IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 15, 2015

JERRY KIRKPATRICK v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Knox County

No. 102602 Steven W. Sword, Judge

No. E2015-00036-CCA-R3-PC – Filed December 3, 2015

The petitioner, Jerry Kirkpatrick, appeals the denial of his petition for post-conviction 

from his convictions for burglary and theft of property over $1,000, arguing that he 

received ineffective assistance of counsel at trial. After review, we affirm the denial of 

the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE

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

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Jerry Kirkpatrick.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; 

Charme P. Knight, District Attorney General; and Kenneth F. Irvine, Jr., Assistant 

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

OPINION

FACTS

A Knox County Criminal Court jury convicted the petitioner of burglary and theft 

of property over $1,000 stemming from the burglary of a Dollar General store, and he 

was sentenced to an effective term of seven years in the Tennessee Department of 

Correction. The petitioner appealed, and this court affirmed. The Tennessee Supreme 

Court denied his application for permission to appeal. 

The underlying facts of the case were recited by this court on direct appeal as 

follows:
2

At the [petitioner]’s trial, Mr. Benjamin Kramer testified that in 

January of 2009 he was employed as the manager of the Dollar General 

store on Middlebrook Pike in Knoxville, Tennessee. He testified that on 

January 19, 2012, he went to open the store around 6:00 a.m. and noticed 

that the store’s alarm light had been knocked out of the ceiling. He testified 

that he called the police and carefully entered the store, where he 

discovered the office door was open and the store’s safe was missing.

While on the stand at trial, Mr. Kramer was shown several pictures 

of the crime scene, which he identified and which were entered into 

evidence. He was also shown a video. Mr. Kramer identified this video as 

footage of his office that was taken by one of his store’s video surveillance 

cameras. Mr. Kramer testified that the video depicted two men with a bag 

of tools entering the store’s office, lifting the store’s safe onto a dolly, and 

wheeling it out.

Mr. Kramer testified that the store’s safe contained deposits from the 

previous day, including cash, checks, and loose change. He estimated that 

the total amount contained in the safe was between $5,000 and $7,000. The 

witness testified that the safe itself was worth approximately $2,000 and 

that it was no longer serviceable after it was recovered. Before concluding, 

Mr. Kramer testified that his store was located in Knox County and that no 

one had permission to remove the safe and its contents from the store.

Mr. Daniel Phelps testified that he was presently incarcerated on 

burglary charges and that he had been charged with stealing on numerous 

occasions. He testified that in return for his testimony, the State had agreed 

to write a letter to the parole board recommending that he receive parole. 

He testified that the State’s agreement to provide this letter was conditioned 

upon his testifying truthfully.

Mr. Phelps testified that on January 19, 2009, he was involved in the 

burglary of a Dollar General store on Middlebrook Pike in Knox County, 

Tennessee. He testified that this burglary was planned by the [petitioner] 

and Chris Kirkpatrick, and both of the Kirkpatrick brothers participated in 

it. He testified that on the date in question the three of them traveled to the 

store in question around midnight. He testified that he dropped the brothers 

off and then drove a quarter mile up the road to watch for the police. He 

testified that both the brothers were wearing masks, and they carried a 

purple burglary bag with them containing sledgehammers, crowbars, 
3

screwdrivers, and the like. Mr. Phelps testified that he acted as a lookout 

for the crew for three or four hours and that he made several cell phone 

calls to Chris Kirkpatrick during this time period. Eventually, the brothers 

called him and informed him that they had the store’s safe in their 

possession. He pulled up in the car and the brothers loaded it into the 

trunk.

Mr. Phelps testified that afterward they all drove to the [petitioner]’s 

house, where they broke open the safe. He testified that they found $5000 

inside. He testified that they split this money three ways and each took 

approximately $1700. He testified his girlfriend was also present at the 

house when this occurred. He testified that afterward, he and the brothers 

loaded the empty safe back into his car and threw it in a creek behind the 

Kmart on Broadway Street.

Mr. Phelps testified that ten days later, he and the Kirkpatrick 

brothers were involved in an attempted burglary of a Dollar General store

in Grainger County. He testified that all three men met at the [petitioner]’s 

house and then drove to the store in question. He testified that he and Chris 

Kirkpatrick got out and “scoped” out the store while the [petitioner] drove 

around and generally acted as a lookout. He testified that while he acted as 

a lookout from approximately an eighth of a mile away, Chris Kirkpatrick 

went around the building, cut the alarm system, and knocked off the 

alarm’s siren. He testified that the burglary was interrupted when five or 

six police units pulled into the parking lot. He testified that he and Chris 

Kirkpatrick ran away (separately), and he made it about a half mile away 

before calling one of his friends to come pick him up.

After his friend picked him up, Mr. Phelps received a call from Chris 

Kirkpatrick asking him to come pick him up as well, and Mr. Phelps and 

his friend did so. He testified that as they were driving away, he saw his 

own car – an Oldsmobile Bravada – pulled over on the side of the road. 

They pulled over to see if the [petitioner] was still inside. At that point, 

they were “swarmed” by the police and taken into custody. While he was 

in custody, Mr. Phelps told the police about his own and the Kirkpatrick 

brothers’ involvement in the Middlebrook Pike and Grainger County 

burglaries. He also told the police about the tool bag and showed them 

where it was located.

At this point during Mr. Phelps’ testimony, the store security footage 

from the burglary of the Dollar General store on Middlebrook Pike was 
4

played again for the jury. Mr. Phelps identified the [petitioner] as one of 

the two individuals appearing in that video footage. On cross-examination, 

Mr. Phelps was questioned concerning numerous inconsistencies between 

his recent testimony and his earlier statements to police.

Ms. Heather Moore, Mr. Phelps’ former girlfriend, testified that on 

January 18, 2009, she had just finished spending a normal day with Mr. 

Phelps when he left with Chris Kirkpatrick. She testified that she drove 

over to the [petitioner]’s house and found all three men there. She testified 

that she stayed there through the morning hours. At some point, all three 

men left without telling her where they were going. She fell asleep on the 

couch, but she eventually awoke when the men came through the back door 

making “a lot of loud noises.” She saw them carrying a safe with a blanket 

draped over the top of it. She testified that they carried the safe into a 

bedroom and closed the door, and afterward she heard a “lot of loud beating 

noises, clanging metal.” After about an hour, they opened the door and she 

saw the safe lying on the ground with the door open. The men were putting 

various tools – including an axe head, a sledgehammer, a crow bar, and 

some screwdrivers – into a bag. She saw Mr. Phelps receive some money, 

which he shared with her. She heard the [petitioner] and his brother discuss 

throwing the safe into the creek behind a Kmart. Then all three men left, 

and she never saw the safe again. During cross-examination, Ms. Moore 

was also questioned extensively concerning discrepancies in her recent 

testimony and her prior statements to police.

Detective Scott Webb of the Knox County Sheriff’s Office testified 

that he investigated a burglary of the Dollar General store on Middlebrook 

Pike on January 19, 2009. He testified that he initially made contact with 

the store’s manager by cell phone because the store’s phone lines were out. 

He testified that he found this fact to be significant because a similar 

method of operation had been used in numerous other Dollar General store 

burglaries. He testified that during his investigation he learned that the 

alarm horn outside of the business had been knocked down and that the 

burglars had entered from the rear of the building, which was also similar to 

the other burglaries. Detective Webb testified that he collected the store’s 

surveillance camera video footage, which the jury had recently watched. 

Detective Webb testified that he learned during his investigation that 

approximately $5,000 had been stolen from the store’s safe and about $500 

worth of damage had been done to the store’s alarm system.
5

Detective Webb testified that on January 29, 2009, he was 

conducting surveillance of Mr. Phelps’ house as part of a joint task force 

investigation. He observed two vehicles, one of which was an Oldsmobile 

Bravada, leave that house and travel to the [petitioner]’s house. Around 

2:00 a.m., he saw a vehicle leave the [petitioner]’s house. He and other 

officers followed the vehicle, and they identified the [petitioner], Chris 

Kirkpatrick, and Mr. Phelps as its occupants when the three exited their 

vehicle while stopping for gas. They followed the vehicle to the vicinity of 

a Dollar General store located in the town of Blaine in Grainger County, 

Tennessee.

Detective Webb testified that he and the other officers concealed 

their vehicles around a nearby repair shop that “kind of looked like a 

junkyard.” From there, they witnessed the Oldsmobile Bravada, now 

containing only a single occupant, driving up and down the street. 

Detective Webb testified that the car went up and down the street at least 

six or seven times during a ten or fifteen minute period. Detective Webb 

testified that he called Grainger County sheriff’s deputies to notify them 

concerning a possible burglary in progress.

Detective Webb testified that he saw Chris Kirkpatrick in front of 

the store swinging a long, dark object at the ceiling. He testified that he 

gave his officers the order to “come in and take them down,” and they 

attempted to do so. Afterward, he determined that the alarm siren box had 

been torn from the store’s ceiling and was lying on the sidewalk, and the 

store’s phone lines had been cut at the utility pole. He testified that these 

two facts were similar to the burglary at the Dollar General store on 

Middlebrook Pike.

Detective Webb testified that they did not apprehend anyone at the 

store. However, they sent a unit to intercept the Oldsmobile Bravada as it 

drove back by. They arrested the [petitioner] after finding him inside, 

secured the car, and transported him back to the police station. Detective 

Webb testified that they intended to move the vehicle to another location to 

see if anyone would approach it, but they never had the chance to do so 

because another vehicle drove by honking its horn and flashing its lights 

before pulling into the driveway right in front of him. He and the other 

officers immediately took its occupants, including Chris Kirkpatrick and 

Mr. Phelps, into custody.
6

Detective Webb testified that Mr. Phelps answered all of his 

questions during the ensuing interrogation. He testified that Mr. Phelps 

confessed to his involvement in both burglaries and identified the 

[petitioner] and Chris Kirkpatrick as his partners. Afterward, Mr. Phelps 

led him to a purple tool bag (which they had captured on video at various 

locations that had been burglarized), as well to some radios and some 

masks – all of which were located in a field near a tree line. Detective 

Webb testified that when Chris Kirkpatrick was arrested, he was wearing 

the same brown sweatshirt with an orange insignia that police had seen in 

the video footage from the burglary of the Dollar General store on 

Middlebrook Pike. Detective Webb testified that a safe linked to the 

burglary of the Dollar General store on Middlebrook Pike was recovered on 

January 20, 2009, in a creek behind the Kmart on Broadway Street. 

Finally, Detective Webb testified that the charges against the [petitioner] 

concerning the attempted burglary of the Dollar Store in Grainger County 

had been dropped.

On cross-examination, Detective Webb testified that the [petitioner] 

did not resist or attempt to evade arrest on the night of the attempted 

burglary of the Dollar General Store in Grainger County. He testified that 

the [petitioner] had a cell phone on him when he was arrested but that he 

did not check the [petitioner]’s cell phone to determine which numbers had 

been recently called. Detective Webb testified that no fingerprints were

discovered during his investigation of the burglary of the Dollar General 

store on Middlebrook Pike because the burglars were wearing gloves. He 

also testified that nothing appearing in the photographs of that burglary 

identified the person who had accompanied Chris Kirkpatrick during that 

burglary.

Following this testimony, the State rested. The [petitioner] took the 

stand in his own defense and testified that on January 19, 2009, he had a 

normal Sunday and watched presidential inaugural pre-celebrations on T.V. 

Around 7:00 p.m., Chris Kirkpatrick, Mr. Phelps, and Ms. Moore came 

over to his house and told him they were going to a poker game. The 

[petitioner] testified that after they left, he stayed at home and waited for 

another friend of his to come over to clean the carpets. He testified that 

Chris Kirkpatrick arrived back at his house shortly after midnight and went 

to sleep. The [petitioner] testified that at 8:15 a.m. the following morning 

Chris Kirkpatrick went over to Mr. Phelps’ house. The [petitioner] testified 

that he did not burglarize a Dollar General store that evening and that no 
7

one brought a safe over to his house and broke it open. He testified that 

“all was quiet” at his house that night.

The [petitioner] testified that on January 29, 2009, Chris Kirkpatrick 

arrived at his house, followed shortly afterward by Mr. Phelps and Ms. 

Moore, who arrived between 9:00 p.m. and 10:00 p.m. The [petitioner] 

testified that Ms. Moore ask[ed] him to take Mr. Phelps and Chris 

Kirkpatrick to a poker game, and he agreed. He testified that he drove the 

two men to the town of Blaine to attend the poker game around 2:00 a.m. 

He testified that Mr. Phelps told him to drop them off at a yellow house 

with a yellow garage (and he identified this house on a map provided to 

him while he was on the stand). He testified that after he left he made a 

couple of wrong turns in his effort to leave the area. When he re-entered 

Knox County, he was pulled over and arrested at gunpoint. The [petitioner] 

testified that he was never told at any point that any burglary was going to 

take place at a Dollar General store.

The [petitioner] also testified that he had three prior felony 

convictions plus an escape attempt on his record. He testified that he had 

not been convicted of a crime since 1994.

On cross-examination, the [petitioner] acknowledged that he lived 

with his brother, who had pled guilty to the burglary at issue and to the 

attempted burglary of the Dollar General store in Grainger County. The 

[petitioner] testified that Mr. Phelp[s’] testimony was not true and 

emphasized that no stolen safe was ever brought into his house. The 

[petitioner] testified that when he dropped off his brother to play poker on 

the night of January 29, 2009, his brother did not have a big bag full of 

tools; instead, he only had a small bag containing poker chips and three 

packs of cards.

State v. Jerry Kirkpatrick, No. E2011-01091-CCA-R3-CD, 2013 WL 105896, at *2-6 

(Tenn. Crim. App. Jan. 9, 2013), perm. app. denied (Tenn. June 12, 2013). 

On November 6, 2013, the petitioner filed a pro se petition for post-conviction 

relief and, after the appointment of counsel, two amended petitions were filed. In his 

petitions, the petitioner raised various allegations of ineffective assistance of counsel. On 

appeal, the petitioner argues that counsel rendered ineffective assistance by failing to 

present the testimony of Chris Kirkpatrick, his brother and alleged co-perpetrator, who 

would have testified that the petitioner was not involved in the burglary in the case at 
8

issue. Therefore, we will limit our recitation of the testimony at the evidentiary hearing 

to that relevant to this issue. 

At the hearing, Chris Kirkpatrick, the petitioner’s brother, testified that he pled 

guilty to the burglary of the Dollar General store on Middlebrook Pike in Knox County, 

as well as the attempted burglary of the Dollar General store in Grainger County. He said 

that Daniel Phelps was his co-defendant in those crimes and that they were both guilty. 

The petitioner was also charged in both cases. Mr. Kirkpatrick recalled that the 

petitioner’s attorney visited him when he was incarcerated to discuss the petitioner’s 

Knox County case. He claimed that, during that visit, he told counsel of his and Mr. 

Phelps’s involvement in both crimes and that the petitioner was not involved in either 

burglary. He also claimed that he told counsel he would testify to that effect in the 

petitioner’s trial. However, he was never brought in to testify. After he was released on 

parole, he went to court and testified at the petitioner’s trial in the Grainger County case, 

and the petitioner was not convicted. Mr. Kirkpatrick denied splitting any proceeds from 

the burglary with the petitioner. 

The petitioner testified that he was not involved in the burglary of the Dollar 

General in Knox County at issue in this case or the Dollar General in Grainger County. 

He was represented by counsel in the Knox County case and by another attorney at his 

subsequent trial in the Grainger County case in which he was not convicted. With regard 

to the case at hand, the petitioner stated that he met with counsel “numerous times” to 

discuss the case. However, he received “very little” discovery from counsel. 

Nonetheless, he was aware that Danny Phelps and Phelps’s girlfriend, Heather Moore, 

were going to testify for the State at his trial. Although he and counsel discussed the 

Grainger County incident, the petitioner was not aware of the State’s intent to present 

evidence concerning his alleged involvement in that case until the day of trial. The 

petitioner insisted that he told counsel that he was not involved in either burglary. He 

gave counsel the names of individuals who may have been involved in the burglary,

particularly, Chris Kirkpatrick who would have “first-hand knowledge” of the incident. 

The petitioner said that he made the same suggestion to his attorney in the Grainger 

County case, that he speak with Chris Kirkpatrick, and Mr. Kirkpatrick was called as a 

witness in that case and testified that the petitioner was not involved. The petitioner was 

not convicted in the Grainger County case. The petitioner said that he expected that 

Chris Kirkpatrick would be a witness at his trial in the Knox County case because he was 

on the State’s subpoena list. 

The petitioner’s trial counsel testified that the petitioner told him that Chris 

Kirkpatrick was a potential witness, and counsel made arrangements to meet Mr. 

Kirkpatrick in the penitentiary where he was housed. Counsel traveled 582 miles round 

trip to meet Mr. Kirkpatrick on March 15, 2011. Counsel recalled that he introduced 
9

himself to Mr. Kirkpatrick, and Mr. Kirkpatrick “said he would not talk to [him] about 

this case.” That was the end of their conversation. Counsel met with the petitioner on 

March 30, 2011, and “told him that his brother would not talk to me.” Counsel said that 

it was his practice to not present a witness at trial if he did not know what the witness 

would say. Therefore, he did not subpoena Mr. Kirkpatrick as a witness for trial. He 

believed that it would have been ineffective assistance for him to have placed Mr. 

Kirkpatrick on the stand in light of his unwillingness to speak with counsel beforehand. 

Counsel recalled that he filed a motion in limine to exclude evidence of the 

Grainger County attempted burglary from the petitioner’s trial, but the motion was 

denied. With regard to discovery, counsel said that he gave the petitioner “a copy of 

every page that [he] had.” 

Following the hearing, the post-conviction court entered a written order denying 

relief. The court found that the testimony of the State’s witness was “infinitely more 

credible” than that of the defense witness. The court determined that counsel went to 

great lengths to interview the requested witness, and the witness refused to speak with 

him about the case. The court noted that it would have been deficient performance for 

counsel to put a witness on the stand to testify when he did not know what the witness 

would say. The court further noted that “[s]ince the [p]etitioner has not established 

deficient performance, there is no need to consider the prejudice prong.” 

ANALYSIS

On appeal, the petitioner argues that counsel rendered ineffective assistance by 

failing to present the testimony of Chris Kirkpatrick, who would have testified that the 

petitioner was not involved in the burglary of the Dollar General store in Knox County at 

issue in this case. 

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

by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an 

evidentiary hearing is held in the post-conviction setting, the findings of fact made by the 

court are conclusive on appeal unless the evidence preponderates against them. See

Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves 

purely factual issues, the appellate court should not reweigh or reevaluate the evidence. 

See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial 

court’s application of the law to the facts of the case is de novo, with no presumption of 

correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective 

assistance of counsel, which presents mixed questions of fact and law, is reviewed de 

novo, with a presumption of correctness given only to the post-conviction court’s 
10

findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 

S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the 

burden to show both that trial counsel’s performance was deficient and that counsel’s 

deficient performance prejudiced the outcome of the proceeding. Strickland v. 

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. 

Crim. App. 1997) (noting that same standard for determining ineffective assistance of 

counsel that is applied in federal cases also applies in Tennessee). The Strickland

standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. 

This requires showing that counsel made errors so serious that counsel was 

not functioning as the “counsel” guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s 

acts or omissions were so serious as to fall below an objective standard of reasonableness 

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) 

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). 

Moreover, the reviewing court must indulge a strong presumption that the conduct of 

counsel falls within the range of reasonable professional assistance, see Strickland, 466 

U.S. at 690, and may not second-guess the tactical and strategic choices made by trial 

counsel unless those choices were uninformed because of inadequate preparation. See

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is 

satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine 

confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the 

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

Courts need not approach the Strickland test in a specific order or even “address 

both components of the inquiry if the defendant makes an insufficient showing on one.” 

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either 

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim”).
11

At the evidentiary hearing, counsel testified that the petitioner told him that Chris 

Kirkpatrick was a potential witness. Counsel made arrangements to meet Mr. Kirkpatrick 

in the penitentiary where he was housed and traveled 582 miles round-trip to do so. 

Counsel introduced himself to Mr. Kirkpatrick, and Mr. Kirkpatrick refused to talk to 

counsel about the petitioner’s case. In light of Mr. Kirkpatrick’s refusal, counsel decided 

not to call him as a witness, explaining that it could have been perilous to the petitioner to 

call a witness if he did not know how that witness would testify. On the contrary, Mr. 

Kirkpatrick testified that he met with counsel and told counsel that the petitioner was not 

involved in either burglary. He also claimed that he told counsel that he would testify to 

that effect in the petitioner’s trial. The post-conviction court specifically found that 

counsel’s testimony was “infinitely more credible” than Mr. Kirkpatrick’s testimony. 

Like the post-conviction court, we discern no deficiency in counsel’s informed decision, 

made after diligent investigation, to refrain from calling Mr. Kirkpatrick to testify at the 

petitioner’s Knox County trial. As such, we need not address whether the petitioner was 

prejudiced by any alleged deficiency. 

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the 

post-conviction court denying the petition for post-conviction relief.

_________________________________ 

ALAN E. GLENN, JUDGE