IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 18, 2003 Session

LARRY STEPHEN BRUMIT v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Rutherford County

No. F-51873 Don R. Ash, Judge

No. M2003-00488-CCA-R3-PC - Filed May 12, 2004

The petitioner, Larry Stephen Brumit, filed for post-conviction relief from 1996 convictions for two

counts of first degree murder and one count of conspiracy to commit first degree murder. The postconviction court denied the petition. In this appeal, the petitioner argues (1) that the petition was not

barred by the applicable statute of limitations; and (2) that he was denied the effective assistance of

counsel. The judgment is affirmed.

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

GARY R.WADE,P.J., delivered the opinion of the court, in which THOMAS T.WOODALL and NORMA

MCGEE OGLE, JJ., joined.

W.H. Stephenson, II, Nashville, Tennessee, for the appellant, Larry Stephen Brumit.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney

General; and William C. Whitesell, District Attorney General, for the appellee, State of Tennessee.

OPINION

Following a jury trial, the petitioner was convicted of two counts of first degree murder, for

which he received concurrent sentences of life with parole, and one count of conspiracy to commit

first degree murder, for which he received a consecutive sentence of twenty-five years. This court

affirmed the convictions and sentences on direct appeal. See State v. Larry S. Brumit, M1999-

00154-CCA-R3-CD (Tenn. Crim. App., at Nashville, Apr. 28, 2000). On December 4, 2000, our

supreme court denied permission to appeal. In determining that the evidence was sufficient to

support the convictions, this court summarized the proof at trial as follows:

The charges . . . stem from the shooting deaths of two victims, James Albert

“Bubba” Summar, II, and Brian Anthony Bettis. . . . [B]oth victims were discovered

dead behind a trailer located on Liberty Gap Road in a remote area of Rutherford

County.
-2-

* * *

The [s]tate presented several witnesses who linked the [petitioner] socially to a

“circle” of people who dealt marijuana, including Wayne Cartwright and [codefendant] Mike Rhodes, with whom he was known to be friends. Evidence

presented at trial also established that [the victims] were known to be friends. In

addition, the [s]tate presented evidence that before his death, victim Summar worked

as a police informant and was named in an indictment against Cartwright.

Witnesses testified that both the [petitioner] and co-defendant Rhodes were

upset that Summar had been working undercover with police. Doug Bicknell and

Josh Summar both testified that the [petitioner] and Summar did not like each other.

Bicknell quoted the [petitioner] as saying that Summar was a “punk” and that “he

would see that the little punk would get what was coming to him” because of his

involvement with police. Bicknell also quoted the [petitioner] as saying that “he let

his gun do his fighting for him.” Furthermore, Martin Rhodes stated that he had seen

the [petitioner] with a .38 caliber handgun, the same type of weapon which was used

to kill Bubba Summar.

On the evening of the murders, Summar informed friends that he and Bettis

were to meet with Rhodes. He took a box of marijuana with him to the trailer. At

the same time, Rhodes, who was intoxicated, and the [petitioner] discussed meeting

Summar and then went to the trailer, where the victims’ bodies were later found.

Tabitha Rhodes testified when they returned, the [petitioner] and her husband pulled

into her driveway on the night of the murders so quickly that they startled her. She

stated that while her husband “rustl[ed] around on the floorboard,” the [petitioner]

“darted out to his car and left.” Bettis’ pistol was later found behind Rhodes’ home.

Tabitha Rhodes also reported that the [petitioner] told her, “it did not have to happen

that way, that they drew on him first and he did what he had to do.”

The [petitioner’s] roommate, Donald Ivey, testified that when the [petitioner]

arrived home on the night of the shootings, he immediately began to wash clothes

while he ran water for a bath. When Ivey jokingly asked the [petitioner] whether he

had killed someone, the [petitioner] first did not respond but later answered, “You

can't help being in the wrong place at the wrong time; can you?” Furthermore, the

medical examiner who performed autopsies on the victims’ bodies testified that

Bettis likely coughed up blood before his death and agreed that a person in close

proximity to Bettis at the time would likely have been splattered with blood.

The [petitioner] himself admitted his presence at the trailer at the time of the

shootings. He also presented inconsistent versions of the shootings to police, but

insisted that his co-defendant Rhodes actually fired the shots that killed both victims.

In addition, Lieutenant Detective Gage introduced an audio tape of a conversation

between the Defendant and co-defendant Rhodes in which the Defendant made,
-3-

among others, the following statements: “If nothing had ever been said, we'd be

walking out today”; and “What was originally agreed on was if they had me, that you

would take responsibility.”

Id., slip op. at 2,10-11.

On December 27, 2001, over a year after the denial of an application for permission to

appeal, the petitioner filed a pro se petition for post-conviction relief alleging, among other things,

the ineffectiveness of trial counsel. The post-conviction court appointed counsel and set the matter

for a hearing, expressing concern in its written order that the petition was filed outside the applicable

one-year statute of limitations. At the hearing, the post-conviction court initially heard testimony

concerning the timeliness of the petition but also accepted proof on the petitioner’s substantive

claims.

With regard to the timeliness issue, the petitioner testified that based on a letter he had

received from his appellate counsel, he believed that he had until December 18, 2001, to file his

post-conviction petition. The letter, which was dated December 18, 2000, contained the following

information:

I have received notice that the [s]tate [s]upreme [c]ourt denied our permission

to appeal. This will end my representation of you in this matter. We have now

appealed as far as I am able to appeal.

You now have one (1) year within which to file a [p]ost-[c]onviction petition.

You must notify the trial court that you need the necessary documents with which to

file. You must also advise them (through the clerk’s office) that you are indigent and

need counsel appointed.

The petitioner, who was in solitary confinement at the time he prepared his petition, testified that he

initially tried to mail the petition on December 3. According to the petitioner, a notary public who

visited his cell on that date to notarize his signature, informed him that she did not “handle” mailing.

The petitioner explained that he was on “lock down” twenty-three hours a day and that an officer did

not arrive to collect the petition for mailing until the 7th, one year and three days after the denial of

the application for permission to appeal to our supreme court. He contended that although the

petition had been date stamped by the court clerk as having been filed on December 27th, he had

received a return receipt indicating that it had been delivered on the 10th. The petitioner claimed that

appellate counsel had not sent him a copy of the supreme court’s order denying his application for

permission to appeal and adamantly maintained that the document had not been enclosed in the

letter.

Appellate counsel testified that he represented the petitioner at sentencing and at the motion

for new trial as well as in his direct appeal to this court. He confirmed sending the December 18,

2000, letter to the petitioner but could not recall whether he had enclosed the supreme court’s order
-4-

denying permission to appeal. He acknowledged that the failure to have done so would have been

“an omission on [his] part.” 

With regard to the petitioner’s substantive claims, the petitioner’s trial counsel, who was an

assistant public defender, testified that his office was appointed to represent the petitioner at the

inception of the case. He recalled that at their initial meeting, the petitioner insisted that he was not

present at the time of the offenses. Trial counsel testified that at the preliminary hearing, however,

the state produced a transcript of a recorded conversation between the petitioner and his co-defendant

Rhodes wherein each had made inculpatory statements while seated together in the back seat of a

police car. According to trial counsel, the petitioner had also given videotaped statements to the

police and these statements were edited by stipulation before being presented to the jury. Although

he could specifically recall having reviewed all of co-defendant Rhodes’s unedited videotaped

statements with the petitioner, trial counsel could not remember whether they had reviewed the

petitioner’s unedited statements. Trial counsel explained that his file did not include any

correspondence to the petitioner because they usually communicated “face to face.” Although there

was nothing to indicate that he had sent the petitioner copies of the various motions and orders filed

in the case, he insisted that “[a]t some point [he] gave [the petitioner] copies of everything.” 

Trial counsel testified that the defense theory at trial conceded that the petitioner was present

at the time of the offenses but argued that his co-defendant Rhodes was the perpetrator of the crimes.

He denied having represented to the petitioner that it was important that the petitioner be jointly tried

with Rhodes but acknowledged that “[i]t probably would have been better from our standpoint, I

guess looking back on it. If we would have had somebody else sitting there in the courtroom to point

the finger at.” Trial counsel initially stated that he had opposed the state’s severance motion but he

agreed that the transcript indicated that the motion had been attended by another assistant public

defender who announced that the defendant was “taking no position in regard to [the severance]

motion.” Trial counsel explained that he had a physical ailment at that time. He agreed that there

were differences between the first and second versions of the cruiser conversation transcript

produced by the state and acknowledged that he did not object or otherwise draw attention to the

differences. It was trial counsel’s opinion, however, that the transcript “didn’t . . . really hurt us.”

While pointing out that he may have gone to hear some of the testimony, trial counsel testified that

he never planned to attend the trial of co-defendant Rhodes and never promised the petitioner that

he would. He acknowledged that he did not interview all of the persons identified on the state’s

witness list and yet noted that another assistant public defender working on the case had

“interviewed some people on his own.” He recalled that there was evidence that the victims were

drug dealers and considered that to be favorable for the defense: “I felt like it was in . . . [the

petitioner’s] best interest[] for the victims and the man that he was blaming . . . [to] be presented in

the worst light possible.” According to trial counsel, a claim of self-defense was not feasible because

the petitioner “said he didn’t do it.” 

The petitioner testified as a part of the evidentiary hearing that he first met with trial counsel

at the jail “a few days” after his arrest and that they later met “a few times” before trial. He claimed

that trial counsel never provided him with paperwork and would not interview witnesses. The
-5-

petitioner recalled that trial counsel’s initial defense theory was to discredit Rhodes because “he

[had] told so many lies in his statement to the police.” He contended that in February of 1996, he

was “suddenly” brought to appear in court and that upon his arrival another attorney advised him that

trial counsel “had to be somewhere else” and she would be representing him. The petitioner asserted

that they “got into an argument and the next thing I know she stands up and says something to the

[c]ourt, sits back down, it’s over with and we leave. I didn’t even know what we were there for.”

He claimed that when he later discovered that the proceeding had been a severance hearing, trial

counsel explained that he planned to attend the trial of co-defendant Rhodes in order to learn the trial

strategy of the prosecution. The petitioner stated that he and trial counsel argued “hot and heavy”

and yet claimed that the only document that he received from trial counsel was a copy of the first

version of the transcript of his police-car conversation with co-defendant Rhodes. According to the

petitioner, trial counsel showed him a two-hour edited version of his videotaped statements to police

but never showed him the unedited videotapes. It was his recollection that when trial counsel

attempted to get a transcript of co-defendant Rhodes’s trial, he was permitted only portions of the

record. The petitioner acknowledged that he escaped from jail on January 29, 1996, returning two

days later. It was his contention that he did not initially lie to trial counsel regarding his involvement

in the offenses.

Appellate counsel, who was appointed to represent the petitioner for purposes of the motion

for new trial and direct appeal, testified that he initially asked for the file from the public defender’s

office but was denied access because the petitioner had filed a civil lawsuit against trial counsel.

Appellate counsel recalled that he was given the file, which he did not believe to be complete,

approximately one to one and one-half years later. It was his opinion that there was “a complete lack

of investigation” by trial counsel. Appellate counsel testified that he would have moved to suppress

the petitioner’s squad-car conversation with co-defendant Rhodes on the grounds that it was not in

furtherance of any conspiracy. He stated that he would have challenged the admissibility of the

petitioner’s videotaped statements on the grounds that they were involuntary, and he contended that

he would have objected to the testimony of Bicknell. Appellate counsel explained that he did not

present the ineffectiveness of trial counsel on appeal because he did not want to adversely affect the

petitioner’s potential post-conviction claims. 

At the conclusion of the hearing, the post-conviction court found that the petitioner’s claims

were barred by the statute of limitations. It also held that the petitioner had failed to prove that he

was entitled to relief on the grounds of ineffective assistance of counsel. 

I

Initially, the petitioner asserts that the trial court erred by finding that his claims were timebarred, contending that the “interest[s] of justice” require a determination that his petition was timely

filed. The state argues otherwise.

The original Post-Conviction Procedure Act of 1967 did not include a statute of limitations.

On July 1, 1986, the General Assembly adopted a three-year statute of limitations. See Tenn. Code

Ann. § 40-30-102 (repealed 1995). In 1995, our legislature passed the new Post-Conviction
-6-

Procedure Act, which is applicable to all petitions filed after May 10, 1995, and provides, in

pertinent part, as follows:

(a) Except as provided in subsections (b) and (c), a person in custody under

a sentence of a court of this state must petition for post-conviction relief under this

part within one (1) year of the date of the final action of the highest state appellate

court to which an appeal is taken or, if no appeal is taken, within one (1) year of the

date on which the judgment became final, or consideration of such petition shall be

barred. The statute of limitations shall not be tolled for any reason, including any

tolling or saving provision otherwise available at law or equity. Time is of the

essence of the right to file a petition for post-conviction relief or motion to reopen

established by this chapter, and the one-year limitations period is an element of the

right to file such an action and is a condition upon its exercise. Except as specifically

provided in subsections (b) and (c), the right to file a petition for post-conviction

relief or a motion to reopen under this chapter shall be extinguished upon the

expiration of the limitations period.

Tenn. Code Ann. § 40-30-202(a). In 2003, the Post-Conviction Procedure Act was renumbered

within the Code. It now appears at sections 40-30-101 through 40-30-122.

Rule 2(G) of the Tennessee Rules of Post-Conviction Procedure governs filings:

Papers required or permitted to be filed by the rules of post-conviction

procedure, when filed by an attorney or a pro se petitioner who is not incarcerated,

are filed when received by the clerk of court.

If papers required or permitted to be filed by these rules are prepared by or on

behalf of a pro se petitioner incarcerated in a correctional facility and are not received

by the clerk of the court until after the time fixed for filing, filing shall be timely if

the papers were delivered to the appropriate individual at the correctional facility

within the time fixed for filing. . . . Should timeliness of filing or service become an

issue, the burden is on the pro se petitioner to establish compliance with this

provision.

Tenn. Sup. Ct. R. 28 § 2(G) (emphasis added). Similarly, Tennessee Rule of Criminal Procedure

49(c) provides, in pertinent part, as follows:

If papers required or permitted to be filed pursuant to the rules of criminal

procedure are prepared by or on behalf of a pro se litigant incarcerated in a

correctional facility and are not received by the clerk of the court until after the time

fixed for filing, filing shall be timely if the papers were delivered to the appropriate

individual at the correctional facility within the time fixed for filing.

Tenn. R. Crim. P. 49(c).
-7-

Tennessee Code Annotated section 40-30-202(b) establishes when a court may consider a

petition filed outside the statutory limitations period. That statute provides as follows:

(b) No court shall have jurisdiction to consider a petition filed after such time

unless:

(1) The claim in the petition is based upon a final ruling of an appellate court

establishing a constitutional right that was not recognized at the time of trial, if

retrospective application of that right is required. . . . ;

(2) The claim in the petition is based upon new scientific evidence

establishing that such petitioner is actually innocent of the offense or offenses for

which the petitioner was convicted; or

(3) The claim asserted in the petition seeks relief from a sentence that was

enhanced because of a previous conviction and such conviction in the case in which

the claim is asserted was not a guilty plea with an agreed sentence, and the previous

conviction has subsequently been held to be invalid.

Tenn. Code Ann. § 40-30-202(b).

InBurford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our supreme court held that in certain

situations application of the statute of limitations in a post-conviction proceeding might violate

constitutional due process. In determining whether there has been such a violation, the essential

question is whether the time period allowed by law provides the petitioner a fair and reasonable

opportunity to file suit. Id. In Burford, the petitioner could not have filed within the three-year

limitation absent a determination on his prior post-conviction petition. Our supreme court ruled that

Burford was “caught in a procedural trap and unable to initiate litigation . . . despite the approach

of the three-year limitation.” Id.

Recently, in Williams v. State, 44 S.W.3d 464 (Tenn. 2001), our supreme court held that

strict application of the statute of limitations to cases in which a petitioner has been unilaterally

deprived of the opportunity to seek second-tier review of his convictions might violate due process.

Williams’s attorney filed a motion to withdraw as counsel some nine months after his convictions

were affirmed by this court. His motion included an assertion that he had timely sent a notification

of the disposition of the appeal but later learned that Williams did not receive the notification.

Counsel then asked for additional time within which to file an application for permission to appeal

to the supreme court. The request was denied as untimely. Williams then filed a pro se petition for

post-conviction relief outside the one-year statute of limitations. Our supreme court ruled that “due

process considerations may have tolled the running of the statute of limitations for filing a postconviction petition” and remanded the case “for an evidentiary hearing to determine the

circumstances surrounding [Williams’] filing of his post-conviction petition.” Id. at 467.

In Williams, our high court emphasized that an attorney’s misrepresentation, as opposed to

mere negligence, could result in due process tolling. Id. at 468-71. It determined that “an attorney’s

misrepresentation . . . would also be beyond a defendant’s control” and could preclude the defendant
-8-

from independently seeking relief. Id. at 469. Specifically, the court concluded that “[i]f Williams

was under the impression that a Rule 11 application was pending during this time, then he was

precluded from acting pro se to pursue post-conviction relief while presumably being represented

by counsel.” Id. at 471. Our supreme court observed that “[t]he question, then, is whether the

appellee was, in fact, misled to believe that counsel was continuing the appeals process, thereby

requiring the tolling of the limitations period.” Id. The limitations period is tolled “during [the] time

when the [petitioner] was unable to seek [post-conviction] relief.” Id. at 464.

At the close of the hearing, the post-conviction court ruled on the timeliness issue as follows:

And . . . the case of Marco D. Butler vs. State of Tennessee, which is a

[s]upreme [c]ourt case, . . . talks about delivering to an appropriate individual. . . .

And it says, . . . any such calculus should include an accounting of the rules,

guidelines and[/]or customary practices relating [to] the prison mail system used by

the correctional facility in question, as well as any other factors deemed appropriate

under the circumstances. And [the petitioner] . . . put on no proof as to what those

circumstances would be. . . . And I don’t believe that you didn’t know it was

December 4th. . . . 

Our supreme court denied the petitioner’s application for permission to appeal on December

4, 2000. Any petition for post-conviction relief was, therefore, due to be filed on or before

December 4, 2001. The petitioner’s signature on the pro se petition was notarized on December 3,

2001, the date on which the petitioner claims to have initially presented the petition to the attesting

notary public for filing. Thus, under Post-Conviction Procedure Rule 2(G) and Tennessee Rule of

Criminal Procedure 49, the filing would have been timely if the notary public were the “appropriate

individual at the correctional facility” to receive it for mailing. There is no evidence in the record

regarding the prison’s mail system or the role of the notary, if any, therein. So, as hard as the result

may be, it appears that the trial court correctly ruled that the petitioner failed to meet his burden of

proof. In Butler v. State, 92 S.W.3d 391, 391 (Tenn. 2002), our high court stated as follows:

Determining who is an “appropriate individual” for purposes of filing

post-conviction petitions under Rule 28 § 2(G) or Tennessee Rule of Criminal

Procedure 49(c) will be a question of fact best resolved by the various trial courts of

this state. We decline to adopt a bright-line rule in this regard because different

correctional facilities may have divergent guidelines or customs regarding the

appropriate individual(s) to whom prisoners should file legal mail. However, any

such calculus should include an accounting of the rules, guidelines, and/or customary

practices relating to the prison mail system used by the correctional facility in

question, as well as any other factor(s) deemed appropriate under the circumstances.

With the record devoid of any proof of the circumstances surrounding the mailing of the petition,

the petitioner has not demonstrated that his filing was timely by virtue of his having presented it to

the notary public. 
-9-

Likewise, the petitioner’s claims are time-barred even if the statute of limitations was tolled

by appellate counsel’s failure to fully advise the petitioner regarding the date that our supreme court

denied permission to appeal. In our view, the December 18, 2000, letter from appellate counsel was

inadequate to inform the petitioner of the statute of limitations. The letter did not purport to include

a copy of the supreme court’s order denying permission to appeal and appellate counsel conceded

that he did not recall having enclosed a copy. The letter did not contain the date of the order. Thus,

by use of the Williams rationale, due process concerns may have tolled the statute of limitations until

December 18, 2001. The post-conviction judge, however, who heard the testimony first-hand and

was able to observe the demeanor of the witnesses, concluded that the petitioner had actual

knowledge of the correct statute of limitations. See Brooks v. State, 756 S.W.2d 288, 289 (Tenn.

Crim. App. 1988). Most importantly, any entitlement to tolling for reasons of due process would

not be of benefit to the petitioner. While claiming to have presented his petition to prison authorities

for mailing on December 7, the petitioner was unable to produce evidence as to the rules of the

prison mail system, the identity of the person who accepted the petition for mailing, or any other

factors that would explain the whereabouts of the petition between that date and December 27, when

it was received by the post-conviction court clerk. Although he contends that he received a return

receipt indicating that the petition had been received by the court clerk on December 10, he has

failed to produce the document. Accordingly, the trial court’s determination that the petitioner’s

claims are barred by the one-year statute of limitations is affirmed.

II

The petitioner also asserts that trial counsel was ineffective for failing to adequately

investigate, failing to adequately research the applicable law, failing to seek the admission of “vital

testimony,” and failing to object to inadmissible evidence. It is our conclusion that even if the

petitioner’s claims were not time-barred, these grounds would not be a basis for relief.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, he must first establish that the services rendered or the advice given were below “the range

of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the

defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, he is not entitled to relief. Our supreme court described the standard of review

as follows:

Because 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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
-10-

On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of

hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize 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).

Under our statutory law, the petitioner bears the burden of proving the allegations in his postconviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f).

Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy

of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.

1998). Claims of ineffective assistance of counsel are regarded as 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). On appeal, the findings of fact made by the post-conviction court are conclusive and will not

be disturbed unless the evidence contained in the record preponderates against them. Brooks v.

State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that

the evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.

App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony

are questions to be resolved by the trial court. Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App.

1997). When reviewing the application of law to those factual findings, however, our review is de

novo, and the trial court’s conclusions of law are given no presumption of correctness. Fields v.

State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19 S.W.3d 762, 766 (Tenn.

2000).

In this case, the post-conviction court made the following findings:

Based upon the facts that I’ve seen on this record, I cannot find that you

carriedyour burden by clear and convincing proof that [trial counsel’s representation]

did fall below [the Strickland] standard. Somebody got killed. Obviously, [codefendant] Rhodes isn’t one of the great men of American History, but I don’t think

[trial counsel’s] representation of [the petitioner] fell below that standard. 

And secondly, even if it did, which I don’t think it did, . . . [t]he benchmark

for judging any claim of ineffective assistance of counsel, must be where the

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.

[E]ven with the complaint that [the petitioner has], I do not think that [he] meet[s]

prong two by clear and convincing evidence. 

Initially, the petitioner claims that trial counsel failed to adequately investigate the case,

alleging generally that “basic preparation was not performed.” More specifically, he complains that

trial counsel failed to conduct any legal research and that trial counsel failed to attend (and learn

from) the trial of co-defendant Rhodes. Because the petitioner does not specify what legal research

he contends should have been done and does not assert any particular prejudice as a result of any
-11-

failure, this claim fails both prongs of the Strickland test. As to the other claim, trial counsel was

unable to recall whether he had attended any of the Rhodes trial. While attendance at the codefendant’s trial may have been helpful, it was not a requirement. Adequate preparation, no matter

how it is accomplished, is the standard. It is unclear whether trial counsel ever obtained any portion

of the Rhodes transcript. The record contains a written motion for a copy of the transcript as filed

by trial counsel but there is no indication of the trial court’s ruling. A transcript could have been as

helpful to the defense as attendance at the trial. On direct appeal, the petitioner contended that the

trial court had erred by failing to provide a “free, complete” transcript. See Larry S. Brumit, No.

M1999-00154-CCA-R3-CD, slip op. at 16. That implies that trial counsel had something less than

a full record. It does appear that at some point trial counsel obtained the jury instructions given in

the Rhodes trial. Nevertheless, the petitioner does not allege any specific prejudice as a result of trial

counsel’s failure to either attend Rhodes’ trial or acquire a complete transcript. See id. (finding that

the petitioner had failed to demonstrate on direct appeal how he was prejudiced by the trial court’s

denial of the transcript). The record does reflect that trial counsel conferred with the petitioner,

obtained discovery from the state, interviewed numerous witnesses, filed pre-trial motions for

suppression of the petitioner’s statement, sequestered voir dire, and a change of venue, filed motions

in limine, and made special jury instruction requests. From all of this, it is our conclusion that the

evidence does not preponderate against the post-conviction court’s determination that the petitioner

has failed to prove by clear and convincing evidence that trial counsel’s preparation was inadequate.

Next, the petitioner asserts that trial counsel was ineffective for failing to oppose the

severance of co-defendant Rhodes. The grant or denial of a motion for severance of defendants is

a matter that rests within the sound discretion of the trial court. State v. Burton, 751 S.W.2d 440,

447 (Tenn. Crim. App. 1988). Rule 14 of the Tennessee Rules of Criminal Procedure governs

severance of defendants and provides in pertinent part as follows:

(2) The court, on motion of the State or on motion of the defendant other

than under subdivision (c)(1), shall grant a severance of defendants if:

(i) before trial, it is deemed necessary to protect a defendant’s right

to a speedy trial or it is deemed appropriate to promote a fair determination

of the guilt or innocence of one or more defendants; or

(ii) during trial, with consent of the defendant to be severed, it is

deemed necessary to achieve a fair determination of the guilt or innocence of

one or more defendants.

Tenn. R. Crim. P. 14(c)(2). 

Initially, the petitioner fails to specify the grounds on which trial counsel should have

opposed the state’s severance motion or to demonstrate that trial counsel would have been successful

had he done so. Absent from the record is the transcript of the trial court’s hearing on the motion

to sever. It is, of course, the duty of the appellant to prepare a complete and accurate record on

appeal. Tenn. R. App. P. 24(b). The failure to prepare an adequate record for review of an issue

results in a waiver of that issue. Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997).
-12-

Here, trial counsel testified that in hindsight it might have been beneficial for the petitioner and codefendant Rhodes to have been tried jointly. On claims of ineffective assistance of counsel,

however, the defendant is not entitled to the benefit of hindsight, may not second-guess a reasonably

based trial strategy, and cannot criticize 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). Under

these circumstances, this court cannot conclude that trial counsel was ineffective for failing to

oppose the state’s severance motion.

The petitioner next contends that trial counsel was ineffective for failing to introduce

evidence that a nine millimeter handgun had been recovered from behind the residence of codefendant Rhodes. He argues that the evidence would have been relevant and probative because a

handwritten sheriff’s department report indicates that the victim Summar was shot with a nine

millimeter bullet. The report, which is entitled “Victim Assessment Sheet Mortuary/Autopsy,”

includes Summar’s identification information and descriptions of both the wounds to and items

recovered from the body. The record is clear, however, that Tennessee Bureau of Investigation

testing established that the bullet was a .38 caliber. The medical examiner also testified at trial that

the bullet that killed Summar was “either a .38 or .357.” See Larry S. Brumit, No. M1999-00154-

CCA-R3-CD, slip op. at 9. Thus, introduction of the report would have been of little benefit to the

defense.

Next the petitioner argues that trial counsel was ineffective for failing to seek suppression

of his conversation with Rhodes in the police cruiser. Initially, the record reflects that trial counsel

did, in fact, file a motion to suppress. There is, however, no transcript of any hearing and no

indication of a ruling. No testimony regarding the motion was presented at the hearing. Again, it

is the duty of the appellant to prepare a complete and accurate record for our review and failure to

do so will generally result in waiver. Tenn. R. App. P. 24(b); Thompson, 958 S.W.2d at 172. It is

our conclusion that trial counsel challenged the admissibility of the cruiser conversation, albeit

unsuccessfully, and that the claim by the petitioner is without merit.

In connection, the petitioner also complains that trial counsel should have questioned certain

inconsistencies between the first and second versions of the cruiser conversation transcript as

produced by the state. There appear to be two differences between the first transcript, typed by a

sheriff’s department employee and the second, prepared by a certified court reporter. The first

transcript provides, in pertinent part, as follows:

[RHODES]: We’re both history if we don’t get that [first degree murder

charge] off us. We are a memory.

[PETITIONER]: What was originally agreed on was to have me.

[RHODES]: Well I know but that, . . . .

* * *

[RHODES]: And the truth Larry if you hadn’t said anything to Bubba you

would have walked.

[PETITIONER]: . . . . Yeah it’s just . . .
-13-

The second transcript indicates the same conversation snippets as follows:

[RHODES]: We’re both history if we don’t get that [first degree

murder charge] off of us. We are a memory.

[PETITIONER]: What was originally agreed on was if they had me that

you would take the responsibility –

[RHODES]: Well, I know that . . . .

* * *

[PETITIONER]: – and the truth was if you hadn’t have said anything to

Bubba, we would have walked. Yeah, it’s just – 

Initially, the transcript of the petitioner’s trial is not included in the record and does not

appear to have been introduced in the post-conviction court. In consequence, this court cannot

ascertain the method by which the transcripts were used at trial or what testimony may have been

elicited about them. With the burden of proving his clams by clear and convincing evidence, the

petitioner should have assured inclusion of the trial transcript. See Tenn. Code Ann. § 40-30-210(f).

Additionally, the actual tape recording of the conversation, rather than the transcripts, should have

been entered into evidence for the jury’s consideration. In our view, the discrepancies complained

of by the petitioner are minor in the context of the entire transcript and the changes in the second

version could be read to benefit the petitioner. Under these circumstances, this court cannot

conclude that the petitioner has satisfied either prong of the Strickland test.

Finally, the petitioner asserts that trial counsel was ineffective for failing to object to certain

testimony from Doug Bicknell, the victim Summars’s second cousin. Without the trial transcript in

the record, Bicknell’s testimony is not before this court. In the opinion on the petitioner’s direct

appeal, this court summarized the relevant portion of Bicknell’s testimony as follows:

After the [petitioner] began to work for Brentwood Log Homes, Bicknell, the

[petitioner], and other employees were sent to Ohio to build a log house, where they

stayed at the same motel. Bicknell recalled an incident involving the [petitioner] that

occurred while they were in Ohio: He and the other Brentwood Log Homes

employees were sitting in the motel room drinking one day, and the [petitioner] and

another employee ‘were talking about [the victim Summar] being a snitch.” Bicknell

recalled that when he defended his cousin, the [petitioner] “said that he would see

that the little punk would get what was coming to him.” Bicknell reported that he

“told [the petitioner] if he messed with my cousin, me and him would have dealings,”

and the [petitioner] “said he was getting too old for all that fighting.” Bicknell

testified that the [petitioner] then “reached in his bag and pulled his gun and said he

let his gun do his fighting for him.”

Larry S. Brumit, No. M1999-00154-CCA-R3-CD, slip op. at 3. This court rejected the petitioner’s

challenge to the testimony on the ground that it was waived by trial counsel’s failure to make a

contemporaneous objection. See id. at 13. 
-14-

The state contends that the petitioner has “put forth no proof that had such an objection been

made, the trial court would have granted it.” We must agree. The petitioner does not assert the

grounds on which he claims Bicknell’s testimony should have been excluded, arguing only that it

was “prejudicial.” Thus, the petitioner is not entitled to relief on this claim.

Accordingly, the judgment of the post-conviction court is affirmed.

___________________________________ 

GARY R. WADE, PRESIDING JUDGE