IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned On Briefs August 14, 2012

DORIS NELL JONES v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lawrence County

No. 29418 Robert L. Jones, Judge

No. M2011-02343-CCA-R3-PC - Filed March 8, 2013

Petitioner, Doris Nell Jones, was convicted of second degree murder and sentenced to

eighteen years in incarceration. On direct appeal, this Court dismissed the appeal for lack

of jurisdiction based on an untimely notice of appeal and the absence of a motion for new

trial in the record. State v. Doris Nell Jones, No. M2007-00791-CCA-R3-CD, 2008 WL

544576, at *1 (Tenn. Crim. App., at Nashville, Feb. 27, 2008), perm. app. granted, (Tenn.

June 1, 2009). The supreme court remanded the case for reconsideration in light of its

opinion in State v. Byington, 284 S.W.3d 220 (Tenn. 2009). On remand, this Court affirmed

the conviction and sentence. State v. Doris Nell Jones, No. M2009-01102-CCA-RM-CD,

2009 WL 2633026, at *1 (Tenn. Crim. App., at Nashville, Aug. 26, 2009) (not for citation),

perm. app. denied, (Tenn. Feb. 22, 2010). Petitioner subsequently sought post-conviction

relief. After a hearing, the post-conviction court denied relief. Petitioner appeals, arguing

that the post-conviction court improperly denied relief. After a review of the record, we

affirm the post-conviction court’s denial of post-conviction relief because Petitioner has

failed to show by clear and convincing evidence that she is entitled to post-conviction relief.

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

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

JERRY L. SMITH,J., delivered the opinion of the court, in which ROBERTW.WEDEMEYER and

CAMILLE R. MCMULLEN, JJ., joined.

Shara A. Flacy, Ardmore, Tennessee, for the appellant, Doris Nell Jones.

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

General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.
OPINION

I. FACTS

The factual basis of Petitioner’s underlying second degree murder conviction was

summarized by this Court on remand from the direct appeal. Doris Nell Jones, 2009 WL

2633026, at *2. Essentially, on October 24, 2000, Petitioner’s brother, Eddie Staggs, was

involved in a fight with a man in Bradley County. Id. Mr. Staggs significantly injured the

other person in the fight and was urged to talk to police about the incident. Id. Mr. Staggs

threatened suicide to friends and family and was urged to speak to his pastor. A group of

people went with Mr. Staggs to the pastor’s house where they learned that the man injured

in the fight was being treated at the hospital and might die. Id. Mr. Staggs walked outside

and fatally shot himself. That night, Petitioner’s live-in lover, the victim, showed up where

mourners were gathered at Petitioner’s mother’s house. According to several accounts, the

victim made disparaging remarks about Petitioner’s brother. The Court explained:

During the confrontation between [the victim] and the others . . . ,

[Petitioner] was seen waving a gun in the air. Some of the gathered mourners

led [Petitioner] into a bedroom away from the melee, but after [the victim] was

forced outside the house, [Petitioner] left the house. The testifying witnesses

said that [Petitioner] then fired between one and seven shots into the air. [The

victim], who was in a nearby parking lot walking toward his car, had his back

turned . . . when [Petitioner] fired into the air, but he turned around once he

heard the shots. Patricia Kephart, testifying for the State, said that once [the

victim] turned around, [Petitioner] said, “I’m going to shoot you, . . . .” The

victim placed his hands in the air and said, “[G]o ahead and shoot me.” Other

witnesses described a similar confrontation. [Petitioner] then fired between

one and four shots at [the victim], with one bullet hitting him in the stomach.

Charles Harlan, who at the time of trial was a licensed physician, performed

the victim’s autopsy. Harlan testified that the bullet severed an artery, causing

the victim to bleed to death.

Doris Nell Jones, 2009 WL 2633206, at *2-3. Petitioner was indicted on one count of

premeditated first degree murder but ultimately was convicted of the lesser included offense

of second degree murder. The trial court sentenced Petitioner to eighteen years in

incarceration.

Petitioner’s first appeal was dismissed by this Court for failure to contain a motion for

new trial or an order denying a motion for new trial. Doris Nell Jones, 2008 WL 544576, at

*2. The supreme court granted permission to appeal and reversed and remanded the case for

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reconsideration in light of the court’s opinion in State v. Byington, 284 S.W.3d 220 (Tenn.

2009).

On remand, this Court determined that the trial court erred in admitting testimony by

Petitioner’s mother regarding a telephone conversation between Petitioner and the victim,

but that the error was harmless. Doris Nell Jones, 2009 WL 26933026, at *1. Additionally,

this Court determined that Petitioner’s other arguments were waived for failure to include

them in the motion for new trial and that the issues did not merit plain error review. Id.

Subsequently, Petitioner sought post-conviction relief by filing a pro se petition. In

the petition, Petitioner claimed that she received ineffective assistance of counsel. An

amended petition was subsequently filed. In the amended petition, Petitioner listed several

areas in which counsel was allegedly ineffective, including: (1) failing to discuss Petitioner’s

mental evaluation at trial; (2) failure to call attention to a sleeping juror at trial; (3) failure

to argue self-defense at trial; and (4) failure to explain the change in the indictment to

Petitioner. Counsel was appointed, and a hearing was held on the petition.

At the hearing, Petitioner testified that she had a mental evaluation prior to trial but

was not shown the report prior to making her decision about whether to testify at trial. In

fact, Petitioner claimed that counsel did not discuss the results of the evaluation with her

prior to trial. Petitioner claimed that had she seen the report prior to trial she would have

decided to testify at trial. The report was made an exhibit at the hearing on the postconviction petition. In the report, there were conclusions made about Petitioner’s mental

state at the time of the incident. Specifically, the report stated that there was no evidence that

Petitioner was “psychotic” at the time of the offense and no evidence that suggested “she did

not appreciate the wrongfulness of her actions.” Additionally, the report noted that there

were no past medical records that documented a history of “psychotic statements or

behaviors.” Petitioner testified that the report’sintroduction at trial would have bolstered any

testimony she might have given about self-defense or heat of passion.

Petitioner also complained about trial counsel’s failure to complain about a juror that

was supposedly asleep during trial. Further, Petitioner felt that the evidence suggested selfdefense and complained that trial counsel failed to argue this at trial.

Trial counsel, on the other hand, testified that he reviewed the forensic evaluation

prior to trial and discussed the results with Petitioner. Specifically, trial counsel recalled

discussing the report with the doctor who performed the evaluation. The doctor told trial

counsel that “he could not take the stand and say it’s heat of passion because that’s not in his

realm, that’s in the realm of the jury.” Trial counsel noted that the evaluation would not have

been admissible at trial without the testimony of the doctor.

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Trial counsel recalled that he prepared Petitioner to testify at trial in order to help

argue voluntary manslaughter was the appropriate charge. Counsel thought Petitioner’s

testimony would be helpful, but Petitioner declined to testify despite trial counsel’s advice.

Trial counsel denied Petitioner’s allegation that he had informed her self-defense was

not available in Tennessee. However, trial counsel admitted that he assessed the case and

had determined that self-defense was not warranted under the facts of the case.

Trial counsel remembered seeing one of the jurors nodding off during the State’s case.

Trial counsel made the decision not to call attention to the juror.

At the conclusion of the hearing, the post-conviction court took the matter under

advisement. In an order, the post-conviction court noted that while the actual medical report

was not introduced at trial, the substance of the report was introduced through testimony of

other witnesses for the defense. The post-conviction court further determined that the juror’s

inattention did not prejudice Petitioner’s case because it “was not in the best interest of the

Petitioner to make sure that jurors heard and understood the State’s theory of the case.” The

post-conviction court accredited trial counsel’s testimony with regard to the level of

communication with Petitioner about the availability of defenses. Consequently, the postconviction court denied relief.

Petitioner appeals.

Analysis

Post-Conviction Standard of Review

The post-conviction court’s findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

During our review of the issues raised, we will afford those findings of fact the weight of a

jury verdict, and this Court is bound by the post-conviction court’s findings unless the

evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d

572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This

Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those

drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.

2001). However, the post-conviction court’s conclusions of law are reviewed under a purely

de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

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Ineffective Assistance of Counsel

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

of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial

counsel were deficient and (b) that the deficient performance was prejudicial. See Powers

v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient

performance, the petitioner must show that the services rendered or the advice given was

below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must

show that there is a reasonable probability that, but for counsel’s deficient performance, the

result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.

668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on

a claim of ineffective assistance of counsel, failure to prove either deficient performance or

resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,

960 S.W.2d 572, 580 (Tenn. 1997).

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record

preponderates against the court’s findings. See id. at 578. However, our supreme court has

“determined that issues of deficient performance by counsel and possible prejudice to the

defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]

is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

Furthermore, on claims of ineffective assistance of counsel, the petitioner is not

entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).

This Court may notsecond-guess a reasonably-based trialstrategy, and we cannot grant relief

based on a sound, but unsuccessful, tactical decision made during the course of the

proceedings. See id. However, such deference to the tactical decisions of counsel applies

only if counsel makes those decisions after adequate preparation for the case. See Cooper

v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

The record supports the conclusions of the post-conviction court. Petitioner argues

that trial counsel was ineffective for failing to discuss the mental evaluation with her prior

to trial and for failing to introduce the report at trial. However, trial counsel testified that he

discussed the evaluation with Petitioner. Further, trial counsel noted that the doctor who

performed the evaluation was unwilling to testify that Petitioner was mentally compromised

at the time of the incident so trial counsel did not wish to introduce the evaluation at trial.

The post-conviction court accredited the testimony of trial counsel. The post-conviction

court’s credibility determinations are entitled to great weight on appeal. Further, we cannot

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second guess a reasonably-based trial strategy made after preparation of trial counsel. See

Adkins, 911 S.W.2d at 347. Petitioner is not entitled to relief on this issue.

Petitioner insists that trial counsel failed to address the sleeping juror at trial. Trial

counsel recalled the sleeping juror and determined that the juror’s sleeping occurred during

the State’s case-in-chief and counsel made the strategic decision not to bring the juror to the

court’s attention. The post-conviction court specifically accredited the testimony of trial

counsel at the post-conviction hearing. As noted, this was a strategic decision made by trial

counsel after considering the possible alternatives. Petitioner is not entitled to relief on this

issue.

Finally, Petitioner claims that trial counsel informed her that self-defense was not a

viable defense in Tennessee. Trial counsel testified that he never would have advised

Petitioner that this was the case. Rather counsel was of the opinion that the facts surrounding

the shooting did not substantiate a claim of self-defense. Again, the post-conviction court

accredited the testimony of trial counsel. Petitioner is not entitled to relief on this issue.

Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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