IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 7, 2004

MICHAEL BLACKBURN v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Franklin County

Case No. 11223-B J. Curtis Smith, Judge

No. M2003-02549-CCA-R3-PC - Filed February 15, 2005

The Petitioner, Michael Blackburn, was convicted of first degree premeditated murder, first

degree felony murder, and aggravated robbery, and the trial court sentenced him to life plus

twenty years. This Court affirmed the convictions and sentences on appeal. The Petitioner

subsequently filed a petition for post-conviction relief, which the post-conviction court

dismissed after a hearing. On appeal, the Petitioner contends that the post-conviction court erred

because he was denied the effective assistance of counsel. Finding no reversible error, we affirm

the post-conviction court’s judgment. 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES and

THOMAS T. WOODALL, JJ., joined.

Glen A. Isbell, Winchester, Tennessee, for the Appellant, Michael Blackburn.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;

J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts

On December 3, 1998, a jury convicted the Petitioner of first degree premeditated

murder, first degree felony murder, and aggravated robbery. The trial court merged the murder

convictions, and sentenced the Petitioner to life in prison for the murder conviction and to

twenty years for the aggravated robbery conviction, to be served consecutively. This Court

summarized the facts on direct appeal as follows:

At trial, the State called Coffee County Sheriff's Deputy Brian Allen. On August

14, 1996, Deputy Allen was working the midnight shift when the defendant came

in around 12:15 a.m. to report a drowning at the Turkey Creek boat ramp. The
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defendant reported to him that he, co-defendant Tommy Dickerson, and victim

David Singer were at the boat ramp that evening. According to the defendant, codefendant Dickerson and the victim started arguing and co-defendant Dickerson

hit the victim in the face, which knocked the victim into the water. He told

Deputy Allen that he tried to help the victim, but that co-defendant Dickerson

ordered him back into the truck, threatening him that he would be next if he did

not comply. He said that the victim never resurfaced. He told Deputy Allen that

they then took the victim’s truck to Tullahoma. Because the Turkey Creek boat

ramp is in Franklin County, Deputy Allen notified the authorities there.

The State called Deputy Earl Morse of the Franklin County Sheriff’s

Department, who was dispatched to meet the defendant at the boat ramp, to

testify. Deputy Morse observed an article of clothing in the water. He testified

that the defendant told him that he, Dickerson, and the victim were hanging out

around the boat dock when the victim went down on the dock. The defendant

claimed that he told Dickerson that he needed to go home because he had to be up

early for work. According to the defendant, Dickerson then went onto the dock

and began “messing” with the victim. The two began arguing and the defendant

said he saw “a motion come around,” heard a “smack,” and something then hit the

water. The defendant said he then turned on the truck headlights.

The defendant further told Deputy Morse that Dickerson said, “He ain’t

come up yet,” and then, “Let’s go, he’s dead. Get in the truck.” The defendant

said that when he tried to go in after the victim, Dickerson told him to get in the

truck or he would be next. The two then got into the truck and went to

Tullahoma. According to the defendant, he jumped out of the truck at a red light

and Dickerson tried to run over him. He said that once he got to his father’s

house, he told him what had happened and his father told him to go to the police.

At the crime scene, the defendant identified a pair of shoes found in the

parking lot as belonging to the victim. He also said that Dickerson was his

cousin, but he had only met the victim a few days earlier. He further informed the

deputy that Dickerson and the victim had run away from a rehab center in

Shelbyville. A search of the boat dock revealed a shirt about four feet from the

dock, a pair of blue jeans about ten feet from the end of the dock, and the victim’s

body 15'7" from the end of the dock. The victim’s feet were tied with a blanket

and his jeans had been pulled down over the blanket. The victim had scratches

and abrasions on his face and head.

The autopsy revealed multiple superficial lacerations on the victim’s

forehead, linear abrasions on his right shoulder, a bruise on his right wrist, and
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scrapes on his knees and right forearm. The victim had a blood alcohol level of

.19%. The medical examiner determined drowning was the cause of the victim’s

death.

The State also called Franklin County Sheriff’s Deputy Danny Warren,

who took a statement from the defendant in the early morning hours of August

14, 1996, to testify. The defendant said that Dickerson and the victim had run

away from a rehab center on August 12th and had been drinking all day. The

defendant met up with Dickerson and the victim around 9:00 p.m. the next

evening, August 13, to go to a party at the Traveler’s Inn in Manchester. He said

that Dickerson and the victim had again been drinking.

The defendant said that when they left, they went to Turkey Creek. Upon

arrival, around 9:45 p.m., the victim got out of the truck and went onto the boat

dock. The defendant said that he told Dickerson that he needed to get home

because he had to be up early for work. He said that Dickerson then got

something out of the back of the truck and went onto the dock and told the victim

to get up. He said that the two began arguing and then he heard a “smack” and

something hit the water. He then turned on the truck headlights and asked

Dickerson what was going on. Dickerson replied that the victim was messing

around and jumped into the water. He told Deputy Warren that he did not think

much of it until Dickerson said that the victim was not coming up. The defendant

said that when he offered to jump in after the victim, Dickerson threatened to kill

him if he did. He claimed that he was afraid of Dickerson because Dickerson was

bigger than him.

According to the defendant, they left Turkey Creek in the victim’s truck.

He then reiterated his story about stopping at a red light, Dickerson trying to run

over him, and getting to his father’s house. When questioned about the victim’s

legs being tied, the defendant claimed he did not know how that happened. He

told Deputy Warren that Dickerson and the victim had been arguing earlier

because the victim wanted to go home to his family, but Dickerson did not want

him to go.

Shortly thereafter, the defendant gave a second statement to Deputy

Warren. He told the deputy that Dickerson threatened him if he did not help. So,

he tied a blanket around the victim’s feet. He said that the victim was conscious,

but did not resist them. The defendant claimed that he then blacked out.

Approximately an hour later, the defendant again summoned Deputy

Warren with additional facts about the victim’s death. He said that when the
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three were on their way to the boat dock, Dickerson told the defendant that he was

going to rob the victim and kill him. The defendant said that when he objected,

Dickerson threatened to kill him. He said that when they arrived, Dickerson

ordered him to get a blanket and a pair of pants out of the trunk. The defendant

then tied the victim’s hands together with the pants and tied his feet together with

the blanket. According to the defendant, Dickerson tied the blanket tighter, took

$15.00 out of the victim’s pocket, and then picked the victim up and threw him

off the dock. When again questioned about the victim’s pants being around his

ankles, the defendant persisted that he did not know.

A couple of days later, on August 16, the defendant gave another

statement to Deputy Warren. He said that after they arrived at Turkey Creek, the

victim got out of the truck and leaned up against it. Dickerson got out, smiled

real big, and hit the victim. After the victim hit the ground, Dickerson got on top

of him and started beating him saying, “You want to fight? You want to fight?”

Although the victim never said a word, he was awake. At one point though, the

victim did ask Dickerson why he was doing this. Dickerson just beat him more.

The defendant claimed that Dickerson got a blanket and a pair of pants out

of the truck, and made the victim walk down the boat dock. Again, the defendant

insisted that he did not want to participate, but that Dickerson threatened him with

death if he did not. Per Dickerson’s orders, the defendant tied the victim’s hands

and feet. Then Dickerson smiled big again and pushed the victim off the end of

the dock. The defendant told Deputy Warren that the victim came up a couple of

times, but that Dickerson would not let him go in to help the victim.

The two returned to Tullahoma and drove to the Traveler’s Inn in

Manchester. There the defendant met up with his girlfriend Charity Austin and

told her that Dickerson killed the victim. She and the defendant left Manchester,

drove to his father’s house, and then went to the sheriff. The defendant also told

Deputy Warren that Dickerson said the victim was rich and that Dickerson told

his sister Rhonda that he was about to rob someone, get some money, and leave

town.

The State’s final witness was Rhonda Smith, the defendant’s first cousin

and Dickerson’s sister. She testified that on August 12th, the defendant,

Dickerson, and Charity Austin came to her house around 11:00 p.m. According to

Smith, Dickerson had been drinking, but the defendant had not. The defendant

told her that he needed money. When she said she did not have any, he told her

he was going to get some money one way or another, even if he had to kill

someone. In her presence, the defendant asked Dickerson how much money the
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victim had, and Dickerson told him that he was about to receive $400. The

defendant said he would kill the victim for that money. He claimed it would be

easy to tie some blocks around his feet and throw him off into the water. While at

the Smith's house, the defendant also approached Robert Smith about borrowing a

shotgun. He told Smith that he needed to make some money. However, Smith

told him that he did not loan out his guns. This concluded the State’s proof.

The first witness on behalf of the defendant was James Parker, a.k.a.

Poncho. He stated that in August 1996, he lived with the defendant’s father,

Alfred Blackburn. On August 13th, the defendant, Dickerson and the victim were

at Parker’s house. Evidently, the victim had spent the night at his house, and was

going to turn himself in that morning. However, the victim gave Dickerson $40

and they proceeded to drink all day long.

Around 5:00 p.m., Parker kicked everyone out of his house because they

were drinking and he did not want to get in trouble with his landlord. Later,

around 9:00 p.m., the defendant and Dickerson returned to Parker’s house, but the

victim was not with them. They talked with the defendant’s father and then they

left. When Dickerson and the defendant later returned, Janice Brown and Charity

Austin were with them. The defendant told his father and Parker what had

happened, and the defendant and his father then left to go to the police.

The defense also called Janice Brown to testify. She testified that when

the defendant arrived at the Traveler’s Inn, he seemed scared. He told her that the

victim was at the lake. He said he hoped that the victim was just passed out.

However, he also told her that he jumped in the water to help the victim and that

Dickerson performed CPR, but then pushed the victim back in. After that, she,

Charity and the defendant drove out to the landing, called for the victim, and then

returned to Parker’s to talk with the defendant’s father.

Alfred Blackburn, the defendant’s father, also testified on behalf of the

defendant. He testified that Dickerson and the victim had been drinking all day

on August 13th. Dickerson and the victim had argued several times and

Dickerson swung a 2 x 4 piece of lumber at Blackburn when he would not take

them to Georgia. Around 11:15 p.m., the defendant came to the house and told

him that Dickerson had killed the victim. They then went to the police.

Finally, the defendant testified on his own behalf. At trial, he stated that

he did not initially tell police the true story of what happened at the dock because

he was afraid his parole would be revoked. He testified that when he, Dickerson

and the victim left Poncho’s on August 13th, he was driving the victim’s truck.
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They stopped at a market, and Dickerson wanted to drive. Though Dickerson was

drunk, and the defendant did not want him to, Dickerson ended up driving

anyway. Dickerson indicated that he wanted to go for a swim, so they headed to

Turkey Creek. On the way there, Dickerson told him that he was going to kill the

victim. Although the victim was sitting in between Dickerson and the defendant,

he had no reaction to this statement.

When they arrived at the dock, Dickerson and the victim got out of the

truck and leaned up against it. According to the defendant, Dickerson told the

defendant to get out or he would do to him what he was going to do to the victim.

The defendant noticed a boat in the water and yelled out to it, hoping to dissuade

Dickerson, even though he really did not believe Dickerson was serious. But, the

boat drove off. Then Dickerson smiled real big, and hit the victim. After the

victim hit the ground, Dickerson got on top of him and started beating him saying,

“You want to fight? You want to fight?”

Dickerson got the blanket and pants out of the truck. He took the victim

down to the dock, told him to lie on his stomach and then ordered the defendant

to tie the victim's hands and feet. Again, the defendant maintained that he tried to

resist, but Dickerson threatened him with death if he did not help him. The victim

asked Dickerson what he was doing, and Dickerson told him he was about to die.

Dickerson then pushed the victim off the end of the dock. The defendant testified

that he started to go in after the victim, but that Dickerson again threatened him

with death if he did.

They left in the victim’s truck and drove back to Parker’s, where his father

was still located. He did not say anything to his father then about what happened

because he was scared of Dickerson. He and Dickerson then drove to Manchester

and met up with Charity and Janice. After he told Charity what had happened, he,

Charity and Janice went back out to the boat dock to look for the victim. When

he did not answer their calls, they drove back to his father’s house. He then went

to the police with his story.

State v. Michael Blackburn, No. M2000-01202-CCA-R3-CD, 2001 WL 1251239, at *1-5 (Tenn.

Crim. App., at Nashville, Oct. 19, 2001), perm. app. denied (Tenn. Apr. 8, 2002).

The Petitioner filed a pro se petition for post-conviction relief, which was later amended

by appointed counsel. In his petition he alleged, in part, that he received ineffective assistance of

counsel because his trial counsel failed to: (1) adequately prepare for trial; (2) give him an

assessment of the evidence against him and the applicable law; (3) file a motion to suppress his

statements to police; and (4) request any jury charges. The following evidence was presented at
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the hearing on the Petitioner’s petition for post-conviction relief: Robert S. Peters (“Counsel”)

testified that he has been practicing law since 1970, and criminal law is a substantial part of his

practice. Counsel said that he was appointed to represent the Petitioner on November 8, 1996,

and the Petitioner’s trial began on December 2, 1998. Counsel said that the time sheet that he

submitted to the court shows that, prior to the trial, he spent thirty-one hours out-of-court, and

six hours in-court, on the Petitioner’s case. He estimated that he actually spent close to twice

that number of hours out-of-court, but he did not report those hours. 

Counsel testified hat he had “lengthy discussion[s]” with the Petitioner on several

occasions about the case. He said that he spoke with the Petitioner each time the Petitioner came

to the courthouse, and he visited the Petitioner in jail on the day of trial. Counsel said that he

may have met with the Petitioner in jail on other occasions, but he was unsure of exact dates and

times. Counsel said that, between October 30, 1997, and December 2, 1998, he wrote the

Petitioner two or three letters. 

Counsel said that the strategy in the Petitioner’s case was “simple.” He said that the

Petitioner and his co-defendant both made full and complete statements to the police, and the

strategy was for the Petitioner to “take the stand, look the jury in the eye and convince them that

he was a smaller man, was intimidated by [his co-defendant], and it was [the co-defendant who]

committed the crime and that he was afraid, intimidated . . . .” Further, the Petitioner was to tell

the jury that, following the commission of the crime, he came back to the scene and admitted

what had happened. Counsel said that, originally, one of the Petitioner’s defenses was duress.

Counsel said that the Petitioner was going to convince the jury that his co-defendant was a

violent person who had committed this crime and other violent acts earlier in the day on the

same day as the murder. 

Counsel testified that he did not explain to the Petitioner how he was going to incorporate

the defense of duress. He said the Petitioner was going to tell his story, and, if the jury believed

the Petitioner, there was a chance that they would not convict him of the more serious crime.

Counsel said that he did not instruct the Petitioner about the law of duress, rather he told the

Petitioner to tell the truth and then the jury would decide if the law of duress applied. Counsel

said that he did not think that an attorney should tell a client what a client would have to say in

order to meet the elements of a defense. Additionally, Counsel said that he intended to tell the

jury that the State allowed the Petitioner’s co-defendant to plead to second degree murder and

then argue to the jury that the Petitioner deserved a lesser punishment. Counsel conceded that

the trial judge did not allow him to present this evidence, but he said that this was a strategic

decision. 

Counsel said that he interviewed both officers in this case, and some, but not all, of the

other State’s witnesses. He said that he and the Petitioner never disagreed about the trial strategy

or which witnesses Counsel interviewed. Counsel testified that he and the Petitioner went over
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all of the discovery provided by the State, which included the Petitioner’s, and his codefendant’s, statements to police. Counsel said that he did not interview the police officer who

searched the Petitioner’s co-defendant and found items that were stolen in the robbery on the codefendant. Counsel explained that, since there was no issue about where these items were found,

this was not pertinent to the case. Further, there was no evidence that the Petitioner had these

items, so this testimony was unnecessary. Counsel testified that he interviewed each of the

witnesses that he called in defense of the Petitioner before they testified at trial. 

Counsel testified that he called witnesses to state that the Petitioner’s co-defendant had

committed this crime. The trial court excluded that testimony at trial, and Counsel appealed that

ruling, but it was upheld on appeal. Counsel testified that he thought that, even though the

Petitioner’s co-defendant did not testify at trial, he could still admit the co-defendant’s

statements that he killed the victim at trial under an exception to the hearsay rule. Counsel

testified that he asserted to the trial court that these statements were admissible pursuant to

Tennessee Rule of Evidence 803(e), but the trial court disagreed. Counsel thought that it would

be impossible to admit these statements if he called the co-defendant because they were unlikely

to be admitted during direct examination. Rather, his strategy was to hope that the State called

the co-defendant so that he could cross-examine the co-defendant. Then, when the State did not

call the co-defendant, he argued to the jury that the Petitioner was prejudiced by, and the State

was to blame for, the co-defendant not being present at trial. Counsel stated that it would have

been the “height of idiocy” to have subpoenaed the co-defendant because the co-defendant had

already given a statement to police that he was afraid of the Petitioner and, had the co-defendant

testified, that information would have been before the jury. Counsel said that, after researching

the applicable law, he made a tactical decision not to call the Petitioner’s co-defendant because

he determined that it would have done more harm than good.

Counsel said that he did not file a motion to suppress any of the statements that the

Petitioner gave to police because, since the Petitioner intended to testify, these statements would

be admissible during cross-examination. Further, Counsel thought that the statements, on the

whole, were favorable to the Petitioner. Counsel stated that, in his opinion, if he got the

statements suppressed, and the Petitioner did not testify, their chances “of succeeding would

have been much much less. It was a tactical decision on [Counsel’s] part.” Counsel said that he

thought that the Petitioner’s only chance to win this case was to tell his truthful story, which was

that he was scared and intimidated by the co-defendant and he did not profit from this crime

whatsoever. Counsel said that this was a strategy that the Petitioner agreed with. Counsel

conceded that some of the officers who testified about the Petitioner’s statements would not have

been able to testify if he had successfully filed a motion to suppress those statements. Counsel

said that, even if the Petitioner’s statements were excluded, the State could still place the

Petitioner at the scene of the crime because the Petitioner returned to the crime scene with a

female friend to look for the victim. Counsel testified that, if this evidence had been excluded,

the case might have been a “little different,” but the outcome would have been the same.
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Counsel testified that part of the reason that he did not file motions to exclude some of the

evidence, such as the Petitioner’s statements and the fact that he was recently released from

prison, was because his strategy was to have the Petitioner testify, therefore, this evidence would

have been admissible. He stated that the evidence could only have been excluded if the

Petitioner did not testify, which was not his strategy. 

Counsel testified that he did not file any jury charges, including a request for a duress

instruction. Counsel said that the trial court must not have thought that the elements of duress

were present. He testified that, ultimately, their strategy was not duress, but that, while the

Petitioner was there, he did not commit the crime. Counsel noted that the jury was instructed on

facilitation and other lesser-included offenses. 

Counsel testified that he told the Petitioner about the plea offered by the State for the

Petitioner to plead guilty to second degree murder, and the Petitioner rejected that offer.

Counsel said that he did not think that it was in the Petitioner’s best interest to plead guilty if the

Petitioner did not want to plead guilty. He said that, if the jury had believed the Petitioner, the

Petitioner would have been found not guilty. Counsel reiterated that, even considering the

Petitioner’s prior criminal history, if the jury believed the Petitioner he would have been found

not guilty. Counsel then said that he had recently tried a similar case, in which the jury did not

convict a defendant with a “horrendous” record because they believed the defendant. 

On cross-examination, Counsel testified that he graduated first in his law school class at

the University of Tennessee, and he was editor in chief of the law review. He said that he was a

member of the Order of the Coif, an honor society for law students. Counsel said that he has

probably tried more criminal cases and more appellate cases than anyone in the county and has

argued nearly 200 appellate cases. Counsel testified that he discussed the Petitioner’s case with

both the Petitioner’s father and the district attorney prosecuting the case on multiple occasions.

Counsel testified that he never discovered any facts that led him to believe that he could have

successfully suppressed the Petitioner’s statements to police. Counsel said that some of the

statements that the Petitioner made to police were made after the Petitioner voluntarily went to

police, and Counsel thought that, because the Petitioner initiated the contact, it would be

favorable to the Petitioner’s defense. Further, Counsel said that this fact supported the defense

theory that the Petitioner’s co-defendant was the primary perpetrator of this crime. 

Counsel conceded that he, perhaps, should have requested a duress jury instruction, but

said that the classic case of duress was not applicable here. He said that the defense strategy was

to eliminate the elements that would have been necessary for the jury to convict the Petitioner of

both felony and first degree murder. Counsel testified that the State offered to allow the

Petitioner to plead guilty to second degree murder, but the Petitioner rejected that offer.
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Mary Adams testified that she is the Petitioner’s mother, and she said that she “pretty

well [had to] tell [Counsel] who all needed to be subpoenaed.” She said that she issued and

served the seventeen subpoenas in the Petitioner’s case. Adams testified that she told Counsel to

ask certain questions, and she had to act as his secretary. She said that Counsel “thought we

didn’t have [any]thing to worry about” with regard to the Petitioner’s case. Adams testified that

Counsel told her, up to and even on the day of trial, that the Petitioner’s co-defendant would be

present at trial. She said that both she and her son wanted the co-defendant present. 

On cross-examination, Adams testified that she knew that the Petitioner’s co-defendant

would blame the Petitioner for the crime. She said that she talked to Counsel about witnesses

that she thought were important, and he told her about witnesses he thought were important. She

said that she had to assist Counsel because he was not “doing his job,” and she did not see him

vigorously cross-examine witnesses. Adams testified that she believed the story that the

Petitioner told her that he was not the main perpetrator of this crime, and she said that it was the

same story that he testified to at trial, which the jury rejected. 

Alfred Blackburn testified that he is the Petitioner’s father, and he spoke with Counsel

once or sometimes twice a week for two years. Blackburn said that Counsel told him that they

had “nothing to worry about. [The Petitioner] wasn’t guilty, he knew he wasn’t guilty, and he

was going to prove that point.” He said that he and Counsel discussed that the Petitioner’s codefendant had a violent rage and that the co-defendant was found with all of the items taken in

the robbery. Blackburn testified that he gave Counsel the names of a few people who the codefendant had asserted violence against. 

On cross-examination, Blackburn testified that he and Counsel discussed this case about

once or twice a week for two years, and they discussed the witness list. Blackburn said that he

testified at trial, and the prosecutor would not let him tell the truth and kept objecting. He

conceded that the co-defendant’s penchant for violence came out during the trial, and the jury

rejected that argument. On redirect examination, Blackburn testified that he told Counsel about

an incident in which the co-defendant displayed violence against the victim, but he did not get to

tell that story at the Petitioner’s trial. Blackburn said that, during this incident, the co-defendant

told him that the co-defendant was going to throw the victim in the river. He said that he could

not tell this story in court because the co-defendant was not at the trial, even though Counsel told

him that the co-defendant would be there. When he found out that the co-defendant would not

be there, he told Counsel to stop the trial, but Counsel went ahead with the trial anyway. On recross-examination, Blackburn conceded that he actually did tell the story about the codefendant’s violence to the jury, but said that he has been in the hospital with a heart attack, a

stroke, and a failing liver, so he did not remember telling the story. 

The Petitioner testified that his co-defendant is also his cousin. He said that he has been

incarcerated for this crime since August of 1996. The Petitioner said that another attorney
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represented him during his preliminary hearing, and then Counsel represented him during the

rest of the proceedings against him. The Petitioner said that he attempted to contact Counsel, but

Counsel’s secretary always answered because Counsel was “never there.” The Petitioner said

that Counsel never visited him in jail, and, while he met with Counsel before court proceedings,

Counsel would never discuss his case with him. He testified that each of these meetings lasted

ten minutes “at the most.” He said the only time he discussed his case with Counsel was outside

the courtroom the day before his trial. The Petitioner said that, prior to his trial, he received two

letters from Counsel, one that asked him to submit to a blood test and one that informed him of

his court date. He said that, after his trial, he received a letter telling him that Counsel would

appeal his case.

The Petitioner said that he wrote Counsel letters and told him that he wanted “everything

that pertained to [his] case so [he] could have somebody . . . look [at] it and . . . help [him]

understand . . . .” He said that he never received any materials, including the statements of any

witnesses, or a copy of any of his statements to police. He testified that Counsel never went over

any of the Petitioner’s statements with him. Further, Counsel did not interview witnesses that he

asked Counsel to interview. The Petitioner said that Counsel never discussed with him the

evidence that was against him, and the only thing that Counsel told him was that it would be in

his best interests to testify. He said that, when he took the stand, he was unaware of any of the

allegations that witnesses had made against him. The Petitioner said that it was Counsel’s

decision for him to take the stand.

The Petitioner said that he never received an offer from the State to plead guilty. He said

that, one time when he was in court, he learned that his co-defendant was given an offer to plead

guilty and, when he asked why he did not get one, he was told by the prosecutor that he could

plead guilty too, but he would get a life sentence. The Petitioner said that Counsel never showed

him an offer to plead guilty from the State. 

The Petitioner testified that Counsel told him that everything was going to be “okay” and

not to worry about anything. He said that Counsel told him “[w]e’re going in under duress.

There’s no reason why you should be found guilty of murder when you done what you done

under duress.” The Petitioner said that Counsel told him that his co-defendant would be there

the day of trial to testify. He said that, on the day of trial, when his co-defendant was not there

he told Counsel that “you already know that our defense is based on him being here, because we

can’t get [any]thing on the stand,” and Counsel told him that his co-defendant would be there.

He testified that he asked Counsel to subpoena his co-defendant, but Counsel never did, and

Counsel gave him no explanation as to why this was not done. 

The Petitioner said that Counsel told him that, if he was found guilty, he could be put in

prison for “a long time.” Counsel did not tell him the possible sentences for his crime or that the

sentences could be ordered to run consecutively. The Petitioner said that “the only thing” that he
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discussed with Counsel was the fact that the Petitioner’s co-defendant had all of the belongings

that were taken from the victim during the robbery. 

On cross-examination, the Petitioner testified that the fact that the victim’s belongings

were found on the Petitioner’s co-defendant was presented to the jury at trial without the codefendant testifying. The Petitioner testified that he did not know what charges he was facing

until the morning of trial. He said that the attorney who represented him at his preliminary

hearing did not tell him what charges he faced. He conceded that, while he had said that he did

not know the possible sentences that he was facing, he knew he was facing life in prison for

these crimes. He said that Counsel lied when he said that he relayed the State’s offer to allow

the Petitioner to plead guilty to second degree murder. The Petitioner said that he would have

pled guilty had Counsel told him that he might be convicted and told him of the plea offer made

by the State. 

The Petitioner testified that he was brought to the jail near the courthouse on the day

before his trial, but he did not meet with Counsel at that time. He said he did not meet with

Counsel until the morning of his trial. At that time, Counsel discussed with him the defense of

duress. He said that his defense at his trial was “the truth,” and he presented this to the jury. He

conceded that the jury rejected this defense, but said that they did so because his co-defendant

was not there to testify. The Petitioner said that, while the jury heard testimony about the codefendant being a violent man, they only heard it “somewhat.” He said that he knew that the codefendant had accused him of this crime, but the co-defendant might have accepted

responsibility for this murder during the Petitioner’s trial. 

The Petitioner admitted that most of the evidence that the State presented at trial was also

presented at his preliminary hearing, at which Counsel did not represent him. He then conceded

that, while Counsel did not represent him at that time, he asserted in his petition in his postconviction petition that Counsel was ineffective when he represented him at the preliminary

hearing. The Petitioner conceded that some of the claims included in his petition for postconviction relief did not apply to him. The Petitioner said that Counsel was ineffective because

he did not communicate adequately with him. He said that, had he had more conversations with

Counsel, he could have gotten more familiar with his case and there would have been a different

outcome at his trial. The Petitioner could not provide any specific facts that he would have

communicated to Counsel. 

On redirect-examination, the Petitioner said that Counsel did not explain the defense of

duress to him, and only told him that he would have to explain to the jury that he was “under fear

for [his] life.” The Petitioner said that Counsel never told him that, to prove duress, he would

have to prove that there were no means for him to escape. The Petitioner reiterated that he did

not know that he was charged with felony murder until the day of trial. He said that he knew he

was charged with first degree premeditated murder and aggravated robbery, but he said that
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Counsel never discussed the elements of these crimes with him. The Petitioner said that a

“jailhouse” lawyer filled out and filed his original petition for post-conviction relief in exchange

for cigarettes. He also said that his attorney at the preliminary hearing told him that duress was

his best defense, but he did not discuss this defense with Counsel until the morning of the day of

his trial. 

On re-cross-examination, the Petitioner conceded that he could only speculate about how

a difference in Counsel’s actions would have affected his trial. He admitted that he could not

say with any certainty that, had anything different happened, it would have changed the outcome

of his trial. 

Carol Medley testified that she is the circuit court clerk assistant and she is primarily

responsible for the criminal docket in Franklin County Circuit Court. She testified about the

orders to transport the Petitioner to court. She said that the Petitioner was transported to court on

May 13, 1997, November 17, 1998, and December 2, 1998. She testified that, according to her

orders, the Petitioner was not at the jail on November 16, 1998, when Counsel said that he met

with the Petitioner. Medley testified that the Petitioner was not transported to the court on

November 13, 1997, the day Counsel said that he had a status conference with the Petitioner in

the court. On cross-examination, Medley conceded that her report does not reflect when the

Petitioner was transported to court from other counties. She conceded that her transport orders

do not show that the Petitioner was present in court on November 6, 1996, but she was sure he

was present in court because he filled out an affidavit of indigence on that day. 

Based upon this evidence, the post-conviction court dismissed the Petitioner’s petition

for post-conviction relief, and the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred when it dismissed

his petition because Counsel failed to: (1) adequately prepare for trial; (2) give him an

assessment of the evidence against him and the applicable law; (3) file a motion to suppress his

statements to police; and (4) request any jury charges. In order to obtain post-conviction relief, a

petitioner must show that his or her conviction or sentence is void or voidable because of the

abridgment of a constitutional right. Tenn. Code Ann. § 40-30-103 (2003). The petitioner bears

the burden of proving factual allegations in the petition for post-conviction relief by clear and

convincing evidence. Tenn. Code Ann. § 40-30-110(f). A post-conviction court’s factual

findings are subject to a de novo review by this Court; however, we must accord these factual

findings a presumption of correctness, which is overcome only when a preponderance of the

evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40 S .W.3d

450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject to a purely de

novo review by this Court, with no presumption of correctness. Id. at 457.
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The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and Article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453,

461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to

representation includes the right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461.

The Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a

mixed question of law and fact and, as such, is subject to a de novo review. Id.

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of competence

demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of

ineffective assistance of counsel, a petitioner must show that “counsel’s representation fell below

an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),

and that this performance prejudiced the defense, resulting in a failure to produce a reliable

result. Id. at 687; Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the

requirement of prejudice, a petitioner must show a reasonable probability that, but for counsel’s

unreasonable error, the fact finder would have had reasonable doubt regarding the petitioner’s

guilt. Strickland, 466 U.S. at 695. This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Id. at 694; see also Harris v. State, 875 S.W.2d 662, 665 (Tenn.

1994). ..

When evaluating an ineffective assistance of counsel claim, the reviewing court should

judge the attorney’s performance within the context of the case as a whole, taking into account

all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149

(Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct from the

attorney’s perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746;

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly

deferential and “should indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be

deemed to have been ineffective merely because a different procedure or strategy might have

produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App.

1980). The fact that a particular strategy or tactic failed or hurt the defense does not, standing

alone, establish unreasonable representation. House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)

(citation omitted); Thomas Brandon Booker v. State, No. W2003-00961-CCA-R3-PC, 2004 WL

587644, at *4 (Tenn. Crim. App., at Jackson, Mar. 24, 2004), no perm. app. filed. However,

deference to matters of strategy and tactical choices applies only if the choices are informed ones

based upon adequate preparation. House, 44 S.W.3d at 515.
−15−

A. Adequate Trial Preparation

The Petitioner first asserts that Counsel was ineffective by failing to adequately prepare

for trial. The post-conviction court found:

Was trial counsel deficient by failing to properly prepare for trial? The

[Petitioner] complains that [Counsel] did not spend adequate time with him to

prepare him for trial. [The Petitioner] had given the four statements to law

enforcement long before [Counsel] was appointed. While these statements did

support his defense, the statements were inconsistent in many respects. The

[Petitioner] was related to the co-defendant and voluntarily spent time with him

pr[ece]ding the night [the victim] was killed. Thus, the [Petitioner] had provided

an arguable defense in his statements, but he also provided considerable grounds

to attack his credibility both in the statements and in other events before and after

[the victim’s] death. Many facts were undisputed and the outcome of the trial

was in large part dependent on whether the jury believed [the Petitioner’s]

testimony. The [Petitioner] has failed to show that [Counsel] spent inadequate

time preparing him for trial.

[The Petitioner] further claims [Counsel] failed to talk with various state and

defense witnesses prior to trial and did not call certain witnesses at trial which

were necessary to adequately present his defense. [Counsel] testified he talked

with many witnesses and read the statements of the other witnesses before trial.

At trial, [Counsel] had been in practice some twenty-eight (28) years during

which he had an active practice in criminal law and had tried numerous homicide

cases. [Counsel] adequately cross-examined all state’s witnesses and called any

witnesses who would have appreciably added to the defense. Petitioner failed to

call any such witnesses at the post-conviction hearing, therefore no prejudice was

shown.

We conclude that the evidence does not preponderate against the trial court’s findings of

fact. Further, we conclude that the Petitioner has not met his burden of proving that Counsel’s

representation of him fell below an objective standard of reasonableness. This case presented a

difficult set of circumstances. The Petitioner made multiple statements to police, as did his codefendant. Counsel’s strategy, under the circumstances, was to have the Petitioner testify and

hope that the jury believed the Petitioner’s story. We will not second guess this strategy on

appeal. In accordance with Counsel’s strategy, Counsel said that he interviewed many of the

State’s witnesses, but some he did not because he thought that such interviews were unnecessary.

Counsel said that, in his twenty-eight years of experience, he was sure that some of the State’s

witnesses would not cooperate with him. Further, Counsel said that he met with the Petitioner

on multiple occasions and had lengthy discussions with him regarding his case. Even the
−16−

Petitioner’s father testified that he discussed this case with Counsel at least once a week for two

years. The trial court found that Counsel adequately cross-examined each of the State’s

witnesses and presented an adequate defense. Accordingly, we conclude that the Petitioner has

failed to meet his burden of proving that Counsel’s representation fell below an objective

standard of reasonableness. Furthermore, the Petitioner has not presented any evidence of how

Counsel’s alleged lack of preparation prejudiced him. 

B. Assessment of the Evidence and Applicable Law

The Petitioner asserts that Counsel was ineffective because he never informed him of

what he would have to prove in order to establish the defense of duress. This is not an argument

that was specifically ruled upon by the post-conviction court. At the post-conviction hearing, the

Petitioner stated that his defense at trial was “the truth,” and, while he presented this defense to

the jury, the jury rejected this defense. The Petitioner then stated that Counsel did not explain

the defense of duress to him, and only told him that he would have to explain to the jury that he

was “under fear for [his] life.” The Petitioner said that Counsel never told him that, to prove

duress, he would have to prove that there were no means for him to escape. Counsel said that he

explained to the Petitioner that the Petitioner had two possible defenses that they would present

to the jury, one was duress and the other was that he did not participate in the actual crime itself.

Counsel said that he did not “lecture” the Petitioner on the law of the duress, but rather he told

the Petitioner to tell the truth, and they would let the jury decide if the law of duress applied.

Counsel said that he explained to the Petitioner that this was the defense strategy, and he and the

Petitioner “never had any disagreement about what was going to be done at trial.” Under these

circumstances, we conclude that the Petitioner has not proven that Counsel’s representation fell

below an objective standard of reasonableness. Further, he has not proven prejudice by showing

how a difference in Counsel’s assistance would have affected the verdict.

C. Motion to Suppress

The Petitioner asserts that Counsel was ineffective because he failed to file a motion to

suppress the Petitioner’s statements to police. With regard to this issue, the post-conviction

court found: 

Was trial counsel deficient when he failed to seek exclusion of [the

Petitioner’s] statements? The [Petitioner] gave four tape recorded statements

concerning the death of [the victim]. The first three statements were given in the

early morning hours of August 14, 1998. Before the first statement, Officer

Warren read the [Petitioner] his Miranda rights . . . . Before the second and third

statements [the Petitioner] was asked, and acknowledged that he still remembered

his constitutional rights. Officer Warren again read and explained to the
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[Petitioner] his constitutional rights before the fourth statement and again the

[Petitioner] signed a waiver.

. . . .

[Counsel] of Winchester, Tennessee, admitted to the bar in 1970,

represented the [Petitioner] at trial and had considerable trial experience in

homicide cases. [Counsel] testified his defense strategy was to show that the codefendant . . . had killed [the victim]. He further intended to show that [the codefendant] was much larger than the [Petitioner] and had threatened and

intimidated him on the night [the victim] was killed and that any involvement the

[Petitioner] had in the events surrounding the murder was due to the duress placed

on the [Petitioner] by [the co-defendant].

[Counsel] believed the four statements, taken as a whole, established the

[Petitioner’s] defense, and that he could not suppress any of the statements. He

also believed the [Petitioner] would have to testify to establish this defense and if

the [Petitioner] testified, he would be subject to cross-examination on all his

statements, whether suppressed or not. Thus, he felt the statements would come

out at trial, regardless. Both [Counsel] and the [Petitioner testified the

[Petitioner] wanted to tell the jury his story.

[Counsel] reviewed the statements given by the [Petitioner], spoke with

witnesses and the [Petitioner], and determined a strategy that was reasonable,

given the circumstances. [Counsel] developed a basic defense strategy that he

would show his client did not commit the murder, that he would not challenge the

statements, and that the [Petitioner] would explain any discrepancies in those

statements. Such was an informed and adequately prepared defense and cannot

now be second guessed. 

We conclude that the evidence does not preponderate against the trial court’s findings of

fact. Further, we conclude that the Petitioner has not proven that Counsel’s representation was

ineffective. Counsel testified that his strategy, a strategy that the Petitioner agreed with, was to

have the Petitioner testify and to tell the “truth” and hope that the jury believed the Petitioner.

Counsel did not file a motion to suppress the Petitioner’s statement for three reasons: (1) he

could not find a legal basis for their suppression; (2) they would be admissible if the Petitioner

testified; and (3) they were, on the whole, favorable to the Petitioner. These are strategic and

tactical reasons for Counsel’s actions and we will not second guess those reasons on appeal.

Accordingly, we conclude that the Petitioner has not proven that Counsel’s representation fell

below an objective standard of reasonableness or that he was prejudiced by Counsel’s actions.
−18−

D. Jury Charge

The Petitioner next contends that Counsel was ineffective by failing to request a duress

jury instruction. The post-conviction court found:

Was trial counsel deficient in failing to request a jury charge on duress? . . . .

[Counsel] did not request a jury charge on duress and none was given.

[Counsel] testified the [Petitioner] had always stated [the co-defendant] pushed

[the victim] into the lake and it was his strategy to show that the [Petitioner]

simply did not participate; not that he participated in the actual drowning because

he was forced to do so by the co-defendant. This defense requires that a

defendant experience a well-grounded apprehension of death or serious bodily

injury but be unable to withdraw in safety before he commits the illegal act. [The

Petitioner] testified to no alleged threats from [the co-defendant] other than verbal

ones. Regardless, the defense is unavailable to one who “intentionally,

knowingly, or recklessly becomes involved in a situation in which it was probable

that he would be subjected to compulsion” when according to the [Petitioner], he

remained on the scene and tied the victim’s legs after [the co-defendant]

announced he was going to rob and kill [the victim]. See, T.C.A. § 39-11-504(b).

While this court does not find that trial counsel’s performance in this regard was

deficient under the first prong of the analysis, even if so, under the second prong

the result of the trial would not in all reasonable likelihood have been different if

the charge of duress had been given.

Counsel testified that one of the two defenses that he attempted to prove to the jury was

duress. His strategy was to have the Petitioner testify and allow the judge and the jury to

determine whether the defense of duress applied. After the Petitioner testified, Counsel

determined that the defense of duress did not apply, and he did not request such a charge from

the judge. Under the circumstances, we conclude that Counsel should have requested a duress

charge. This was clearly one of his defenses, and it is within the judge’s purview to determine

whether the elements are present sufficiently to instruct the jury on duress. We cannot, however,

conclude that Counsel’s failure to request this instruction prejudiced the Petitioner. The

elements of duress were not present from the Petitioner’s testimony, as was clearly explained by

the post-conviction court. Therefore, the trial court would not have instructed the jury on duress,

even if Counsel had requested such a jury charge. The Petitioner has not met his burden of

proving that Counsel’s actions prejudiced him. This issue is without merit.
−19−

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the post-conviction

court’s judgment dismissing the Petitioner’s petition for post-conviction relief. 

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE