### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs S ep te m be r 20, 200 6

DEN NIS P YLA NT v. ST ATE OF TEN NES SEE

Appeal f rom the Circ uit Court for Cheatham County No. 13469 Robert

E. Bu rch, Judge

No. M2005- 02721-CCA -R3-P C - F iled Jun e 29, 2007

Th e pe tit ion e r, De nn is Py la nt, a pp e a ls the de nia l of po st- c on vic tio n re lie f b y the Che a tha

m Co un ty Circuit Court after a

n evidentiar

y hear ing. O n appea l, the petitioner conte nds the trial cour t erre d in: (1) suppressinghear say testimony ; (2) finding trial counsel e ffe ctive; and ( 3) deny ing reli ef ba se d o n th e c umu la tiv e e ff e c t of the a lle g e d e rr or s. Af

te r c are fu l r e vie w, we a ff ir m th e po stconviction cour

t’s denial of r elief.

Tenn. R. App . P . 3; Judgme nt of th e Circ uit Court Aff irm ed

J OHN E VE R E TT W I LLI A M S J ., delivere d the opi n i o n o f the cour t, in which T H O M A S T. W O O D A LL , J ., joined. J A M ES C UR WO OD W I TT , J R ., J ., filed a dissenting opinion.

Er ic S. Ca

rt e e , N a sh vil le , T e nn e sse e , f or the Ap pe lla

nt, De nn is Py

lant.

Robert E. Cooper, J r., Attorney Gene ral & Reporter ; J. Ross Dy er, A ssistant Attorney Gene ral; Da

n Mitchum Alsobrooks, District Attorney Gene ral; and Rober

t S. W ilson, Assist ant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION

I n 2001, a C h ea t h am County jury convicted the petitioner of one count of fe lony murder committed in the perpe tration of ag g ravated child abuse , and the pe titioner rec eived a life sentenc e. The proof at trial showed that, on September 24, 1 999, Amanda D avis, the victim’s mother, implored

a ne ig hb or to c a ll 9 -1 -1 be c a

us e sh e c ou ld n ot w a ke he r t wo -y e ar o ld s on . St a te v. De nn is Py lant, No. M2001-02335-CCA-R3-CD, slip op. at 2 (Te nn. Crim. App., Nashville, May 8, 2 0 0 3). The neig hbor testified that he , thus, i n s t ru cted his father to ca ll 9-1-1, and he enter ed Ms. Davis’s a nd the petitioner’s mobile home a nd found the victim dea d. I d.
Cheatham County

Sheriff’ s Depa

rtment Serg eant Floy d Dunca n, J r., testified at trial that he interviewe d Ms. Davis and the pe titioner after the death w as decla

red a homicide. I d., slip op. at 3. The petitioner informed him that Ms. D avis was the only other adult with the child that day . I d. He-2-

stated that the victim beg an cr y ing a fter Ms. Da

vis left to run an e rra

nd at appr ox imately

3:30 or 4:00 p.m. I d. The pe titioner further stated that he c hang ed the victim’s diape r, but the victim continued to cry . I d., slip op. at 3-4.

Rebec ca Pylant, the petitioner’s e ight- y ear -old daug hter, testified at trial that on September 23 , 1 99 9, the pe tit ion e r b e c a me ang ry be c aus e of the v ic tim ’s c on sta nt c ry ingand that th e vic tim continued to cr

y afte r t h e petitioner c hang ed the victim’s diape r. I d. She was in the living room when s h e h ear d a noise that “ sounded like daddy spanking him,” so she walke d to the victim’s bedroom a

nd observe d the petitioner strike the victim twice. I d. Rebec ca Pylant further testified that there wer e no sounds coming from the victim’s room a fter Ms. Da vis returne d. I d.

On c ro ss- e xami natio n, Re be c c a Py lant t e st if

ie d th a t sh e ob se rv e d M s. Da vis str ike the vic tim on his lower bac k with a wooden spoon be fore she l eft to run er rands on Septembe r 23, 1999. I d., slip op. at 6.

Doctor Char les Har lan, who per formed the victim’s autopsy , testified that he discove red two lace rations of the ga stric mesente ry which ca used the victim to bleed to death. I d., slip op. at 7. He also testified that the victim had re d contusions on the back of his midsection. I d.

As defe nse proof

at trial, the pe titioner merely enter ed int o evidenc e the pr esentment

c ha rg ingMs. Da

vis wi th t he vic tim ’s fe lony

mur de r a nd he r p le a of no lo c on te nd e re to c hil d n e g le c t. I d., slip op. at 8.
The jury convicted the petitioner of f elony murder c ommitt ed in the per petrat ion of ag g ravated child abuse , and this court aff irmed the conviction. See id., slip op. at 15. The pe titioner then filed a

timely petition for post-conviction relief, which the post-conviction cour t denied af

ter

an ev i d en t i ary

h ea ri n g.
At the post-conviction hea ring , the petitioner c alled Dr . Br uce L evy , the State of Tenne ssee’ s Chi e f M e dic a l Ex a min e r. Do c tor L e vy te sti fi e d th a t he re vie we d D r. Ha rl an’ s a uto ps y re po rt , h is trial testimony , and other fore nsic ev i d en ce r eg ardingthe petitioner’s c ase. D octor L evy testified that h e d i s agr eed with Dr. Har lan’s conc lusion that the injuries to the back c aused the tear in the mesenter y . I n Dr. L evy ’s opinion, it i s not possibl e for a blow to the bac k to cause the mesente ry tear s. He testified that me sentery tear s are ty pically cause d from a crushingblow to the front of the body beca use a front-blow “cr

ushes the mesenter

y which is a fairly

soft structure up ag ainst the front of the backbone .” Doctor L evy further testified that “[t] he back is a very well protec ted ar ea[] and would not cause the injury .” Doc tor L evy testified he would have testified acc ording ly had he be en called a s a witness at pe titioner’s trial.

On cross-examination, Dr. L evy testified t hat i t is not impossi ble that the blow which c aused t h e t e ar c a m e f r o m t h e b a c k
, b u ti nh i s o p i n i o n , t h e t e ar s c a m e f r o m a b l o w t o t h e f

r o n to f t h e b o dy. He testified that Dr. Ha

rlan found a

cylindrical mark on t h e v i ct im’s back, a nd he ag ree d that the

mark c ou ld h a ve be e n ma de by a pa lm o f a

hand. Doc to r L evy

fu rt he r t e sti fi e d th a t, i f t

he vic tim-3-

squirmed during the blows, the victim could have been hit in t h e stomach, c ausing the mesente ry tear s.

On re direc t ex am i n at ion, Dr. L evy stated that, if the a

bdomen had be en supported, a blow to the back c ould have c aused the injury . He a lso testified that the marks on the ba ck could have come f rom a woode n spoon.

Howeve r, on re cross-e x amination, he testified that a person c ould not ge nerate enoug h forc e with the wooden spoon to cause the m esente ry tear s. Doctor L evy further testified t hat, af ter losing

a ce rtain amount of blood, a person would lose consciousness and then di e. He testified that if the victim’s tears oc curr ed at 3:30 p.m., then he w oul d b e i n ex cruciating pain during the next three ho ur s and c ou ld n ot c on du c t no rm a l a c tiv iti e s.

L y la Def osio, the petitioner’s g randmother , testified that she wa s prese nt to testify at the petitioner’s trial but that she ne ver did. I n the post-conviction hea ring , she testified, ove r objec tion, that afte r Ms. Davis testified at the preliminary hear ing, Ms. De fosio overhe ard Ms. Da vis tell her attorney , “I

know I beat him but I didn’t aim to kill him; but Iknow I did.” Ms. Def

osio testified that she informe d the petitioner’s attorney s of this admission and that s h e would have te stified to the

a dmi ssi on

ha d s he be e n c a lle d a s a

wi tne ss at th e pe tit ion e r’ s tr ia l.

On cr oss-examination, Ms. Defosio g ave some what contr adictory , confusingtestimony reg ardingwher e and w hen Ms. Davis made this admission. On redire ct examination, she testified that she g ets confus ed concerning dates, but she c lear ly reme mbere d Ms. Davis making the state me nt.

L eroy Binkley
, one of the petit ioner’s neig hbors, t estified in the evide ntiary hear ing that, on the af ternoon that the victim was found dead, he obs erve d Ms. Davis burning “small bed shee ts” and “kids clothes.” H e fur

ther testified that he tol d the petitioner’s f amily and “his law y er at the time.” He a lso testified that he spoke with John Holder of the Cheatham County Sheriff’ s Depa rtment about the inc ide nt. Mr . B ink le y a lso te sti fi e d that he wa s p re se nt at th e c ourt ho us e fo r t

he tr ia l, b ut h e did not remembe r re ceivinga subpoena

. He state d that, if ca lled to testify at trial, he w ould have te sti fi e d a bo ut M s. Da

vis ’s a c tiv iti e s.

On cross-e x amination, Mr. Binkley stated that he did not re member be ing on jur y duty that day , and he de nied “smoking dope” w ith the petitioner.

Trina Jackson testified that she w orked at Mapco Ex press with Ms. Davis. On one oc casion, she saw Ms. Davis hol d the vi ctim up by one of his arms and spank him. She testified that, when Ms. Davis spanked him, his fee t came of f of the g round. M s. J ackson did not re port this incident to the Depa

rtment of Children’s Ser

vices.

Ms. J ackson a lso testifie d t h at she over hear d Ms. Davis talking on the telephone while at

wo rk a ft e r t he vic tim ’s de a th. She te sti fi e d that Ms. Da vis sa id that sh e c ou ld no t li ve wi th h e rs e lfT he co urt co nd uct ed t wo prel i m i nary heari ngs b ecause t he f i rs t heari ng was no t reco rded d ue t o an eq ui p m ent 1

pr ob l e m.

-4- knowing that she had killed the vic tim. Ms. J ac k s o n d i d not rec all speakingto the petitioner’s attorney s about th e t wo i n ci dents, but she had infor med the petitioner a

nd Donald Py lant, the petitioner’s father. Also, she te stified that she re ceive d a subpoena to te s t i fy at trial on the petitioner’s be half.
Sheila Py lant Wil son, the petitioner’s sister, te stified that afte r the pe t itioner was a rre sted, Ms. D avis told he r that “she had made a deal to g et her [other] son back a nd she wa s g oing to lie a

nd do whateve r it took to ge t her son bac k.” Ms. Wils on did not r ecall the date, but she state d that Donald Py lant and Dor othy Mills were pre sent when Ms. Da vis made the stateme nt.

Ms. Wi lson further te stified that she witnessed Ms. Da vis “punch” the vi ctim in the back and call him a “br at.” She testified that she observe d Ms. Davis hitting t h e v ictim on more than one

oc c a sio n. Ms. Wils on

te sti fi e d th a t sh e did c on fr on t Ms. Da vis a bo ut he r hittin g the vic tim , a nd Ms. Davis said that “he won’t quit cry ing; a nd he wa s just a brat.”

Ms. Wi lson testified she did rec eive a subpoena to testify

at trial and that she was inter viewed “somewhat” by

o n e o f t h e petitioner’ s attorney s prior to trial. She also testified that one of the petitioner’s attorney s asked he r if she would be will ing to lie, we surmise, if ca lled as a w itness. She testified that when she said “no,” the attorne y said that “he had nothing more to talk to [ her] about.” Ms. W il so n als o te sti fi e d th a t, i f c a lle d a s a wi tne ss at tr ia l, s he wo uld have te sti fi e d to the same fa c ts.

L loy d Har

ris, the petitioner’s ba il bondsman, testified in the post-conviction hear ing, ove r objection, that af

ter the pe titioner called him to post his bond, he interviewe d Ms. Davis prior to the bond posting. He testified that she stated that the petitioner “ha d nothing to do with” the mur der a nd that “[h] e didn’t even touch t hat child.” Mr. Harris said that he noti fied the petitioner of Ms. Davis’s statements, but he did not rec eive a subpoena to testify

at the petitioner’s trial. Mr. Har ris aff irmed that he wo uld

have te sti fi e d to the same fa c ts h a d h e be e n c a lle d a s a wi tne ss at tr ia l.

Donald P y lant, the petit ioner’s father , testified that, on the nig ht of the petitioner’ s arr est, he went to the petitioner’ s mobile home and sa w Ms. Davis putting thing s into the petitioner’s truck. She told him, “I ’m the one that did this ; but I ’m g oing to have to put the bl ame of f on [the petitioner] if Ic an w he re Ic an tr

y to k e e p my ot her bab y .” Mr . Pylant t e sti fi e d th a t Ms . D a vis ma de thi s statement in the pre s en ce o f h is ex -wife , Dorothy Mills, and his daughte r. Mr. Py lant further testified t hat M s. Davis said the s ame thing after the first preliminary hear ing. Mr. Py lant testified

1 that he repor

ted both incidents to the petitioner’s attorney s but did not receive a subpoena to testify at the petitioner’s trial. Mr. Py lant also testified that he g ave the petitioner’s attorney s the names of various individuals who had infor mation reg ardingthe petitioner’s c ase, in c lu d ingJ immy Ander son, L y la Def osio, and Trina J ackson. H e testified that Mr. A nderson a ccompa nied him to the trial

e v e r yd ay.-5-

Mr . Pylant t e sti fi e d th a t he a tte nd e d s e ve ra l me e tin g s w ith the pe tit ion e r and his a tto rn e y s. One attorney

reque sted more funds from Mr. Py lant to hir e an inve stigator and a medical e x aminer. Mr. Py lant testified that he did not have the additional $10,000 re quested. At the me eting, the attorney s never

advised the pe titioner of the fe lon y m u rder doctrine. H e also testified, ove r objection, that the lea d attorney told him after the petitioner’s trial, “I ’ll either do the appeal for you fre e or I ’ll sign pa

pers r ight now that Ididn’t proper ly repr esent [the petitioner].”

On c r o s s

- e xa

mi n a ti o n , M r

. Py

la nt reiterated that the attorne y s never discussed fe lony

murder, not even wh en they

revie wed the State’ s plea off er of four y ear s with the petitioner. Mr. Py lant testified that he told the petitioner that he should not acc ept the State’s of fer

. May a Py lant, the petitioner’s w ife, testified that she and the petitioner have two children a nd that she wa s not subpoenaed a t trial. Ms. Py lant testified that, if she had be en ca lled as a w itness at tr ia l, s he wo uld

have te sti fi e d th a t th e pe tit ion e r w a s g oo d w ithkid s a nd that sh e ha d n e ve r s e e n h im be ver bally or phy sically abusive. I n addition, Ms. Py lant rec alled that, on one oc casion be fore the pe tit ion e r’ s tr ia l, M s. Da

vi s fol lo wed he r a

nd the pe tit ion e r. Ac c or din g to M s. Py lant, Ms. Da vis told the petitioner that, if he did not leave with her, she w ould tell the police that the petitioner ha d kil le d th e vic tim

. Dorothy Mills, who had been marrie d to the petitioner’s father, testified that she witnessed Ms. Da vis thr owthe vic timint o a c ar “ fr om t

he pa sse ng e r’ s si de to t

he dr ive r’ s sid e of

the c ar. ” Ms. Mills further testified that, after the first preliminary hear ing, Ms. Davis said that she had killed the vic timand

wa s g oin g to pl ace the bla me on the pe tit ion e r. Ms. Mil ls a nd Ms. Da vis be c a me
e mbr oil e d in

a fi g ht. Ms. Mil ls w a s c ha rg e d w itha ssa

ult , b ut the c ha

rg e wa s d ism iss e d. Ms. Mil ls fu rt he r t e sti fi e d th a t sh e tol d le a d c ouns e l of the inc ide nts

.

Br ent Spurlock, who worke d with the petitioner as a painter, te stified that, one morning afte r the trial, he a

nd the petitioner met at a marke t before work. H e s aw M s

. Da v i s drive into the

mark e t’ s p a rk inglot

and su mmo n th e pe tit ion e r t o h e r ca r. He ne ve r saw h e r a ft e rw ard s. He a lso te sti fi e d th a t he re c e ive d a su bp oe na to t e sti fy a t th e pe tit ion e r’ s tr ia l.
The pe titioner testified that he re tained his trial attorne y s by signingover the deed to his land and the title to his mobil e home. He stated that he supplied counsel with a written list of potential witnesses’ names, including addre sses and tele phone number s. We disce rn from the rec ord that the list i ncluded the f

ollowing pe ople: L y la De fo s i o , L eroy Binkley , Trina Jackson, Sheila Py lant Wil son, L loy d Har

ris, Donald Py lant, May a Py lant, Dorothy Mills, Brent Spurlock, Te resa Portill o, J immy Ander son, and J une Harg rove. The petiti oner stated that the attorney s ref used to subpoena some of the witnesse s, for e x ample, L loy d Har ris. He testified that some witnesses off ere d to give depos it io n s , b u t n o n e w e r e ta k e n

. H e f u rth e r te s ti f

ie d th a t le a d c o u n s e l in f

o r me d h im th a t h e had

su bp oe na e d 1 2 w itn e sse s, bu t le a d c ouns el refu se d to name the 12 be c a us e “ he wa s n ot g oin g to discuss courtroom strateg y .” The petitioner testified that, if he had known that lea d counsel wa s notT he p et i t i o ner f i rs t t est i f i ed t hat t ri al co unsel “ t o l d [hi m ] t hat t he st at e was of f eri ng f i ve y ears p rob at i o n, ” b ut 2

h e ne v e r sa w the o ff

e r i n w r it in g

. H e t h e n tes tif ie d to the re fer e n c e d o ff e r, w h ic h he sa w in w riting . W e no te tha t a N o t i ce o f

P rop o sed P l ea A greem ent and D ecl i nat i o n o f S am e was entered as an exhi b i t a t the p o st

- co nvi ct i o n heari ng. I t s t at ed t hat t he pl ea of f er was t o pl ead g ui l t y t o re ckl es s homi ci de an d be s ent enc ed t o f our y ear s , t he manne r of s er vi ce to b e d e te rm ine d b y the trial c o u rt. H o w e v e r, a line c ro sse d thr o u g h the w o rd “g u ilt y,” a n d “n o c o n te st o r b e st inte re st”

w a s h a n d w ritten o n to the d o c u m e n t. A lso , “(4 )” w a s m a rk e d thr o u g h a n d “3 ” w a s w ritten a b o v e it

.
-6- g oin g to c a ll h is w itn e sse s, the n h e wo uld have a c c e pte d th e S ta te ’s of fe r t o p le a d to re c kle ss ho mic ide , w ithan a g re e d s e nte nc e of thr e e y e ars a t 30 pe rc e nt. 2

The pe titioner testified that he re mained in jail for f ive months after

his arre st before posting bond. After

he posted bond, he beca

me e m p l o y ed
, b u t he was still unable to ra ise the additional $10,000 for his attorne y s to hire an investig ator a nd a medica l expert. He testified t h at h e had no extra cash a

nd owed friends and family for posti ng his bail. The petiti oner f urther te stified that, prior to t ri a l, h e ha d n e ve r h e ard

of be ingde c lare d in dig e nt.
During a discussion with lead c ounsel about t he S tate’s plea offer, c ounsel told the petitioner that, to establish first deg ree murder, the State would have to prove that the killing w as “intentional,” “willf u l, d e li b e r a te , an d p r e me d it a te d

. ” H e f u rth e r te s ti f

ie d th a t, w h e n h e r e a d th e p le a o ffe r, he asked w hy

i t s ai d “fe lony

first deg ree murder.” The pe titioner testified that lead c ounsel replied, “[W ]hat did y ou think this was a misdemeanor c harg e[? ]”
Also reg ardingthe State’s plea offe r, the pe titioner t es t i fi ed t hat he told lead c ounsel he

wo uld sig n th e a g re e me nt i f t

he wo rd ingwa s c ha

ng e d to refl e c t a

ple a of “ no c on te st o r b e st interest.” H e testified that whe n he ar rived at lead counse l’s offi ce t o s i gn the ag ree ment, lead counsel talke d him out of i t, stating that the S tate lacked the evidenc e to convict him of first deg ree murder a nd that he should “a sk for a ll or nothing.”
The pe titioner testifie d that he had ne ver he ard of the fe lony

murder doc trine and did not

rec eive a copy of the indictment. He testified that his attorney s did not ex plain that, to prove fe lony murder, the State “only neede d to prove an inlay ing [sic] felony to convict [him ].” Further more, he testified t h at , when he sent a letter to lead counse l askingwhy he mentioned f

elony murder in the appellate brief, le ad counse l’s reply letter stated that felony

murder and first deg ree murder were one in the same without furthe r explanation.

On cr oss-examination, the petitioner testified that he did not take lega l advice from his fathe r and that lea d co u n s el p er s u aded him to re ject the plea

offe r. He ag ree d that at one point, lead counsel ha d counsele d him to acc ept the State’s offe r. The pe titioner did not remember lead c ounsel showing him pattern jury

instructions or explaining the ele ments of fe lony murder. T he petitioner admitted that, during the trial, he hear d the t erm “felony murder,” but he thought it ref err ed to t he fac t that ever

y murder w as a f

elony

.-7-

The pe titioner fu rt h er insisted that he told lead counse l to call Ms. Davis as a w itness, but lead c ounsel did not want to call her to te stify . The pe titioner said that he did not testify at trial base d upon counsel’s a dvice.
The pe titioner testified that Rebec ca Pylant ’s s t o ry got worse a s the trial date a pproac hed. He testified that she actually hear d him clap his hands t o g et t he victim ’s attention when he enter ed the victim’s bedroom. He sta t ed t h at R eb ec ca Py lant saw him help the victim to his feet a fter chang ing his diape r and sa w him “pat [the victim] on the butt.”

Tere sa P ortillo, Ms. Davis’s biol og ical mot her, te stified at the post-convic tion hearingthat she re ceive d a def

ense subpoe na, but she wa s never told why . She did not reca ll telling anyone that she attende d the t rial t o make sure an innocent man did not g o to jail. Ms. P ortillo testified that she did not reca ll seeing her da ug hter e ver strike the victim, and she did not reme mber making

a lle g a tio ns to t

he De pa rtme nt o f C hil dr e n’ s Se rv ic e s r e g ard inga bu se by Ms. Da vis

.
The State c alled lea d counsel a s its only witness. He testified that he ha d handled se vera l ho mic ide c a se s and that he e xpla ine d the fe lony mur de r c ha rg e to the pe tit ion e r u sin g the wa rr a nts in t he c a se and

the patte rn

jur y ins tr uc tio ns

. He fu

rt he r te sti fi e d that it wa s h is c omm on pr a c tic e to send a c opy

of all cour

t documents to his clients.

Reg ar d in g th e St a te ’ s p le a o f f e r , le a d c o u n s e l t e s ti f

ie d th a t t h e p e ti ti o n e r

r e je c te d it a nd signe d a for

m, stating that he declined the offe r. L ead counsel was “ver y sure” that he discussed the elements of the offe nse with the petitioner at this t ime. He disputed the a ccur acy of the pe titioner’s testimony that he neve r discussed the f elony murder doc trine.

L ead c ounsel testified that he f iled numerous mot ions in the case, inc luding one reque sting that no lesser inc luded offe nses be c harg ed to the jury

. L ead counsel explained his strateg y of “g oing all or nothing ” bec ause it wa s allowed in a “ Massac husetts case .”

L ead c ounsel testified that in two preliminary hear ings, he had the b en ef i t of questioning State witnesses, including Ms. Davis and Dr . Har lan. He te stified that, in addition, he had Dr

. Har lan’s autopsy

repor t a nd a transcr ipt of Rebec ca Py lant’s interview with police . L ead c ounsel had orig inally wanted to hir e an independe nt me dical expert to pinpoint the victim’s ti me of de ath, but afte r talking with Dr. Ha

rlan, he lear

ned that the time of de ath could not be c onclusively pinpointed. Thus, he dec ided that a de fense expert was not nee ded bec ause the re “ wasn’t a disp u t e ab o u t the

manner of death.”

L ead c ounsel admitted that the petitioner g ave him a list of potential witnesses, but he fur ther testified that “[a]ny witness [t he petitioner] would have told me a bout specifica lly

that he eve n had

a fac t of the case , we would have inter viewed or called . . . .” L ead c ounsel testified that he and coc oun s e l m e tw i t h t h e p e t i t i o n e r an d “ v o t e d ” o nw h e t h e r

M s

. D a v i s w o u l d

b e c a l l e d a s a w i t n e s s. L ead c ounsel “voted to c all her” beca use he ha d a “w ealth of c ross-examination information about-8-

her” and could use prior bad ac ts to im peac h her; howe ver, c o-counse l and the petitioner out-vote d him and de c ide d n ot t o c a ll h e r a s a wi tne ss.

O nc r o s s

- e xa mi n a ti o n , le a d c o u n s e l m a in ta in e d

th a t m an y

o f th e p e ti ti o n e r ’ s p o tential witnesses would have testified to ir rele vant information. The pe titioner, moreover , did not insi st on any particula r witnesses testify

ing. L ead c ounsel consider ed at o n e point having the petitioner decla red indig ent and a sking f

or additional funds. Counsel r econside red and did not do so, howe ver, afte r speaking w ith Dr. Har lan. He f urther te stified that the def ense the ory was that Ms. Davis killed the vic tim . H e a dmi tte d th a t he wa s awa re of he r p ri or inc on sis te nt state me nts and pr ior ba d a c ts, but he def

ended the decision not to call her as “a vote by committee.”

On re direc t e xa

mi n a ti o n , lead c ounsel denied discour ag ing the petitioner fr om taking the plea offe r. He reiter ated that the pe titio n er ’s p o t enti al witnesses “ had no re levant or pr obative value whatsoeve r.” F urthermor e, he de scribed the d ec i sion not to call Ms. Davis as a witness a s trial

s t r a t e g y.

After all testimony , the S t at e m o v ed, via a written motion, to strike all hearsa y testimony g iven in the evidentiar

y h ea ri n g reg ardingalleg ed admissions made by Ms. Davis. The c ourt informed the pa

rties that it would decide the issue in its written opinion.

Ini t s w r i t t e no p i n i o n , t h e p o s t

- c o n v i c t i o n c o u r t f i r s ta d dr e s s e d

t h e m o t i o nt o s t r i k e

. It g ra nte d th e State ’s mot ion

be c a us e , und e r T e nn e sse e Rul e of Ev ide nc e 80 4( b) , a

state me nt a g a ins t pe na l in te re st i s a dmi ssi ble a s a he ars ay e xce pti on

on ly if the de c lara

nt i s unava ila

ble . T he po stc on vic tio n c ourt

state d, “ Pe tit ion e r h a s no t sh ow n Am and a Da vis [, the de c lara

nt, ] t o be un a va ila

ble for the Post-Conviction hear ing, in f act, the pr oof establishes that she is was available.” The c ourt also stated that it could not speculate on the reliabilit y of Ms . Davis’s stateme nts. The cour t ruled that the testimony

about Ms. Davis’s stateme nts was inadmissible in the post-conviction hea ring and g ra nte d th e State ’s mot ion

to s tr ike the te sti mony

c on c e rn ingMs. Da

vis ’s a dmi ssi on s.

Re garding trial c ounsel’s fa ilure to interview pote ntial witnesses and viewevidenc e, including vide otaped witness state ments, the pos t-conviction court found t hat m any of the witnesse s pr e se nte d at th e po st- c on vic tio n he ari ng te sti fi e d to the ina dmi ssi ble state me nts ma de by Ms. Da vis

. The c o u rt s tate d th a t it w o u ld n o t c o n s id e r th is te s ti mo n y

. F u rth e r , th e c o u rt f o u n d th at Mr. Binkley ’s testimony

that he sawMs. D av i s burn shee ts and children’ s clothing, Ms. Jackson’s testimony that she saw Ms. Davis spank the vi ctim with her ha nd, Ms. Wi lson’s testimony that she

saw M s. Da

vis hit the vic timwi th t

he he e l of he r ha

nd , a nd Ms. Mil ls’ s te sti mony

that sh e saw M s. Davis throw the vic tim int o a ca r would not have aff

ecte d the outcome of

the trial. The c ourt furthe r state d th a t th e pe tit ion e r f a ile d to sh owho w tri a l c ouns e l’ s f a ilure to i nv e sti g a te pr e

jud ic e d h im.
The post-c o n v i ct ion court also found, r eg ardingtrial counsel’ s failure to retain a medical

e xpe rt , th a t th e pe tit ion e r fa ile d to show that Dr. L e vy ’s te sti mony wo uld have c ha ng e d the re su lt. Moreove r, the post-c onviction court found that the pe titioner failed to s h o w p r e judic e fr om counsel’s fa ilure to o bta in a

n e xpe rt

.-9-

The post-c onviction court re jected the petitioner’s a

nd his fathe r’s testim ony reg ardingthe alleg ation that counsel fa iled to disc uss the char g e and its ele ments. The cour t found that counsel’ s te sti mony wa s tr uth fu l in tha t he did dis c us s the inf

or ma tio n w iththe pe tit ion e r. Thus , th e po stconviction cour

t stated that counsel g ave the petitioner prope r advic e and that the petitioner fa iled to establish, by

clea r and c onvincing evidenc e, that counse l failed to inform him of the c harg e.
Reg ardingcounsel’s f

ai lure to ca ll the witnesses prese nted at the post-c onviction hear ing, the

c ourt fo un d th a t th e pe tit ion e r f a ile d to sh ow that the se wi tne sse s wou ld “h a ve of fe re d a dmi ssi ble te sti mony whi ch cou ld h a ve a lte re d th e ou tc ome of the c a se .” Th e re fo re , th e pe tit ion e r f a ile d to show that counsel wa s ineffe ctive.
The post-c onviction court also found that counsel acte d within the scope of competenc y

by

re lyingon

the S tat e court

sy ste m’ s d e vic e s f

or re c or din g pr oc e e din g s, in t his c a se the fi rs t preliminary hear ing, and not br inging his ow n rec ording device

. Thus, counsel wa s not ineffe ctive in this reg ard.
The post-conviction court did find that counsel failed t o file wit h this court a tra nscript of the hear ing on the petitioner’s Motion for Bill of Particulars. H oweve r, the pe titioner failed to show that thi s mo tio n w a s me ri tor iou s, and thu s, he fa ile d to sh owthi s f a ilure pr e jud ic e d h im.
Finally , the post-conviction cour t foun d
, re garding pe titioner’s claim that his trial was fundame ntally

unfair, that the petitioner “r ece ived a f air trial.”

On appe al of the de nial of his p et i t i o n for post-conviction relief, the petitioner in essenc e
ra ise s th e fo llo wi ngiss ue s: 1) Whether the post-c onviction court er red in striking testimony

that the victim’s mother admitted committing the c rime; 2) I neff

ective a ssistance of c ounsel a) F ailure to hire a for ensic e x pert b) F a ilure to c a ll the vic tim ’s mot he r a s a wi tne ss; 3) Fa ilure to inform the pe titioner as to the cha rg es he w as fa cing and the elements of the crime of

felony murder; a

nd 4) Whether the post-c onviction court er red in de ny ing r elief ba sed on the cumulative ef

fec t of the er

rors c ommitt ed.

An a ly sis

I. Al le ge d He ar sa y Te st im ony

O nt h e f i n a l d ay o f t h e p o s t

- c o n v i c t i o nh e ar i n g , t h e r e c o r d r e f l e c t s t h a tt h e S t a t e m o v e d to strike statements made by the petitioner’s witnesses about statements alleg edly made by the victim’s mot h e r f o ll o w in g th e d e a th o f th e v ic ti m. T h e c o u rt r u le d o n th e mo ti o n in it s final orde r. The pe tit ion e r c on te nd s th a t th is i s “ c le ar e rr or .” Du ring th e co ur se of

the he ari ng , th e State-10-

c on te mpo ra

ne ou sly ob je c te d to the te sti mony

a s it wa s ma de ba se d o n h e ars ay . H ow e ve r, the po stconviction cour

t overrule d these objec tions at the time based on petitioner’s counsel’s a rg ument that the statements we re be ing of fer ed to prove something othe r than the truth of t h e s tatements. The petitioner conte nds that, had the post-c onviction court sust ained the hear say objections at the time, he would have been a

ble to call the de clar ant to testify . Fur ther, on a ppeal, the petitioner contends that th e state me nts fa ll und e r T e nn e sse e Rul e of Ev ide nc e 80 3( 3) a s e xce pti on s to he ars ay be c a us e they wer e stateme nts of the dec lara nt’s then-e x isting state of mind.

The State a

rg ues that it sim ply

rene wed its objection to the testimony as is permissible and that the post-conviction cour t properly sustained the mot io n

a n d e xc lu d e d th e h e a rsay testimony

from

c on sid e ratio n. He ars a

y is d e fine d a s “ a

state me nt, oth e r t

ha n o ne ma de by

the de c lara

nt w hil e testify ing at the trial or hear ing, offe red in e vidence to pr ove the truth of the matter a sserted.” Tenn. R. Evid 801(c). He arsa

y is not admissi ble at trial unless it fits within a rec og nized ex ception. Te nn. R. Evid. 802. Tennessee Rule of Evidenc e 804(b) (3) pr ovides that “[a] statement which w as at the tim e of its makin g

. . .te nd e d to su bje c t th e de c lara

nt t o civ il or

c ri min a l li a

bil ity

. . .th a t a

re a so na ble person in the de clar ant’s position would not have made the state ment unless believing it to be true” is not ex cluded by

the hea rsay rule if the de clar ant is unavailable as a w itness.

For a witness to be una

vailable, he or she must fall wit hin one of six categ ories as pr ovided by T en n es s ee Rule of Evidence 804(a) (1-6) . Her e, ther e wa s no showing that the decla rant wa s unavaila b l e; i n fac t, the post-conviction cour t found that she wa s prese nt in the courthouse a nd located in the w itness room during the post-conviction hea ring . The p ro o f es t ablished that the decla rant wa s available as a w itness. The State ar g ues, and w e ag ree , that th e t estimony the pe tit ion e r w ante d th e po st- c on vic tio n c ourt to c on sid e r wa s the ve ry de fi nit ion of a state me nt a g a ins t interest. B eca

use the stateme nts constituted statements ag ainst the p en al interest of the victim’s mother, the burde n was on the pe titioner to show that she was not available to testify , and he f ailed t o m e e th i s b u r d e n

. T h e r e f o r e , t h e p o s t

- c o n v i c t i o n c o u rt p r o p e r l y e x c l u d e d t h e h e ar s ay t e s t i m o n y.
Assuming a

rg uendo that the state ments were not hear say and that they

wer e off ere d not for the truth that the dec lara

nt claimed re sponsibili ty

for the killing but to show that c ounsel knew a bout other witnesse s and shoul d have c alled the pr offe red w itnesses to testify as to their knowledg e, the statements are not helpful t o the petit ioner’s case. The statements would not have been a llowed at trial. They would have been hearsa y at t rial and, there fore
, inadmissible without a showing that the decla rant wa s unavailable . For

a petitioner to succ essfully overturn a

conviction base d on ineffe ctive assistance of counsel, the petit ioner must first establish that the s ervic es rendere d or the a dvice g iven

was below “the rang e of c ompetence demande d of attorne y s in criminal case s.” B axter v. Rose, 523, S.W .2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the deficienc ies “a ctually had

an a dv e rs e e ff

e c t on the de fe ns e ” and

pr e jud ic e d th e pe tit ion e r. Str ic kla nd v. Was hin g ton , 4 66 U. S. 668, 693, 104 S. Ct . 2052 (1984). I f the stateme nts wou l d n o t h av e b ee n admissible at trial, the pe tit i o n e r c an n o t s h o w t h a th e w a s p r e

j u d i c e d b y c o u n s e l ’ s f

a i l u r e t o c a l l t h o s e w i t n e s s e s a tt r ia l. T h er efor e, eve n if the post-convic tion court err ed in finding the testimony was he arsa

y , any such

err or would have been har m l es s beca use the pe titioner could not show that he wa s prejudice d by counsel’s f

ailure to have the state ments admitted at trial. I f the stateme nt s would not have be en-11-

admissible at trial, the petitioner c annot obtain post-convic t i o n relief beca use he c annot show prejudice

.
II. Inef fective Assistance of Cou nsel

Ne xt, th e pe tit ion e r c on te nd s th a t he re c e ive d ine ff e c tiv e a ssi sta

nc e of c ouns e l in

thr e e a re a s. First, he contends that counsel’s repr esentation wa s defic ient beca use counsel did n o t ca l l t he vic tim ’s mot

he r a s a wi tne ss at tr ia l. S e c on d, he argue s th a t c ouns e l sh ou ld h a ve hir e d a n e xpe rt to testify at trial. Third, the pe titioner claims that counsel did not ade quately advise him of the c harg es he fa ced nor

did he ade quately

advise him of the e lements of fe lony murder. We w ill address ea ch

c o n t e n t i o ns e p ar a t e l y.

A

. F a il ur e To C a llTh e V ic t im ’ s M o t he r To Te s t if y
The pe titioner contends that counse l rendered inef fec tive assistance in failing to call the victim’s mother to testify

at trial. He argues that she was responsible for the killing of the victim and that sh e sh ou ld h a ve be e n c a lle d to ans we r re g ard ing he r inv olv e me nt i n th e de a th a nd he r s ta te me nts in the afte rmath of the incident. Howeve r, he did not call her to te stify during the post-conviction proce eding . “When a pe titioner contends that trial counsel failed to discover, interview , or pre sent witnesses in support of hi s defe nse, these w itnesses should be pre sented by the petitioner at the

e vid e nti ary

he ari ng .” B la c k v. State , 7 94 S.W. 2d 75 2, 75 7 ( Te nn . Cr im. Ap p. 19 90 ); se e a lso Sc ott v. State, 936 S.W .2d 271, 273 (Tenn. Crim. App. 1996) . As a g ener al rule, this is the only way the petitioner can establish that: (1) a materia l witness exis ted who could have been discovere d but for

couns e l’ s n e g li g e n t i n v e s ti g a ti o no f th e c a s e ; ( 2 ) a

k n o w nw it n e s s w a s n o t i n te r

v ie w e d ; ( 3 ) the fa ilur e t o d i s c o v e r o r i n t e r v i e w t h e w i t n e s s c a

u s e d h i m p r e

j u d i c e ; o r ( 4 ) t h e f

a i l u r e t o pr e se nt a k n o wn wi t ness re sulted in the denial of c ritical evide nce w hich ca used the pe titioner prejudice

. Bla ck, 794 S.W.2d at 757. Neither the t rial court nor this court ca n speculate on what a

witness’s testimony might have been if

introduced by

counsel. T h e petitioner’s fa ilure to ca ll the victim’s mother as a

witness at the pos t -c o n viction hear ing pr eclude s our re view of this issue. The petitioner’s fa ilure to prese nt the testimony o f t h e p roffere d witness also preve nts him from demonstrating how her

missing testimony prejudice d him at t rial. We may not speculate as to what the proposed witness would have sa id; therefor e, we may not addre ss the issue in the absenc e of he r testimony

.

B. F ail ur e To C allAn E xpe r t W it ne ss
The pe titioner contends that co u n sel err ed in fa iling to re asonably investigate the nee d for

a fore nsic expert and that the de cision to procee d without such expert was “ig norant, uninfor med and

un re a so na

ble .” Th e po st- c on vic tio n c ourt fo un d th a t th e peti ti on e r f a ile d to sh owa t th e po stconviction hear ing that his e x pert’s testimony would have chang ed the outcome of the pe titioner’s trial. The post-c onviction court also found t hat t he petiti oner failed to show pre judice as a

result of

c ouns e l’ s f

a ilure to o bta in a

n e xpe rt . We a g re e wi th t he po st- c on vic tio n c ourt

. The pe titioner’s expert, Dr. L evy , did not testify contra dictory to the trial testimony

of the-12-

State’s expert. Althoug h the petitioner’s e x pert disag ree d with the conclusion of the State’ s expert that the fatal injury was caused by a blow to the victim’s bac k, he admitted that it was possible that this inj ury

could have been c aused in that manne r. In additi o n , t h e t estimony of the pe titioner’s expert was not consistent with the petitioner’s de fense that the victim’s mother administere d the fatal blow with a wooden spoon beca use he testified that a woode n spoon could not g ener ate e noug h forc e to cause the fatal injury . Moreove r, the pe titioner’s expert furthe r t es tified that, if the victim’s mother had a dminist ere d the fatal blow at appr ox imately 3:00 to 3 : 3 0 p .m., as testified to by the petitioner’s da

ug hter, the vic tim would then have bee n in e x cruc iating pain by 6:00 to 6:30 p.m. and unable to “e ng ag e in normal a ctivity .” The proof at trial showed that the victim did eng ag e in normal activity during that time frame

. The testimony

of the State’s e x pert at trial was such that the defendant ha d a possible twelvehour window in which othe r adults wer e ar ound the child. During this window, the child wa s in the

car e and c ustody

of other a dults such t hat s omeone other than t he defenda nt could have inf

licted the injuries. The pe titioner’s expert, on the other ha nd, narr owed the time f

rame such that the fatal blow

was a dminist ere d during the t ime period in which the defe ndant alone w as g iven ca re, c ustody , and control of the minor child. The petitioner’s expert’s testimony left little room for anyone else to be involved. Thus, the petitioner failed to show how his c ounsel was de ficient a nd failed to show how he wa s p re

jud ic e d o n th is c la im.

C. F ailure To Pr operly Inf orm The Pe titioner Of Th e Charge And Its El em ents

F ina lly , th e pe tit ion e r c la ims that his tr ia l a tto rn e y s w e re ine ff e c tiv e fo r f

a ili ngto i nf

or m hi m of the fe lony

murder e lements. He c ontends that, had he been p ro p er l y i n formed, he would have

acc epted the State’ s plea off er. The post-conviction court rejecte d the petitioner’s a rg ument and the testimony of the pe titioner and his fathe r re g ardingthe alleg ation that counsel fa iled to discuss the

c ha rg e and its e le me nts . T he c ourt

fo un d that tr ia l c ouns e l’ s te sti mony wa s tr uth fu l in that he did discuss the information with the petitioner. The post-c onviction court stated that c ounsel g ave the petitioner prope r advic e and that the petitioner failed to e stablish, by clea r and c onvincing evidenc e, that counsel fa iled to inform him of the cha rg e.
The post-c onviction court ac cre dited trial counsel’ s testimony that h e d i d inform the pe tit ion e r o f t

he c ha rg e a g a ins t hi m. T he re fo re , w e ho ld t hat th e pe tit io ner has fa ile d to me e t hi s burden.

III

. De nia l Of R e lie f Bas e d On The Cum ula ti ve Effec t O f The Er r or s C om m it te d

Th e pe tit ion e r’ s f

ina l is su e is a “cat ch all ” iss ue that th e po st- c on vic tio n c ourt e rr e d in denying post-conviction relief based on the cumulative e ffe ct of the e rror s. The State ar g ues that the petitio n e r is n o t e n ti tl e d to r e li e f b a s e d o n c u mu lati v e e r r o r

. We a g r e e

. We h a v e f o und no prejudicia l error

in any of the issues ra ised by

the petitioner a

nd, there fore , conclude that he is not entitled to relief. T he State argues, and we ag ree , that this iss ue is redunda nt beca use the pe titioner ha s me re ly

re su bmi tte d th e iss ue s h e pr e vio us ly pr e se nte d. Th is i ssu e is w ith ou t me ri t.-13- Conclusion

B a se d o n th e fo re g oin g and the re c or d a s a

wh ole , w e a ff

ir m th e ju dg me nt f

ro m th e po stconviction cour

t in all respec ts.

________________________________________ J OHN EV ERETT WI L L I AMS, J UDGE