IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 13, 2004

AARON MCFARLAND v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26220 James C. Beasley, Jr., Judge

No. W2003-01797-CCA-R3-PC - Filed June 8, 2004

The petitioner, Aaron McFarland, appeals the judgment of the Shelby County Criminal Court

denying his petition for post-conviction relief from his conviction for first degree murder. The

petitioner contends that he was denied effective assistance of counsel. Upon review of the record

and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES

CURWOOD WITT, JR., JJ., joined.

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Aaron McFarland.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On July 10, 1998, the petitioner was convicted by a jury in the Shelby County Criminal Court

of the murder of Terrell Deon Bullard. He was sentenced to life with the possibility of parole. State

v. Aaron McFarland, No. W1999-01410-CCA-R3-CD, 2000 WL 1154612 (Tenn. Crim. App. at

Jackson, Aug. 4, 2000), perm. to appeal denied, (Tenn. Mar. 12, 2001). On March 11, 2002, the

petitioner filed a pro se petition seeking post-conviction relief. In his petition, the petitioner alleged

that he received ineffective assistance of counsel. Specifically, the petitioner alleged that his trial

counsel failed to adequately investigate whether the petitioner was properly transferred from juvenile

court to criminal court for trial, trial counsel failed to interview witnesses, trial counsel’s failure to

properly evaluate the strength of the State’s case resulted in improper trial strategy, trial counsel
The allegation that trial counsel failed to file a motion to suppress the petitioner’s confession was abandoned 1

following testimony at the evidentiary hearing that a suppression hearing was held prior to trial.

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failed to adequately confer with the petitioner about the case, and trial counsel failed to properly

develop the petitioner’s defense.

Subsequently, the post-conviction court appointed counsel for the petitioner, and an amended

petition was filed. The amended petition raised additional claims regarding ineffective assistance

of counsel. Specifically, the petition alleged that trial counsel failed to file a motion to suppress the

petitioner’s confession, trial counsel did not properly cross-examine the State’s witnesses, and trial

counsel failed to “use the fact that a gun powder residue test was done on [the] [p]etitioner

immediately after the shooting.”1

At the evidentiary hearing, the petitioner testified that he was twenty-one years old and had

left school during the seventh grade. He said that he could read “a little bit” and had someone help

prepare his post-conviction petition. He could not remember his trial counsel’s name but was able

to identify her in the courtroom. As to his claim regarding trial counsel’s ineffectiveness, the

petitioner stated,

On my gun test, it said my gun test had got lost. I think she could

have did a little more, you know what I’m saying, telling them that - -

telling me a little more about and saying a little more about how did

it get lost? How did it come up to get lost? How could it get messed

up?

Essentially, the petitioner complained that trial counsel should have emphasized that the test was lost

and that the results of the test would have been beneficial to him.

The petitioner further complained that trial counsel did not talk with witnesses and failed to

adequately cross-examine witnesses regarding inconsistencies in their statements and their testimony

at trial. However, he was unable to remember which witnesses were not adequately cross-examined.

The petitioner recalled that trial counsel spent about “five hours total” discussing the case with him.

They did not discuss trial strategy or any potential defenses. The petitioner alleged that trial counsel

could have presented the circumstances surrounding his confession in a more favorable way. 

Trial counsel testified that she was appointed to represent the petitioner. At the time of her

appointment, she had been with the Public Defender’s Office for approximately ten years. She had

been involved in numerous trials, including fifteen to twenty murder trials. Trial counsel recalled

that she visited the petitioner seven times in jail and numerous times before court. Additionally, she

met with the petitioner and his grandparents. They also communicated through letters and by

telephone.
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Trial counsel discussed with the petitioner the State’s proof and possible defenses. The

petitioner had confessed to police that he had committed the murder. He explained that he agreed

to confess upon the advice of his grandparents and because he thought he would be allowed to go

home.

Accordingly, trial counsel filed a motion to suppress the petitioner’s confession. The

petitioner and his grandparents testified at the hearing on the motion, recounting the circumstances

surrounding the confession. The trial court denied the petitioner’s motion and allowed the

confession to be admitted at trial. As a result of the trial court’s decision, trial counsel and the

petitioner decided that the petitioner should testify at trial in order to explain the reasons for the

confession.

The gunpowder residue tests results were critical to the petitioner’s defense strategy. Trial

counsel was told that the Tennessee Bureau of Investigation was unable to test for gunpowder

residue because of contamination. Therefore, at trial, counsel called the officer who attempted the

testing to explain the procedure and why he was unable to test for gunpowder residue in the

petitioner’s case. Trial counsel’s strategy was to emphasize the problems with the testing and “let

the jury make their determination hoping that they would see [it]in the light favorable to [the

petitioner] . . . .”

Trial counsel recalled that there were seven witnesses to the offense. Four of the witnesses

saw the shooting, and the otherthree witnesses saw a person dressed similarly to the petitioner. Trial

counsel reviewed their statements to police, and her investigatorspoke with the witnesses. At trial,

several witnesses gave testimony inconsistent with their initial statements. Trial counsel pointed out

the inconsistencies to the jury during her cross-examination of the witnesses. Trial counsel recalled

that the petitioner named another individual as the shooter and asked that this individual be called

to testify. The individual had an alibi and denied he was involved. Trial counsel did not call the

individual, fearing that his testimony would be more damaging than beneficial.

Trial counsel stated that the petitioner’s defense was three-fold. First, she attempted to

disparage the confession. After the motion to suppress was denied, the strategy shifted to an

emphasis on the contaminated gunshot residue testing in an attempt to cast doubt on the police

department. Finally, she focused on the inconsistencies in the initial statements of the witnesses and

their testimony at trial.

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

and conclusions of law and entered an order denying the petitioner relief. The post-conviction court

referenced the inconsistencies in the testimony of the petitioner and trial counsel, accrediting the

testimony of trial counsel. The post-conviction court found that trial counsel fully investigated the

petitioner’s case and was prepared for trial. Additionally, the post-conviction court found that trial

counsel thoroughly examined the witnesses and communicated with the petitioner regarding trial

strategy and the defenses available to him. The post-conviction court concluded that trial counsel

had provided effective representation, noting that “the facts in the case are what caused [the
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petitioner] to be convicted and that [trial counsel] did everything she could to adequately defend him

under the guidelines of the law.”

II. Analysis

To be successful in his claim for post-conviction relief, the petitioner must prove all factual

allegations contained in his post-conviction petition by clear and convincing evidence. Tenn. Code

Ann. § 40-30-110(f) (2003). “‘Clear and convincing evidence means evidence in which there is no

serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’”

State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co.,

833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses, the weight and

value to be accorded their testimony, and the factual questions raised by the evidence are to be

resolved by the post-conviction court as the trier of fact. Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight of a jury

verdict, with such findings being conclusive on appeal absent a showing that the evidence in the

record preponderates against those findings. Id. at 578.

A claim of ineffective assistance of counsel is a mixed question of law and fact. State v.

Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of fact

de novo with a presumption that those findings are correct. Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely de

novo. Id. 

“To establish ineffective assistance of counsel, the petitioner bears the burden of proving

both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad

v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court

must determine whether counsel’s performance was within the range of competence required of

attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 

Initially, we note that Rule 27 of the Tennessee Rules of Appellate Procedure provides that

[t]he brief of the appellant shall contain . . . [a]n argument, which

may be preceded by a summary of argument, setting forth the

contentions of the appellant with respect to the issues presented, and

the reasons therefor, including the reasons why the contentions

require appellate review, with citations to the authorities and

appropriate references to the record (which may be quoted verbatim)

relied on.

Tenn. R. App. P. 27 (a)(7). “Issues which are not supported by argument, citation to authorities, or

appropriate references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App.

R. 10(b). In the instant case, the petitioner’s argument consists ofthree general allegations regarding
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trial counsel’s ineffectiveness but includes no explanation of how counsel was ineffective or how

the petitioner was prejudiced by counsel’s actions. The brief is inadequate and this court could

consider those issues waived. Nevertheless, we see no reason to disturb the post-conviction court’s

determination that the petitioner was afforded effective assistance of counsel.

The petitioner complains that trial counsel failed to adequately investigate and prepare for

trial, failed to interview witnesses, did not properly evaluate the State’s case, and failed to meet with

the petitioner to develop a defense. First, we note that when a petitioner contends that trial counsel

failed to discover, interview, or present witnesses in support of his defense, the petitioner should

present these witnesses at the evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

App. 1990). A petitioner is not entitled to relief on this ground “unless he can produce a material

witness who (a) could have been found by a reasonable investigation and (b) would have testified

favorably in support of his defense if called.” Id. at 758. At the evidentiary hearing, the petitioner

failed to produce any witnesses in support of his claim.

The petitioner had the burden to prove the factual allegations set forth in his petition by clear

and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal, we are bound by the trial

court’s findings of fact unless the evidence in the record preponderates against those findings.

Henley, 960 S.W.2d at 578.

The post-conviction court found that trial counsel had fully investigated the petitioner’s case,

adequately prepared for trial, and communicated with the petitioner regarding trial strategy and

defenses. The record does not preponderate against those findings.

III. Conclusion

In consideration of the foregoing and the record as a whole, we affirm the judgment of the

post-conviction court.

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NORMA McGEE OGLE, JUDGE