IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 20, 2011 Session

DELMAR REED v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2006-B-1757 Steve Dozier, Judge

No. M2010-01178-CCA-R3-PC - Filed September 29, 2011

Aggrieved by his Davidson County Criminal Court jury convictions of ten counts of

harassment, one count of attempted aggravated burglary, one count of vandalism of property

valued at $500 or less, one count of vandalism of property valued at $1,000 or more but less

than $10,000, and one count of setting fire to personal property, for which he received an

effective sentence of 19 years’ incarceration, the petitioner, Delmar Reed, filed a timely

petition for post-conviction relief alleging ineffective assistance of counsel. Following a full

evidentiary hearing, the post-conviction court denied relief. Discerning no error, we affirm

the judgment of the post-conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and D. KELLY THOMAS, JR., JJ., joined.

Gerald S. Green, Memphis, Tennessee (on appeal); and Jeremy Parham, Nashville,

Tennessee (at evidentiary hearing), for the appellant, Delmar Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; Victor S. Johnson III, District Attorney General; and Rachael Sobrero,

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

OPINION

The petitioner’s convictions arose from acts committed against his thenestranged wife that occurred over several months in late 2005. As succinctly stated in this

court’s direct appeal opinion:

The victim testified that she was married to the
defendant and that they went through many periods of

separation. She said that they had an abusive relationship in

which he was physically and verbally violent toward her. The

defendant made many threatening phone calls to the victim both

at home and at her place of employment, including threats that

he would hurt or kill her and that the police could not stop or

catch him. Many of their arguments revolved around the

victim’s automobile. She also testified to an incident when her

son heard sounds outside their window. During this incident,

she looked out the window and saw the defendant “standing out

in the dark throwing [small rocks] up at the window with a – just

a white wife-beater shirt on.” The defendant moved for a

mistrial at the characterization of the shirt as a “wife-beater.”

The victim testified that on September 8, 2005, the

defendant repeatedly called at her work and threatened to kill

her for calling the police. He also told her that he would “burn

[her] ass out” and that she would have nowhere to live and

nothing to drive. That evening she received a telephone call

when the caller said, “Bitch . . . lemme show you what I’m

talking about.” She looked out the window and saw her car with

a grey car parked nearby. Moments later, she heard an

explosion, looked out the window, and saw her car “engulfed in

flames” with the defendant standing nearby. The victim

testified that the defendant called her while the police were

filling out a report and said, “Bitch I told you what I could do.”

The defendant continued to call the victim and tell

her that he was not finished with her or her children. After the

defendant’s bond hearing, he called her again and told her

“Bitch, you done messed up now.” She testified that the

defendant showed no remorse for his actions and that the

experience was horrifying for her.

Several witnesses testified for the defendant at

trial. One friend [Marion Jones] testified that the defendant had

stayed with her and her aunt in Murfreesboro during the time the

victim’s car was burned. She also testified that she drove a grey

car at the time the defendant stayed with her. Several witnesses

testified that they lived in the victim’s apartment complex

during the time the car was burned and said that they saw a

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black man run from the scene rather than drive away from the

scene.

State v. Delmar K. Reed, a.k.a. Delma K. Reed, No. M2007-00259-CCA-R3-CD, slip op. at

1-2 (Tenn. Crim. App., Nashville, Oct. 7, 2008). Following the petitioner’s convictions, the

trial court sentenced the petitioner to serve 19 years’ incarceration as a Range II, multiple

offender.

On April 23, 2009, the petitioner timely filed a pro se petition for postconviction relief alleging 93 specific instances of ineffective assistance of counsel in addition

to prosecutorial and judicial misconduct. Following the appointment of counsel, the

petitioner filed an amended petition alleging that his attorneys were ineffective in their

investigation of several witnesses, impeachment of the victim, failure to present proof at trial

that Ms. Jones set fire to the victim’s car, and failure to dismiss his indictment based upon

an improper joinder of offenses. The petitioner presented evidence relative to these

ineffective assistance of counsel claims at the March 30, 2010 hearing.

The petitioner testified that he was represented by multiple attorneys

throughout the pendency of his case in general sessions court to appeal. He stated that none

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of the attorneys adequately investigated his claim that Ms. Jones had set fire to the victim’s

vehicle. The petitioner testified that he initially believed that Ms. Jones would make a good

alibi witness but expressed concerns to counsel regarding this strategy when he came to

believe that Ms. Jones might have been “the one that did the crime.” The petitioner

presented copies of letters to counsel as evidence of his voicing these concerns.

The petitioner also testified that trial counsel failed to interview several

witnesses despite his urging them to do so. One witness, Decole Archery, was familiar with

the petitioner and victim’s relationship and would have discredited the victim’s claims of a

pattern of abusive behavior inflicted by the petitioner. Another witness, Reginald Gibbs,

would have testified that the petitioner asked Mr. Gibbs to retrieve clothing from the home

shared with the victim on the night of the alleged attempted aggravated burglary and that Mr.

Gibbs, not the petitioner, was the man at the home that night. The petitioner also claimed

that trial counsel should have questioned “Detective Pinkerton” concerning the relationship

between the petitioner and the victim and the fact that the victim “was continuously lying on

a regular basis” concerning incidents of abuse. The petitioner faulted trial counsel for not

It appears that at least three attorneys with the Davidson County District Public Defender’s Office

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represented the petitioner until sentencing, at which time private counsel was appointed, who represented

the petitioner through the completion of his direct appeal.

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presenting Elsie Jackson as an alibi witness for the setting fire to personal property offense.

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The petitioner claimed that trial counsel failed to utilize telephone logs which,

he claimed, did not show a series of phone calls and negated the harassment offenses. The

petitioner also faulted trial counsel for not presenting proof that the victim had visited him

five times while he was incarcerated awaiting trial.

On cross-examination, the petitioner admitted that the victim’s visits while he

was in jail occurred when he was jailed for previous instances of domestic abuse or

violations of a protective order. Likewise, he admitted that the victim never visited him after

his arrest on the conviction offenses. The petitioner denied that trial counsel met with him

regularly and characterized their meetings as counsel’s “just coming over to see me to

basically brush me off.” He also claimed that trial counsel told him that “we’re gonna win

this case regardless” of any alibi testimony presented.

Amber Cassidy, an investigator for the Davidson County District Public

Defender’s Office, testified that she had concerns regarding the veracity of Ms. Jones’s

statements when the petitioner’s “story changed” from that of Ms. Jones’s being an alibi

witness to her being a perpetrator. She also recalled that Ms. Jackson told her that the

petitioner was working for her in September 2005 doing “odd jobs” but that Ms. Jackson

could not confirm that the petitioner was home on the specific evening that someone set fire

to the victim’s car.

Reginald Gibbs testified that one day in early September 2005, the petitioner

asked him to go to the victim’s home to retrieve some clothing. Mr. Gibbs was aware that

the victim and the petitioner had been arguing. He said that he went to the victim’s home at

approximately 11:30 p.m. – “close to midnight.” He recalled knocking on the door and that

the victim eventually answered the door. She opened the door with the security chain still

in place. Mr. Gibbs said that the victim told him, “If you don’t get away from my g[**]

d[***] door, I’m going to call the mother f[******] police.” Mr. Gibbs testified that he then

decided to leave without retrieving the petitioner’s clothing. He denied that he “beat on” the

door or attempted to break the lock, as was alleged in the petitioner’s charges of attempted

aggravated burglary and misdemeanor vandalism. Mr. Gibbs testified that no one from the

public defender’s office interviewed him and that he had no reason to lie for the petitioner

at the evidentiary hearing.

Ms. Jackson was deceased at the time of the evidentiary hearing. It appears from the record that 2

she was the aunt of Ms. Jones and that the petitioner was residing with both ladies in Ms. Jackson’s home

in September 2005.

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Decole Archery testified that he had spent a lot of time with both the petitioner

and the victim and that he considered them “like family.” He said that he never saw the

petitioner become physically or verbally abusive toward the victim. He overheard one

argument when the victim became angry with the petitioner’s association with prostitutes and

his failure to provide the victim drugs. He said that he and the petitioner left the home before

the argument progressed any further. Mr. Archery testified that no attorneys contacted him

in preparation for the petitioner’s trial.

The first assistant district public defender assigned to the petitioner’s case

testified thatshe represented the petitioner at his preliminary hearing and bond hearing before

the case was assigned to a second attorney in the office. She recalled that Ms. Jones

contacted her office and said she wanted to testify on the petitioner’s behalf at the

preliminary hearing concerning an alibi. She recalled that the petitioner later told her that

Ms.Jones may have set fire to the victim’s car. When confronted with specific letters written

by the petitioner to trial counsel, she did not refute the letters despite not having specific

recollection of them. She said that it would be an “understatement” to say that she had

received several letters from the petitioner.

The second assistant district public defender who represented the petitioner

testified that he was “involved during the buildup” for trial. He recalled discussions with the

petitioner concerning possible alibi witnesses and the problems associated with Ms. Jones’s

testimony when the petitioner later disclosed his belief that she had burned the victim’s car.

For a time, the focus on alibi witnesses shifted to Ms. Jackson, but counsel testified that Ms.

Jackson was “very elderly and extremely vague” in her statement and that she did not make

a good alibi witness.

The third assistant district public defender testified that he was assigned the

petitioner’s case in mid-June 2006 just weeks before the case went to trial on July 10, 2006.

He recalled the petitioner’s claiming that he had sent someone to get his clothing at the

victim’s home as it related to the attempted aggravated burglary charge. He also stated,

however, that the claim “certainly didn’t jive with what [the victim] was saying.” He also

noted that the incident report of the attempted aggravated burglary indicated that it occurred

at approximately 1:25 a.m., close to two hours after Mr. Gibbs testified he had attempted to

retrieve the petitioner’s clothing at the victim’s home.

Counsel testified that the petitioner never mentioned Mr. Archery as a possible

witness to the petitioner and victim’s relationship. He opined that no real discrepancies

existed between the victim’s statements and her testimony at trial. He also admitted that,

despite the petitioner’s insistence, he did not interview the victim’s son because he

determined that nothing favorable could be gained by his testimony. Counsel confirmed that

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Ms. Jackson’s memory was “vague,” making her less than ideal as an alibi witness. Trial

counsel recalled that he went “back and forth” about Ms. Jones’s testifying at trial, but he

said that he did not believe the petitioner’s claim that Ms. Jones had set the fire. Counsel

recalled that the petitioner telephoned the victim repeatedly while the police were present at

the victim’s home on the night of the car burning. He admitted, therefore, that he did not

utilize telephone records because they would have further corroborated the victim’s

testimony concerning the calls.

John Hunter, III, the victim’s son, testified that he was at home when his

mother’s car was set on fire. He recalled seeing a grey car drive away and the petitioner’s

calling the victim almost immediately. Mr. Hunter said that he did not see the petitioner but

that his mother told him she had seen the petitioner near her car when it was set on fire.

In its order denying post-conviction relief, the post-conviction court accredited

the testimony of the attorneys. The court ruled that the attorneys had made sound tactical

decisions concerning the presentation and examination of witnesses based upon their

investigation. The post-conviction court also ruled that the testimony proffered at the

evidentiary hearing was either unknown to the attorneys at the time of trial, too uncertain (as

in the case of Ms. Jackson), or would not have been favorable (as in the case of Mr. Hunter).

Accordingly, the court ruled that the petitioner failed to prove his allegations by clear and

convincing evidence and denied relief.

On appeal, the petitioner contendsthat the multiple changes of counsel resulted

in an overall deficient representation. He also argues that the post-conviction court should

not have been allowed to preside over his evidentiary hearing given that it was the same court

that presided over his original trial.

The post-conviction petitioner bears the burden of proving his allegations by

clear and convincing evidence. See T.C.A. § 40-30-110(f) (2006). On appeal, the appellate

court accords to the post-conviction court’s findings of fact the weight of a jury verdict, and

these findings are conclusive on appeal unless the evidence preponderates against them.

Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631

(Tenn. Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive

no deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453

(Tenn. 2001).

To establish entitlement to post-conviction relief via a claim of ineffective

assistance of counsel, the post-conviction petitioner must affirmatively establish first that

“the advice given, or the services rendered by the attorney, are [not] within the range of

competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,

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936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an

adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other

words, the petitioner “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Should the petitioner fail to establish either deficient performance or prejudice, he is not

entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). Indeed, “[i]f

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

When reviewing a claim of ineffective assistance of counsel, we will not grant

the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

Such deference to the tactical decisions of counsel, however, applies only if the choices are

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

Claims of ineffective assistance of counsel are mixed questions of law and fact.

State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6, S.W.3d 453, 461

(Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual

findings, our review is de novo, and the post-conviction court’s conclusions of law are given

no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19

S.W.3d 762, 766 (Tenn. 2000).

The record in this case fully supports the findings of fact and conclusions of

law of the post-conviction court. The testimony of all the attorneys reveals that they

conducted a thorough investigation of the petitioner’s case and made sound tactical decisions

based upon that investigation. The trial record reveals the same. The petitioner failed to

establish either deficient performance or prejudice relative to his allegations.

As to the petitioner’s claim that the post-conviction court should not have

presided over his case, we note that the petitioner makes this allegation for the first time on

appeal. As such, any challenge to the post-conviction court’s ability to rule in this case has

been waived. See Woodson v. State, 608 S.W.2d 591, 593 (Tenn. Crim. App. 1980) (ruling

that the petitioner’s failure to object to the court’s qualification to preside over the case

waived any issue on appeal); see also Tenn. R. App. P. 13(b); 36 (appellate review is

generally limited to the issues raised and decided in the trial court). Furthermore, the

petitioner’s brief makes only a general allegation of judicial bias without reference to any

specific instance of bias, and we discern no such bias from the record before this court. In

that vein, any general claim that the original convicting court should be precluded from

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presiding over the subsequent post-conviction action is without merit. Harris v. State, 947

S.W.2d 156, 172 (Tenn. Crim. App. 1996) (“a judge is in no way disqualified merely because

he has participated in other legal proceedings against the same person”).

Conclusion

The record in this case fully supports the findings of fact and conclusions of

law of the post-conviction court. The judgment of the post-conviction court denying relief

is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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