IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 25, 2016

DAVID ALAN HUNTER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 284870 Don W. Poole, Judge

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No. E2015-02177-CCA-R3-PC – Filed December 1, 2016

___________________________________

The petitioner, David Alan Hunter, appeals from the post-conviction court‟s denial of 

relief from his conviction for first-degree murder and attempted especially aggravated 

robbery. On appeal, the petitioner argues he received ineffective assistance of counsel

due to trial counsel‟s failure to adequately explain the benefits of accepting a plea 

agreement despite his assertion of innocence and failure to convey a formal plea offer

made by the State. Following our review, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.

and ROBERT L. HOLLOWAY, JR., JJ., joined.

Lorrie Miller, Chattanooga, Tennessee, for the appellant, David A. Hunter.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Neal Pinkston, District Attorney General; and Cameron Williams, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

The petitioner was convicted by a Hamilton County Criminal Court jury of first 

degree murder and attempted especially aggravated robbery, for which he received an 

effective sentence of life imprisonment. This Court affirmed his convictions on direct 

appeal, and our Supreme Court denied his application for permission to appeal. State v. 
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David A. Hunter, E2010-01351-CCA-R3-CD, 2011 WL 1532086, at *1 (Tenn. Crim. 

App. April 20, 2011). On direct appeal, this Court recited the following underlying facts

and procedural history:

On March 16, 2008, James Fleming, Jr., a cab driver for Mercury 

Cab Company, was shot in the head during a failed robbery attempt in the 

St. Elmo area of Chattanooga. He died instantly. Two days later, 

Chattanooga Police Department (CPD) Detective Justin Kilgore arrested 

the [then] fifteen-year-old [petitioner] for Mr. Fleming‟s murder. Although 

the [petitioner] confessed to shooting the victim, at trial he testified that 

another individual, Dewayne Johnson, had committed the murder. The jury 

convicted the [petitioner], as indicted, of the first degree felony murder and 

attempted especially aggravated robbery of the victim.

Steve Troxler, a longtime resident of St. Elmo, was at home with his 

family on the evening of March 16, 2008, when, at approximately 9:10, he 

heard a gunshot followed by a crash. He went outside to investigate the 

source of the noise and discovered that the victim‟s cab had crashed into a 

nearby garage. When he looked inside the cab, Mr. Troxler discovered that 

the victim had suffered a gunshot wound to the left side of his head. Mr. 

Troxler was about to check the victim‟s pulse when his wife, a nurse, told 

him not to because it was “too late.” He and other neighbors then waited 

on the police, who soon arrived. Mr. Troxler did not see anyone running 

from the victim‟s cab, but he did recall that there was a wooded area 

adjoining a cemetery nearby.

Christine Edwards, the victim‟s niece, regularly rode with the victim 

in his cab and was doing so on the night of March 16, 2008. She admitted 

that they had smoked marijuana together earlier in the evening. She rode 

with the victim to pick up a “fare” in the Alton Park area of Chattanooga. 

She recalled that the individual entered the back seat of the cab from the 

driver‟s side and that he was a young African American male dressed in 

black clothing and wearing a “black doo rag” on his head. Ms. Edwards 

later identified the individual as the [petitioner].

Ms. Edwards testified that the [petitioner] directed the victim to the 

[petitioner‟s] destination, a green house in the St. Elmo area. As the cab 

approached the residence, the victim turned on the interior dome light of 

the cab. The [petitioner] then placed a gun to Ms. Edwards‟ head and told 

her to “give [him] all [her] shit.” When Ms. Edwards reached for her purse, 

the [petitioner] directed her to keep her hands up and then moved the gun to 
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the victim‟s head. Ms. Edwards described an “ugly confrontation” between 

the [petitioner] and the victim during which she was ordered out of the cab. 

As she sat on the curb watching, the victim and the [petitioner] were 

“tussling” and “wrestling with the steering wheel of the cab.” Finally able 

to put the cab in drive, the victim drove the cab forward, skirting a 

dumpster before crashing into a shed just as Ms. Edwards heard two 

gunshots.

After the cab crashed, Ms. Edwards “got up and ran” several houses 

away from the crash site. She saw the [petitioner] walking toward her, and 

she entered a home through an unlocked front door. When the homeowner 

met her in the hallway, Ms. Edwards reported that her uncle had been 

robbed. The homeowner telephoned the police who arrived “within like a 

minute.”

The police informed Ms. Edwards that her uncle had died. After 

providing a statement to Detective Kilgore, Ms. Edwards reviewed several 

photographic lineups but was unable to make any identification of the 

assailant. She initially described the assailant as approximately 5‟8” in 

height and weighing 145 to 150 pounds. The [petitioner], however, 

weighed over 200 pounds and was taller than 5‟8”. Ms. Edwards first 

identified the [petitioner] six weeks later upon seeing him at the juvenile 

court transfer hearing. Despite the discrepancies between her description of 

the assailant and the [petitioner‟s] actual physical characteristics, Ms. 

Edwards stated, “I recognized him [at the transfer hearing]. I couldn‟t

believe that it was him, but they found him, that was him. The same guy I 

described, it was him.”

Elizabeth Marlar Capecchi lived in the St. Elmo area of Chattanooga 

on March 16, 2008. As she was putting her youngest son to bed that 

evening, she heard knocking at her front door and walked to her foyer to 

find Ms. Edwards in her home. She recalled that Ms. Edwards was “just 

kind of yelling and screaming and sort of crying.” Ms. Edwards told Ms. 

Capecchi that “[s]omeone tried to mug us” and “he‟s behind me.” Ms. 

Capecchi looked out the side transom windows of her door to see someone 

walking up the hill toward Forest Hills Cemetery. She described the 

individual as a “kind of hefty, stocky black guy,” wearing dark clothing and 

weighing about 220 pounds. She could not, however, see the individual‟s

face.
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Doctor James Kenneth Metcalf, Hamilton County Medical 

Examiner, performed an autopsy of the victim and determined that the 

victim died from a single gunshot wound to his head which entered above 

and behind his left ear. The bullet pierced the skull on both sides and came 

to rest just beneath the skin near the victim‟s right ear. Doctor Metcalf 

opined that the victim‟s death was instantaneous.

Doctor Metcalf removed the bullet and provided it to CPD Detective 

Chad Rowe who forwarded it to the Tennessee Bureau of Investigation 

(TBI) Crime Lab for analysis. The parties stipulated that TBI Special 

Agent Steve Scott identified the bullet as a .38 caliber automatic. Special 

Agent Scott could not, however, match the bullet to any handgun due to 

insufficient markings.

Former CPD Officer Brian Lockhart worked for the CPD crime 

scene unit in March 2008. He swabbed the victim‟s cab for blood and other 

DNA evidence. He also processed the vehicle for latent fingerprints and 

gunshot residue evidence.

TBI Special Agent James Russell Davis, II, performed microanalysis 

on items collected by Officer Lockhart. Testing revealed the presence of 

gunshot residue on the driver‟s side headrest of the cab. No gunshot 

residue was discovered on any clothing submitted for testing. Special 

Agent Davis could not, however, determine the owner of the clothing that 

was submitted for testing.

TBI Special Agent Jennifer Shipman performed serology testing on 

samples collected by Officer Lockhart. Of the non-degraded samples 

submitted, none matched the [petitioner] or Dewayne Johnson. Of the 

blood samples submitted for testing, all matched the DNA of the victim.

TBI Special Agent Dabney Kirk performed fingerprint analysis of 

the latent fingerprints collected by Officer Lockhart. Of the seven prints 

submitted, only three were identifiable. None matched Dewayne Johnson 

or the victim. One of the three prints matched the [petitioner]. Special 

Agent Kirk acknowledged that there was no way to ascertain when the print 

was left on the cab.

Detective Justin Kilgore used telephone logs from the cab company 

to determine the telephone number of the last fare picked up by the victim. 

Through the assistance of the cellular telephone carrier associated with the 
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telephone number, Detective Kilgore ultimately determined that the cellular 

telephone was owned by Leslie Bailey, the [petitioner‟s] mother. Further 

assistance from the cellular telephone company enabled Detective Kilgore 

to determine the precise location of the cellular telephone, leading to the 

apprehension of the [petitioner] on March 18, 2008.

Detective Kilgore transported the [petitioner] to the CPD service 

center where he placed the [petitioner] in an interrogation room. Knowing 

that the [petitioner] was a juvenile, Detective Kilgore contacted the 

[petitioner‟s] mother who arrived at the service center at approximately 

9:30 p.m. Detective Kilgore did not question the [petitioner] while 

awaiting Ms. Bailey‟s arrival. After a full explanation of his Miranda

rights, the [petitioner] initialed each right as an indication of his 

understanding and signed a waiver of his rights. Detective Kilgore, the 

[petitioner‟s] mother, and another officer witnessed the execution of the 

waiver.

After being confronted with evidence concerning the telephone logs, 

the [petitioner] admitted that, after spending March 16 with friends, he 

went to “The Villages” where he telephoned the cab company. He used 

“*67” to block his cellular telephone number from showing on the cab 

company telephone‟s caller identification. When the cab arrived, he 

entered the back seat through the driver‟s side and directed the cab driver to 

take him to 44th Street in the St. Elmo area. The [petitioner] told Detective 

Kilgore that there was a female passenger in the front seat with the driver. 

When the cab stopped, the [petitioner] pulled a gun from his pocket and 

held it to both the cab driver and the female passenger‟s heads. The 

[petitioner] ordered the female from the vehicle. When the [petitioner] 

demanded money from the cab driver, the cab driver “[t]ried to drive off.”

The [petitioner] admitted to Detective Kilgore that the cab driver “kept 

trying to drive off and I shot him.” The [petitioner] said that the cab driver 

hit another car before crashing into the garage. When the car stopped, the 

[petitioner] fled the scene and walked back to the home of his best friend, 

Ronald White. He said that he walked through a wooded area and a 

cemetery on his way to Mr. White‟s home.

In his statement to police, the [petitioner] said that he was wearing 

bright green shorts and a black t-shirt. He reported that the gun was a black 

.38 caliber automatic that he had found in the grass a “couple of days” 

earlier on Jackson Street. He claimed that he was walking with Mr. White 

when he found the gun and that he concealed it in the back waistband of his 
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pants. He said that after the shooting, he gave the gun to an unknown black 

male on his way back to Mr. White‟s house. The [petitioner] told Detective 

Kilgore that he looked up the telephone number to the cab company before 

he left Mr. White‟s house that night. He said that he planned to rob the cab 

driver before leaving but that he had no intention to kill anyone. The 

[petitioner] did not obtain any money from his efforts.

Two days after the [petitioner] made his statement, the [petitioner‟s] 

mother, Leslie Bailey, telephoned Detective Kilgore to tell him that the 

[petitioner] had told her that Dewayne Johnson committed the offenses. 

Detective Kilgore investigated this information and determined, based upon 

an interview with Mr. Johnson and the absence of any physical evidence 

linking him to the crimes, that Mr. Johnson had nothing to do with the 

shooting.

At trial, Detective Kilgore admitted that the telephone records were 

not “necessarily indicative” of who had placed the call to the cab company.

He also acknowledged at trial that the [petitioner‟s] physical characteristics 

differed somewhat from the eyewitness descriptions and that the eyewitness 

descriptions may more accurately describe Mr. Johnson. He reiterated, 

however, that the [petitioner] possessed the cellular telephone within two 

days of the offenses and that the [petitioner] confessed to the shooting. 

Detective Kilgore also noted that the .38 caliber bullet recovered from the 

victim was compatible for use in a .38 caliber handgun.

At trial, the [petitioner] testified that he was staying with Mr. White 

during spring break on the weekend of March 16, 2008. He said that he 

and his friends spent the day visiting friends. He said that they typically 

walked but sometimes rode the bus or called a cab to get to their 

destinations. After visiting several friends during the day, the [petitioner] 

and Mr. White returned to Mr. White‟s home where they watched a movie. 

Sometime during the evening while the [petitioner] and his friends were 

outside, Mr. Johnson approached the [petitioner] with an offer to make 

some “quick money.” The two men then planned the robbery of a cab 

driver. The petitioner obtained the telephone number to the cab company 

and telephoned for the cab on his cellular telephone. As the cab 

approached, the [petitioner] changed his mind and abandoned the plan to 

assist in the robbery. He gave Mr. Johnson his cellular telephone and asked 

him to return it to him later that night. The [petitioner] testified that he 

watched Mr. Johnson enter the vehicle and ride away, waited a few 
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minutes, and walked to Mr. White‟s home where he and Mr. White washed 

dishes and watched another movie.

Sometime after 9:00 p.m., Mr. Johnson called the [petitioner] and 

returned the cellular telephone to him. In their brief conversation, Mr. 

Johnson told the [petitioner] the details of the robbery but did not admit any 

details about the shooting. The [petitioner] testified that he never saw Mr. 

Johnson again. The victim‟s murder was reported during the 11 o‟clock 

news later that night. Fearful of being labeled a “snitch,” the [petitioner] 

did not contact the police or say anything to any of his friends concerning 

his knowledge of the offenses.

The petitioner explained that he confessed to the police because 

Detective Kilgore offered to help him with the judge and also because he 

thought nothing would happen to him because of his juvenile status. When 

he realized that he would be tried as an adult, he decided to disclose that 

Mr. Johnson had committed the offenses. He denied getting into the cab 

and having any involvement in the shooting. He claimed knowledge of the 

details of the offenses based upon the brief, yet detailed, conversation 

between himself and Mr. Johnson.

Ronald White testified at trial that he and the [petitioner] spent the 

entire day of March 16 together except for about 10 to 15 minutes in the 

evening when the [petitioner] went next door to visit a neighbor. Mr. 

White said that when the [petitioner] returned, they washed dishes together 

and watched a movie. He said that the [petitioner‟s] demeanor was normal 

throughout the day and that he had never seen the [petitioner] with a gun, 

either on March 16 or any other day. On cross-examination, Mr. White

acknowledged that the [petitioner] had told him he went next door to visit 

the neighbor and that he did not actually see the [petitioner] at the 

neighbor‟s house. He also expressed surprise that the [petitioner] had 

confessed to Detective Kilgore that he went to “The Villages,” planned the 

robbery, and shot the victim.

Marilyn Thompson, Mr. White‟s mother, testified that the 

[petitioner] was with her son at her home on the evening of March 16. She 

said that the boys had spent the day “just hanging out” because it was 

spring break. She recalled that the [petitioner] went next door to the 

neighbor‟s home for a few minutes, but she admitted that she did not 

actually see him there because she had been asleep during part of the 

evening. She never saw the [petitioner] with a gun that day or any other 
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day. Her son and the [petitioner] left her home at approximately 11:30 p.m. 

to go visit her son‟s girlfriend. She was “so surprised” when her son told 

her two days later that the police “got Alan” for the murder of the cab 

driver.

LaKeisha Boden, Mr. White‟s girlfriend, testified that the 

[petitioner] and Mr. White came to her home around midnight on March 

16. She said that she had met the [petitioner] several times before and that 

nothing seemed unusual about his demeanor or behavior that evening. She 

admitted that she had no knowledge of what the [petitioner] may have been 

doing earlier that night.

In rebuttal, the State presented the testimony of Dewayne Johnson 

who testified that he met the [petitioner] once several weeks before the 

shooting and that they had gotten into a fight. He said that after that 

incident, he never saw the [petitioner] again. He denied planning a robbery 

of the cab driver. He said that he spent March 16 working with his school 

youth conference and returned home at approximately 7:00 p.m., where he 

remained for the rest of the night. On cross-examination, Mr. Johnson 

admitted that he had lied to Detective Kilgore when he told him that he had 

spent the day playing video games with friends that day.

Based upon this evidence, the jury convicted the [petitioner], as 

charged, of the first degree felony murder and attempted especially 

aggravated robbery of Mr. Fleming. At sentencing, the trial court imposed 

a life sentence by operation of law, see T.C.A. §§ 39-13-202(c)(3), -208(c), 

for the first degree felony murder conviction and a concurrent minimum 

sentence of eight years‟ incarceration for the attempted especially 

aggravated robbery conviction, upon the recommendation of the State.

David A. Hunter, 2011 WL 1532086, at *1-6 (footnote excluded).

The petitioner subsequently filed a timely pro se petition for post-conviction relief 

arguing ineffective assistance of counsel, asserting a series of perceived deficits in trial 

counsel‟s representation that are not before this Court on appeal. After filing an affidavit 

of indigency, the post-conviction court appointed counsel for the petitioner, who filed an 

amended petition for post-conviction relief, arguing the petitioner‟s trial counsel was

ineffective for failing to confer with the petitioner prior to trial, fully conduct appropriate 

investigations of the State‟s evidence before proceeding to trial, and acquire appropriate 

expert witnesses. The petitioner subsequently filed a second amendment to his petition 

for post-conviction relief, this time arguing trial counsel had a duty to communicate 
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formal plea offers from the prosecution and failed to do so. According to the petitioner, 

trial counsel failed to spend adequate time with him prior to trial and failed to fully advise 

and consort regarding the possible outcomes of trial versus accepting any plea deal 

offered by the State before proceeding to full trial.

A. First Post-Conviction Hearing

The post-conviction court first heard the twice-amended petition for postconviction relief on September 22, 2014. Trial counsel testified that he was appointed to 

represent the petitioner at trial. He had been practicing for twenty-two years, 

approximately eighteen of which he spent doing criminal defense work. During that time 

period, he had tried approximately 150 civil and criminal matters. Prior to the 

petitioner‟s trial, he had participated in approximately fifty criminal trials.

Trial counsel recalled a plea offer of second degree murder with a twenty-year 

sentence but was uncertain as to the specifics. Trial counsel testified he would have 

discussed the plea offer and its meaning with his client, including the range of potential 

outcomes should the petitioner instead chose to proceed to trial. According to trial 

counsel, “because there was a handprint of his on the taxi window that he was saying it‟s 

his position he‟d never been near, I felt like second degree was a pretty good option for 

him.” According to trial counsel, the petitioner did not take the plea offer.

When questioned about the petitioner‟s mother, trial counsel noted the petitioner, 

who was a minor at the time, was very reliant on his mother. The petitioner would relay 

their conversations to his mother, and trial counsel would then speak with her. With 

respect to accepting a plea offer, it was trial counsel‟s impression the petitioner would 

follow his mother‟s instructions, and the petitioner‟s mother wanted him to go to trial

because she believed he would be acquitted. Trial counsel testified that the petitioner 

was competent and had a clear understanding of the process. According to counsel, the 

petitioner deferred to his mother due to his feelings for her, not because he was incapable 

of making a decision. 

Trial counsel testified at length about the amount of time spent with the petitioner 

prior to trial and the documentation of those meetings in his time records. All time 

entries for in-jail visits with the petitioner include travel and wait times. Trial counsel‟s 

time records include these in-jail meetings with the petitioner: approximately seventythree minutes on August 12, 2008; approximately seventy-eight minutes on November 

17, 2008; approximately ninety-six minutes on August 24, 2009; and approximately onehundred and forty-four minutes on September 3, 2009. Trial counsel typically compares 

his time records with his calendar prior to submitting them for payment, but due to a 
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secretarial error, these records were never compared with his calendar, and a bill was not 

submitted for payment. His time records could, therefore, be incomplete or inaccurate. 

Trial counsel testified that it is easier to arrange meetings with juvenile clients at 

the courthouse than in jail, so he also met with the petitioner at the courthouse prior to 

hearings and trial. Trial counsel‟s time records show he met with the defendant for 

approximately thirty-six minutes prior to court on March 9, 2009, and approximately 

seventy-five minutes prior to court on June 29, 2009. Trial counsel testified that it is 

possible additional client meetings took place at the courthouse but were not documented 

in his time records. 

Trial counsel testified that he met with the petitioner enough to advise him of the 

charges and the proof, discuss potential witnesses, make a decision as to whether to 

testify, and prepare for cross-examination. Considering the additional time he spent 

meeting with the petitioner in the courthouse and speaking with his mother, trial counsel 

stated the time he spent with the petitioner in jail was “absolutely” sufficient. 

Trial counsel stated that it is his obligation “[t]o zealously represent [his] client to 

the best of [his] ability.” He is responsible for trial strategy, but it is his client‟s decision 

as to whether to testify or plead guilty. With respect to plea agreements versus going to 

trial, trial counsel testified, “I don‟t ever take the view that it‟s a really good idea to talk 

your clients into pleading, and so if you leave it to your clients, a lot of them would like 

to see what happens at trial and I end up trying a lot of cases.”

By stipulation, the parties entered the jail visitation log into evidence. The log 

documented the following three visits from trial counsel: twenty-nine minutes on August 

12, 2008; forty-seven minutes August 24, 2008; and an hour and thirty-four minutes on 

September 3, 2009.

The petitioner testified that he was fifteen years old at the time of his arrest and in 

the ninth grade. He first had contact with trial counsel after being incarcerated a couple 

of months. During their initial meeting, trial counsel introduced himself, and the 

petitioner gave him an overview of the case. The meeting lasted about thirty minutes. 

He later received a copy of discovery by mail, but trial counsel never went over it with 

him. At some point, trial counsel did review various statements with him, including his 

confession. Trial counsel then filed a motion to suppress the petitioner‟s statement, 

which he understood was meant to prevent the use of his statement at trial.

The petitioner testified that he only saw trial counsel three or four times in jail. 

The petitioner would request visits in letters or tell his mother to request a visit for him, 

but his lawyer did not visit until the trial date got close. The petitioner confirmed that 
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trial counsel would also meet with him prior to court hearings. The conversations would 

last a few minutes, and trial counsel would explain what would happen during the 

hearing. The petitioner denied having input as to trial strategy.

A couple weeks prior to trial, the petitioner wrote a letter to the judge complaining 

that his lawyer was not doing his job. The petitioner testified that he wanted a new 

lawyer and wrote the letter in an effort to fire trial counsel. Prior to the suppression 

hearing, the trial court questioned the petitioner regarding the letter and indicated he felt 

trial counsel was working on the case. The petitioner denied continuing to have a 

problem with his attorney and apologized to counsel for sending the letter. The petitioner 

did not think pushing the issue would do any good and did not want his lawyer to be 

angry during the trial. 

According to the petitioner, trial counsel met with him in jail for a second time a 

couple months prior to trial. During the meeting, the petitioner requested a plea of 

reckless homicide. Trial counsel came back to see him for a third time about a week 

prior to trial and said he had spoken to the prosecutor, who laughed and rejected the 

requested plea. The petitioner testified that trial counsel told him he thought he could get 

the petitioner a sentence of approximately twenty-five years, to be served at eighty-five 

percent, in exchange for a plea of second degree murder. The petitioner has never 

understood whether that was an official plea offer or a proposal. He did not respond at 

the time because he did not think it was a formal offer. When asked his thoughts on the

proposed plea, the petitioner testified:

I was considering it. I was considering taking the offer, because if he came 

back to me with the offer, I would have took it. I let my mother know that 

same night, I think the same or couple days later . . . [a]nd she told me, 

[w]ell, if you innocent, why would you take something like that. She was 

saying all this, that what she was saying, but the whole time, I was waiting 

for [trial counsel] to come back with the deal so I can go and sign the paper. 

I didn‟t want to go to trial. 

Following the third jail visit, the petitioner did not see trial counsel again until the 

first day of trial. At that time, the petitioner did not ask about the potential plea. Instead, 

he “kind of figured it was too late to do anything because this was the start of trial.”

According to the petitioner, trial counsel should have met with him more often and 

had more conversations regarding trial strategy. He was young and did not understand 

what was happening or how the criminal justice system worked. In his letters to trial 

counsel, the petitioner repeatedly stated that he did not know what was going on with his 
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case. When they finally met prior to trial, trial counsel acknowledged receipt of his letters 

but never gave the petitioner a clear understanding of the case‟s status.

 

Leslie Michelle Bailey, the petitioner‟s mother, testified that her son frequently 

complained trial counsel did not come to jail enough. She was not the client, so she did 

not complain to the trial judge about this. According to Ms. Bailey, the petitioner is 

easily frustrated with people in authority, which is why he confessed to the murder. She 

did not think the petitioner was intimidated by trial counsel, simply frustrated with his 

failure to communicate. 

Prior to trial, the petitioner contacted her regarding a potential plea of second 

degree murder with a twenty-five year sentence and asked her opinion regarding 

accepting the offer. Ms. Bailey testified that she told the petitioner to go to trial and not 

plead guilty. Ms. Bailey admitted to pressuring her son not to accept the offer. Ms. 

Bailey admitted she did not know whether the State formally put the plea offer in writing; 

she never saw a formal written document. 

Ms. Bailey and trial counsel had “quite a bit of contact” regarding her son‟s case. 

She frequently contacted trial counsel and received one return call for every eight or nine 

messages. She spoke with him the evening before trial regarding the proposed plea 

agreement. Trial counsel stated it would be advantageous for her son to take the plea 

deal because he could not appeal a first degree murder conviction. In response, Ms. 

Bailey said, “[W]e‟re just going to let the Lord take control, because we‟re all a family of 

faith, so we believe that the Lord will take care of it.” According to Ms. Bailey, in 

response trial counsel said, “[I]f he‟s convicted for first degree murder, the Lord cannot 

take care of that.”

Ms. Bailey testified that the petitioner, who was in the eighth grade at the time of 

his arrest, was academically above average and had been nationally recognized for his 

academic accomplishments. He understood the plea offer, and it was his decision to 

reject it. Neither she nor her son understood the implications of going to trial.

Marla McGee, the petitioner‟s grandmother, also testified at the initial hearing on 

his motion for post-conviction relief. Ms. McGee works with psychologist Dr. David 

Ross, who does trial consulting work. According to Ms. McGee, Dr. Ross was willing to 

assist with the petitioner‟s case, as was Dr. Cresman, a false confession expert 

recommended by Dr. Ross. Ms. McGee was willing to pay any expenses associated with 

engaging these experts and provided trial counsel with their contact information. To her 

knowledge, trial counsel never contacted the recommended experts. 
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Following the adverse jury verdict, trial counsel filed a timely direct appeal. After 

this Court affirmed the petitioner‟s conviction, his family hired Donna Miller to handle 

the application for permission to appeal to the Tennessee Supreme Court. In addition to 

the issues raised by trial counsel, Ms. Miller felt certain cell phone records had been 

improperly obtained by law enforcement. Trial counsel, however, did not preserve that 

issue for appeal, so Ms. Miller could not raise it in her application. 

Ms. Miller had extensive contact with the petitioner and his mother, Ms. Bailey. 

During the post-conviction hearing, Ms. Miller testified that Ms. Bailey is extremely 

intelligent, but she is uneducated on the criminal justice process. According to Ms. 

Miller, when she has clients who are juvenile transfers or particularly reliant on their 

family members, she tries to spend a lot of time developing a relationship with those 

family members. She makes sure family members understand the criminal justice 

process and her recommendations with respect to accepting plea offers versus going to 

trial so that those family members can assist her in giving client advice.

Ms. Miller found the petitioner to be immature, confused, and frustrated. The 

petitioner did not have a general understanding of the criminal justice process. Ms. 

Miller had concerns regarding the petitioner‟s lack of understanding and his frustration 

over the amount of time trial counsel spent with him prior to trial. The petitioner felt his 

meetings with trial counsel were insufficient to provide adequate education on the 

criminal justice system. According to Ms. Miller, the petitioner completely lacked 

knowledge of the trial process in terms of settlement offers, pleading guilty versus going 

to trial, and the possibility of having a bench trial in certain situations. The petitioner 

indicated to her that there was supposed to be a plea offer but trial counsel never followed 

up on it, and he did not know whether he should have or could have taken it. When Ms. 

Miller spoke with the petitioner, he did not understand that certain things had occurred 

that could not be undone. Ms. Miller believed that while the petitioner needed a lot of 

assistance understanding adult concepts and terms, if explained in the right way, he has 

the ability to understand the criminal justice process. In similar situations, she has used a 

psychology expert to ensure clients understand recommendations such as the benefits of 

accepting a plea offer versus going to trial.

Following the hearing, the post-conviction court entered a written order deciding, 

sua sponte, “that the petitioner should have an opportunity to clarify the proof regarding 

his allegation that counsel did not spend sufficient time with him before trial or give him 

sufficient information to enable him to make an informed choice between the plea offer 

and a trial.” The post-conviction court then ordered the hearing be reopened and set a 

hearing date. 

B. Second Post-Conviction Hearing
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At the subsequent hearing, trial counsel and Ms. Miller testified again. Neal 

Pinkston, one of the prosecutors at trial, then testified for the first time. Trial counsel 

testified that after reviewing his file and speaking with Mr. Pinkston, he determined the 

State never made a formal plea offer. He also testified that the petitioner never 

authorized him to make a formal proposal to the State. Furthermore, the petitioner 

informed him that he had spoken with his mother, and she told him not to plead guilty to 

anything. According to trial counsel, the petitioner was never agreeable to accepting a 

plea deal.

On cross-examination, trial counsel admitted that during the first hearing, he 

testified that he vaguely remembered speaking with the prosecutor regarding a plea offer 

of twenty years. After looking through his file, however, he is now clear that the 

prosecutor asked him to find out whether the petitioner would be willing to accept a plea 

deal. Trial counsel admitted to testifying incorrectly during the first hearing. 

The petitioner recalled Ms. Miller as a witness. Ms. Miller testified that the 

petitioner and his family initially wanted to hire her to represent the petitioner in his 

direct appeal, but they were unable to do so. At that time, she spoke with trial counsel. 

Trial counsel said he was most bothered about a plea offer of twenty-five years made 

shortly before trial. According to Ms. Miller, trial counsel told her that he should have 

spoken with the petitioner in greater detail about the offer and recommended it to him.

Ms. Miller also testified that she rarely receives written plea offers, as they are 

typically made by telephone or in court prior to hearings. She only recalls receiving one 

written offer in a homicide case. She specifically asked for it in that matter so her client 

could sign off on his rejection of the offer. 

Mr. Pinkston, the prosecutor from the petitioner‟s trial, testified that the State 

never extended a formal plea offer. Trial counsel, likewise, never proposed a potential 

plea, which was “in line of the past ways in dealing with [trial counsel] in regard to 

cases.” The State had internal discussions about potentially extending an offer due to the 

petitioner‟s age, but based on the proof and the petitioner‟s assertion of innocence, the 

State declined to make a settlement offer. While Mr. Pinkston may have had casual 

conversations with trial counsel about potential plea offers, it was never a consistent 

theme in the process due to the petitioner‟s position that somebody else was responsible 

for the crime. Had the State made an offer, because of the magnitude of the case, Mr. 

Pinkston would have put it in writing and documented his file. 

At the conclusion of the hearing, the post-conviction court reserved ruling pending 

a review of the transcripts. The post-conviction court subsequently entered an order 
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dismissing the petition for post-conviction relief. In an accompanying memorandum, the 

post-conviction court stated:

[I]t is clear that counsel did discuss petitioner‟s options with him, 

including a guilty plea to a lesser offense. Furthermore, the petitioner‟s 

trial testimony or counsel‟s post-conviction testimony reflects that the 

petitioner was aware of the necessity to explain his confession if he did not 

plead guilty. It reflects he was aware of other non-physical evidence of 

identity, the record of the call from the mobile phone owned by the 

petitioner‟s mother and used by the petitioner, an eyewitness‟s 

identification, and another eyewitness‟s description of the person following 

the first eyewitness as stocky, an accurate description of the petitioner but 

not of the other suspect, Mr. Johnson. It reflects that he was aware of the 

existence of physical evidence, the fingerprint, corroborating the nonphysical evidence. It reflects that he was aware of the theory of the defense 

at trial, identity.

What is lacking, however, is evidence that counsel explored or 

corrected the petitioner‟s or the petitioner‟s mother‟s inadequate analyses of 

the case that, if he was not guilty, he should not plead guilty, recommend[] 

a guilty plea to second-degree murder, or in any way abandon[] neutrality 

in his presentation of the petitioner‟s options. This is perhaps the source of 

the concern that trial counsel has expressed to appellate counsel on more 

than one occasion. Despite the petitioner‟s academic achievements and the 

petitioner‟s mother‟s graduate degree, they did not have counsel‟s 

professional expertise in law. In view of the strong evidence of identity, 

the petitioner‟s age, and the foreseeability of the petitioner‟s reliance on his 

mother‟s and his own analyses, they needed more than information; they

needed counsel‟s analysis, advice, and guidance. The Court therefore finds 

that counsel‟s performance in this respect was deficient.

Was the deficiency prejudicial? The Court finds that there is a 

reasonable probability that, had counsel corrected the petitioner‟s and the 

petitioner‟s mother‟s inadequate analyses of the case and recommended a 

guilty plea to second-degree murder, the petitioner would have allowed 

counsel to signal to the [S]tate‟s the petitioner‟s willingness to consider an 

offer and the [S]tate would have made an offer of second-degree murder.

Arguably, the frequency with which prosecutions end with a guilty 

plea suggests that there is also a reasonable probability that, had counsel 

provided more guidance, the petitioner would have followed counsel‟s 
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advice and accepted an offer of second-degree murder. The [P]etitioner, 

however, does not persuade the Court that there is a reasonable probability 

that he would have done so. His mother‟s testimony was that he rejected 

what she thought was an offer of twenty-five years. From his disregard of 

the considerable evidence that he was guilty of felony murder, his belief 

that he was not guilty of felony murder, and his own unrealistically 

favorable offer, reckless homicide, presumably with a sentence of less than 

or equal to four years, it appears that, before trial, his goal was to avoid or 

minimize incarceration. It is only now, after conviction for felony murder, 

that he prioritizes avoidance of a life sentence. The Court therefore finds 

that the deficiency in counsel‟s performance in this respect was not 

prejudicial. 

The post-conviction court did not find trial counsel‟s performance deficient in any other 

respects. This timely appeal followed.

On appeal, the petitioner argues trial counsel was ineffective for failing to 

communicate a plea offer made by the State and failing to meet with the petitioner 

frequently enough to allow him to make a knowing and voluntary decision as to whether 

to seek a plea offer. In response, the State argues the post-conviction court properly 

found the State did not make a plea offer, and therefore, there was nothing to 

communicate to the petitioner. The State also contends the trial court properly found the 

petitioner was not prejudiced by any deficits in trial counsel‟s performance. While not 

directly raised as an issue by the petitioner, the State also argues the post-conviction court 

could, in its discretion, reopen the proof following the initial hearing for post-conviction 

relief.1 Following our review of the record and submissions of the parties, we affirm the 

judgment of the post-conviction court.

Analysis

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that 

his or her “conviction or sentence is void or voidable because of the abridgement of any 

 

1 We agree it was within the post-conviction court‟s discretion to allow additional proof. At the 

time the trial court entered its order allowing the additional proof, the proceeding was not closed because 

the trial court had not yet ruled on the merits of the petitioner‟s claims. See Donald Terry Moore v. State, 

No. M2002-02417-CCA-MR3-PC, 2004 WL 1144015, at *5 (Tenn. Crim. App. May 21, 2004). “It is 

well settled that permitting additional proof, after a party has announced that proof is closed, is within the 

discretion of the trial court, and unless it appears that its action in that regard has permitted injustice, its 

exercise of discretion will not be disturbed on appeal.” Id. (internal citations omitted). Neither party has 

shown that the presentation of additional proof in the second hearing changed the outcome of the 

proceeding. Based on our review of the record and submissions of the parties, the reopening of the postconviction hearing did not cause an injustice.
- 17 -

right guaranteed by the Constitution of Tennessee or the Constitution of the United 

States.” Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden 

of proving his allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-

30-110(f). “„Evidence is clear and convincing when there is no serious or substantial 

doubt about the correctness of the conclusions drawn from the evidence.‟” Lane v. State, 

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

(Tenn. 2009)). 

Appellate courts do not reassess the trial court‟s determination of the credibility of 

witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 

245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter 

entrusted to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. 

Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). When an evidentiary hearing is held in the 

post-conviction setting, the findings of fact made by the court are conclusive on appeal 

unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 

500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate 

court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 

572, 578 (Tenn. 1997). However, review of a trial court‟s application of the law to the 

facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978 

S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which 

presents mixed questions of fact and law, is reviewed de novo, with a presumption of 

correctness given only to the post-conviction court‟s findings of fact. See Fields v. State, 

40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

The Sixth Amendment to the United States Constitution, made applicable to the 

states through the Fourteenth Amendment, and article I, section 9 of the Tennessee 

Constitution require that a criminal defendant receive effective assistance of counsel. 

Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citation omitted). 

When a petitioner claims he received ineffective assistance of counsel, he has the burden 

to show both that trial counsel‟s performance was deficient and that counsel‟s deficient 

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 

U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) 

(noting that the same standard for determining ineffective assistance of counsel applied in 

federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel‟s performance was deficient. 

This requires showing that counsel made errors so serious that counsel was 

not functioning as the “counsel” guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel‟s 
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errors were so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel‟s 

acts or omissions were so serious as to fall below an objective standard of reasonableness 

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) 

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). 

With regard to the standard, our Supreme Court has held:

[T]he assistance of counsel required under the Sixth Amendment is counsel 

reasonably likely to render and rendering reasonably effective assistance. It 

is a violation of this standard for defense counsel to deprive a criminal 

defendant of a substantial defense by his own ineffectiveness or 

incompetence . . . Defense counsel must perform at least as well as a lawyer 

with ordinary training and skill in the criminal law and must 

conscientiously protect his client‟s interest, undeflected by conflicting 

considerations.

Finch v. State, 226 S.W.3d 307, 315-16 (Tenn. 2007) (quoting Baxter, 523 S.W.2d at 

934-35). When reviewing trial counsel‟s performance, this Court “must make every 

effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel‟s conduct, and to evaluate the conduct from the perspective of counsel at that 

time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 

689). 

To satisfy the prejudice prong of the test, the petitioner “must establish a 

reasonable probability that but for counsel‟s errors the result of the proceeding would 

have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing 

Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to 

undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). In 

order to prevail, the deficient performance must have been of such magnitude that the 

petitioner was deprived of a fair trial and that the reliability of the outcome was called 

into question. Finch, 226 S.W.3d at 316.

Courts need not approach the Strickland test in a specific order or even “address 

both components of the inquiry if the defendant makes an insufficient showing on one.” 

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either 

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

assistance claim”).
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When a petitioner alleges he rejected a plea offer due to the ineffective assistance 

of counsel, he:

has the burden to show by a reasonable probability that, but for counsel‟s 

deficient representation, (1) he . . . would have accepted the plea, (2) the 

prosecution would not have withdrawn the offer, and (3) the trial court 

would have accepted the terms of the offer, such that the penalty under its 

terms would have been less severe that the penalty actually imposed.

Nesbit v. State, 452 S.W. 3d 779, 800-01 (citing Lafler v. Cooper, 132 S.Ct. 1376, 1385 

(2012)). 

The petitioner argues he was deprived effective assistance of counsel due to trial 

counsel‟s failure to provide adequate advice regarding the benefits of accepting a plea 

offer and failure to convey a plea offer made on the eve of trial. According to petitioner, 

he endured prejudice as a result of these alleged deficiencies because he would have 

accepted the plea had it been adequately explained and formally offered. We disagree.

The petitioner has not met his burden of showing the allegedly deficient 

performance of trial counsel prejudiced the outcome of the proceeding. The postconviction court found there was never an official plea offer of twenty or more years for 

second-degree murder, and based on our review, the record contains ample evidence to 

support this finding. The petitioner admitted he did not think the State made a formal 

plea offer. Ms. Bailey, the petitioner‟s mother, testified that she had never seen a formal 

written plea offer from the State. After reviewing his notes, trial counsel testified that the 

State never made a formal plea offer. Mr. Pinkston then confirmed the State never made 

a formal plea offer due to the petitioner‟s assertion of innocence. Without a formal plea 

offer, there was nothing for trial counsel to explain to his client and nothing for the 

petitioner to accept or reject.

Moreover, the post-conviction court found that if the plea offer had been formally 

conveyed to the petitioner, he would have rejected it. In reaching this conclusion, the 

post-conviction court noted Ms. Bailey testified that the petitioner rejected what he 

thought was a plea offer of twenty-five years. The post-conviction court also pointed to 

the fact that the petitioner, despite the considerable evidence of guilt, cared only about 

minimizing his sentence or avoiding incarceration altogether. According to the postconviction court, the petitioner did not prioritize avoidance of a life sentence until after 

his conviction. Implicit in the findings of the post-conviction court is a determination 

concerning the petitioner‟s credibility, or lack thereof. Although the petitioner did testify 

that he would have accepted the plea offer if it had been formally offered to him, the 
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post-conviction court resolved any doubt created by this statement in favor of trial 

counsel.

The evidence does not preponderate against the trial court‟s finding that the 

petitioner would not have accepted a plea offer. Ms. Bailey testified that she told the 

petitioner not to take the offer; if he was innocent, he should go to trial and get an 

acquittal. Ms. Bailey further testified that trial counsel discussed an offer of twenty-five 

years for second degree murder with her son, and he rejected it. The petitioner confirmed 

that his mother told him not to take a plea. The petitioner further testified that he 

requested a plea of reckless homicide, a much lesser offense than second degree murder, 

and in response the State laughed and rejected the offer. In addition, trial counsel 

testified at both hearings that the petitioner made it clear he and his mother decided 

against the acceptance of a plea offer. The petitioner simply did not meet his burden of 

establishing that trial counsel‟s alleged error in explaining and relaying the plea offer 

prejudiced in deciding to go to trial. The petitioner is not entitled to relief on this issue. 

Having found the petitioner did not suffer prejudice as a result of the alleged 

deficiencies of trial counsel, we need not address the deficiency of trial counsel‟s 

representation of the petitioner. 

Conclusion

Based upon the foregoing authorities and reasoning, the judgment of the postconviction court is affirmed.

____________________________________

J. ROSS DYER, JUDGE