.

Trial counsel explained that he did not file a motion for change of venue because 

there was not much media coverage of the offense after the initial news reports. Trial 

counsel admitted that he had represented a person named Kenton Ingle prior to taking the 

Petitioner‟s case. However, trial counsel did not recall a time when the public defender‟s 

office asked to interview Mr. Ingle in connection with the Petitioner‟s case.

Trial counsel testified that there were four African-Americans in a pool of thirty to 

forty potential jurors. One African-American juror was struck for cause because he was 

related to the Petitioner. Trial counsel used a preemptory strike to eliminate one of the 

African-American jurors, but he could not remember why he struck that juror.6 The final 

twelve jurors included one African-American. However, it was later determined that that 

juror was either the aunt or cousin of the Petitioner.7 Trial counsel stated that he did not 

move for a mistrial once he discovered that one of the jurors was related to the Petitioner. 

Trial counsel recalled that the public defender‟s office had filed a motion seeking 

funds for a psychological evaluation of the Petitioner and that the trial court had signed 

an order allowing a psychological examination. Trial counsel did not recall speaking 

 

6

Initially, trial counsel thought that the State had exercised its preemptory strike to excuse one of 

the African-American jurors. However, after reviewing the challenge sheets, the post-conviction court 

noted that trial counsel was the person who struck the juror in question.

7 There is no indication in the record as to when the parties learned that the juror was related to

the Petitioner.
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with the public defender about a psychological examination. Trial counsel stated that he 

did not use a psychological examination at trial.

Trial counsel attempted to contact every witness that was included on the State‟s 

witness list. Additionally, trial counsel was able to find other witnesses during his 

investigation. Trial counsel could not remember if he spoke with Paula Wheeler. Trial 

counsel noted that the Petitioner claimed that he was under the influence of drugs—

specifically six to fourteen Xanax pills—when he turned himself in to the police for 

questioning. Trial counsel stated that there was a written statement to corroborate that 

allegation, but he could not remember if it was written by Ms. Wheeler. Trial counsel 

litigated the issue at the hearing on the motion to suppress. Trial counsel noted that he 

did not call the Petitioner to testify at the suppression hearing because the Petitioner did 

not want to testify and trial counsel thought it was prudent not to call the Petitioner. Trial 

counsel stated that the denial of the motion to suppress was “devastating.” However, trial 

counsel proceeded to trial on the theory that the victim was killed by her husband, not the 

Petitioner.

Trial counsel stated that Mrs. Waller was going to receive inheritance money and 

her paycheck on the day she was killed. Trial counsel used this information as part of the 

defense strategy to suggest that Mr. Waller had committed the murder. Mr. Waller had 

“burned through” approximately $100,000 to feed his drug addiction, and trial counsel 

had identified at least three drug dealers to whom Mr. Waller owed money. Moreover, 

Mrs. Waller‟s family did not want Mr. Waller to have access to her inheritance money. 

Additionally, Mr. Waller had told police that he did not allow guns in his house, that he 

did not like guns, and that he did not touch them. However, a neighbor testified that, in 

the weeks prior to the killing, he heard guns being fired in the Waller backyard. 

Additionally, trial counsel called Mr. Waller‟s father to testify at trial that, a week or two 

prior to the murder, Mr. Waller had tried to sell his father a weapon that used the same 

cartridge that killed Mrs. Waller. Trial counsel explained that the “entire defense theory” 

was that Mr. Waller, not the Petitioner, killed Mrs. Waller.

Trial counsel spoke with Ms. Mendoza “at length” before trial. During crossexamination of Ms. Mendoza, trial counsel was able to bring out a number of 

inconsistencies between her testimony and her prior statements. Trial counsel also noted 

that Antonio Hardy had provided two statements to police; in the first he simply stated 

that the Petitioner was at Mr. Hardy‟s home on the day of the offense, but the second 

statement included more details about the Petitioner washing his hair, the presence of a 

gun, “and that kind of stuff.” Trial counsel noted that the statements differed from each 

other. Trial counsel could not recall whether Mr. Hardy had an agreement with the State 

for his testimony. However, trial counsel stated that Mr. Hardy was threatened with 

losing his children and that Mr. Hardy “changed his story on cross that he had never seen 
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a gun.” Trial counsel also cross-examined Damon Brock, but he could not recall whether 

he had questioned Mr. Brock about his inconsistent statements about whether he had seen 

the Petitioner on the day of the offense. Trial counsel recalled that Krissy Foster, Mr. 

Hardy‟s girlfriend, also testified inconsistently with her police statement. However, trial 

counsel did not think that he presented her contradictory statements to the jury.

Trial counsel stated that the clothing the Petitioner was alleged to have worn 

during the offense was found in a “disposal bin.” There was blood on one item of 

clothing, but testing was unable to match the blood to a specific individual. Trial counsel 

did not recall presenting this evidence to the jury, but trial counsel also noted that one of 

the Petitioner‟s statements indicated that the Petitioner had burned the clothes he was 

wearing during the offense.

Trial counsel recalled that Tennessee Bureau of Investigations Special Agent 

Jason Locke made a comment during his testimony that the Petitioner would have an 

opportunity to take the stand and testify. Trial counsel explained that he did not object to 

Agent Locke‟s comment or ask for a curative instruction because, at the time the 

comment was made, trial counsel believed the Petitioner was going to testify. According 

to trial counsel, the Petitioner was going to testify that he had an eighth-grade education

and that he did not make the statements to police freely and voluntarily. Trial counsel 

noted that the Petitioner‟s testimony was a crucial part of their defense theory. The 

Petitioner had told trial counsel that he intended to testify, and he did not indicate 

differently until the last day of trial. At that point, the Petitioner decided not to testify 

because “his mother had convinced him that if [trial counsel] put him on the stand that 

the [S]tate was going to cross him up,” so he elected not to testify.

Trial counsel acknowledged that the prosecutor referred to a couple of people 

during closing argument who did not testify at the trial. Additionally, the prosecutor 

commented during closing that the victim was begging for her life. Trial counsel 

admitted that he did not object to these statements. He noted that the prosecutor‟s 

comment about the victim‟s begging for her life was consistent with the evidence of the 

bullet trajectory and that she was shot while she was on her knees with her arms in front 

of her face.

Trial counsel did not recall whether he obtained Mrs. Waller‟s medical records or 

if he asked Dr. Gerber whether he relied on Mrs. Waller‟s medical records when forming 

his opinion about the viability of the fetus. Trial counsel stated that “there was no way 

any doctor could conclusively testify beyond a reasonable doubt” that the fetus could 

have survived outside the mother‟s body. Trial counsel recalled that Dr. Gerber testified 

that the fetus would have been considered viable. Trial counsel did not object to this 

testimony, but during cross-examination, trial counsel got Dr. Gerber to admit that there 

was no way to determine conclusively whether the fetus was viable. Trial counsel 
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explained that he did not call a defense expert witness about viability because he did not 

think it was necessary.

Trial counsel stated that there were two unidentified hairs found on Mrs. Waller‟s 

body—one on her shirt and one in her hand. Those hairs came from a Caucasian 

individual and were consistent in length and color to Mr. Waller‟s hair. Trial counsel 

consciously elected not to have the hairs tested because there was also a possibility that 

they were Mrs. Waller‟s hairs. If the test results revealed that they belonged to Mrs. 

Waller, then trial counsel could not argue that the hairs had come from Mr. Waller. Trial 

counsel “thought the value of not knowing was far greater . . . than the probability or 

possibility that the hair could have actually belonged to the victim herself, and if that was 

the case, it just kind of undermined our entire theory all together.”

Trial counsel stated that Agent Locke testified as to the existence of blood spatter 

at the scene. However, trial counsel did not believe Agent Locke gave any testimony 

about the trajectory of the bullet based on the blood spatter. If Agent Locke had given 

expert testimony of that sort, trial counsel would have objected.

The Petitioner was alleged to have borrowed a vehicle to travel to the Wallers‟

home on the day of the offense. Trial counsel believed the vehicle was tested and that 

nothing was found in the vehicle. However, trial counsel did not bring that fact to the 

jury‟s attention. As to mitigating factors at sentencing, trial counsel asked the court to 

consider the Petitioner‟s age and lack of criminal record.

On cross-examination, trial counsel explained that he did not seek a psychological 

evaluation of the Petitioner because trial counsel had not observed the Petitioner behave 

in a way that indicated a psychological evaluation may have been necessary. 

Additionally, in order for the defense theory to be successful, trial counsel acknowledged 

that the Petitioner would have had to take the stand and deny all the statements he made 

to police and other individuals. 

Trial counsel could not recall why he struck one of the African-American 

members from the jury.

Paula Wheeler testified that the Petitioner was at her home on the day he turned 

himself in to the police. The Petitioner had come to see her son. While he was there, Ms. 

Wheeler observed the Petitioner take a “very large amount” of pills. Ms. Wheeler 

recognized the pills as looking “exactly” like the Hydrocodone pills that she had been 

prescribed for pain. Ms. Wheeler told the Petitioner to leave her home, and the 

Petitioner‟s father came to pick him up. Ms. Wheeler stated that no one from the defense 

team ever contacted her prior to trial. On cross-examination, Ms. Wheeler stated that she 

did not know at the time that the Petitioner was a drug dealer. Ms. Wheeler also 
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acknowledged that she knew the trial was going on but that she did not contact anyone to 

tell them about what she saw. Ms. Wheeler stated that she received a call from the 

Petitioner about six to eight months after he had been arrested and that the Petitioner

informed her that he had told trial counsel that he had gone to Ms. Wheeler‟s house and 

taken pills prior to turning himself into the police.

The Petitioner testified that he went to Ms. Wheeler‟s house on the day that he 

turned himself into police. While there, his “partner” called him and told him to turn on 

the news.8 The Petitioner did so and saw that he was on the news, so he called his father 

to come pick him up and take him to the police station to turn himself in. The Petitioner 

said that he gave Ms. Wheeler‟s name to the public defender and trial counsel because 

she had seen the Petitioner take “a handful of pills” before turning himself into the police. 

The Petitioner also stated that he asked the attorneys “for a drug test that was supposed to 

be on the record at the books at the county jail.” The Petitioner stated that he went to the 

police station because the police wanted to talk to him and the Petitioner “had heard 

rumors that [the police] were planning on killing [the Petitioner] on sight and a whole 

bunch of foolishness.” The Petitioner turned himself into the police because he wanted to 

clear his name.

The Petitioner stated that he wanted to testify at the suppression hearing and that 

trial counsel was aware that he wanted to testify. However, the Petitioner explained that 

he tried to give his version of the events but the judge would not allow him to testify. 

The Petitioner asserted that, at that point, trial counsel should have made an offer of proof 

of what the Petitioner would have testified to because he knew that the Petitioner wanted 

to testify.9 

The Petitioner also told trial counsel to call Ms. Wheeler to testify at the 

suppression hearing because the Petitioner thought Ms. Wheeler‟s testimony was “very 

important” to the suppression of his statements because she could shed light on the 

Petitioner‟s state of mind when he turned himself into the police. The Petitioner asserted 

that he had taken a “mixture of Xanaxes and Hydrocodone”10 before he turned himself 

into the police and that he had been taking pills, drinking, and smoking marijuana 

throughout the day. The Petitioner explained that this level of drug use was “[a] normal 

day” for him. He stated that he was already high when he took the pills at Ms. Wheeler‟s 

house and that he “felt a little bit better” after taking the pills. After taking the drugs, the 

 

8 On cross-examination, the Petitioner admitted that the “partner” who called to tell him that he 

was on the news was a partner in the Petitioner‟s drug business. 

9 The Petitioner did testify at the suppression hearing, but his testimony was limited to the issue 

of whether he objected to trial counsel representing him and potential witness, Kenton Ingle. The 

Petitioner stated that he had no objection.

10 Later is his testimony, the Petitioner estimated that he had taken “probably about six or seven

[pills], maybe eight and maybe three or four Lortabs and a couple of Xanaxes” at Ms. Wheeler‟s house.
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Petitioner went directly from Ms. Wheeler‟s house to the sheriff‟s office. He did not eat 

anything before turning himself into the police.

Once the Petitioner arrived at the police station at 5:00 or 6:00 p.m., he was placed 

in “some kind of little offices or something” where he “waited and waited.” The 

Petitioner recalled that, once Agent Locke arrived, the Petitioner asked, “I need a lawyer, 

don‟t I? I said, I want a lawyer. I said, don‟t I need a lawyer?” However, Agent Locke 

told him that “only a guilty man needs a lawyer.” The Petitioner agreed to speak with 

Agent Locke because the Petitioner “ain‟t done nothing, got nothing to worry about.” 

The Petitioner claimed that Agent Locke never read him the Miranda rights waiver and 

never told the Petitioner what it was. Instead Agent Locke just gave the Petitioner the 

paper and told the Petitioner that it “was a piece of paper saying it was okay for him to 

talk to [the Petitioner]. He did not tell [the Petitioner] that [the Petitioner] was waiving 

any rights. He did not tell [the Petitioner] that [the Petitioner] did not have to talk to 

him.” The Petitioner talked with Agent Locke for “three or four hours” and denied doing 

anything wrong. Eventually, the Petitioner said he was leaving and tried to exit the door. 

However, Agent Locke told the Petitioner “don‟t touch that door knob,” and when the 

Petitioner turned to look at Agent Locke, the agent had his hand on his firearm. The 

Petitioner maintained that he had not been advised of his rights at this point, but he noted 

that he had “probably signed three or four” waivers by that point. The Petitioner 

explained, “He kept telling me, [„]sign this paper,[‟] so I just kept signing the paper. He 

was a police officer. Hell, I trusted him. I didn‟t think nothing about it.” The Petitioner 

noted that he could read but that he did not read any of the waivers that he had been 

asked to sign. In total, the interrogation lasted approximately twelve to fourteen hours. 

Between 5:30 and 7:00 the next morning, the Petitioner was taken into custody and 

charged with first degree murder.

After the Petitioner had been booked, Detective Knight came to the Petitioner‟s 

cell, had the Petitioner to sign yet another Miranda waiver, and asked the Petitioner to 

take him to the site where he claimed he had disposed of the gun. The Petitioner opined 

that the police took multiple statements from him because “they didn‟t have a strong 

enough case and they was trying to gather whatever they could[.]”

The Petitioner said that Agent Locke‟s trial testimony—that the Petitioner said, “I 

shot the b****”—was false. The Petitioner explained:

The reason I had so many different statements was because [Agent] Locke 

kept on telling me that what I was saying was not consistent with the 

evidence, so I would change it up to tailor whatever he said . . . . The only 

reason why I had so many inconsistent statements is because I really did 

not know what was going on. The only reason why I made the statement in 
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the first place—the only one reason why I made that statement was because 

I thought it was in my best interest.

According to the Petitioner, Agent Locke had told him that, if he did not cooperate, the 

Petitioner would face the death penalty. However, if the Petitioner did cooperate, Agent 

Locke said he would “get [the Petitioner] five years involuntary manslaughter.” The 

Petitioner said the only reason he confessed to a murder he did not commit was because 

Agent Locke asked him, “Would you rather do five years [as] an innocent man or would 

you rather die as an innocent man?”

The Petitioner stated that he did not get along with the public defender because, at 

their first meeting, the public defender asked, “[A]re you ready to go to the penitentiary?” 

The Petitioner hired trial counsel to get the public defender off of his case, but the court

would not remove the public defender. The Petitioner maintained that trial counsel had 

less than two months to prepare for trial after he was retained by the Petitioner‟s family. 

The Petitioner noted that, when trial counsel filed his motion for continuance, he argued 

to the court that he would only have less than a month and a half to prepare for trial for a 

double murder. The Petitioner recalled that the trial court denied the motion for 

continuance, citing that the public defender had already done work on the case and was 

still second chair on the case. However, the Petitioner claimed that the public defender‟s 

office had not worked on his case. The Petitioner estimated that he saw trial counsel 

three or four times before trial. Trial counsel did not visit for hours, but he came “for a 

nice amount of time.” The Petitioner recalled that trial counsel discussed trial strategy, 

witnesses‟ inconsistent statements, and “a number of things” during these meetings. The 

Petitioner was able to give trial counsel names and contact information of people who 

might have assisted the defense.

The Petitioner stated that he was “undecided” about whether he was going to 

testify at trial. Trial counsel told him it was in his best interest to testify, but the 

Petitioner was worried about his lack of education. He said he “didn‟t want to get twisted 

up and turned around and it hurt me more that it help me,” so he decided not to testify. 

The Petitioner claimed he told trial counsel that he was not going to testify before the trial 

began.

Regarding mitigating factors at sentencing, the Petitioner said he told trial counsel 

that he had a rough childhood but “nothing major.” The Petitioner also stated that he 

wanted “to challenge the [State‟s] closing argument in its entirety, not just certain lines.” 

The Petitioner also claimed that his Fourth Amendment right against unreasonable 

seizure was violated when Agent Locke prevented the Petitioner from leaving the 

interrogation room. Additionally, the Petitioner stated that he “didn‟t receive a fair and 

impartial trial being that there was too many—there was too many things not done.” For 

example, the Petitioner stated that many “crucial points” were not raised or argued 
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effectively; the witnesses‟ stories did not add up; Mr. Waller‟s parents arrived at and left 

the scene before the police arrived; the jury never heard that the person who found the 

body was not on the scene when the police arrived; “there was no physical evidence

whatsoever”; trial counsel did not challenge the denial of a change of venue after the 

crime was “highly, highly publicized, newspapers, radio, more than one report on the 

news”; trial counsel did not challenge preemptory strike of jurors; and trial counsel did 

not “challeng[e] the fairness of the cross selection” when only four African-Americans 

were in the jury pool and twelve percent of Wilson County‟s population was AfricanAmerican.

On cross-examination, the Petitioner stated that he contacted Ms. Wheeler before 

trial, but he maintained that Ms. Wheeler did not contact anyone with her information 

because it was trial counsel‟s job to contact Ms. Wheeler. The Petitioner confirmed that 

he remembered the “events with Agent Locke” very clearly and there was “not one 

doubt” in his mind about what happened during his interview with Agent Locke. Even 

though the Petitioner had a clear memory of the interview, he maintained that Ms. 

Wheeler‟s testimony that he took pills was relevant to his state of mind. He explained:

. . . The difference that the pills make is that intoxication is not a defense, 

but intoxication is a relevant factor into whether or not you can voluntarily 

or knowingly waive any rights. If I‟m not mistaken, according to law, you 

can‟t waive rights under the influence of mind-altering drugs. . . . Taking 

pills is under the influence. That goes without saying.

Despite this contention, the Petitioner agreed that the day he turned himself in was a 

“normal day” and that he operated under the influence of that many drugs on a daily 

basis. However, he maintained that he was still “under the influence” despite his ability 

to function normally. 

The Petitioner claimed that he confessed to the crime “under threatened coercion” 

and “under manipulation and trickery” but not voluntarily. When asked about how he 

was tricked into making statements to other witnesses,

11 the Petitioner noted that Mr. 

 

11 In our opinion from the Petitioner‟s direct appeal, we noted that “Mr. Hardy said that [the 

Petitioner] returned to his apartment later that afternoon and muttered under his breath that „he [had] shot 

somebody.‟” Additionally, Mr. Hardy‟s girlfriend, Krissy Foster, said the Petitioner asked her to wash 

his hair for him, asked for some clothes, and admitted that he had killed someone. Jason Curtis Johnson, 

2006 WL 407767, at *3. Leah Mendoza testified that the Petitioner had called her the day following the 

murder and asked her to tell the police that he had been at her house on the day of the murder. Ms. 

Mendoza asked the Petitioner why he “did it,” and he responded, “You know me. Business.” Id. at *2. 

Megan Bartlett testified that the Petitioner borrowed her car and said, “I‟m going to kill a b**** if I don‟t 

get my $900.” Id.
- 13 -

Hardy said in his first statement that he had not seen the Petitioner on the day of the 

offense and that Mr. Hardy did not know anything about the crime. The Petitioner 

claimed that Mr. Hardy implicated the Petitioner under police pressure. Similarly, the 

Petitioner said Ms. Foster originally told police that she had “told [the Petitioner] to wash 

his own hair,” but she changed her story and said she washed his hair after “they get to 

talking about taking her baby away[.]” As to Ms. Mendoza, the Petitioner claimed, 

“[T]hey twisted this woman up to the point to where she was tore all to pieces on the 

stand. They made her say stuff that she didn‟t even put in her original statement.”12 

Regarding the statement he supposedly made to Megan Bartlett, the Petitioner said that 

he and Ms. Bartlett were not on good terms “because of a personal relationship,” and he 

thought that may have motivated her testimony. The Petitioner denied saying anything 

about killing someone over $900. He also stated that he did not have reason to kill Mrs. 

Waller because “a dead person does not pay.”

The Petitioner opined that there were only four African-Americans in the jury pool 

because there was a plot against him.

On redirect examination, the Petitioner stated that he “pop[ped] pills” and that “he 

was liable to have took [twenty] pills” over the course of a day. He said he was “kind of 

like speed-bombing” when he took the pills at Ms. Wheeler‟s house because he took a 

mixture of pills—normally he took one or the other. He said the pills made him “feel real 

good.” The Petitioner said his judgment was impaired when he was under the influence 

of the pills. He agreed that the drugs could make him do something he otherwise would 

not have done. Additionally, the Petitioner asserted that he “was convicted of being a 

drug dealer, not a murderer.” He stated: 

There was uncharged conduct that was supposed to have been given to the 

jury which never was. [The trial court] said that [„]if we have anything like 

that, we have to allow it in, that they have an absolute right to that.[‟] It 

was never given to the jury and nor was it objected to and nor was it 

reserved for appeals. It was never brought up on a motion for new trial and 

it was brought up on the record. I had to wait until now to bring up on 

ineffective assistance of counsel, in which it did prejudice me because I was 

convicted for being a drug dealer, not for murder because murder was not 

proved.

 

12 We note that the Petitioner did not admit any of these witnesses‟ prior statements to police as 

exhibits to the post-conviction hearing.
- 14 -

After reviewing and considering the credibility of the witnesses, the postconviction court denied relief and in doing so credited trial and appellate counsel.

13

 The

court noted that the question of the sufficiency of the evidence as to the viability of the 

fetus was addressed on direct appeal, and the post-conviction court stated that the jury 

was instructed that it could believe or disbelieve the expert‟s testimony on the issue. The 

post-conviction court noted that, although Dr. Li testified that viability could not be 

determined, other proof at trial showed that the fetus was viable. The post-conviction

court also noted that the proof at trial showed that the Petitioner knew Mrs. Waller was 

pregnant. In short, the post-conviction court concluded that the issue of viability had 

been determined previously on direct appeal and stated it “would adopt those, obviously, 

the findings of the jury . . . as well as the statements and the opinion of the Court of 

Criminal Appeals.” Although the post-conviction court did not make any specific 

findings as to trial counsel‟s effectiveness in failing to call an expert witness, by 

accrediting trial counsel‟s testimony, the post-conviction court necessarily accepted trial 

counsel‟s statement that he felt he did not need to call an expert and could rely on 

rigorous cross-examination of Dr. Gerber.

Regarding the Petitioner‟s claim that there was no proof to convict him in this 

case, the post-conviction court noted that twelve jurors and this court had found there was

sufficient evidence to convict him. Regarding the hair sample that was not tested, the 

post-conviction court found that trial counsel made a reasoned, strategic decision not to 

test the sample to leave open the opportunity to argue that it came from Mr. Waller. As 

such, his performance was not deficient.

As to the preemptory strikes against jurors, the post-conviction court noted that 

one African-American was on the jury and another African-American was struck by trial 

counsel. Even though trial counsel could not recall why he struck that juror, the postconviction court stated that jury selection was an “inexact science” and concluded trial 

counsel made a strategic gut decision to exercise a preemptory strike. Additionally, the 

post-conviction court found that there was no proof that there was a plot against the 

Petitioner with regard to the jury composition, noting that the jury pool was selected at 

random from the Wilson County driver‟s license list. 

Regarding the Petitioner‟s allegation that trial counsel should have called Ms. 

Wheeler to testify at the suppression hearing about his pill use, the post-conviction court 

noted that the Petitioner admitted that he took as many as twenty pills a day. 

Additionally, the court stated, “All [Ms. Wheeler‟s] going to do is say essentially what 

came out anyway in the suppression hearing—how many pills did he take.” As such, her 

testimony “does not affect the admission of the Miranda waiver.” Moreover, the court 

 

13 The post-conviction court‟s ruling is taken from the findings issued from the bench as well as 

from a written order denying post-conviction relief.
- 15 -

noted that Agent Locke testified at the suppression hearing and trial that he read the 

Petitioner the Miranda waiver and that the Petitioner signed it multiple times during the 

interview. Detective Knight also read the Petitioner a Miranda waiver and had the 

Petitioner sign the same before he spoke to him. Further, the court noted that Agent 

Locke testified that the Petitioner was cooperative, was given several breaks during the 

interview, and that the Petitioner was allowed to read, correct, and modify every typewritten statement he gave. The post-conviction court found that trial counsel did not 

attempt to have the Petitioner testify about his pill use at the suppression hearing and 

concluded that the Petitioner was not prohibited from testifying. Additionally, the postconviction court noted that this court had addressed the suppression of the Petitioner‟s 

statements on direct appeal. Accordingly, the post-conviction court concluded that the 

Petitioner had “failed to carry his burden of proof by clear and convincing evidence.”

The court noted that Agent Locke commented on the Petitioner‟s ability to testify 

during his trial testimony. However, the court understood why trial counsel did not 

object or ask for a curative instruction when trial counsel expected that the Petitioner 

would testify. The court acknowledged that the Petitioner claimed that he had told trial 

counsel he was not going to testify prior to trial, but the post-conviction court found that 

the Petitioner had not proven his claim by clear and convincing evidence “when one 

balances those two different versions.”

As to the sentencing issues, the post-conviction court noted that this court had 

determined that the Petitioner was a professional criminal for whom consecutive 

sentencing was appropriate and affirmed the aggregate sentence. The court also stated 

that judges had wide latitude in sentencing. Consequently, the post-conviction court 

concluded that “the Court of Criminal Appeals ha[d] addressed all the sentencing issues” 

but based on a review of the record, the post-conviction court found that there was 

“ample advisory factors” to sentence the Petitioner to twenty-five years for his second 

degree murder conviction because he was a professional criminal and he was on 

probation at the time of the offense.

Consequently, the post-conviction court found that the Petitioner had failed to 

carry his burden of proof by clear and convincing evidence and denied relief. This timely 

appeal followed.

Analysis

In order to prevail on a petition for post-conviction relief, a petitioner must prove 

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828, 

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and 

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound 

by the post-conviction court‟s factual findings unless the evidence preponderates against 
- 16 -

such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing 

the post-conviction court‟s factual findings, this court does not reweigh the evidence or 

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40 

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally, 

“questions concerning the credibility of the witnesses, the weight and value to be given 

their testimony, and the factual issues raised by the evidence are to be resolved by the 

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579); 

see also Kendrick, 454 S.W.3d at 457. The post-conviction court‟s conclusions of law 

and application of the law to factual findings are reviewed de novo with no presumption 

of correctness. Kendrick, 454 S.W.3d at 457.

Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of 

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. 

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, 

a petitioner must prove two factors: (1) that counsel‟s performance was deficient; and (2) 

that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 

(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that 

the same standard for ineffective assistance of counsel applies in both federal and 

Tennessee cases). Both factors must be proven in order for the court to grant postconviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 

938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not 

satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 

316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). 

Additionally, review of counsel‟s performance “requires that every effort be made to 

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‟s 

challenged conduct, and to evaluate the conduct from counsel‟s perspective at the time.” 

Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not secondguess a reasonable trial strategy, and we will not grant relief based on a sound, yet 

ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790 

(Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel‟s performance is effective 

if the advice given or the services rendered are within the range of competence demanded 

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523 

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that 

counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions 

were so serious as to fall below an objective standard of reasonableness under prevailing 

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see 

also Baxter, 523 S.W.2d at 936.
- 17 -

Even if counsel‟s performance is deficient, the deficiency must have resulted in 

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong 

of the Strickland analysis, the petitioner “must show that there is 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks 

omitted).

The Petitioner alleges several instances in which he claims he received ineffective 

assistance of counsel. We will address each in turn.

a. Trial counsel‟s “inadequate trial preparation and performance”

The Petitioner asserts that trial counsel was inadequately prepared for trial because 

he was admitted to practice law a little over a year prior to the Petitioner‟s trial and trial 

counsel had “less than two months” to prepare for the November 12-13, 2003 trial. 

However, trial counsel testified that, even though he filed the agreed order substituting 

counsel on September 17, 2003, he had actually been working on the Petitioner‟s case for 

four to six months prior to trial. Additionally, we note that, on the same day that he filed 

the agreed order substituting counsel, trial counsel litigated the motion to suppress. From 

our review of the transcript of the motion to suppress, it is clear that trial counsel was 

familiar with the facts of the case and that he had spoken with the Petitioner and heard 

many of the same allegations that the Petitioner expressed during the post-conviction 

hearing, such as the Petitioner‟s request for counsel during the interrogation. As such, it 

appears that trial counsel had been working on this case prior to his filing the agreed 

order substituting counsel. The Petitioner has failed to show that counsel was deficient in 

this regard.

The Petitioner also asserts that trial counsel failed to use the resources of the 

public defender‟s office and did not consult with co-counsel from the public defender‟s 

office. Trial counsel testified that he “absolutely” discussed the case with the public 

defender prior to trial. Although trial counsel admitted that he did not recall speaking 

with the public defender about a psychological evaluation, he stated that he did not intend 

to use psychological evidence at trial because the entire trial strategy was to assert that 

Mr. Waller, not the Petitioner, was the killer. The Petitioner does not explain how a 

psychological evaluation would have benefited that strategy. Additionally, no 

psychological evaluation was presented at the post-conviction hearing. This court has 

long held that “[w]hen a petitioner contends that trial counsel failed to discover, 

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

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

757-58 (Tenn. Crim. App. 1990). The Petitioner cannot establish that he was prejudiced 

unless he can produce a material witness who “(a) could have been found by reasonable 
- 18 -

investigation and (b) would have testified favorably in support of his defense if called.” 

Id. Without hearing the witness‟s testimony, neither the post-conviction court nor this 

court can determine whether the Petitioner suffered prejudice from trial counsel‟s failure 

to call such witness. See id. Accordingly, the Petitioner has failed to establish that trial 

counsel was ineffective for failing to have the Petitioner undergo psychological 

examination.

The Petitioner asserts that trial counsel was ineffective because trial counsel 

represented a potential witness, Kenton Ingle, in another matter. The Petitioner claims 

that trial counsel refused to let the public defender‟s office interview Mr. Ingle. 

However, there is no proof in the record that trial counsel prevented the public defender‟s 

office from interviewing Mr. Ingle. Moreover, the Petitioner testified at the suppression 

hearing that he had no objection to trial counsel representing both himself and Mr. Ingle. 

Accordingly, the Petitioner has failed to prove that trial counsel was deficient or that he 

was prejudiced by any alleged deficiency.

Next, the Petitioner asserts that trial counsel was ill-prepared for the suppression 

hearing because he failed to contact or call Ms. Wheeler to testify about the pills the 

Petitioner took prior to turning himself into the police. However, trial counsel testified 

that he was well-aware of the Petitioner‟s allegation that he was intoxicated during his 

police interview. Additionally, the Petitioner admitted during the post-conviction hearing

that he took large amounts of drugs on a daily basis. Further, Agent Locke and Detective 

Knight testified at the suppression hearing that the Petitioner appeared to be lucid and had 

denied being under the influence of any drugs at the time of their interviews. 

Additionally, Detective Knight testified at the post-conviction hearing that the Petitioner 

was alert when he took Detective Knight to the location where he supposedly disposed of 

the murder weapon. As such, the record does not preponderate against the postconviction court‟s finding that Ms. Wheeler‟s testimony would not have made a 

difference in the trial court‟s ruling that the Petitioner had voluntarily waived his Miranda

rights and confessed to the crime.

The Petitioner contends that trial counsel was ineffective when he failed to object 

to the State‟s references to the Petitioner‟s uncharged drug dealing during trial and that 

trial counsel failed to submit a jury charge regarding the uncharged conduct. A review of 

the record from the Petitioner‟s direct appeal shows that trial counsel did not object to 

testimony that the Petitioner was a drug dealer and that the trial court did not give the 

jury any instructions about uncharged conduct. However, as the State notes in its brief, 

trial counsel was not asked about his decision not to object to the testimony that the 

Petitioner was a drug dealer or his failure to ask for a jury instruction. Instead, the only 

proof of “uncharged conduct” which was presented at the post-conviction hearing was a 

nonsensical comment from the Petitioner himself. Moreover, the post-conviction court 
- 19 -

made no findings related to the testimony about uncharged conduct. Nevertheless, it is 

clear from the trial transcript that trial counsel was presenting a theory that Mr. Waller 

killed Mrs. Waller and her fetus because Mr. Waller owed the Petitioner money for drugs 

and Mrs. Waller was due to receive a large amount of money as inheritance from her 

relative. As such, trial counsel‟s failure to object to the uncharged conduct appears to 

have been a tactical decision, which we will not second-guess. See Granderson, 197 

S.W.3d at 790. The Petitioner has failed to prove that trial counsel was deficient for 

failing to object to the testimony that the Petitioner was a drug dealer. As to trial 

counsel‟s failure to ask for a jury instruction, we first note that the trial court stated that it 

would need to give a jury instruction about uncharged conduct. There is no indication 

that the trial court‟s failure to give such instruction was the result of trial counsel‟s failure 

to request said instruction. However, even if trial counsel was deficient for failing to note 

the lack of the instruction, the Petitioner has not proved that he was prejudiced. Over the 

course of the trial, there was relatively little testimony that the Petitioner was a drug 

dealer. Conversely, the Petitioner gave four written statements to police admitting to 

killing Mrs. Waller, and he made comments to other witnesses indicating that he had 

killed someone. As such, the Petitioner is not entitled to relief on this issue.

The Petitioner argues that trial counsel was ineffective when he failed to object to 

Agent Locke‟s giving an “unqualified „expert‟ opinion” about the blood spatter and bullet 

trajectory during his testimony. At the post-conviction hearing, trial counsel stated that 

he would have “clearly objected” if Agent Locke had offered “some kind of scientific 

conclusion that [was] based upon the trajectory of this blood spatter[.]” At trial, Agent 

Locke testified that the blood spatter on Mrs. Waller‟s legs appeared to be going in a 

downward direction, indicating to Agent Locke that “the entrance wound would have 

been elevated at the time the blood came, that the wound would have been from the top in 

a downward direction.” However, in addition to Agent Locke‟s testimony, Dr. Gerber, 

who was accepted as an expert in forensic pathology, testified that the bullets travelled in 

a downward trajectory through Mrs. Waller‟s brain. Therefore, the Petitioner has failed 

to prove that he was prejudiced by trial counsel‟s failure to object to Agent Locke‟s 

testimony about the blood spatter.

Finally, the Petitioner claims that trial counsel filed a “bare boned” motion for new 

trial and that “[trial] counsel‟s deficient performance in drafting of the Motion for a New 

Trial caused the Petitioner prejudice in that many issues were not preserved for appeal.” 

However, the Petitioner fails to identify what issues should have been preserved, and he 

makes no argument as to whether those issues would have been meritorious. As such, we 

are unable to determine what, if anything, trial counsel should have raised in the motion 

for new trial and whether those issues would have been meritorious on appeal. 

Therefore, the Petitioner has failed to prove that trial counsel was deficient or that he was 

prejudiced by the alleged deficiency.
- 20 -

b. Trial counsel‟s “errors concerning [the] Petitioner‟s Sixth Amendment right to a fair 

and impartial jury”

The Petitioner asserts that trial counsel was deficient when he failed to object to 

the only African-American who was placed on the jury because that individual was 

related to the Petitioner. The Petitioner claims that he was prejudiced by trial counsel‟s

alleged deficiency because “had [trial counsel] properly challenged this juror, that would 

have left zero African-Americans on the jury, which is not an adequate cross-section of 

the community.” However, there is no indication as to when trial counsel learned that the 

juror was related to the Petitioner. As such, the Petitioner has failed to establish that trial 

counsel was deficient. Accordingly, the Petitioner‟s claim is without merit.

The Petitioner also contends that “his Sixth Amendment right to a fair trial was 

violated, and the failure of counsel to raise the issue constitutes ineffective assistance of 

counsel.” To the extent that the Petitioner raises a free-standing claim that his Sixth 

Amendment rights were violated because the venire did not contain a representative 

cross-section of the community, this claim has been waived for the purposes of postconviction relief. Tenn. Code Ann. § 40-30-106(g) (2014).14

 

As to the Petitioner‟s claim that counsel was ineffective for failing to challenge the 

makeup of the venire and the jury, the post-conviction court noted that venires were 

typically chosen from the Wilson County driver‟s license records. The Petitioner has 

presented no proof that the venire was chosen in a different manner or that any 

underrepresentation of the African-American population was “due to the systematic 

exclusion of the group in the jury-selection process.” See Duren v. Missouri, 439 U.S. 

357, 364 (1979). The record does not preponderate against the post-conviction court‟s 

finding that there was no “plot” against the Petitioner to exclude African-Americans from 

the venire. Additionally, trial counsel, not the State, was the only person to use a 

preemptory strike against an African-American juror. Accordingly, the record does not 

preponderate against the post-conviction court‟s finding that the State did not use its 

preemptory challenges to strike any African-American jurors, and there is no evidence to 

support a prima facie case of purposeful discrimination that trial counsel should have 

challenged. See State v. Hugueley, 185 S.W.3d 356, 368 (Tenn. 2006) (citing Batson v. 

Kentucky, 476 U.S. 76, 96 (1976)). The Petitioner has failed to establish that trial 

counsel was deficient, and this claim is without merit.

 

14 We also note that the Petitioner claims that the population of Wilson County is twelve percent 

African-American. Trial counsel testified that there were thirty to forty potential jurors in the jury pool, 

four of which were African-American. Twelve percent of forty is 4.8.
- 21 -

c. Failure to have evidence tested

The Petitioner asserts that trial counsel rendered ineffective assistance when he 

failed to have the hair found in the victim‟s hand tested. Trial counsel testified that he 

made a strategic decision not to have the hair tested so that he could argue that the hair 

had come from Mr. Waller. We will not second-guess a reasonable strategic decision. 

See Granderson, 197 S.W.3d at 790. Furthermore, we note that the Petitioner did not 

present any test results pertaining to the hair at the post-conviction hearing. Without 

knowing what the test results would have yielded, we cannot say that the Petitioner was 

prejudiced by the failure to have the hair tested. Black, 794 S.W.2d at 757-58. 

Accordingly, the Petitioner has failed to demonstrate that trial counsel was deficient for 

failing to test the hair or that the alleged deficiency resulted in prejudice.

The Petitioner also contends that trial counsel should have had the bullets found in 

the victim‟s bedroom tested for a match to those used in the shooting. We note that 

testimony at trial established that the Petitioner told the police that he had gotten the 

bullets he used during the offense from the victim‟s house. Further, the Petitioner did not 

present any evidence at the post-conviction hearing as to what test results of the bullets 

found in the victim‟s bedroom would have yielded. Therefore, the Petitioner has failed to 

establish that he suffered prejudice. Id.

Finally, the Petitioner argues that trial counsel failed to establish that no blood was 

found in the car that the Petitioner used to travel to and from the crime scene. He asserts 

that introduction of that evidence “could likely have changed the outcome of the trial.” 

However, we fail to see how testimony that there was no blood in the car would have 

changed the outcome at trial when the Petitioner‟s four written confessions, along with 

his statements to other witnesses, were introduced into evidence. The Petitioner has 

failed to prove that he was prejudiced by the alleged deficiency. This issue is without 

merit.

d. “Trial errors”

The Petitioner claims that trial counsel should have called Brian Hanna to testify 

because Mr. Hanna lived in the basement of the Waller home, was alleged to have been

with Mr. Waller on the day of the offense, and was the first person to find Mrs. Waller‟s 

body. However, the Petitioner does not explain what he anticipates Mr. Hanna‟s 

testimony would show. Additionally, Mr. Hanna did not testify at the post-conviction 

hearing. As such, the Petitioner has failed to prove that he was prejudiced by the failure 

to call Mr. Hanna at trial. Id. 

Additionally, the Petitioner claims that trial counsel should have asked the court to 

give the jury a missing witness instruction because the State did not call Mr. Hanna to 
- 22 -

testify. However, the Petitioner failed to provide any citation to authority or any 

argument as to why trial counsel should have requested such an instruction. The 

Petitioner has waived our consideration of the issue. Tenn. Ct. Crim. App. R. 10(b).

The Petitioner argues that trial counsel did not impeach Leah Mendoza, Krissy 

Foster, or Antonio Hardy, who apparently gave prior statements which were inconsistent 

with their trial testimony. Additionally, the Petitioner contends that trial counsel did not 

“properly impeach” Damon Brock‟s testimony that Mr. Waller was with Mr. Brock all 

day. However, trial counsel testified that he did cross-examine each witness and was able 

to identify some inconsistencies between their testimony and their prior statements. 

Further, the Petitioner bears the burden of proving all factual allegations by clear and 

convincing evidence. Jaco, 120 S.W.3d at 830. The witnesses‟ prior statements were not 

included in the record for the direct appeal or for this appeal. Accordingly, we are unable 

to determine what the witnesses said in their prior statements, outside of the limited 

testimony about their contents, and we cannot determine whether they were inconsistent 

with the witnesses‟ trial testimony. Therefore, the Petitioner has failed to establish that 

trial counsel was deficient for failing to cross-examine the witnesses about these 

statements or that he was prejudiced by that deficiency. 

Additionally, the Petitioner contends that trial counsel should have asked Mr. 

Waller why his parents came to the crime scene and left before the police arrived and that 

trial counsel should have asked the police why they did not question Mr. Waller‟s parents 

about the missing weapon. However, the Petitioner presented no proof as to this issue at 

the post-conviction hearing. Consequently, we have no way to determine what this line 

of inquiry would have yielded. The Petitioner has failed to prove by clear and convincing 

evidence that trial counsel was deficient on this issue or that the Petitioner suffered 

prejudice from such deficiency. See Black, 794 S.W.2d at 757-58. 

The Petitioner asserts that trial counsel should have asked Mr. Brock what date he 

helped Mr. Waller deliver some furniture to the Petitioner‟s house as partial payment for 

a drug debt Mr. Waller owed to the Petitioner. The Petitioner claims that testimony about 

the date of the transaction would undermine the State‟s theory that the Petitioner killed 

Mrs. Waller over Mr. Waller‟s drug debt. However, we fail to see how this testimony

would undermine the State‟s theory of the case because both Mr. Brock and Mr. Waller 

testified at trial that the furniture was meant to be partial payment of the drug debt and 

some of the debt was still outstanding. The Petitioner has failed to show that trial counsel 

was deficient for failing to ask Mr. Brock what date he helped Mr. Waller deliver 

furniture to the Petitioner.

Further, the Petitioner contends that trial counsel‟s failure to object to photographs 

of the fetus as being unfairly prejudicial was deficient. However, the record on direct 

appeal shows that trial counsel did challenge introduction of the photographs and that the 
- 23 -

trial court held a jury-out hearing in which Dr. Gerber selected three photos of the fetus 

to use in his testimony. Ultimately, only one photo was introduced into evidence. The 

Petitioner challenged the introduction of that photo on appeal, and this court determined 

that its probative value exceeded the danger of prejudice. Jason Curtis Johnson, 2006 

WL 407767, at *10. Accordingly, the Petitioner has failed to establish that trial counsel 

was deficient.

Finally, the Petitioner asserts that the cumulative effect of these “trial errors” 

caused him prejudice. The cumulative error doctrine recognizes that there may be many 

errors committed in trial proceedings, each of which constitutes mere harmless error in 

isolation, but “have a cumulative effect on the proceedings so great at to require reversal 

in order to preserve a defendant‟s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 

(Tenn. 2010). When considering cumulative error, this court may look to the case as a 

whole, the numbers of errors committed, their interrelationship and combined effect, and 

the strength of the State‟s case. Id. (quoting United States v. Sepulveda, 15 F.3d 1161, 

1196 (1st Cir. 1993)). In this case, the Petitioner confessed to the crime, and his 

confession was introduced at trial. Accordingly, the Petitioner has not established that 

the cumulative effect of trial counsel‟s “trial errors” resulted in prejudice.

e. Trial counsel failed to object to a State‟s witness commenting on the Petitioner‟s right 

to testify

The Petitioner argues that trial counsel should have objected or moved for a 

mistrial when Agent Locke made the following comment during cross-examination:

[TRIAL COUNSEL]: Okay. So basically all we have to say that [the 

Petitioner‟s typewritten statements] are in fact just as you say they are is 

your word against [the Petitioner‟s], is that correct?

[AGENT LOCKE]: They contain his signature. I‟m sure he could take the 

stand and say that he didn‟t sign it, but—

The State concedes that Agent Locke‟s comment was improper. However, the State 

contends that trial counsel‟s performance was not deficient because, at the time Agent 

Locke made the comment, trial counsel believed that the Petitioner was going to testify at 

trial.

Trial counsel testified that the Petitioner‟s testimony was a crucial part of the 

defense theory that Mr. Waller actually committed the murder. At the time Agent Locke

made the challenged comment, trial counsel believed that the Petitioner would take the 

stand and testify that he had an eighth-grade education and that he did not make the

statements to police freely and voluntarily. The Petitioner claims that he told trial 
- 24 -

counsel that he did not want to testify before the trial. However, trial counsel recalled 

that the Petitioner told trial counsel he was not going to testify on the last day of trial—

the day after Agent Locke testified—and the post-conviction court credited trial counsel 

in its order denying post-conviction relief. As such, trial counsel made a tactical decision 

not to object based on a valid, informed trial strategy, which we will not question. See

Granderson, 197 S.W.3d at 790. The Petitioner has failed to prove that trial counsel was 

deficient for failing to object to Agent Locke‟s comment or move for a mistrial because, 

at the time it was made, trial counsel believed that the Petitioner would testify. The 

Petitioner is not entitled to relief on this issue.

f. Trial counsel‟s failure to object to “prosecutorial misconduct”

The Petitioner contends that trial counsel was ineffective when he failed to object 

to several statements made during the State‟s closing arguments. It has long been 

recognized that the State and defense are allowed “wide latitude” when arguing their 

cases to the jury. State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). The State 

plays a unique role in criminal trials and, consequently, “must refrain from argument 

designed to inflame the jury and should restrict its commentary to matters in evidence or 

issues at trial.” State v. Hill, 333 S.W.3d 106, 131 (Tenn. Crim. App. 2010). In order to 

merit a new trial, the State‟s argument must be so inflammatory or improper that it 

affected the jury‟s verdict to the defendant‟s detriment. Id.; Goltz, 111 S.W.3d at 5.

First, the Petitioner claims that trial counsel should have objected during the 

State‟s closing argument when the prosecutor commented that Mrs. Waller had raised her 

arm to defend herself when she was shot. The Petitioner asserts that this comment was 

not supported by the evidence. However, this comment was a permissible inference from 

the proof presented at trial. Trial counsel testified at the post-conviction hearing that the 

evidence shows that the victim was on her knees with her arm in front of her face at the 

time of the shooting. Additionally, as this court stated on direct appeal, “Dr. Gerber 

stated that the bullets‟ trajectory was consistent with the shooter standing above the 

victim when he fired his weapon, and there was stippling on the victim‟s arm consistent 

with the victim holding her arm up as a defensive gesture.” Jason Curtis Johnson, 2006 

WL 407767, at *12. The Petitioner has failed to prove that trial counsel was deficient for 

failing to object to the State‟s comment that Mrs. Waller had her arm raised in selfdefense.

Second, the Petitioner argues that trial counsel should have objected during the 

State‟s closing argument when the prosecutor stated that Mrs. Waller was on her knees, 

begging for her life, when she was shot. The Petitioner contends that such argument was 

improper because “[t]here was not testimony that Mrs. Waller was squatting down 

begging for her life as there were no eye witnesses to the shooting[.]” However, trial 

counsel recalled that there was evidence that Mrs. Waller was shot while she was on her 
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knees. Further, at trial Agent Locke testified that the blood spatter pattern on Mrs. 

Waller‟s pants indicated that her pants were riding up and causing “ruffles” which 

prevented the blood for staining portions of Mrs. Waller‟s pants. Such pattern indicated 

to Agent Locke that Mrs. Waller was squatting or kneeling at the time she was killed. 

The conclusion that she was begging for her life was a permissible inference from the 

proof presented at trial. The Petitioner has failed to prove that trial counsel was deficient 

for failing to object to the prosecutor‟s comment that Mrs. Waller was kneeling and 

begging for her life.

Finally, the Petitioner claims that trial counsel should have objected to the State‟s 

closing argument when the prosecutor made comments about the Petitioner‟s status as a 

drug dealer; the prosecutor referred to evidence that was not in the record, such as people 

who did not testify at trial; the prosecutor informed the jury that the Petitioner‟s girlfriend 

was also facing charges for the death of Mrs. Waller; the prosecutor “misstated the facts 

as the time length of the interrogation”; the prosecutor claimed that the testimony about 

the baby‟s viability was “uncontradicted”; and the prosecutor stated that the officers had 

“checked everywhere [Mr. Waller] was” when there was “a complete lack of testimony 

as to any investigation officers did pertaining to Mr. Waller[.]” However, no proof was 

presented about these comments during the post-conviction hearing, and the Petitioner 

did not ask trial counsel why he failed to object to them. As such, the Petitioner has 

failed to prove that trial counsel was deficient for failing to object to these comments.

g. Trial counsel failed to present proof as to the viability of the fetus or preserve the issue 

for appeal

The Petitioner argues that trial counsel was ineffective for failing to present expert 

testimony that a fetus “weighing 500 grams (less than one pound) at that stage in the 

pregnancy [twenty-three to twenty-four weeks] could not have survived outside the 

womb[.]” The Petitioner contends that Dr. Li‟s deposition testimony highlighted “huge 

problems” in Dr. Gerber‟s trial testimony and that it showed trial counsel should have 

called a defense expert at trial. Specifically, the Petitioner notes that Dr. Li incorrectly 

assumed that Dr. Gerber relied on Mrs. Waller‟s clinical history when he formed his 

opinion about the viability of the fetus, but such history was not part of Dr. Gerber‟s file. 

At trial, Dr. Gerber admitted on cross-examination that the fetus was at the edge of 

viability and that “it could have survived, it could not have survived.” In his deposition, 

Dr. Li agreed with Dr. Gerber‟s assessment that the fetus was at the margin of viability

and stated that it was not possible to determine whether any one individual fetus was 

viable because there were too many variables. It is true that Dr. Gerber and Dr. Li came 

to different conclusions as to the fetus‟s viability. However, both agreed that Mrs. 

Waller‟s fetus was on the margin of viability and that there was no way to definitely 

determine whether it was viable. Accordingly, the Petitioner has failed to establish that 
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he was prejudiced by trial counsel‟s failure to call a defense expert witness to testify 

about the viability of the fetus. 

Additionally, the Petitioner argues that appellate counsel was ineffective for 

failing to “fully” raise and argue on appeal the issue of sufficiency of the evidence 

concerning the viability of the fetus. However, the Petitioner does not explain what 

appellate counsel should have argued on appeal as to this issue. Further, this court 

specifically addressed the sufficiency of the evidence concerning the viability of the fetus 

and determined that there was sufficient evidence to support the Petitioner‟s conviction 

for second degree murder. Jason Curtis Johnson, 2006 WL 407767, at *12-13. The 

Petitioner has failed to show that appellate counsel was deficient or that he was 

prejudiced by appellate counsel‟s omission. 

h. Appellate counsel failed to “fully raise the issue of sufficiency of the evidence”

The Petitioner contends that appellate counsel “failed to properly raise[] all the 

points” on the issue of the sufficiency of the evidence underlying the Petitioner‟s 

conviction for first-degree murder. The Petitioner asserts that, if the issue had been 

properly raised “at trial and on appeal,” the outcome of the trial would have been 

different. However, the Petitioner does not identify which “points” appellate counsel 

should have raised and argued on appeal. Instead, the Petitioner‟s brief simply relitigates the issue of the sufficiency of the evidence underlying his first-degree murder 

conviction. Sufficiency of the evidence is not a cognizable claim for post-conviction 

relief. Workman v. State, 868 S.W.2d 705, 711 (Tenn. Crim. App. 1993). The Petitioner 

is not entitled to relief.

i. Trial counsel failed to put on any evidence of mitigating factors during the sentencing 

hearing

The Petitioner argues that he was denied effective assistance of counsel when trial 

counsel failed to investigate and present mitigating evidence at the sentencing hearing 

about the Petitioner‟s family background, troubled childhood, and mental health history. 

The Petitioner avers that trial counsel‟s failure to present such evidence was not an 

informed, strategic decision and that, if trial counsel had “offered an accurate life 

profile,” the Petitioner would have been sentenced to less than twenty-five years for his 

second degree murder conviction. However, the Petitioner failed to present any evidence 

about these mitigating factors at the post-conviction hearing. As such, he has failed to 

prove that he was prejudiced. See Black, 794 S.W.2d at 757-58. The Petitioner is not 

entitled to relief on this issue.
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Involuntary Waivers and Confessions

The Petitioner argues that his Fifth Amendment rights were violated because his 

Miranda waivers were not signed voluntarily, knowingly, or intelligently and because his 

confessions were coerced and involuntary. The State notes that this issue was addressed 

by this court on direct appeal and, therefore, has previously been determined. We agree 

with the State.

Tennessee Code Annotated section 40-30-106(h) states:

A ground for relief is previously determined if a court of competent 

jurisdiction has ruled on the merits after a full and fair hearing. A full and 

fair hearing has occurred where the petitioner is afforded the opportunity to 

call witnesses and otherwise present evidence, regardless of whether the 

petitioner actually introduced any evidence. 

Here, the Petitioner filed a pre-trial motion to suppress his confessions on the 

grounds that his statements were not freely and voluntarily given and that he did not 

knowingly, intelligently, or voluntarily waive his Miranda rights, and the trial court held 

a hearing on that motion. Jason Curtis Johnson, 2006 WL 407767, at *7-8. On appeal, 

this court concluded that “the evidence does not preponderate against the trial court‟s 

finding that [the Petitioner] voluntarily and knowingly waived his rights against selfincrimination and voluntarily gave his statements concerning the killing of the victims.” 

Id. at *9. Accordingly, this issue has been previously determined, and the Petitioner is 

not entitled to relief.

Denial of Sixth Amendment Right to Counsel During Police Interview

The Petitioner claims that his Sixth Amendment right to counsel was violated 

because his right to counsel had attached prior to his interview with police. The State 

argues that the Petitioner could have presented this issue on direct appeal and, 

consequently, it is waived. We agree with the State.

Tennessee Code Annotated section 40-30-106(g) states:

A ground for relief is waived if the petitioner personally or through an 

attorney failed to present it for determination in any proceeding before a 

court of competent jurisdiction in which the ground could have been 

presented unless:

(1) The claim for relief is based upon a constitutional right not recognized 

as existing at the time of trial if either the federal or state constitution 

required retroactive application of that right; or
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(2) The failure to present the ground was the result of state action in 

violation of the federal or state constitution.

In this case, the Petitioner did not raise this issue on direct appeal. The Sixth 

Amendment right to counsel existed at the time of the 2003 trial. Additionally, the 

Petitioner has not presented any evidence that his failure to present his claim was the 

result of state action. Accordingly, the Petitioner has waived this issue for review in 

post-conviction proceedings.

Tennessee’s “Unconstitutional” Sentencing Scheme

The Petitioner argues that his Sixth Amendment rights were violated when the trial 

court sentenced him to twenty-five years‟ imprisonment for his second degree murder 

conviction under “Tennessee‟s unconstitutional sentencing scheme.” The Petitioner 

asserts that the trial court imposed the twenty-five-year sentence after making factual 

findings about enhancement factors that were not submitted to the jury in violation of 

Blakely v. Washington, 542 U.S. 296 (2004), Cunningham v. California, 549 U.S. 270 

(2007), and State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (“Gomez II”). The Petitioner 

also contends that this court should apply the Blakely and progeny analysis retroactively 

as it did in State v. H.R. Hester, No. E2006-01904-CCA-R3-DD, 2009 WL 275760, at 

*41-44 (Tenn. Crim. App. Feb. 5, 2009), aff‟d and remanded, State v. Hester, 324 

S.W.3d 1, 13 (Tenn. 2010).

Despite the Petitioner‟s assertion to the contrary, H.R. Hester does not stand for 

the proposition that the Petitioner is entitled to retroactive relief on his Blakely claim in 

this post-conviction proceeding. The defendant in H.R. Hester raised the Blakely issue 

during a direct appeal from his conviction and death sentence. Id. at *1. Conversely, this 

court “has repeatedly held that Blakely, Cunningham, and Gomez II did not establish a 

new rule of constitutional law which was entitled to retroactive application on collateral 

review as it was only a clarification of the rule announced in Apprendi [v. New Jersey], 

530 U.S. 466 [(2000)].” Stanley Blue v. State, No. W2011-01936-CCA-R3-PC, 2012 

WL 3362270, at *12 (Tenn. Crim. App. Aug. 15, 2015); see also Glen Cook v. State, No 

W2006-01514-CCA-R3-PC, 2008 WL 821532, at *10 (Tenn. Crim. App. Mar. 27, 2008), 

perm. app. denied (Tenn. Sept. 29, 2008); Carl Johnson v. State, No. W2003-02760-

CCA-R3-PC, 2005 WL 181699, at *4 (Tenn. Crim. App. Jan. 25, 2005), perm. app. 

denied (Tenn. June 27, 2005). Accordingly, the Petitioner may not raise a free-standing 

Blakely claim in order to collaterally attack his sentence during post-conviction 

proceedings. See Stanley Blue, 2012 WL 3362270, at *12. The Petitioner is not entitled 

to relief.
- 29 -

Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is 

affirmed.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE