IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 18, 2011

BARRY WAYNE DUNHAM v. STATE OF TENNESSEE

Appeal from the Criminal Court for Macon County

No. 97-71 David E. Durham, Judge

No. M2010-02586-CCA-R3-PC - Filed February 9, 2012

The Petitioner, Barry Wayne Dunham, appeals the Macon County Criminal Court’s denial

of post-conviction relief from his conviction for first degree murder, for which he is serving

a life sentence. The Petitioner contendsthat he received the ineffective assistance of counsel.

We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and JEFFREY S. BIVINS, JJ., joined.

A. Russell Brown, Lafayette, Tennessee, for the appellant, Barry Wayne Dunham.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Tom P. Thompson, District Attorney General; and Robert Hibbett, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The facts resulting in the Petitioner’s conviction were stated by this court in the direct

appeal:

On June 2, 1997, the Macon County Grand Jury charged

the defendant with premeditated first degree murder for the

April 23, 1997, shooting death of his father, Clinton Dunham.

On October 5, 1998, the defendant pled guilty to second degree

murder in exchange for a twenty-five-year sentence. However,

he was later granted post-conviction relief on the basis that his

sentence, which was ordered to be served at 85% parole release
eligibility rather than the 100% required by the violent offender

statute, was illegal and his guilty plea therefore unknowing and

involuntary. See Barry Dunham v. State, No.

M2000-02557-CCA-R3-PC, 2002 WL 242356, at *1 (Tenn.

Crim. App. Feb.11, 2002). The defendant was subsequently

tried before a jury, found guilty of first degree murder, and

sentenced to life imprisonment.

. . .

According to the State’s proof, the defendant killed the victim

with a single rifle shot to the head at close range as the victim

lay either asleep or passed out on his couch in his home in Red

Boiling Springs. The defendant wore gloves to avoid leaving

1

fingerprints and obtained the murder weapon, a 30-30 rifle, from

the victim’s home. After the shooting, the defendant leaned the

rifle against an inside wall near the back door and immediately

drove to Gamaliel, Kentucky, where he spent the night with his

girlfriend before returning early the next morning to “discover”

the victim’s body and call 9-1-1. Although he initially denied

any involvement in the crime, he eventually made a full

confession. Accordingly, his trial defense strategy included an

attempt to show that the killing occurred in self-defense and that

the lingering effects of his earlier stroke, combined with his

intoxicated state, prevented him from forming premeditation.

To that end, he presented proof, among other things, that the

victim was an alcoholic and a violent and abusive man. He also

presented evidence that the victim was under indictment for the

murder of Joe Frank Newberry at the time of his death and had

stated his intention of killing two of the witnesses who planned

to testify against him at his upcoming trial.

Evidence supporting the State’s theory that the victim was asleep or 1

unconscious at the time of his death included the defendant’s statement as

well as the position in which the victim’s body was found, with his head on

a pillow, arms crossed over hisstomach or chest, blanket covering his body

from feet to mid-torso, and partial denture removed from his mouth and

lying on top of the blanket on his stomach. In addition, the pathologist who

performed the autopsy of the victim’s body testified his blood-alcohol level

was .12% and his urine drug screen was positive for benzodiazepines at the

time of his death.

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Special Agent Roy Copeland of the Tennessee Bureau of

Investigation (“TBI”) conducted the initial interview of the

defendant at the crime scene on April 24, 1997. At that time,

the defendant claimed the victim was asleep when he last saw

him the previous evening at 9:00 or 9:15 p.m. before leaving to

spend the night with his girlfriend in Kentucky. Agent

Copeland acknowledged he learned during the course of his

investigation that the victim was a heavy drinker and that he had

a reputation as a violent man.

On May 5, 1997, TBI Special Agent Jason Locke

interviewed the defendant at the Macon County Sheriff’s Office.

During that interview, the defendant stated that he had spent the

morning of Wednesday, April 23, 1997, at the victim’s house

with the victim and Cynthia Denham, where they discussed the

victim’s plans for burning his house to collect insurance money

to pay his attorney’s fees. The defendant also stated that the

victim admitted to him in February 1997 that he had killed

Newberry and shot at Newberry’s wife, Francis, because

Newberry had stolen some chainsaws from him.

On May 6, 1997, Agent Locke conducted a second

interview in which the defendant ultimately confessed he shot

and killed the victim after the victim told him of his plans to kill

Francis Newberry and James Lyons, a friend of the defendant’s,

in order to prevent them from testifying at the victim’s murder

trial. The defendant’s May 6 statement, which Agent Locke

read aloud to the jury, states as follows:

On Wednesday, April 23, 1997, we had a

bunch of friends over at the pool room behind my

dad’s house. Before everyone got there, [D]ad

and I had been talking in the pool room. We

talked about me having a cocaine problem and I

told him I didn’t have one. We also talked about

him burning the house down the following Friday

night for insurance money to pay his attorney. I

had been helping him, and Cynthia Denham,

move furniture and other things out of the house

over the past week.

-3-
Dad told me he was going to kill Francis

Newberry before he was going to leave town

early Saturday morning. He also said he was

going to kill James Lyons because they were both

going to testify against him. When he started

telling me about James, he could tell I was getting

upset and he said, “[L]et’s just drop it.”

I helped him move a couple of chairs & a

loveseat out after that and everybody came over a

little while later.

Dad went inside at about 8:00 p.m. to go to

sleep and everyone else left at about 8:15 p.m. I

left the pool room at about 8:30 p.m. and went to

my trailer next door. I called my wife in Myrtle

Beach, S.C. & talked to her for 15-25 minutes.

I then walked over to [D]ad’s & got a pack

of cigarettes and hung up the cordless phone. I

walked back to the trailer. I thought about James

who used to be a good friend of mine and what

[D]ad had said about killing him. I had been

drinking and still was. I called Sabrena Green

and she asked me to come over and I told her I

would be over in 30 minutes to an hour. I

changed clothes & put on my new blue jeans &

cologne. I was headed out the door. I took a big

drink of Canadian Mist and the thought hit me

about killing [D]ad. I put my cup and liquor in

the car and sat down inside the car and lit a

cigarette. I put it in the ashtray and got out.

I walked to the back door and went inside.

I knew there was no way to wake [D]ad up. I got

the 30-30 rifle from behind the kitchen door and

cocked the rifle twice & put two shells in the floor

to make it look like a woman had done it.

I walked up to the couch where [D]ad was

and put the gun about a 1/2 inch to an inch away

-4-
from his head and shot him. I turned around and

walked out, shut the back door after putting the

rifle against the wall and left. Before I had gone

inside the house, I put on a pair of gloves that was

on the back deck under a duck [sic] on top of the

well house so I wouldn’t leave any fingerprints.

I don’t know what happened to the gloves.

I left and went to Sabrena’s. I came home

the next morning and got there at 6:10 a.m. I

changed clothes and walked over to [D]ad’s. I

made the phone call to Sandy [defendant’s sister]

and then to 911 and then walked down to the

trailer and got Timmy [defendant’s half-brother]

up.

Macon County Sheriff Joe Ferguson, who participated in

the May 6 interview, testified that after being interviewed for

some time, the defendant looked him in the eye and said, “Joe,

you have got me.” When he asked the defendant what he meant,

the defendant replied that he had killed his father and went on to

give the statement about the killing. Sheriff Ferguson testified

he was also present later that night at the jail when one of the

defendant’s sisters asked the defendant if he had killed their

father and the defendant replied, “[Y]es, I did.” Sheriff

Ferguson acknowledged that the victim was under indictment

for the murder of Joe Frank Newberry at the time of his death

and that the defendant replied to his sister, when she asked him

why he had committed the crime, “because it was never going

to stop,” or words to that effect.

Timothy Gravens, the defendant’s half-brother by the

same mother, was sharing a house trailer on the victim’s

property with the defendant at the time of the shooting. He

described the defendant and the victim’s relationship as “pretty

rough,” testifying that the victim had threatened to shoot the

defendant and burn his car and that both men had made

comments to him at various times about killing the other. He

acknowledged the victim, in addition, had commented to him

about killing Newberry and the witnessesto Newberry’s murder,

Francis Newberry and James Lyons. He further acknowledged

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the victim often mistreated the defendant, calling him

“worthless” and telling him he “wasn’t no good,” and the victim

was violent to other people and abusive to animals. Gravens

was aware of the victim’s plans to burn his house and was

present at the jail when the defendant said the reason he killed

the victim was “because it was never going to stop.”

Roger Dale Denham, the victim’s brother, testified the

defendant told him in a conversation the week before the

shooting that the victim was getting on his nerves and he wanted

him back on the boat. Denham later explained that the victim

worked on a river barge and was regularly absent from home for

weeks at a time. Denham testified the victim left Macon County

when the defendant was a small child and remained away for

years because he “got in so much trouble” with the law over

“break ins and everything.” He conceded the victim “was a

little mean” and had a reputation as a violent man when he was

“on the liquor.” According to Denham, the victim once shot a

jukebox in a bar, at another time fired his pistol in a bar, causing

a bullet to ricochet off the wall, and at yet another time

threatened to shoot Denham’s girlfriend.

Donna Trisdale, the defendant’ssister, testified the victim

and the defendant did not have a good relationship and got into

arguments whenever they were together. She said when she and

her siblings asked the defendant at the jail why he had killed

their father, he replied that “it had to be stopped.” Trisdale

testified on cross-examination that the victim was sober only

about half the time and that she avoided him when he was

drinking. She acknowledged the victim told her he killed

Newberry because Newberry stole two chainsaws from him and

that the victim also told her of his plans to burn his house.

The first witness the defendant presented in his defense

was his youngersister, Sandy Dugan. Dugan testified the victim

left home when she was six weeks old and the defendant was

one or two years old. During the years that followed, she

remembered meeting the victim when he returned for a visit

when she was eleven and seeing him again during visits when

she was approximately thirteen and sixteen. In 1991, the victim

bought the property he owned at the time of his death and, in

-6-
1992, moved into the house located on the property. Dugan

characterized the victim’s relationship with the defendant as

“good” except when the victim was drinking, which she

acknowledged occurred frequently. She said the victim was

often “ill and hateful” when on one of his drinking binges, and

she related an incident in the kitchen of his home when he

suddenly pulled out a gun and fired a shot that narrowly missed

her. According to Dugan, the victim told her before Newberry’s

murder that he planned to kill Newberry and bury his body in

Hippie Hollow. After the murder, the victim told her he was

going to have to kill the witnesses, specifically, Francis

Newberry and James Lyons.

Dugan testified the defendant suffered a severe stroke in

September 1996 that initially paralyzed the right side of his

body and rendered him unable to speak, walk, or care for

himself. Despite his eventual partial recovery, the defendant

was not “the same person” after his stroke. The defendant was

at her home the evening of Wednesday, April 23, 1997, when

the victim telephoned and said, “[Y]’all get y’all’s a-s-s out

here.” Recognizing from the victim’s voice that he was drunk,

she made an excuse about attending church but dropped the

defendant off at the victim’s house as the victim instructed.

Dugan explained thatshe knew what the defendant meant

when he told her that he had killed the victim because it was

“never going to stop”:

[A]nd I said, Barry, why did you do it? And he

said because it wasn’t [sic] never going to stop.

I said, regardless, you killed Daddy, and he

started crying and he said, I had to do it. I had to

do it so it would stop, and I knew what he was

going through and what he felt, because I knew

all of this stuff that was going on and it shouldn’t

have been going on, wasn’t supposed to be that

way. It’s not supposed to be that way.

Q. By that, you mean the killing of

witnesses?

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A. Yeah, just the way it went in general,

just the way it all went, just wasn’t supposed to be

that way. There was [sic] positions and situations

that we should never have been put in, things we

never should have seen and experienced. He was

doing things our kids going to school was [sic]

having to hear about. People was [sic] calling me

at the factory and would say, do you know what

I heard your daddy done [sic] last night? Me and

Donna [sic] would leave and go find Daddy, find

out what in the world he’d done. It was just

something all the time.

The defendant testified he currently lived in the victim’s

house and that he received social security disability benefits as

a result of his stroke. He said he did not have any kind of

regular relationship with the victim until March 1996 when he

came back to Tennessee and moved in with Gravens, who was

living in the trailer beside the victim’s home. He characterized

his relationship with the victim as good when the victim was

sober but bad whenever the victim was drinking, which was

often. He said that on one occasion when he refused to do

something the victim had asked, the victim pulled a .38 from a

cabinet and fired six shots at him, three between his legs as he

was sitting at the table and three more after he had run outside

onto the deck. He also described another occasion in which the

victim threatened him when he was reluctant to let the victim

use his car. Further, he corroborated Dugan’s testimony that he

was present at the time the victim fired his gun at Dugan.

The defendant testified his severe stroke, which occurred

on September 6, 1996, left him unable to speak with any clarity

for three or four months and unable to walk without the

assistance of a walker or cane. During his recuperation, the

victim, when drinking, “always put [him] down,” telling him

that he would “never be worth a shit again and things like that.”

The defendant testified the victim described to him how he had

killed Newberry. He said the victim told him he shot Newberry

as he and Mrs. Newberry were going out the door, tried for Mrs.

Newberry but missed, followed Newberry to his truck, shot him

again, instructed Lyons to come pick him up at Hippie Hollow,

-8-
and then drove Newberry in his truck to Hippie Hollow, where

he shot him six more times. The defendant said the victim also

spoke several times with him about his plans to burn his house

and, on the evening of April 23, 1997, told him he was “going

to get rid of” James Lyons and Mrs. Newberry before renting a

car on Friday or Saturday and leaving town. That same night,

the victim told him to retrieve the dynamite that he and Lyons,

per the victim’s instructions, had earlier buried.

2

The defendant testified he had taken a morphine pill that

afternoon and had also consumed about a half-gallon of

whiskey. He said he donned the gloves with the intention of

retrieving the dynamite but went directly inside the victim’s

house, picked up the murder weapon, and shot the victim. He

testified he “was scared because [the victim] made the statement

that he wasn’t going to leave any witnesses, and he was a

dangerous man.” In addition to the victim’s other violent acts,

the defendant was aware of the victim’s having shot a man in

the buttocks and kneecap in a bar and having fired shots in a bar

on another occasion in order to clear people from the pool table.

On cross-examination, the defendant conceded that the

victim did not like cocaine usage but denied that the victim

would have forced him to move out of the trailer if the victim

had found out he was using cocaine. He further denied the

“thought hit him” about killing the victim or that he sat in his car

for a while before entering the house. He testified he did not

eject the shells on the floor to make it appear as if a woman had

committed the crime, as he reported in his May 6 statement, but

the rifle had failed to fire when he first pulled the trigger and he

had returned to the kitchen to check if a bullet was in the

chamber:

James Lyons later testified that he remembered the victim’s having 2

instructed him and the defendant to hide the dynamite, which, he said, they

buried in Hippie Hollow. During his cross-examination testimony, Sheriff

Ferguson acknowledged a dynamite cap and possibly one stick of dynamite

had been uncovered on the victim’s property.

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The reason the two shells were in the floor

is because I went in to-at first when I was going to

kill him, I guess I didn’t have a bullet in the

chamber so it didn’t go off or misfired or

something. I don’t think there was a bullet in the

chamber, so I walked back in the kitchen, ejected

two shells out and walked back in there.

The defendant claimed he was not aiming at the victim’s

head when the fatal shot was fired but, instead, was holding the

weapon down at his side when the back door slammed shut and

the gun discharged. He said he was not himself because of the

3

severe brain damage he had suffered and insisted he made no

decision to kill the victim. Asked whether “it [was] self-defense

or ... an accident or [he] just didn’t know what [he was] doing,”

the defendant replied that he “really didn’t know what [he] was

doing.”

Francis Newberry related the events of January 16, 1997,

when her husband was murdered, describing how she heard

popping sounds as she and her husband were leaving the

victim’s house, looked back to see her husband fall, and then ran

when he told her the victim had shot him and instructed her to

flee. She said the victim was an “ill-like person” and a violent

man and she was afraid of him. She had never heard the victim

threaten the defendant but had heard him say mean and hateful

things to him. James Lyons, who was present at the victim’s

house on January 16, 1997, described the victim’s killing of

Newberry and said the victim was violent when he was drunk.

4

Kenny Frazier described a number of violent episodes

involving the victim. He testified the victim twice threatened

During the State’s case in chief, TBI Special Agent Steve Scott, a firearms 3

expert, testified that at the time he examined it, the murder weapon,

including its safety mechanism, was in proper working condition.

Lyons’ account essentially corroborated the detailsthe defendant testified

4

the victim had provided to him about the murder.

-10-
him, on one occasion shooting a gun around his feet and on

another occasion pulling a gun and threatening to shoot him. He

said he also witnessed the victim empty his gun into a car radio

because he did not like the music, shoot a jukebox because a

rock and roll song came on instead of the country music he

requested, shoot stray animals that came onto his property, and

pour alcohol on an African-American man in a bar and attempt

to set him on fire with a lighter. Frazier additionally testified he

was at the Valley View Tavern one night when a Mr. Tuck was

shot. Although he did not witness the actual shooting, the

victim was the only one present who had a gun.

Vesper Newberry, the owner of the Valley View Tavern,

confirmed that a man had been shot one night after closing time

outside his tavern and that the victim had been present in the

tavern before closing. He said the victim did not have a good

reputation in the community.

Dr. Pam Auble, a neuropsychologist, testified the

defendant had a full-scale I.Q. of 75. She said she diagnosed

him with dementia resulting from his stroke and from

alcoholism, and she opined that these factors prevented him

from being able “to exercise reflection and judgment at the time

of [the] offense.” Dr. Keith Caruso, a forensic psychiatrist,

testified he interviewed the defendant and reviewed Dr. Auble’s

report and concurred in Dr. Auble’s findings and results.

Specifically, he diagnosed the defendant with an anxiety

disorder not otherwise specified (“anxiety disorder NOS”),

dementia due to stroke, chronic alcohol abuse, polysubstance

abuse, and alcohol dependence, as well as alcohol intoxication

at the time of the offense. Dr. Caruso testified the defendant’s

anxiety disorder NOS caused him to have “a tendency to

misperceive or inaccurately judge the degree of threat that was

posed at a particular time,” and his dementia created problems

for him with “reasoning and planning.” In sum, he thought there

was “a lot to suggest” that at the time of the offense the

defendant “was not free of passion and excitement.” He

acknowledged, however, that it was “certainly” possible the

defendant had acted with premeditation.

-11-
State v. Barry Wayne Dunham, No. M2003-02802-CCA-R3-CD, Macon County (Tenn.

Crim. App. Mar. 1, 2005) (Tipton, P.J., dissenting), perm. app. denied (Tenn. Oct. 24, 2005).

The Petitioner filed a petition for post-conviction relief claiming that he received the

ineffective assistance of counsel because counsel failed to pursue a motion to suppress and

used one expert witness but failed to use another expert witness or witnesses.

At the post-conviction hearing, the forty-two-year-old Petitioner testified that he was

thirty-four years old at the time of his trial. He said that at the time of his father’s death on

April 23, 1997, he lived beside his father. The Petitioner suffered a stroke on September 6,

1996, from which he was disabled. He said that he had “severe brain damage,” that he was

paralyzed on the right side of his body, and that he had difficulty walking, talking, and

eating. He explained that the stroke also affected him mentally and said, “I just wasn’t

myself.” He received Social Security Disability payments due to his condition.

The Petitioner acknowledged that he drank alcohol “pretty much daily” at the time he

gave statements to law enforcement. He did not recall drinking on the morning he took a

polygraph examination but said he took Xanax, which was not prescribed for him. He said

he also smoked marijuana and took morphine around the time he gave the statements. He

said he wrote better than he read and thought he quit school in the sixth grade. He did not

recall whether law enforcement officers read him his rights in April before he signed the

waiver of his rights. He said he was just beginning to be able to sign his name with his right

hand.

The Petitioner testified that in hisfirststatement following the polygraph examination,

he was at the Macon County Ambulance Service with TBI Agent Jason Locke, Roy

Copeland, and Sheriff Joe Ferguson. He said Agent Locke informed him that he “failed it

ninety nine point nine percent” and that it would help him in the long run to admit what

happened. He said he was not able to think clearly at the time, nor was he able to do so two

days or two months later.

The Petitioner testified that after he was arrested, jailed, and appointed counsel, he

pled guilty to second degree murder, although he was later granted post-conviction relief

from that conviction due to a sentencing error. He and his trial counsel began preparing for

trial. He said that counsel never discussed filing a motion to suppress his statements or

explained why a motion to suppress would not be filed. He said there was no discussion of

the effect of his pretrial statements being admitted at the trial. The Petitioner did not recall

any objection to his statements being read at his trial. He acknowledged that he and counsel

discussed whether he would testify at the trial. He said he left to counsel the decisions about

which witnesses to call. He said that he did not want to testify but that counsel called him

the night before and told him he needed to testify. He said he used alcohol and drugs while

he was released on bond before the trial.

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The Petitioner testified that the defense was based upon his examinations with Dr.

Ann Goetting, Dr. Pamela Auble, and Dr. Keith Caruso. He said he met with Dr. Caruso

once for thirty to forty-five minutes, which he said was not enough time to discuss the

relevant facts. He said he was not asked to provide any other information to trial counsel for

Dr. Caruso, nor did he meet with trial counsel about Dr. Caruso’s anticipated testimony. He

said that he met with Dr. Goetting four or five times and that they spent several hours

together. He thought he met with Dr. Auble three times. She gave him several tests and

determined that his IQ was 75, which he acknowledged was in the “borderline retarded”

category.

5

The Petitioner testified that he met with Tom Bilbrey, an assistant public defender

who represented him, about once every three months from early 2001 until February 2003.

He said that he and Mr. Bilbrey had a good relationship and that he did what Mr. Bilbrey told

him. He said that in addition to his stroke, his alcohol and drug use and the events that were

occurring at the time affected his cognitive ability. He thought that since 1996, he had

improved greatly from the effects of his stroke.

On cross-examination, the Petitioner testified that his trial was in 2003, about six

years after his stroke. He agreed that he originally pled guilty and said the conviction was

set aside because he was not advised that he would have to serve 100% of his sentence. He

said he discussed his involvement in his father’s death with his attorneys and did not recall

ever denying that he killed his father. He later said, “We never talked much about what my

testimony was going to be.” He also claimed he could not recall whether they discussed his

prospective testimony. He did not recall telling his attorneys that he was present when his

father died. He did not recall giving his statement that he retrieved a rifle from behind the

kitchen door, cocked it, and placed two shells on the floor to make it look like a woman

killed the victim. He did not recall but did not deny testifying that there were two shells on

the floor because there were no bullets in the chamber when he was going to kill the victim,

that the gun did not fire or misfired, and that he walked to the kitchen and ejected two shells.

He neither recalled nor denied other trial testimony related to the crime. He said he was not

denying at the hearing that he was present when his father died or that he had a weapon in

his hand. He did not know how many motions his counsel filed. He denied knowing that the

defense filed a motion to suppress the 9-1-1 recording.

We note that on April 9, 2010, the General Assembly ordered all

5

references to “mental retardation” in Tennessee Code Annotated to be

changed to “intellectual disability.” See 2010 Tenn. Pub. Acts 734. The

testimony of the witnesses is provided as given. 

-13-
The Petitioner did not recall telling Dr. Caruso that he intended to kill his father, but

he did not deny that he made the statement. He did not recall Dr. Caruso testifying that

although the Petitioner said he did not intend to kill the victim, the Petitioner could not have

premeditated the killing. When asked whether he was present at his trial, he said, “My body

was, my mind wasn’t.” He did not recall if he told counsel to take his case to trial.

On redirect examination, the Petitioner testified that there were settlement

negotiations for him to plead guilty and receive a sentence of twenty-five years to be served

at 100%, but claimed he was told the sentence would be served at eighty-five percent. He

did not recall attending any motions hearings, including a hearing on a motion to suppress

the 9-1-1 recording. Likewise, he did not recall whether the recording was played for the

jury. He acknowledged that he still had memory problems.

One of the Petitioner’s two attorneys, Tom Bilbrey, testified that he was appointed to

represent the Petitioner following the grant of post-conviction relief. He said he had

practiced law for thirty-one years and had tried other first degree murder cases. At the time,

he was an assistant public defender, and the Petitioner’s other attorney, Comer Donnell, was

the district public defender. He said he might have worked on the Petitioner’s case more

because he was local, but he did not know if he was the lead attorney. He said that he met

with the Petitioner to prepare for trial and that the public defender’s investigator probably

met with the Petitioner more than he did.

Mr. Bilbrey testified that he had known the Petitioner since the Petitioner was four or

five years old, when the Petitioner was enrolled in a Head Start program where counsel had

been employed. He described the Petitioner as a cooperative client and active in the defense.

Mr. Bilbrey said that to his knowledge, the defense did not file a motion to suppress

the Petitioner’s statements. He said no oral motion was made to suppress the statements at

the trial. He could not recall whether there was any discussion of trying to have the

statements suppressed. He said that at the trial, the statements were displayed with an

overhead projector and that the Petitioner was asked line-by-line whether a statement was

true. Mr. Bilbrey said the Petitioner admitted in the statements that he killed his father. He

said that although the statements were damaging, the defense was based upon showing selfdefense and defense of others. He said there was also proof about the Petitioner’s stroke and

diminished mental capacity. He said that he knew from the beginning that the Petitioner

wanted to testify but that the Petitioner testified differently than the facts the Petitioner gave

in the statements. He said this was particularly the case about the gun not firing and the

Petitioner going into the kitchen, ejecting shells, and returning to the victim.

Mr. Bilbrey testified that the Petitioner had been “victimized” by the victim. He

described the victim as a vicious, violent man. He said it was reasonable to believe that the

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Petitioner lived in fear of the victim. He said that the victim had been charged with murder

and that there was proof the victim planned to kill two witnesses in the murder case.

Mr. Bilbrey testified that he did not recall whether the Petitioner made inculpatory

statements in addition to the statements to law enforcement. He thought the change in the

Petitioner’s version of events was the reason the Petitioner was convicted. He said that it

was theoretically possible that no trial would have occurred if the statements had been

suppressed but that he did not know.

Mr. Bilbrey testified that although the Petitioner’s education was limited, the

Petitioner seemed to understand their conversations. He said he knew about the Petitioner’s

background and IQ. He did not recall any concerns that the Petitioner’s IQ and history of a

stroke affected the Petitioner’s ability to waive his rights and give a statement. He said there

were several pretrial motions, although he could not remember whether he or co-counsel

argued the motion to suppress the 9-1-1 recording. He said that he did not always file a

motion to suppress pretrial statements in murder cases and that sometimes it was

advantageous for a defendant’s statement to be admitted.

Mr. Bilbrey testified that he counseled his clients to ask themselves what they could

add to their defense by testifying. He said he reviewed the “pros and cons” with them and

pointed out anything that would not be proven other than through the defendant’s testimony.

He said he would never tell a client whether the client could or could not testify.

Mr. Bilbrey testified that he argued for admission of Dr. Goetting’s testimony. He

said he did not know at the time that the trial judge had any propensity to rule against

admission of a sociologist’s testimony. He said he disagreed with the trial judge’s ruling and

noted that one of the appellate judges agreed with him in the Petitioner’s direct appeal. He

said that Dr. Goetting was a prominent expert in spousal abuse and the battered spouse

defense but that she had never testified about abuse involving a parent and a child.

Mr. Bilbrey testified that Dr. Auble’s testimony was favorable to the defense. He said

that Dr. Caruso’s testimony changed from direct examination to cross-examination. He said

that Dr. Caruso testified about the lack of premeditation but then changed his opinion after

the prosecutor had him listen to the 9-1-1 recording and asked the doctor whether the

Petitioner told him facts to which the Petitioner testified. He said that Dr. Caruso “didn’t

completely change his testimony but . . . conceded that maybe [the Petitioner] did

premeditate.” He was extremely disappointed in Dr. Caruso’s testimony. He said that he and

co-counsel met with Dr. Caruso before the trial to review Dr. Caruso’s testimony, which he

said “was basically consistent with what he testified to on direct.” He thought that two

investigators might have attended the meeting but did not think the Petitioner was present.

He noted, however, that the Petitioner met with Dr. Caruso before the trial and that he

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presumed the Petitioner gave Dr. Caruso the same factual information as was in the

Petitioner’s statements. He said he was not present for this meeting. He said his normal

practice was to make most discovery materials available to an expert witness, but he could

not recall whether Dr. Caruso had the 9-1-1 recording before the trial. He said he and Mr.

Donnell had no way of knowing that Dr. Caruso would change his opinion.

Mr. Bilbrey testified that he had no way of knowing that the Petitioner would testify

to different facts than those reflected in the statements. He thought he asked the Petitioner

what happened on the night of the crime. He said he had not previously heard about the gun

failing to fire, the Petitioner going to the kitchen to eject shells, the Petitioner returning to the

victim’s location, the door slamming, and the gun “just go[ing] off.”

Mr. Bilbrey testified that he did not recall the trial judge ever limiting him in offering

expert proof other than in the case of Dr. Goetting at the Petitioner’s trial. He could not

recall whether he and co-counsel considered or investigated other expert witnesses for the

Petitioner’s trial.

Mr. Bilbrey testified that he did not have any documentation in his file of a motion

to suppress. He said that in hindsight, he thought a motion to suppress would have been

unsuccessful but conceded, “Anything is possible.”

On cross-examination, Mr. Bilbrey agreed that the number sixteen sounded correct

as the number of motions filed by the defense. He said he met with all three experts before

the trial. He said Dr. Caruso gave no indication that he was wavering in his opinion about

diminished capacity and the lack of premeditation. He said, “It was right the opposite.”

The State did not present any proof. After considering the evidence, the trial court

found that the defense strategy from the beginning of the case was self-defense and that the

failure to pursue suppression of the Petitioner’s pretrial statements was “a purposeful

strategic move, not an ineffective omission.” The court found that the Petitioner failed to

show that there was a reasonable probability that even if the Petitioner had filed and

prevailed upon such a motion, the outcome of the trial would have been different. The court

also found that counsel could not have foreseen that the trial court would exclude Dr.

Goetting’s testimony or that Dr. Caruso would testify favorably for the State during crossexamination. The court found that both the exclusion of Dr. Goetting’s testimony and the

turn of events with Dr. Caruso’s testimony were matters that could happen in any proceeding

and did not reflect on the competence or effectiveness of the Petitioner’s attorneys. The trial

court noted that Mr. Bilbrey testified that he had known the Petitioner for a long time and

was familiar with the Petitioner’s traits and intellect and that the Petitioner was cooperative

and active in his defense. The court found that the Petitioner failed to present any evidence

of experts who would have testified favorably in his defense. The trial court denied relief.

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On appeal, the Petitioner contends that the trial court erred in denying his claims that

trial counsel were ineffective (1) in failing to file and pursue a motion to suppress his pretrial

statements, (2) in their use of expert witnesses, and (3) in failing to present expert proof that

he lacked the mens rea for first degree murder. The State contends that the trial court did not

err in finding that the Petitioner failed to prove his claims. We agree with the State.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we

are bound by the trial court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because a

petitioner must also show that but for the substandard performance, “the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland

standard has been applied to the right to counsel under article I, section 9 of the Tennessee

Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

show that the counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate 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. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id.

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were

“within the range of competence demanded of attorneysin criminal cases.” Further, the court

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stated that the range of competence was to be measured by the duties and criteria set forth

in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.

DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Baxter, 523 S.W.2d at 936. Also, in

reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689; see Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the defense

does not, alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521,

528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they

are informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201;

Hellard, 629 S.W.2d at 9.

The Petitioner claims that counsel were ineffective in failing to file and pursue a

motion to suppress his pretrial statements. Trial counsel testified that the defense strategy

was to show self-defense and defense of others. The Petitioner’s defense also involved

evidence that the victim was a violent man and that he had tormented the Petitioner. The

defense never sought to show that the Petitioner did not kill the victim. The Petitioner’s

pretrial statements included evidence that the victim killed a man who stole chainsaws and

shot at the man’s wife, that the victim planned to burn a house to collect the insurance

proceeds to pay his attorney’s fees, and that the Petitioner killed the victim after the victim

advised him of plans to kill two people to prevent them from testifying against the victim.

The Petitioner also described the circumstances and manner in which he killed the victim.

The Petitioner’s statements, including his admitting he shot the victim, demonstrate that the

circumstances in which he did so were consistent with theories of self-defense and defense

of others. Although there was proof that the Petitioner suffered cognitive effects from a

stroke, used alcohol and drugs regularly, and had a borderline intellectual disability, there

was also proof that the Petitioner did not exhibit impairment. Mr. Bilbrey testified that in

retrospect, he saw no basis for a meritorious motion to suppress the statements. The evidence

does not preponderate against the trial court’s conclusions that trial counsel’s performance

was not deficient and that the Petitioner failed to prove prejudice. The Petitioner is not

entitled to relief.

The Petitioner also claims that counsel provided ineffective assistance by their use of

Dr. Goetting, whose testimony the trial court excluded, and Dr. Caruso, who testified

unfavorably to the defense on cross-examination, as expert witnesses. Regarding Dr.

Goetting’s testimony, we note that the majority of the court in the Petitioner’s direct appeal

held that the trial court did not abuse its discretion in excluding her testimony as an expert,

on the basis that her testimony was neither reliable nor relevant, but the dissent concluded

that the trial court should have allowed the testimony. See Barry Wayne Dunham, slip op.

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(Tipton, P.J., dissenting). In any event, Mr. Bilbrey testified that he did not know the trial

court would exclude Dr. Goetting’s testimony because she was a sociologist. There was no

proof at the post-conviction hearing that the trial court had such a policy of which trial

counsel should have been aware. We conclude that the Petitioner has not shown that

counsel’s performance was deficient.

We also conclude that the Petitioner did not demonstrate that he was prejudiced by

counsel’s performance. He did not offer testimony of an expert witness other than a

sociologist relative to homicide related to parent/child abuse. Without proof of a different

expert whose testimony the trial court would have admitted, he has not demonstrated that he

was prejudiced by counsel’s reliance on Dr. Goetting, to the exclusion of a different expert

witness who would have been allowed to testify. The Petitioner is not entitled to relief on

this basis.

As for the Petitioner’s claims relative to Dr. Caruso, Mr. Bilbrey testified that he met

with Dr. Caruso, as did the Petitioner on a separate occasion. Counsel did not know whether

Dr. Caruso reviewed the 9-1-1 recording before the trial, but he testified that Dr. Caruso’s

concession on cross-examination that it was possible the Petitioner premeditated the killing

was after Dr. Caruso both heard the 9-1-1 recording and learned of the Petitioner’s testimony

that was at odds with the pretrial statements. Counsel testified that his usual practice was to

provide expert witnesses with the relevant discovery. A review of Dr. Caruso’sreport, which

was an exhibit at the post-conviction hearing, does not support a conclusion that Dr. Caruso

was provided with the 9-1-1 recording before the trial. The report lists over 100 items

provided to the expert, none of which is designated as a 9-1-1 recording. We have reviewed

the record from the Petitioner’s direct appeal and note that Dr. Caruso testified on crossexamination that he had not heard the 9-1-1 recording.

Even if counsel’s failure to provide the 9-1-1 recording to Dr. Caruso was deficient,

the Petitioner cannot overcome the effect his own trial testimony had on Dr. Caruso’s

testimony on cross-examination. The Petitioner testified at the trial that he fired the rifle at

his father, that it failed to fire or misfired, that he walked into the kitchen and ejected two

shells, and that he returned to the room where the victim was. This testimony provided proof

from which a jury could conclude that the Petitioner premeditated the killing. We conclude

that the evidence does not preponderate against the trial court’s findings relative to trial

counsel’s use of expert witnesses. The Petitioner is not entitled to relief.

The Petitioner’sfinal claim isthat counsel were ineffective by failing to present expert

proof that the Petitioner lacked the mens rea for first degree murder. We note that counsel

offered the testimony of two experts, Dr. Auble and Dr. Caruso, and attempted to offer Dr.

Goetting’s testimony on this point. As noted by the trial court, the Petitioner failed to offer

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any expert proof to this effect at the hearing. Without evidence that favorable defense expert

testimony would have been available to trial counsel, the Petitioner cannot establish that

counsel’s performance was deficient or that he was prejudiced by counsel’s failure to avail

the defense of such a witness. The Petitioner is not entitled to relief.

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

court is affirmed.

____________________________________

JOSEPH M.TIPTON, PRESIDING JUDGE

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