IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 14, 2004 Session

KEITH DALE THOMAS v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Madison County

No. C02-336 Roger A. Page, Judge

No. W2004-00080-CCA-R3-PC

The petitioner, Keith Dale Thomas, was convicted by a jury in the Madison County Circuit Court

of first degree murder and possession of a deadly weapon with intent to employ it in the commission

of an offense. He received a total effective sentence of life plus two years incarceration in the

Tennessee Department of Correction. Subsequently, the petitioner filed a petition for postconviction relief, alleging that his trial counsel and his appellate counsel were ineffective. The postconviction court denied the petition, and the petitioner now appeals. Upon our 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 Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

ALAN E. GLENN, J., joined.

Joe H. Byrd, Jr., Jackson, Tennessee, for the appellant, Keith Dale Thomas.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

James G. Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At trial, the State adduced proof that on June 10, 1996, the petitioner and the victim were

married. See State v. Keith Dale Thomas, No. W1999-01938-CCA-R3-CD, 2001 WL 124525, at

*1 (Tenn. Crim. App. at Jackson, Feb. 6, 2001). Between 6:00 and 7:00 p.m. on June 10, 1996, the

petitioner called the victim’s sister and asked her to check on the victim. Id. The victim’s sister

called the victim’s house. Id. The five-year-old son of the petitioner and the victim answered the

telephone. Id. The victim’s sister asked to speak with the victim, and the child replied that she was

on the floor, dead. Id. The victim’s sister drove her boyfriend and her mother to the victim’s house.
 This surname is spelled both “Fouse” and “Fous” in the record. 

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Id. They found the pregnant victim still breathing. Id. An ambulance and police were called to the

scene. Id. The petitioner arrived shortly thereafter, driving a burgundy Dodge Dynasty. Id. 

The victim was taken to the hospital. Id. at *2. Police surveyed the premises and “found a

shotgun in plain view in the crawl space underneath the rear of the house.” Id. An officer recalled

that a burgundy Dodge Dynasty had been parked just down the street from the scene of the crime

earlier that day; however, when he returned to the location where the Dynasty was parked, there was

a white Plymouth Neon in its place. Id. Police searched the petitioner’s Dynasty and discovered a

shotgun shell matching those used in the murder weapon. Id. Police noticed that the petitioner’s

house was in disarray, and there was a family photograph “with an X over the victim’s face and a

dot on the [petitioner’s] head.” Id. 

Police discovered that the victim had been driving a white Plymouth Neon she had rented

from Enterprise Rent-a-Car. Id. at *3. There was an additional key for the Neon in the petitioner’s

vehicle. 

One of the victim’s co-workers testified that on June 10, 1996, she and the victim finished

working at Sears at approximately 6:00 p.m. Id. They left work and picked up their children from

daycare. Id. The victim left the co-worker’s house at 6:20 p.m., saying she was going home to

prepare dinner. Id. At 6:29 p.m., the petitioner called the co-worker, inquiring about the victim’s

whereabouts. Id. 

The petitioner’s girlfriend, Anita Fouse, testified that she and the petitioner had an intimate 1

relationship. Fouse recalled that the petitioner began the relationship by telling Fouse that he was

divorced. Id. at *5. Fouse asserted that she did not see the petitioner after 1:15 p.m. on the day of

the murder. Id. Specifically, Fouse denied that she had been to Cato’s with the petitioner on the day

of the murder. Id. She explained that she had been in Cato’s with the petitioner two weeks prior to

the murder. Id. at *7. After the victim’s death, the petitioner continued to deny to Fouse that he and

the victim were married at the time of the victim’s death. Id. at *5. 

Kevin Washington, a Chester County Jail inmate, testified that he had previously been

convicted of forgery and theft of property valued over $10,000. Id. at *6. Additionally, Washington

admitted that he was facing thirty-one counts of forgery in Madison County. Washington asserted

that prior to the murder, the petitioner gave him a book of checks in exchange for clothes and two

shotguns. Id. After the murder, Washington and the petitioner were incarcerated together. Id. The

petitioner told Washington that he “‘committed the perfect crime and got away with it.’” Id. Then,

the petitioner described how he killed the victim. Id. Additionally, the petitioner disclosed to

Washington that he was trying to obtain a check that Fouse wrote on the day of the murder to help

prove a possible alibi for himself. Id. 
 The other murders were committed by persons other than the petitioner. 

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Barbara Perry, an employee of Cato’s department store, recalled that the petitioner, Fouse,

and a small boy had been in the store on a Monday shortly before the store closed at 7:00 p.m. Id.

However, Perry could not remember the exact date that she had seen the petitioner. 

Based upon the foregoing, the petitioner was convicted of premeditated first degree murder

and possession of a deadly weapon with intent to employ it in the commission of an offense. He

received a sentence of life with the possibility of parole for his murder conviction and a sentence of

two years for his possession of a weapon offense. The trial court ordered the sentences to be served

consecutively. 

Subsequently, the petitioner, filed a pro se petition for post-conviction relief, alleging, among

other grounds, the ineffective assistance of counsel. Counsel was appointed to assist the petitioner,

and an amended petition was filed. Therein, the petitioner alleged that his trial counsel was

ineffective in failing to thoroughly question Washington regarding his extensive criminal history,

failing to interview the petitioner’s son regarding the victim’s murder, failing to obtain a copy of a

check written by Fouse to Cato’s on the day of the murder, failing to obtain daycare records to

further pinpoint the victim’s time of death, and failing to file pretrial motions. The petitioner also

contended that appellate counsel was ineffective in raising only the issue of the sufficiency of the

evidence on direct appeal. 

At the post-conviction hearing, the assistant district attorney who prosecuted the petitioner

testified that Washington contacted the District Attorney General’s office, offering information

relating to the victim’s murder, as well as other murders. Washington was awaiting trial on thirty- 2

one felony forgery charges relating to bad checks and was attempting to curry favor by assisting the

State. The prosecutor asserted that Washington was promised nothing in exchange for his testimony

against the petitioner; however, cooperation was generally a factor considered when negotiating with

an accused. 

The prosecutor testified that he had filed a notice of enhanced punishment in Washington’s

forgery cases listing Washington’s convictions in California and Arkansas. On the notice, the State

included theft and forgery convictions in Arkansas. Additionally, the notice included California

convictions of burglary, receiving stolen property, bad checks and grand theft. At the petitioner’s

trial, Washington testified that he had not been convicted of any offenses in California. The

prosecutor testified at the post-conviction hearing that he did not know if Washington was lying

because the information regarding the California convictions was obtained from an NCIC report and

certified copies of the convictions were not obtained. 

The prosecutor testified that during the petitioner’s trial, he did not ask Washington to

identify the murder weapon as being one of the shotguns that Washington had sold the petitioner.

In fact, the prosecutor asserted that because the jury heard of Washington’s extensive criminal

history of crimes of dishonesty, he attempted to “distance” his prosecution from Washington’s
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testimony due to Washington’s damaged credibility. The prosecutor specifically stated, “I argued

that the case was proved beyond a reasonable doubt, even if the jury were to totally disregard the

testimony of Mr. Washington.” The prosecutor explained that he called Washington to testify

primarily to elicit information that the petitioner revealed to Washington during their shared

incarceration. The prosecutor stated that such information could only have been revealed by the

perpetrator of the crime. 

After the petitioner was convicted, the prosecutor received a letter purportedly written by

Washington, recanting his testimony because the State had failed to honor their promises. After the

recantation, the prosecutor received a second letter from Washington, asserting that the recantation

had been written by an inmate named Tommy Warren. Washington admitted that he signed the letter

but claimed that he did not read it. Washington denied that he lied at the petitioner’s trial. 

The prosecutor also testified that the District Attorney General’s office had an open-file

policy regarding discovery. 

The petitioner’s trial counsel testified at the evidentiary hearing that he met with the

petitioner numerous times in preparation for trial. He and the petitioner had “a good communication

relationship.” Trial counsel hired an investigator to research Washington’s criminal history, and he

informed the petitioner of the findings. Trial counsel maintained that he was not suprised by any

evidence the State produced at trial, noting that he obtained all of the necessary materials from the

State via open-file discovery. Therefore, he saw no need to file pretrial motions. Trial counsel

acknowledged that Washington denied any California convictions, and trial counsel did not

challenge this assertion at the petitioner’s trial. Trial counsel opined that Washington’s credibility

was already severely damaged and there was no need to pursue the issue further. Trial counsel

stated, “I don’t know how a liar, once you can show that he’s a liar – He’s a liar. I mean, how many

times do you have to show it?” 

Trial counsel denied ever hearing that the petitioner’s son had stated that someone other than

the petitioner committed the murder. Trial counsel admitted that he never interviewed the child, but

he asserted that relatives informed him that the child would not talk about the incident. 

Trial counsel could not recall anyone testifying as to the victim’s precise time of death.

Nevertheless, at trial, trial counsel attempted to provide an alibi defense for the petitioner. However,

the petitioner’s alibi witness, Fouse, denied being with the petitioner at the time of the murder. Trial

counsel denied that the petitioner ever asked him to obtain a check purportedly written by Fouse to

Cato’s on the day of the murder. Additionally, trial counsel denied that the petitioner ever requested

that counsel obtain records from the daycare center to verify the time that the victim picked up her

children on the day of her death. 

The petitioner testified that he asked trial counsel to obtain the check Fouse purportedly

wrote to Cato’s on the day of the murder and the daycare records showing the time the victim picked

up her children on the day of the murder. The petitioner admitted that if the check existed, it would
 Appellate counsel did not testify at the post-conviction hearing. 

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only conclusively prove that Fouse was in Cato’s on the day of the murder; the check alone would

not provide the petitioner an alibi. The petitioner claimed that he and post-conviction counsel

attempted to obtain the check, but the electronic records had been destroyed. Additionally, the

petitioner claimed that he believed the daycare facility kept their records on computer for at least a

year. Further, the petitioner complained that he asked counsel to have his clothes tested for

gunpowder, blood, or tissue. 

The petitioner stated that he did not know Washington prior to being incarcerated with him,

and he further denied that he bought shotguns from Washington. The petitioner maintained that trial

counsel could have more thoroughly investigated Washington’s history and the substance of

Washington’s statement to police. 

The petitioner complained that he never met his appellate counsel; he merely communicated

with appellate counsel through correspondence. Appellate counsel never asked the petitioner which

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issues the petitioner would like to raise on direct appeal. Regardless, the petitioner testified that he

wrote to appellate counsel, informing him of the issues he wished to raise on direct appeal. 

Thomas R. Warren, Jr., testified at the post-conviction hearing that he was serving a ninetynine-year sentence for rape and had been incarcerated for almost thirty years. Warren was housed

in the Nashville Correctional Facility and did “legal work” within the jail. According to Warren,

Washington came to Warren’s cell seeking legal assistance. Washington inquired as to possible

methods to compel the State to honor an agreement they made to give Washington favorable

treatment in exchange for manufactured testimony against various parties, including the petitioner.

Warren wrote letters to the petitioner and the District Attorney General’s office, indicating that

Washington wanted to recant his testimony due to the State’s noncompliance with their agreement.

Warren denied receiving any benefit in exchange for writing the letters for petitioner. Warren

maintained that Washington “knew all along that it was [Warren’s] intent to try to undo the

messiness that he [Washington] had made in testifying against these people.” 

At the conclusion of the post-conviction hearing, the post-conviction court entered an order

denying the petition for post-conviction relief. The court found that the petitioner had failed to meet

his burden of establishing by clear and convincing evidence that he received ineffective assistance

from his counsel. The petitioner now appeals.

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. See 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.
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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

adduced at trial are to be resolved by the post-conviction court as the trier of fact. See 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. See 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. See 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). Moreover,

[b]ecause a petitioner must establish both prongs of the test, a failure

to prove either deficiency or prejudice provides a sufficient basis to

deny relief on the ineffective assistance claim. Indeed, a court need

not address the components in any particular order or even address

both if the [petitioner] makes an insufficient showing of one

component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

As we noted earlier, the petitioner alleges that his trial counsel was ineffective in failing to

thoroughly question Washington as to his extensive criminal history, failing to interview the

petitioner’s son regarding the victim’s murder, failing to obtain a copy of a check written by Fouse

to Cato’s on the day of the murder, failing to obtain daycare records to further pinpoint the victim’s

time of death, and failing to file pretrial motions. The petitioner also contends that appellate counsel

was ineffective in raising only the issue of the sufficiency of the evidence supporting his conviction

on direct appeal. 

First, we note that Washington’s extensive criminal history involving crimes of dishonesty

was clearly before the jury. Moreover, both the prosecutor and trial counsel noted that Washington’s

credibility with the jury was nil. Accordingly, the petitioner has failed to demonstrate how failing

to further question Washington regarding his criminal past was prejudicial. 
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The petitioner also complains regarding trial counsel’s failure to interview his son about the

murder. However, the petitioner’s son did not testify at the post-conviction hearing. Generally,

“[w]hen a petitioner contends that trial counsel failed to discover, interview, or present witnesses in

support of his defense, these witnesses should be presented by the petitioner at the evidentiary

hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not speculate on

what benefit this witness might have offered to the petitioner’s case, nor may we guess as to what

evidence further investigation may have uncovered. Id. Accordingly, the petitioner has failed to

demonstrate prejudice in this regard. 

As to the petitioner’s complaints regarding trial counsel’s failure to obtain Fouse’s check and

the daycare records, the petitioner has failed to prove that such records existed or that they would

have been beneficial to his case. Therefore, the petitioner has again failed to establish prejudice. 

Further, the petitioner bemoans trial counsel’s failure to file pretrial motions. However, the

petitioner concedes that he was not prejudiced by counsel’s failure to file pre-trial motions. This

issue is without merit. 

Finally, the petitioner argues that his appellate counsel should have met with him and raised

additional issues on direct appeal. However, this court has previously observed,

“[F]ailure to preserve and/or assert all arguable issues on appeal is not

per se ineffective assistance of counsel, since the failure to do so may

be a part of the counsel’s strategy of defense. Counsel is not

constitutionally required to argue every issue on appeal, or present

issues chosen by his client. The determination of which issues to

present on appeal is a matter of counsel’s discretion.”

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v. Swanson, 680

S.W.2d 487, 491 (Tenn. Crim. App. 1984)). Moreover, “[a]ppellate counsel are not constitutionally

required to raise every conceivable issue on appeal.” Carpenter v. State, 126 S.W.3d 879, 887

(Tenn. 2004). The petitioner has failed to prove what prejudice he suffered as a result of any alleged

deficiency of appellate counsel. 

III. Conclusion

Finding no error, we affirm the judgment of the post-conviction court. 

___________________________________ 

NORMA McGEE OGLE, JUDGE