IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 18, 2016 Session

KELLEY ELIZABETH CANNON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2008-C-2809 Cheryl A. Blackburn, Judge

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No. M2015-01869-CCA-R3-PC – Filed March 21, 2017

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A Davidson County jury convicted the Petitioner, Kelley Elizabeth Cannon, of first 

degree premeditated murder and a life sentence was imposed. On direct appeal, this 

Court affirmed the Petitioner‘s conviction and sentence. State v. Kelley Elizabeth 

Cannon, No. M2010-01553-CCA-R3-CD, 2012 WL 5378088, at *1 (Tenn. Crim. App., 

at Nashville, Oct. 30, 2012), perm. app. denied (Tenn. May 9, 2013). The Petitioner filed 

a post-conviction petition alleging ineffective assistance of counsel, and the postconviction court denied relief following a hearing. On appeal, the Petitioner maintains 

that she received the ineffective assistance of counsel, asserts that the post-conviction 

court erred by preventing her use of trial exhibits for a demonstration and challenges the 

validity of the search warrants in this case. After review, we affirm the post-conviction 

court‘s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Drew Justice, Murfreesboro, Tennessee, for the appellant, Kelley Elizabeth Cannon.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney 

General; Glenn R. Funk, District Attorney General; and Katrin Miller, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

A. Trial
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On June 23, 2008, James Cannon, (hereinafter, ―the victim‖) the Petitioner‘s 

husband, was found dead in his home in Nashville, Tennessee. The couple had three 

children, and the victim had filed for divorce in February 2008. At the time of the 

murder, the victim lived in the marital residence and the Petitioner lived in a nearby 

apartment. At trial, the jury convicted the Petitioner of the first degree premeditated

murder of the victim. On appeal, this Court summarized the facts presented at the 

Petitioner‘s trial as follows:

On September 2, 2008, the [Petitioner], Kelley Elizabeth Cannon, was 

indicted for the first degree murder of James Cannon, her husband, in 

violation of Tennessee Code Annotated section 39-13-202 (2008). Prior to 

her trial, the [Petitioner] filed a motion to suppress two statements that she 

had given to police and a motion to suppress evidence seized during three 

police searches of the crime scene - the [Petitioner]‘s former marital 

residence. The trial court denied these motions following a hearing. The 

[Petitioner] also filed a motion in limine concerning certain anticipated 

testimony regarding a prior domestic dispute between the [Petitioner] and 

the victim, and a motion challenging the admissibility of certain expert 

testimony. The trial court also denied these motions.

At the [Petitioner]‘s trial on April 26-29, 2010, the State presented the 

following evidence:

The first witness for the State was the son of the [Petitioner] and the victim, 

who testified that he was born on September 16, 1990, [sic] and was eleven 

years old at the time of trial. He testified that he had one younger brother 

and one younger sister. He testified that after his mother had moved out of 

the former martial home, only he, his two siblings, and his father (the 

victim) still lived in the residence. He testified that after his mother moved 

out of the house, he and his brother started sleeping in their parent‘s former 

bedroom, and his dad would sleep either in his office or in the boys‘ former 

bedroom.

The witness testified that on the night of the incident he had fallen asleep, 

along with his brother, in his parent‘s former bedroom. He testified that 

sometime after he fell asleep that night, his mother woke him up and told 

him ―we just have to go.‖ He testified that he asked his mother if he could 

get a pillow from his former bedroom, but his mother told him ―no.‖ When 

he was awakened, he realized that his brother and sister were already ready 

to leave. He believed the time was between 1:00 a.m. and 2:00 a.m. He 
3

testified that his mother would normally come before 9:00 p.m. when she 

wanted to pick up the children.

The victim‘s son testified that when they were leaving, the [Petitioner] led 

all of them down the front set of stairs, rather than down the more 

convenient back set of stairs near his former bedroom where his father had 

fallen asleep. He testified that he did not enter or retrieve anything from his 

former bedroom before they left, including any clothes. He testified that 

the [Petitioner] seemed ―nervous and like jumpy‖ when she woke him, and 

because of this, he felt scared and was confused as to why she was there. 

The witness testified that after they left the former marital residence, the 

[Petitioner] took all three children to the apartment where she had been 

living. The witness testified that the [Petitioner] did not talk to them at any 

point during the car ride. He also testified that the [Petitioner] did not make 

any phone calls or do anything else before she went to sleep after they 

arrived at her place.

The witness testified that the following morning, they had been watching 

cartoons for a few hours when the police knocked on the door. He testified 

that he assumed that his dad had sent the police to find them. He testified 

that the [Petitioner] talked to the police for a while and that he and his 

siblings were placed into a patrol car afterward.

The witness testified that before the night of the incident, the [Petitioner]

and the victim had gotten into a ―big fight,‖ and the [Petitioner] had chased 

after the victim with a knife in an effort to prevent him from calling the 

police. The witness testified that the [Petitioner] eventually caught the 

victim, knocked him to the ground, and succeeded in taking the battery out 

of the his cell phone, but the victim had already called the police. The 

witness clarified that he had seen the victim push the [Petitioner] all the 

way to the ground on that occasion. The witness testified that following 

this confrontation, the [Petitioner] went back into the marital residence, 

retrieved his younger sister, got into her vehicle, smashed into the back of 

the victim‘s car, and drove away with the police in pursuit.

On cross-examination, defense counsel questioned the witness concerning a 

prior statement he had given to police in which he had not mentioned 

asking to get a pillow on the night of the incident. The witness testified that 

he remembered that he wanted to retrieve a pillow from his former 

bedroom because he knew that the [Petitioner]‘s pillows did not ―give any 

cushion to your head.‖ The witness also clarified that he could not be 
4

entirely sure where his father had slept on the night in question because he 

had gone to bed before his father, but he testified that his father had told 

him that he was going to sleep in the boys‘ former bedroom that evening. 

The witness testified that he had informed other individuals that his mom

―looked nervous and jumpy‖ prior to his recent testimony and explained to 

them that she appeared this way ―because she was on drugs and stuff.‖ The 

witness testified that he could not remember watching any television at the 

[Petitioner]‘s apartment before he went to sleep on the night of the incident, 

and he could not remember precisely where he and his siblings had slept. 

The witness claimed that his memory of these events was ―fuzzy‖ because 

he had been really scared at the time.

Ms. Vicky Shams, the victim‘s housekeeper, testified that she had been 

hired by the [Petitioner] and that she had been working for the family for 

approximately six weeks by the time of the incident. She testified that soon 

after the [Petitioner] hired her, the [Petitioner] moved out of the house and 

she never saw the [Petitioner] again. She testified that on June 23, 2008, 

she arrived at the victim‘s house at 8:30 a.m., as was her usual practice.

She testified that when she tried to let herself into the house with her key, 

she discovered that the front door was unlocked. After entering the 

residence, she also noticed several other unusual things - including the fact 

that the back door was open, numerous items in the house were out of 

place, the children did not appear to be awake, and there was no sign of the 

victim, even though he normally left for work at 9:00 a.m.

Ms. Shams testified that the victim also employed two nannies, which he 

had hired after the [Petitioner] moved out. Ms. Shams testified that at least 

one of these nannies, and sometimes both, would arrive each morning. She 

testified that soon after she arrived on June 23, 2008, one of those nannies, 

Ms. Karley Dewey, also arrived. Ms. Shams testified that soon thereafter 

she went upstairs to check on the victim‘s youngest child - an eighteenmonth-old toddler who should have been awake by that time - and that she 

discovered that she was not in her crib and that the other children were 

gone as well. She testified that a number of things upstairs appeared out of 

place. She testified that she saw a wine glass and an overturned trash can in 

the master bathroom, a chest of drawers out of place in the children‘s 

bedroom, and a bloody towel beside one of the beds. She testified that she 

took the bloody towel downstairs with the rest of the dirty clothes and 

started washing it in the washing machine. She testified that she placed the 

wine glass, which appeared to have once contained red wine, in the kitchen 

sink. She testified that she informed the nanny that no one was at home, 
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and the two had a discussion after which they eventually decided that one 

of the children must have gotten hurt and been taken to a hospital.

Ms. Shams testified that she asked the nanny to follow her upstairs to help 

her return the chest of drawers to its normal location. She testified that the 

chest of drawers in the boys‘ bedroom had been placed against the bedroom 

closet with its drawers facing the closet door. She testified that the two of 

them moved the chest of drawers, and then she opened the closet door. She 

saw the victim lying on the floor inside. She testified that his skin was dark 

and his hands appeared to be the color of charcoal. She testified that she 

immediately slammed the door and asked for the nanny to call 911. A short 

time later, she opened up the closet door again to make sure that the victim 

was not merely unconscious. She confirmed that he was deceased. She 

testified that she could detect the strong smell of bleach coming from the 

closet, and there was a bleach bottle lying on the closet floor.

Ms. Shams testified that emergency medical personnel arrived shortly 

thereafter. She testified that she asked the nanny to call the victim‘s 

mother-in-law (the [Petitioner]‘s mother), whom she had met previously.

She testified that the nanny did so and handed her the phone. She testified 

that she informed the victim‘s mother-in-law that the victim was dead. She 

testified that she was shocked by the victim‘s mother-in-law‘s response. 

She testified that the victim‘s mother-in-law‘s response indicated that she 

already knew that the victim was dead. Following this testimony, Ms. 

Shams identified several photographs taken of the crime scene, and these 

were authenticated and entered into evidence.

On cross-examination, defense counsel questioned Ms. Shams concerning a 

statement she had given to detectives the day following the murder. In this 

statement, Ms. Shams told the police that when she arrived on the day of 

the murder, the house appeared as though it had been completely 

unattended for the last three days and that she had discovered many alcohol 

bottles in a brown paper bag downstairs. Ms. Shams testified that finding 

these alcohol bottles struck her as unusual because there was ―already 

plenty of alcohol‖ in the home. Ms. Shams testified that she remembered 

telling the detective that she had thought that the victim might have been 

highly intoxicated the night before and that he had perhaps been so for the 

entire weekend. Ms. Shams testified that during the time she worked for 

the victim she had seen him drink every day, but she had never seen him 

drink more than one drink per day.
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Ms. Shams testified that she put the wine glass she discovered that day in 

the kitchen sink because she intended to wash it but that she gave it to 

police before she did so. Ms. Shams testified that she told the police that 

she initially thought that the victim might have knocked over a dresser 

upstairs because he had been drinking and had become upset with the 

children. Ms. Shams testified that she initially told the police that she did 

not believe that the victim had actually slept in the boys‘ bedroom the night 

before because it was his habit to take the lamps off the nearby dresser and 

put them down on the bunk bed with him when he did so. She testified that 

when she entered the boy‘s bedroom, she did not see those lamps in the 

bunk bed, and consequently she did not believe initially that the [Petitioner]

[sic] had slept there the prior evening. Ms. Shams also testified that she 

stopped the nanny from calling 911 for a brief period of time so she could 

check on the victim, because she thought that the victim might have been 

drinking and had just passed out, and she did not want to embarrass the 

victim if this had occurred. On redirect examination, Ms. Shams testified 

that she had never seen the victim become intoxicated, and she had never 

seen him drink more than one drink per day.

Mr. John Hollins, Jr., testified that he was a lawyer who specialized in 

domestic relations and divorce and that he represented the victim. Mr. 

Hollins testified that the victim contacted him in February of 2008 

concerning getting a divorce from the [Petitioner]. Mr. Hollins testified 

that on February 29, 2008, the victim met with him in his office and gave 

him the information that formed the basis of the divorce complaint, which 

he filed the same day. In conjunction with this divorce action, Mr. Hollins 

testified that he filed a request to have the victim receive temporary custody 

of the three children, which was granted. Mr. Hollins also testified that he 

requested a restraining order against the [Petitioner] preventing her from 

threatening the victim, harassing him, or harming him in any way, and the 

judge granted that order as well. Mr. Hollins testified that the judge‘s order 

also prevented the [Petitioner] from using or abusing any narcotic 

medication, alcohol, or drugs in any way.

Mr. Hollins testified that he also requested the judge to issue a restraining 

order giving the victim exclusive possession of the parties‘ former marital 

home, so that the victim and the children could live at the former marital 

residence by themselves. Mr. Hollins testified that the judge did not grant 

that request at the time, and it was his belief that the judge had not done so 

because that type of relief had to be sought through a temporary injunction 

rather than a restraining order. Mr. Hollins testified that he filed a motion 
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for a temporary injunction for the same purpose on March 3, 2008, which 

included additional information about the history of events that had 

occurred between the parties. He testified that the judge granted the 

victim‘s request for an injunction on March 4, 2008, giving the victim 

exclusive possession of the former marital residence and preventing the 

[Petitioner] from coming to the house or interfering with the victim‘s 

possession of the house in any way. Mr. Hollins testified that all these 

orders were still in effect at the time of the victim‘s death.

Mr. Hollins testified that he received a phone call from the victim on May 

22, 2008, concerning an incident of domestic violence that had occurred the 

previous evening. Mr. Hollins testified that he advised the victim that he 

should file a new application for a restraining order, this time in criminal 

court, stating that he was the victim of domestic violence. He testified that 

the victim sought and received an ex parte order of protection on May 22, 

2008, from the criminal court. He testified that the requisite hearing 

concerning this ex parte order of protection was delayed on one occasion 

while the [Petitioner] sought to obtain new representation, and, as a 

consequence, the ex parte order was still in effect at the time of the victim‘s 

death.

Mr. Hollins testified that he received a phone call from the victim‘s motherin-law just before lunch on Monday, June 23, 2008, informing him that the 

victim was dead. He testified that a police officer then got on the phone 

and asked him to bring any relevant court documents to the crime scene and 

that he did so.

On cross-examination, Mr. Hollins testified that he was aware that the 

victim was a lawyer, but he was unaware that the victim had previously 

done some divorce work. Mr. Hollins testified that he was aware that the 

victim had transferred all of his interest in the former marital home to the 

[Petitioner] by quitclaim deed in October of 2005. Mr. Hollins explained 

that the victim had done so for bankruptcy and estate planning purposes, 

but he acknowledged that at the time of the victim‘s death the [Petitioner]

was the sole title owner of record of the former marital residence.

Mr. Hollins testified that he was not aware that the [Petitioner] had 

consulted with a divorce lawyer as early as October of 2007, and he was 

unaware that the [Petitioner] had made allegations of marital infidelity 

concerning the victim. Mr. Hollins testified that among the various 

allegations that he had made when he had requested a temporary injunction 
8

from the divorce court were allegations that (1) on March 6, 2008, the 

[Petitioner] had ―collapsed in the lobby of the Loews Vanderbilt Plaza,‖ (2) 

on that occasion, she had to be rushed by ambulance to a hospital, where 

she was given intravenous fluids, and (3) when all this occurred, the 

[Petitioner] weighed approximately ninety pounds.

Mr. Hollins testified that in the days following the filing of the divorce 

action there was an informal agreement struck between the [Petitioner] and 

the victim. Pursuant to this agreement, if the [Petitioner] would enter into 

drug and alcohol treatment, the victim would consider letting her back into 

the marital home. Mr. Hollins testified that despite this informal 

understanding, they did not seek to change any of the court orders because 

it was his desire to have a sixty-day trial period to determine whether the 

treatment that the [Petitioner] received was going to be effective. Mr. 

Hollins testified that had the [Petitioner]‘s treatment proven effective, he 

would have gone to court and sought to have the orders changed, 

retroactive to the date that the [Petitioner] had entered treatment. However, 

Mr. Hollins testified that they never got through the informal sixty-day trial 

period. Mr. Hollins testified that although the [Petitioner] was represented 

by two lawyers with respect to the divorce action, neither lawyer ever filed 

an answer to the original divorce complaint or any other responsive 

pleadings to the victim‘s requests for ex parte and other forms of injunctive 

relief.

Mr. Hollins testified that the [Petitioner] checked herself into Cumberland 

Heights Rehabilitation Center on March 6, 2008, for treatment and that she 

was released in early April of 2008. Mr. Hollins testified that the 

[Petitioner] was initially welcomed back into the marital home following 

her release. Mr. Hollins testified that when the [Petitioner] returned to the 

former marital home, the restraining orders that had been put into place by 

the divorce court were still in effect. Mr. Hollins testified that on May 21, 

2008, the victim complained to him concerning an incident of domestic 

violence involving the [Petitioner] that had resulted in the [Petitioner]‘s 

arrest. Mr. Hollins testified that he advised the victim to request an ex parte 

order of protection from the criminal court, which he did, and once this 

protective order was granted, the [Petitioner] was not allowed to return to 

the former marital home. Mr. Hollins testified that in the weeks after the 

[Petitioner] was released from jail, there was an extended period of time 

when no one - even the [Petitioner]‘s lawyers - knew where she could be 

located. The [Petitioner] did not answer phone calls or text messages 

during this time period. Mr. Hollins testified that after a few weeks the 
9

[Petitioner] was eventually located, and the victim got her an apartment 

where she could stay.

Mr. Hollins testified that the day after the victim‘s death, he contacted an 

individual working for Northwestern Mutual Life Insurance concerning an 

insurance policy belonging to the victim that named the [Petitioner] as a 

beneficiary. Mr. Hollins testified that he could not remember if he had 

asked this individual to change the beneficiary of the victim‘s life insurance 

policy. Mr. Hollins testified that shortly following the victim‘s death, he 

filed a wrongful death action against the [Petitioner] seeking $40 million in 

damages, and he would likely be entitled to thirty percent of any recovery.

On redirect examination, Mr. Hollins clarified that he filed the wrongful 

death action on behalf of the victim‘s minor children. Mr. Hollins also 

testified that one allegation contained in his request for a temporary 

injunction, concerning the [Petitioner]‘s weighing ninety pounds, was made 

prior to her going into drug rehabilitation. Mr. Hollins testified that he was 

told that the [Petitioner] needed to be treated on an inpatient basis for sixty 

to ninety days but that the [Petitioner] would not agree to that and wanted 

to come home and continue her rehabilitation on an outpatient basis. On 

recross-examination, Mr. Hollins testified that he was not aware that the 

[Petitioner] had not received follow-up treatment after she was released 

from rehabilitation because the victim had refused to pay for it. He 

explained that it was his understanding that the [Petitioner] simply refused 

to go. On further redirect examination, Mr. Hollins testified that the victim 

did not balk at paying for hotel bills, a rental car, and for a condominium 

for the [Petitioner] and that there had never been any dispute between the 

parties concerning bills.

The [Petitioner]‘s mother testified that on June 23, 2008, her daughter was 

living in an apartment. She testified that this apartment was about a ten 

minute drive from the former marital home. She testified that she found out 

that the victim had been murdered when the victim‘s housekeeper called 

her at home. She estimated that this call came in around 8:00 a.m. or 8:30 

a.m. She testified that the housekeeper told her that she needed to come to 

the victim‘s residence quickly, and she did so. She testified that the police 

were already there when she arrived. She testified that her grandchildren 

were not at the residence when she arrived. She testified that she gave the 

police the names and birthdays of the missing children and that she told the 

police that the children were probably with their mother, the [Petitioner].

She explained that she told the police this because ―[i]t was just the most 
10

logical place they could be.‖ She testified that she called both her son (who 

was in the area) and the victim‘s lawyer and informed them of the murder, 

but she did not call the [Petitioner] because she did not have the 

[Petitioner]‘s cell phone number and the [Petitioner]‘s apartment did not 

have a landline. When the prosecutor asked her specifically whether the 

witness had called her daughter the day before the murder and talked to her 

for an extended period of time, she denied remembering doing so and 

denied remembering her daughter‘s phone number. She also testified that 

she did not go over to the [Petitioner]‘s apartment, or ask her son to go over 

to the [Petitioner]‘s apartment, to inform the [Petitioner] of what had 

happened even though the [Petitioner]‘s apartment was only ten minutes 

away.

On cross-examination, the [Petitioner]‘s mother testified that she and her 

daughter were ―somewhat estranged.‖ She also testified that on the day 

prior to the murder, she had several conversations with the victim 

concerning the possibility of their getting together for dinner, but nothing 

ever came of these plans. On redirect examination, the prosecutor observed 

that the witness seemed to clearly remember various conversations with her 

son-in-law on the day before the murder, and asked her if she now could 

recollect talking with the [Petitioner] for nearly an hour on the same day. 

The witness claimed she still could not remember any such conversation.

. . . .

Officer Jeffrey Biggerstaff testified that he was an officer with the 

Metropolitan Nashville Police Department with seventeen years experience. 

He testified that he was a training officer and that on the day of the 

incident, he and a trainee arrived at the crime scene to assist detectives who 

were already at the scene. He testified that they arrived at the crime scene 

at approximately 10 a.m. He testified that the detectives in charge 

requested that he and his partner go to the [Petitioner]‘s apartment in an 

effort to locate the [Petitioner] and her children. He testified that the 

[Petitioner]‘s apartment was approximately half a mile from the victim‘s 

house. He testified that when he knocked on the door, the [Petitioner]

answered and allowed them into the premises. The officer testified that the 

[Petitioner] appeared to be calm and that he could also observe the children 

calmly playing video games.

Officer Biggerstaff testified that the [Petitioner] never asked why they were 

there. He testified that he told the [Petitioner] that they were there to check 
11

on her welfare and the welfare of the children. He testified that he did not 

tell the [Petitioner] that her husband was deceased. He testified that he 

instructed the [Petitioner] to remain where she was until the detectives 

arrived and that he remained at the [Petitioner]‘s apartment until they did 

so.

On cross-examination, Officer Biggerstaff testified that the scene at the 

[Petitioner]‘s apartment appeared to be normal. He testified that he had 

been instructed by the detectives to notify them when he made contact with 

the [Petitioner] and her children, but the detectives never instructed him not 

to tell the [Petitioner] that her husband was dead. He testified that he made 

this decision to withhold this information on his own.

Officer William Stokes of the Metropolitan Police Department testified that

he was a police detective and that he had responded to a call at the victim‘s 

house along with another detective, Officer Brad Putnam. He testified that 

he and Officer Putnam walked through the house after they arrived. He 

testified that he and another officer, Lieutenant Nancy Felder (his 

supervisor), then left the crime scene and went to the [Petitioner]‘s address. 

He testified that when he arrived at that location there were already two 

uniformed police officers there, one inside and one outside the apartment. 

He testified that the [Petitioner] and her three children were also there and 

that the two older boys were watching TV. He testified that the [Petitioner]

never asked them why they were there.

Officer Stokes testified that he told the [Petitioner] that they would like to 

speak with her. He testified that he went to the [Petitioner]‘s apartment for 

the purpose of getting a statement from the [Petitioner] and that after she 

agreed to speak with them he tape recorded her statement. The witness was 

shown a CD and transcript of that interview, which he authenticated. They 

were entered into evidence and the interview was played for the jury. The 

witness also identified the [Petitioner] in open court.

Officer Stokes testified that he and Lieutenant Felder interviewed the 

[Petitioner] in the bedroom of the [Petitioner]‘s apartment, which was the 

only room in the apartment where they could have some degree of privacy 

from the [Petitioner]‘s older children. He testified that the [Petitioner]‘s 

toddler was present in the room during the interview. He testified that the 

tape recorder he used to record the interview was not hidden and in the 

open.
12

On cross-examination, Officer Stokes testified that the first interview with 

the [Petitioner] lasted for about an hour. He testified that the [Petitioner]

answered all of the questions she was asked during this interview, and even 

directed officers to the location of her rental car in the apartment‘s parking 

lot. Officer Stokes also testified that at the end of the interview, when he 

asked the [Petitioner] if she would be willing to come to the police station 

for another interview, the [Petitioner] replied ―absolutely.‖ Officer Stokes 

testified that he had been prepared to inform the [Petitioner] that her 

husband was dead at several points during the interview, but was cut off by 

his supervisor, Lieutenant Nancy Fielder. At one point during the 

interview, the [Petitioner] asked the detectives ―where is he,‖ referring to 

her husband, at which point Officer Stokes replied to her: ―He‘s at home.‖ 

Officer Stokes testified that when the [Petitioner] was finally informed that 

her husband was dead (fifty minutes into the interview), the [Petitioner]

was very emotional and started hyperventilating.

Officer Stokes also testified that on an occasion following the interview he 

returned to the [Petitioner]‘s apartment complex for purposes of serving a 

warrant. He testified that the [Petitioner] was not home when they arrived, 

and they waited for her to return. He testified that when the [Petitioner]

returned, her vehicle was being followed by a Dodge pickup truck that was 

being driven by a man. He testified that he saw this man get out of his 

pickup truck, walk over to the [Petitioner]‘s vehicle, and lean into the 

window. He testified that he never obtained the license tag number of this 

truck and never interviewed its driver. After the individual left, the officers 

executed the search warrants and seized several items. Officer Stokes 

testified that as they were leaving, the [Petitioner] indicated to them that 

she was concerned for her safety, and he advised her to call the police if she 

felt threatened.

On redirect examination, Officer Stokes clarified that the [Petitioner] had 

indicated to him that she was concerned for her safety because she was 

nervous staying by herself. He testified that he advised her to call the 

police if she thought anyone was prowling around outside her apartment. 

On cross-examination, Officer Stokes testified that the man in the truck was 

still within earshot when they approached the [Petitioner]‘s vehicle, 

identified themselves as police officers, and indicated that they had a search 

warrant. Officer Stokes testified that the individual got into his truck and 

left after hearing this information.
13

Officer Johnny Lawrence of the Metropolitan Nashville Police Department 

testified that his unit specialized in photographs, fingerprints, collecting 

evidence, crime scene reconstruction, and bloodstain interpretation. He 

testified that he investigated the crime scene at the victim‘s residence on 

June 23, 2008. Officer Lawrence testified that he created a number of 

diagrams and took a number of photographs of the crime scene, and he 

authenticated these items, which were then entered into evidence. Officer 

Lawrence testified that the tip of a latex glove was discovered in the 

children‘s bedroom, with the remainder of that latex glove being found 

inside the closet door of that same bedroom. Officer Lawrence also 

explained that he discovered a cell phone charger whose cord was missing 

and which appeared to have blood on it. He testified that he cut out several 

pieces of the carpeting in that bedroom because they appeared to have 

possible bloodstains.

Officer Lawrence testified that there was a strong odor of bleach when he 

went into the closet of the children‘s bedroom. He discovered a bleach 

bottle inside. He testified that further investigation revealed that bleach had 

been poured and splattered onto the victim‘s body. Officer Lawrence 

testified that in the children‘s bedroom he also discovered a closed water 

bottle, a pair of eyeglasses, a briefcase, and a man‘s watch near the bed. 

The briefcase contained a cell phone and some other items. Officer 

Lawrence testified that they searched the house but could not find the 

victim‘s wallet or his identification, and he testified that to his knowledge 

those items had never been found. He testified that when he searched the 

house he came across a partially open window, which he photographed. He 

testified that he processed the window to see if he could locate any 

fingerprints, and he was able to lift several fingerprints from the outside of 

the windowpane.

Officer Lawrence testified that he was given a wine glass, which he 

processed for fingerprints and DNA. He testified that he collected a box of 

latex gloves from the laundry supply room of the victim‘s house. Officer 

Lawrence also testified in detail concerning the procedures he used to 

collect and secure the evidence that he collected in the case.

On cross-examination, Officer Lawrence testified that by the time he 

arrived at the crime scene, numerous police officers, emergency personnel 

and family members had been in the house. He also testified that he did not 

see any of the officers at the crime scene wearing the protective booties on 

their shoes that were designed to protect against biohazards and prevent 
14

items of evidence from being tracked from one room to another. Officer 

Lawrence testified that if the [Petitioner] had lived in the house for three 

years, he would have expected to find a significant amount of her DNA 

inside.

Ms. Alicia Mahoney, a crime scene investigator for the Metropolitan 

Nashville Police Department, testified concerning photographs she took of 

the crime scene on the morning of June 23, 2008, and additional 

investigation that she performed. Ms. Mahoney testified that she found two 

white latex gloves in the backyard behind the victim‘s residence, one of 

which was hung on a tree branch. She also testified that she found an 

empty beer can in the driveway area in the back of the victim‘s house and 

an empty beer bottle in a planter in the front yard, which she took into 

evidence.

Ms. Rhonda Evans, a crime scene technician with the Metropolitan 

Nashville Police Department, testified that she assisted Officer Lawrence 

with his investigation of the crime scene on June 23, 2008, by taking a bag 

of clothing to the property room. She testified that afterward she assisted 

Officer Putnam with collecting items from the [Petitioner]‘s house, 

including a white tank top, a pair of blue jeans, a pair of white high-heeled 

shoes, and a box of latex gloves that was labeled ―Walgreen‘s.‖ She also 

testified that she took latent prints from the crime scene and that she took 

photographs and lifted fingerprints from the [Petitioner]‘s vehicle. She 

testified that she took a photograph of what appeared to be a piece of a box 

of latex gloves from inside the [Petitioner]‘s vehicle and collected that item. 

She also testified in detail concerning the procedures that she used to 

collect and store the evidence that she collected. On cross-examination, 

Ms. Evans testified that the jeans she took into evidence were a size one 

and that the T-shirt she received was a size ―small.‖

Ms. Linda Wilson, an analyst in the identification section of the 

Metropolitan Nashville Police Department, testified that she had fifteen 

years of experience in analyzing fingerprints and was qualified by the court 

as an expert in latent print examination. Ms. Wilson testified that nine 

different sets of prints were discovered at the crime scene and given to her 

for analysis. She testified that most of the prints she received from the 

crime scene had no value because they did not have sufficient detail for her 

to make a valid comparison. She testified that a pair of prints recovered 

from the front door and from the bathroom sink were of sufficient quality to 

make a comparison, but did not match either the victim or the [Petitioner]. 
15

She testified that she was able to identify fingerprints found on the 

doorframe of the baby‘s bedroom, as well as prints from a water bottle 

found in the children‘s bedroom, as matching the victim. She testified that 

she was able to identify a print taken from the children‘s bedroom closet 

door frame as matching the [Petitioner]. She testified that there were no 

unidentified prints on the doorframe of that closet door that might have 

come from someone else. She testified that she had also identified 

fingerprints that were found on the outside of the partially open window to 

the victim‘s house, as well as on the driver‘s side door of the [Petitioner]‘s 

rental car, as matching the [Petitioner].

On cross-examination, the witness testified that if someone had lived in a 

house for an extended period of time, their fingerprints would probably be 

found throughout the residence. In addition, she testified that there is no 

way to determine how long fingerprints have been on a surface. She 

testified that she had also examined all of the fingerprints from the crime 

scene to determine if any matched a man named James Dean Baker (who 

had an arrest record in the county) and that none did.

Ms. Amy Huston, a mutual friend of the victim and the [Petitioner] and the 

godmother of the [Petitioner]‘s youngest child, testified that sometime in 

April, following the [Petitioner]‘s release from rehabilitation, the 

[Petitioner] had called her and asked her what the victim knew about her 

(the [Petitioner]) having affairs. Ms. Huston testified that she told the 

[Petitioner] that she had no information on the subject. Ms. Huston 

testified that she had no further contact with the [Petitioner] until Sunday, 

June 22, 2008. She testified that she received a call from the [Petitioner]

around 8:00 p.m. that evening. She testified that the [Petitioner] sounded 

very upset and asked her if she would call some additional girlfriends and 

come out and meet her. She testified that she got dressed and went to meet 

the [Petitioner] by herself at around 9:00 p.m. at an establishment named 

―Bricktops.‖ She testified that when she arrived, the [Petitioner] was not 

there. She testified that soon thereafter, the [Petitioner] called her and told 

her that she had ―cut herself shaving,‖ and needed to ―run by the drugstore 

and get a Band-Aid.‖ When the [Petitioner] arrived at approximately 9:30 

p.m., she had a Band-Aid on her thumb covering a cut that appeared to 

have been caused by a straight razor.

Ms. Huston testified that the [Petitioner] ordered a glass of wine and started 

talking. She testified that the [Petitioner] was making comments such as 
16

―how dare he divorce me,‖ and ―he can‘t do this . . . I‘m the primary 

caregiver.‖ She testified that their conversation was not genial.

Ms. Huston testified that in the entire time she had known the [Petitioner], 

she had never known the [Petitioner] to work outside the home. She 

testified that she advised the [Petitioner] to get a job so that she could 

support herself, but the [Petitioner] did not receive this suggestion well. 

There was some further discussion about jobs requiring a drug test. She 

testified that she stayed with the [Petitioner] until around 11:00 p.m., and 

the [Petitioner] had three glasses of wine during this time. She testified that 

the [Petitioner] received a cell phone call during their conversation, and the 

[Petitioner]‘s cell phone appeared to be working normally. She testified 

that she could only hear one side of the phone conversation, which sounded 

like a ―marital fight‖ from her perspective. She testified that during this 

conversation she heard the [Petitioner] say that ―they were her kids and that 

he could not have them, that they were hers.‖ She testified that she and the 

[Petitioner] both left the establishment at the same time and that she could 

see the [Petitioner] sitting in her car, possibly still talking on the phone, as 

she drove away. Ms. Huston testified that she had known both the victim 

and the [Petitioner] for a long time and that while the [Petitioner] was ―not 

a large woman,‖ the [Petitioner] [sic] was ―not a big man.‖

On cross-examination, Ms. Huston testified that she considered the 

[Petitioner] to be a friend, which was why she had gotten out of bed and 

dressed to go meet her that evening. She also testified that if the 

[Petitioner] had been in trouble, she would have wanted to help her out and 

that she had hoped that the [Petitioner] would ―address her drug issues and 

get better.‖ The witness testified that when the [Petitioner] arrived at 

Bricktops that evening, she had an enormous handbag with her, and she 

testified that the [Petitioner] may have made some comment to the effect 

that she was ―sort of living out of that bag.‖ The witness testified that the 

victim was a regular drinker in social settings.

. . . .

Officer George Ward of the Metropolitan Nashville Police Department 

testified that he was a patrol officer and that he responded to a domestic 

disturbance that was reported on May 21, 2008. Officer Ward testified that 

he was informed by dispatch that the [Petitioner] was taking one of the 

children and had pushed a vehicle out of the way with her vehicle. When 

he arrived at the victim‘s house, he saw a black GMC Yukon at the end of 
17

the driveway with the [Petitioner] in the driver‘s seat. He testified that he 

saw the [Petitioner] look right at him and make eye contact with him before 

proceeding to turn left out of the driveway and go in the other direction.

Officer Ward testified that he had his lights on but his siren off at this time. 

He testified that when he saw the [Petitioner] pulling away, he turned his 

siren on and drove right behind the [Petitioner]. He testified that the 

[Petitioner] kept accelerating. He testified that when the [Petitioner] had 

finally reached a speed of 70 mph while still in a 30 mph residential zone, 

he backed off in order to avoid an accident. He testified that he chased the 

[Petitioner] for approximately a quarter-mile before he discontinued 

pursuit.

Officer Ward testified that when he returned to the victim‘s house, the 

victim was present. He testified that the victim‘s shirt was ripped and had a 

grass stain on it and that the victim‘s right bicep was bruised. He testified 

that the victim‘s vehicle was still at the residence and that there was some 

damage to the vehicle‘s rear bumper. Officer Ward took photographs of the 

victim, his vehicle, and the residence, and he authenticated these items, 

which were entered into evidence. Officer Ward testified that the 

[Petitioner]‘s vehicle was equipped with OnStar, which he used with the 

victim‘s consent to locate the [Petitioner]. He testified that he and a fellow 

officer assisted the victim in securing an order of protection and in taking 

out criminal warrants against the [Petitioner].

On cross-examination, Officer Ward testified that he had been to the 

victim‘s residence previously, when the [Petitioner] had accused the victim 

of kidnapping after he had picked the elder boys up from school on the day 

he filed for divorce. Following Officer Ward‘s testimony, another officer 

also testified concerning this earlier domestic disturbance call and its 

aftermath.

Mr. Aaron Bagley testified that he worked at the Hickory Falls Bar and 

Grill in Smyrna, Tennessee. Mr. Bagley testified that on May 29, 2008, he 

was working as a bartender when the [Petitioner] came into the 

establishment to pick up a ―to go‖ order. He testified that the [Petitioner]

stayed for about forty-five minutes and that during that time, she started 

telling him all about the fact that she was going through a divorce. He 

testified that she stated that she had discovered her husband was cheating 

on her and had caught him flying women to come in and see him from 

other states. He testified that the [Petitioner] told him that if her husband 

―tried to take the babies‖ away from her, she would kill him. He testified 
18

that she appeared to be very distraught, bitter, and emotionally unstable 

during this conversation. He testified that the [Petitioner] ate her dinner at 

the bar and drank several glasses of white wine while she was there. He 

testified that the [Petitioner] repeated her claim that she would kill her 

husband a number of different times and in a number of different contexts. 

He testified that this conversation was unusual and memorable, even for a 

bartender. He testified that he had never seen the [Petitioner] before that 

evening and that he never saw her again until he saw her picture on the 

evening news. Following this testimony, he was shown a restaurant receipt 

from that evening, which listed his name as the server, and he read the 

signature at the bottom of that receipt, ―Kelley.‖

On cross-examination, the witness acknowledged that he never called the 

police concerning this conversation, even though he took it seriously and 

had access to enough information to identify the [Petitioner]. He also 

agreed that in his initial statement to police, he indicated that the 

[Petitioner] looked very skinny and that he had underlined the word ―very.‖

. . . .

Mr. Rick Greene, who had been in treatment with the [Petitioner] at 

Cumberland Heights, testified that the day following the murder the 

[Petitioner] called him over and told him that she had been to the former 

marital residence the night before, had entered it through the already-open 

front door, and had removed her children when she could not find her 

husband. Mr. Green further testified that she stated ―I can‘t tell you 

anything because I don‘t want to have to lie to you‖ when he had asked her 

if she knew that her husband was in the closet that evening.

. . . .

Dr. Thomas Deering, the State‘s forensic pathologist, testified that the 

victim weighted [sic] 163 pounds when he died and that he died as a result 

of strangulation - most likely by ligature. Dr. Deering also testified that 

there were signs that the victim had suffered multiple blunt force trauma to 

his head. The victim‘s body showed signs of post-mortem abrasions 

consistent with its having been dragged along the carpet. Finally, Dr. 

Deering testified that while great force had been used to strangle the victim, 

this force could have been generated by someone who was not overly 

strong if the assailant had used a ligature and the victim was struggling.
19

Agent Linda Littlejohn of the Tennessee Bureau of investigation, the 

State‘s expert in micro-analysis, testified that she had analyzed a piece of a 

Walgreen‘s latex glove box that had been found in the [Petitioner]‘s car and 

determined that it matched a torn Walgreen‘s latex glove box found in the 

[Petitioner]‘s home. She further testified that she had made a physical 

comparison of the latex gloves found at the crime scene and determined 

that the three gloves discovered there were inconsistent with gloves coming 

from a box found at the victim‘s residence but were consistent with the 

gloves coming from the Walgreen‘s box found at the [Petitioner]‘s 

apartment.

Agent Jennifer Shipman, a forensic scientist for the Tennessee Bureau of 

Investigation and the State‘s expert in DNA analysis, testified that a DNA 

test performed on a blood stain found on the [Petitioner]‘s jeans revealed 

DNA from both the [Petitioner] and the victim. She testified that she found 

the [Petitioner]‘s DNA on the inside of the latex glove discovered in the 

children‘s bedroom and a mixture of the [Petitioner]‘s and possibly the 

victim‘s DNA on the outside of that glove. Finally, she testified that blood 

and DNA belonging to the victim were found on the base of the Motorola 

phone charger at the crime scene.

Mr. Elliot Webb, Walgreen‘s loss prevention supervisor, identified and 

authenticated store surveillance footage taken from a Walgreen‘s location 

on Charlotte Pike at 11:17 p.m. This footage, which was played for the 

jury, appeared to show the [Petitioner] removing a box of latex gloves from 

a shelf and then exiting the store without paying for it.

Following all of this testimony, the State rested. During a jury-out hearing, 

the [Petitioner] moved for a judgment of acquittal. The trial court denied 

this motion, and the [Petitioner] was advised of and waived her right to 

testify in her own defense pursuant to the procedures established in Momon 

v. State, 18 S.W.3d 152, 162-64 (Tenn.1999). The defense then presented 

the following testimony:

Officer Freddie Stromatt of the Metropolitan Nashville Police Department 

testified that he was a detective who had assisted in the homicide 

investigation involving the victim on June 23, 2008. He testified that he 

arrived at the crime scene at 9:00 a.m. or 10:00 a .m. and stayed there until 

10:00 p.m. or 11:00 p.m. He testified that while he was at the crime scene, 

arrangements were made for the [Petitioner] to pick up a vehicle from the 

former marital residence. He testified that he was a part of the discussions 
20

arranging for the [Petitioner] to be provided with a vehicle. He testified 

that at approximately 9:15 p.m. that night, an individual named James Dean 

Baker arrived at the crime scene and stated that he was there to pick up a 

vehicle for the [Petitioner]. Officer Stromatt testified that he allowed Mr. 

Baker to pick up a vehicle for the [Petitioner]‘s use. While he was talking 

with Mr. Baker, he learned that Mr. Baker had met the [Petitioner] at 

Cumberland Heights Rehabilitation Center. Officer Stromatt testified that 

he checked Mr. Baker‘s identification when he picked up the vehicle to see 

if he had any outstanding warrants and that he determined that Mr. Baker 

had a criminal record.

On cross-examination, Officer Stromatt testified that his encounter with 

Mr. Baker occurred as the result of his and other officers‘ attempts to 

accommodate the [Petitioner] by affording her a vehicle to drive while her 

rental vehicle was under investigation. Officer Stromatt testified that he 

asked Mr. Baker whether Mr. Baker had any knowledge of the events that 

had occurred in the house the previous evening and that Mr. Baker replied 

to him that he did not. On redirect-examination, Officer Stromatt testified 

that he would not just take someone‘s word that they were not involved in a 

crime but that to his knowledge neither he nor any of the other officers had 

ever interviewed Mr. Baker.

Ms. Pamela Jo Brady testified that she was a former administrative assistant 

for the Marshall Space Flight Center in Huntsville, Alabama, and had 

known the [Petitioner] since 1989, when the [Petitioner] was hired for a 

position there. Ms. Brady testified that she and the [Petitioner] developed a 

friendship outside the office. Ms. Brady testified that she was the maid of 

honor at the [Petitioner]‘s wedding to the victim. Ms. Brady testified that 

when the [Petitioner] was arrested on May 21, 2008, following a domestic 

dispute, the [Petitioner] called her, and she made some phone calls on the 

[Petitioner]‘s behalf. She also traveled to Nashville to assist the [Petitioner]

following her arrest, and she spent a couple days with her while the 

[Petitioner] was staying at a hotel. Ms. Brady described the [Petitioner]‘s 

physical appearance in May of 2008 as ―visibly shaken, and she had night 

sweats.‖ Ms. Brady also described the [Petitioner] as ―very nervous,‖ ―pale 

and sick,‖ and ―seem[ing] to have pneumonia.‖ Ms. Brady testified that the 

[Petitioner] looked the smallest that she had ever seen her during this time 

period and appeared to weigh somewhere in the range of ninety pounds. 

She testified that it was very difficult for the [Petitioner] to talk or 

communicate during the time she stayed with her at the hotel.
21

Ms. Brady testified that at one point during her stay with the [Petitioner] at 

the hotel, she witnessed the [Petitioner] receive a phone call from the 

victim. When she received the phone call, the [Petitioner] appeared to be 

visibly shaken, and she stated to Ms. Brady that she did not want to answer 

the phone because she was afraid that she might be breaching an order of 

protection. Ms. Brady stated that the [Petitioner] told her ―he‘s called so 

many times . . . I‘m going to see what he wants.‖ Ms. Brady said she 

listened to the [Petitioner]‘s side of the ensuing conversation, and the 

[Petitioner] stated, ―Do not come and get me, no, do not come and get me.‖ 

She stated that the [Petitioner] started crying and asked, ―Jim, why are you 

doing this, why are you putting me through this, why are you doing this?‖

Ms. Brady testified that the following month, in June of 2008, the 

[Petitioner] came to visit her in Huntsville for the weekend. She testified 

that the [Petitioner] arrived on Saturday, June 14, 2008, and left on 

Monday, June 16, 2008. She testified that the [Petitioner] had been 

scheduled to arrive between 7:00 p.m. and 9:00 p.m. on Friday the 13th, but 

did not arrive until 2:00 a.m. on Saturday morning. When the [Petitioner]

arrived, she appeared dazed and confused. Ms. Brady testified that the 

[Petitioner] appeared worse physically than when she had seen her in May. 

She testified that the [Petitioner] was nervous, could not sleep, and had 

night sweats. Ms. Brady testified that during her weekend visit, the 

[Petitioner] never expressed any animosity towards the victim. The witness 

also testified that during the time she knew her, the [Petitioner] was always 

a loving mother. Ms. Brady testified that she had met the victim on a 

handful occasions and that the victim always had a drink in his hand.

On cross-examination, Ms. Brady acknowledged that she had not seen the 

victim in at least six years. She also testified that she was not aware that 

the [Petitioner] had a drug problem. When the prosecutor asked her if the 

[Petitioner]‘s appearance - including her being nervous and having night 

sweats - could have been a natural result of the [Petitioner]‘s drug 

addiction, the witness responded, ―I‘m not medically qualified to answer 

that question.‖

Following Ms. Brady‘s testimony, Dr. Amanda Sparks-Bushnell, the 

[Petitioner]‘s psychiatrist, took the stand. Dr. Bushnell testified that she 

began treating the [Petitioner] in the spring of 2008 for anxiety, depression, 

panic disorder, and Post Traumatic Stress Disorder. She testified that she 

saw the [Petitioner] on an approximately weekly basis between April and 

June of 2008. She testified that she gave the [Petitioner] her cell phone 
22

number and that the [Petitioner] called her frequently. She testified that the 

[Petitioner] was ―quite small‖ and that with respect to the [Petitioner]‘s 

appearance, ―the term waif like is what keeps coming to mind.‖ Dr. 

Bushnell stated that when the [Petitioner] wore a sleeveless shirt, she 

noticed that the [Petitioner] had loose skin on the back of her triceps that 

was indicative of rapid weight loss and that the [Petitioner] had ―no 

definition between the biceps muscle, the triceps muscle.‖

Dr. Bushnell stated that she was treating the [Petitioner] with Adderall, 

Zoloft, Provigil, and Clonazepam. Dr. Bushnell testified that she also 

prescribed Pristiq later during the [Petitioner]‘s treatment when ―[h]er 

anxiety was going beyond what the Zoloft could handle.‖ Dr. Bushnell 

testified that the [Petitioner] was not psychotic and that she could find no 

evidence that the [Petitioner] had ever had a psychotic episode.

On cross-examination, Dr. Bushnell clarified that prior to being

incarcerated for the victim‘s murder, the [Petitioner] ―was quite gaunt and 

emaciated‖ and that she only started to look healthier and put on more 

weight after her incarceration. Dr. Bushnell testified that if the [Petitioner]

had been mixing all the different medications that she had been prescribed 

with alcohol and/or pain medications, this could have led to some of the 

behaviors that she had described in her direct testimony.

Dr. Jonathan Arden, the [Petitioner]‘s expert in the field [of] forensic 

pathology, testified that he had reviewed various documents that he had 

received from the State, including the victim‘s autopsy report, toxicology 

report, the medical examiner‘s investigation report, and photographs of the 

crime scene and the autopsy. Dr. Arden testified that in his expert opinion, 

the victim‘s death was caused by strangulation by ligature. Dr. Arden 

testified that a substantial amount of force was used over an extended 

period of time to strangle the victim. Dr. Arden testified that the amount of 

force that had been used to strangle the victim was far more than was 

necessary to accomplish the strangulation, and in his opinion the victim was 

probably strangled in a minute or less but certainly no more than three or

four minutes. Dr. Arden testified that in his opinion, it would have taken a 

strong person to accomplish this strangulation because the ligature had been 

pulled very tightly and held with a large amount of force. Dr. Arden also 

testified that the victim had superficial injuries to his face that he believed 

were probably caused by some kind of altercation. Marks on the victim‘s 

neck indicated that the victim was probably moving against the ligature 

during this altercation.
23

Dr. Arden testified that he had reviewed the victim‘s toxicology report and 

found that the victim had a blood alcohol content of 0.15. Dr. Arden 

testified that a 0.15 blood alcohol content was almost double the amount 

necessary to qualify for driving under the influence in most states. Dr. 

Arden testified that an experienced drinker would be able to stand up and 

have a conversation with a blood alcohol content at that level but would 

have diminished reflexes and reaction times.

On cross-examination, Dr. Arden testified that he had never interviewed the 

[Petitioner] and that he was not testifying that it was physically impossible 

for the [Petitioner] to have strangled the victim. Dr. Arden testified that he 

was aware that the [Petitioner] had previously worked for a medical 

examiner‘s office in Nashville, but he was not aware that she had assisted 

with autopsies. Dr. Arden agreed with the prosecutor that strength and 

force were not the same thing. Dr. Arden also agreed that it was possible 

for the victim to have lost consciousness within ten seconds after the 

application of the ligature, and he agreed that once the victim lost 

consciousness it would not take a huge amount of pressure to complete the 

strangulation. Following this testimony, the [Petitioner] rested.

In rebuttal, the State presented the testimony of Mr. James Dean Baker. 

Mr. Baker testified that he knew the [Petitioner] because they were in 

rehabilitation together. He testified that after the [Petitioner] was released 

from Cumberland Heights, he assisted her with moving and things of that 

nature. He testified that he spoke with the [Petitioner] on the morning after 

the victim was killed and that she asked him to help her get her vehicle 

from her house. He testified that when he arrived at the crime scene, he 

talked to Sergeant Freddy Stromatt, with whom he was somewhat familiar 

because he worked with one of the officer‘s relatives at the fire department. 

Mr. Baker testified that he retrieved the vehicle and that afterward, he and 

the [Petitioner] went to an establishment and got something to eat.

Mr. Baker testified that he had never met the victim and that he did not 

know anything about - or have any personal knowledge of - how the victim 

came to be murdered. Mr. Baker testified that after he and the [Petitioner]

had dinner on the night after the murder, the [Petitioner] spoke with him on 

the phone and told him that it ―wasn‘t her on the Walgreens video.‖ The 

[Petitioner] also asked him to pray for her and write her letters.
24

On cross-examination, Mr. Baker testified that he did ―not really‖ use 

Cumberland Heights as a way to meet women and that he was unaware that 

he had a reputation there for being a ―flirt.‖ Mr. Baker also acknowledged 

on the stand that he was involved in a divorce from his wife in 1997 and 

1998 and acknowledged that his wife was represented by the victim during 

that divorce. The witness explained that he had learned this for the first 

time when his brother had told him that morning, and he explained that his 

memory from that time period was ―blurry‖ because he was ―using crack 

cocaine pretty bad.‖

Mr. Baker also denied remembering anything about a restraining order that 

the victim had obtained for his (Mr. Baker‘s) wife during their divorce. He 

denied remembering anything about his going out to his former wife‘s 

house with a hack saw and trying to saw through a ―club‖ that was securing 

the steering wheel of a Mustang, and he claimed that he was not arrested on 

that occasion. The witness acknowledged that he was terminated from his 

job at the fire department because of arrests for attempted burglary, 

stalking, trespassing, and doing drugs. The witness acknowledged 

frequently calling the cell phones and pagers of members of the 20th 

Judicial Drug Task Force following his arrest on drug charges. The witness 

concluded by testifying that police officers had not interviewed him at any 

point in the last two years, and he testified that they had only contacted him 

two or three days ago with a request for him to testify at the [Petitioner]‘s 

trial.

After this testimony, both sides rested. The jury was charged, retired to 

deliberate, and returned sometime later with a verdict finding the 

[Petitioner] guilty as charged. The [Petitioner] was automatically sentenced 

to life in prison. On May 28, 2010, the [Petitioner] filed a timely motion 

for new trial, which was denied by the trial court following a hearing. 

State v. Kelley Elizabeth Cannon, No. M2010-01553-CCA-R3-CD, 2012 WL 5378088, 

at *1-19 (Tenn. Crim. App., at Nashville, Oct. 30, 2012), perm. app. denied (Tenn. May 

9, 2013)

B. Post-Conviction Hearing

The Petitioner filed a petition seeking post-conviction relief. Thereafter, postconviction counsel filed three amended petitions, as well as a ―Post-Hearing 

Memorandum in Support of Post-Conviction Relief‖ and a ―Supplemental Post-Hearing 

Memorandum in Support of Post-Conviction Relief.‖ For the purposes of our review, we 
25

summarize only the post-conviction hearing testimony that pertains to the issues 

maintained on appeal. Those issues are whether: (1) counsel rendered effective 

assistance; (2) the post-conviction court erred when it failed to allow the Petitioner to use 

trial exhibits for in-court demonstrations at the post-conviction hearing; and (3) the 

Petitioner‘s jeans were wrongfully seized and examined for DNA. 

Related to the Petitioner‘s claim of ineffective assistance of counsel, she alleges 

numerous deficiencies: (1) Counsel‘s failure to challenge the search warrants based upon 

claims of lack of specificity and lack of probable cause; (2) ―generally botching the DNA 

and serology evidence;‖ (3) Counsel‘s failure to pursue a defense based upon the theory 

that the glove tip was planted; (4) assertions made in opening argument that were later 

unsupported by the proof; (5) Counsel‘s failure to ―use‖ exculpatory evidence in the form 

of phone calls and a ―suspicious‖ footprint found near the victim‘s body; (6) an 

inadequate cross-examination of I.C. about his prior inconsistent statements; (7) an 

inadequate defense of the Petitioner‘s character; and (8) Counsel‘s failure to ―impeach 

the victim as a hearsay declarant.‖

The post-conviction hearing was held over the course of four different days from 

March 30, 2015, through May 26, 2015, and, during the hearing, the parties presented the 

following evidence: Assistant District Attorneys General, Katrin Miller and Sharon 

Reddick, both assigned to prosecute the Petitioner‘s case, testified about the Petitioner

and the victim‘s son‘s testimony at trial. In the post-conviction petition, the Petitioner 

alleged that Counsel was ineffective in his cross-examination of her son, I.C. Ms. Miller 

testified that she was one of the two assistant district attorney‘s assigned to prosecute the 

Petitioner‘s case, along with Sharon Reddick. Ms. Miller confirmed that a District 

Attorney‘s Office victim witness coordinator conducted forensic interviews of two of the 

Petitioner and victim‘s children. Ms. Miller testified about some inconsistencies between 

I.C.‘s interview and his trial testimony. She stated that, during the interview of I.C., he 

stated that, on the night of the victim‘s murder, his brother was looking for their father, 

looked in ―the bedroom,‖ and their father was not there. At trial, the trial court entered a 

copy of the forensic interview with I.C. into the record.

Ms. Miller testified that, also during the forensic interview, I.C. stated that, as he 

exited the upstairs on the night of the murder, he walked by his bedroom on his way to 

the back stairway and saw a couch against the closet door. At trial, I.C. testified that after 

the Petitioner woke him up on the night of the victim‘s murder, he asked the Petitioner if 

he could get a pillow from his bedroom and that the Petitioner told him he could not. I.C.

further testified at trial that on the night of the murder, the Petitioner, I.C., and his 

siblings left the upstairs of the house by way of the front staircase, rather than the back 

staircase that was located near I.C.‘s bedroom and where the victim‘s body was found. 

Ms. Miller recalled that on cross-examination, I.C. was asked about the forensic 
26

interview, and I.C. stated that he did not recall his statements during the forensic 

interview. Ms. Miller noted that I.C. was nine-years-old at the time of the interviews.

Ms. Miller testified that she visited the crime scene and moved furniture up against 

the closet in the bedroom where the victim‘s body was found. She explained that she did 

so in anticipation of a defense argument that the Petitioner was too small to move the 

furniture around. The furniture was moved to test this theory. 

On cross-examination, Ms. Miller testified that she provided Counsel with all 

discovery related to this case including the forensic interview. Ms. Miller noted that 

Counsel never requested to play I.C.‘s prior statement from the forensic interview. She 

explained that there were ―many things‖ in the forensic interview statement that the 

defense would not want a jury to hear, such as I.C.‘s statement that he was afraid of the 

Petitioner or his statement that the Petitioner did not have custody of her children due to 

her drug use. Ms. Miller denied procuring perjured testimony and stated that I.C.‘s 

testimony was not the ―linchpin of this case.‖ 

Ms. Miller testified that Counsel became involved in the Petitioner‘s case early in 

the proceedings. Ms. Miller stated that she had worked with Counsel on numerous 

occasions unrelated to the Petitioner‘s case and described him as an ―excellent trial 

attorney.‖ 

Ms. Miller confirmed that Ms. Reddick conducted the direct examination of I.C. 

Ms. Miller recalled that during redirect examination, Ms. Reddick had asked I.C. about 

meeting with her on the Friday before trial. In response, I.C. confirmed that during this 

pre-trial meeting, he told Ms. Reddick that he did not remember talking with the victim 

witness coordinator or a police officer two years earlier, near the time of the offense. I.C.

testified at trial that, he was ―doing [his] best to remember as much as [he] could.‖ 

Sharon Reddick testified that she was aware of statements I.C. had made to a 

victim witness coordinator in her office about seeing furniture in his bedroom on the 

night of the murder. She testified that the trial was two years after I.C. had made the 

statements, and, by the time of trial, he no longer remembered the interview. She stated 

that she called him as a witness because she believed he had important information to 

offer as it related to the night of the murder and an incident that had occurred prior to the 

murder. She said that she asked I.C. to testify ―about everything that he could 

remember.‖ 

Counsel testified that between June 25, 2008, and April 23, 2010, he met with the 

Petitioner 112 times, seventy-nine of which were jail visits. Counsel said that, over the 
27

course of his numerous meetings with the Petitioner, he believed that they discussed 

―about everything.‖ Counsel said that he did not review his opening statement with the 

Petitioner; however, she knew the substance of the opening statement and what the 

defense anticipated from Dr. Deering‘s and Dr. Arden‘s testimony.

Counsel testified that ―physical impossibility formed a substantial part of the 

defense argument‖ during the Petitioner‘s trial. Counsel agreed that he told the jury that 

the State‘s expert, Dr. Deering, would testify that ―it would require a powerful person to 

commit this act.‖ He further agreed that Dr. Deering‘s testimony at trial was not that it 

was physically impossible for the Petitioner to commit the crime. Counsel explained that 

he and a retired police detective met with Dr. Deering on January 20, 2010. They spent 

several hours together reviewing autopsy photographs and discussing Dr. Deering‘s 

findings. Dr. Deering provided Counsel with his cell phone number, and Counsel made 

several follow-up phone calls asking additional questions. Counsel said that any 

representations he made to the jury about the medical examiner‘s testimony came directly 

from his meetings and discussions with Dr. Deering. Counsel acknowledged that Dr. 

Deering‘s testimony at trial ―back[ed] away a little bit from the very, very strong 

statements‖ he had previously made to Counsel. Counsel stated that, in his experience, 

expert witnesses will ―sometimes‖ ―back away‖ from what they have stated in a prior 

interview. Ultimately, at trial, Dr. Deering testified that a powerful person committing 

the crime was ―just one possibility.‖ 

Counsel testified that, during his meeting with Dr. Deering, Dr. Deering told him 

that someone of the Petitioner‘s size and strength could not commit the crime against 

someone of the victim‘s size. Counsel said that his statements in opening argument about 

Dr. Deering‘s testimony were made in ―good faith‖ and based upon his investigation of 

the case. He stated that both experts he spoke with about the autopsy results told him that 

there was a ―remarkable amount of damage‖ and a ―great deal of force‖ was used. 

Counsel‘s notes about his discussions with Dr. Deering indicated that Dr. Deering 

opined that ―someone‖ could have attacked the victim while he was asleep making it hard 

for the victim to resist. Counsel explained that, although this possibility was raised in

their discussion, he did not believe Dr. Deering would testify that the victim was 

incapacitated at the time of the strangulation because of the victim‘s injuries that were

consistent with a struggle. Further, Counsel noted that Dr. Deering testified that the 

victim‘s head injuries would not have been sufficient to render him unconscious.

Counsel testified that the proof that the Petitioner was in a ―very weakened 

condition‖ in 2008, weighed ninety pounds, was ―waif-like‖ with ―no upper body 

strength,‖ had skin that hung loosely from her arms consistent with sudden weight loss, 

and was ill, supported his assertion that the Petitioner was not someone in the physical 
28

condition to have ―gone toe to toe with a 163 pound man and subdue him by herself and 

inflict these injuries.‖ 

Counsel testified about surveillance video footage of the Petitioner at Walgreens 

in the hours leading up to the victim‘s murder, where she obtained a box of Walgreens 

latex gloves. The surveillance footage did not show the Petitioner paying for the gloves. 

The trial court made a pre-trial ruling that neither party could say that the gloves had been 

stolen or shoplifted because no one could determine conclusively whether the Petitioner 

paid for the gloves. Counsel stated that the Petitioner ―insisted‖ that she had paid for the 

latex gloves and that he did not believe that she had any intent to steal the gloves. 

Counsel explained that, due to the trial court‘s ruling, his statements in opening argument 

were ―necessarily ambiguous‖ about whether the Petitioner bought the gloves, stole the 

gloves, or absentmindedly walked out with them. Further, he noted that the surveillance 

video did not show the Petitioner paying for the gloves. Counsel agreed that he sent his 

private investigator to Walgreens. He could not recall the date but said that the 

Walgreens had no record of ―any purchase.‖ 

Counsel testified about the Petitioner‘s phone records that were introduced at trial 

with the relevant calls highlighted. Post-conviction counsel pointed out a phone call that 

was not highlighted and questioned Counsel about it in relation to the Petitioner‘s 

assertion that Counsel was negligent for not using available exculpatory evidence. The

phone records indicated that a call was placed from the Petitioner‘s phone to the victim‘s 

phone at 8:08 a.m. on Monday, June 23, 2008. Counsel agreed that the evidence 

indicated that the victim was killed between midnight and 2:00 a.m. He explained that 

the calls he highlighted were to show that between June 17 and June 22 there were fortysix phone calls between the victim and the Petitioner‘s phones. Thirty-five of the phone 

calls were initiated by the victim and eleven of the calls were initiated by the Petitioner. 

When asked whether he thought it would have been ―helpful‖ to point out that, 

according to the phone records, the Petitioner tried to call someone who was dead;

Counsel responded that he believed the State would have used the phone call to the 

victim to show that the Petitioner was trying to create an alibi. The State had used the 

Petitioner‘s meeting with Amy Huston to suggest the Petitioner was creating an alibi in 

premeditation of the murder and likely would have used the June 23, 2008 phone call to 

further that theory. He stated that he and the Petitioner assembled what they believed 

were the most ―relevant phone calls‖ to the defense. 

Counsel testified that he was aware that I.C. had made prior inconsistent 

statements about seeing the bedroom where the victim‘s body was found on the night of 

the murder. Counsel said that he did not think it was necessary to play the recorded 

forensic interview because it had ―some things‖ that were not ―particularly helpful.‖ I.C.
29

had told the interviewer that he was scared by the Petitioner‘s behavior and scared 

because the victim ―didn‘t come.‖ He told the interviewer that he was scared because the 

Petitioner ―tried to take [the children]‖ without the victim‘s knowledge and that I.C.

believed the Petitioner and the victim ―were in another fight.‖ I.C. further stated that his 

parents ―fight a lot.‖ Counsel recognized that he needed to ―clean up‖ I.C.‘s testimony 

about being taken down the front stairs of the house as opposed to the back stairwell but 

decided the ―cleanest way to‖ address I.C.‘s prior inconsistent statement was through 

Detective Putnam. He also recalled that the Petitioner was ―pretty devastated‖ that I.C.

had to testify at trial and that she wanted him ―off the stand‖ as quickly as possible. 

Further, Counsel did not view I.C. as ―a critical witness.‖ 

Counsel was asked about I.C.‘s testimony concerning the Petitioner ―standing over 

[the victim] wielding a knife.‖ Counsel disagreed with this characterization of the 

testimony and said that I.C.‘s testimony was consistent with what the Petitioner had told 

him about the incident. The Petitioner and the victim were fighting, and the Petitioner 

had a knife to use in removal of the victim‘s cell phone battery. Counsel said that there 

was no implication that the Petitioner was attacking the victim with the knife. Counsel 

agreed that there was no mention of a knife in the police reports and that the Petitioner 

was arrested for a misdemeanor assault as opposed to a felony. Counsel stated that he did 

not object to the testimony because he believed the testimony was that the Petitioner only 

used the knife to attempt to disable the victim‘s phone. 

Counsel testified that he sought to suppress the admission of the 911 call made by 

the victim on the basis that the victim was a lawyer and ―gratuitously included a bunch of 

information that was not necessary to resolve the emergency.‖ He recalled that the trial 

court listened to his argument but ruled against him. Counsel renewed his objection and, 

on appeal, the Court of Criminal Appeals affirmed the trial court‘s decision. 

Counsel testified that he did not believe the search warrant was overbroad ―on its 

face.‖ He believed the better approach was to file a motion to suppress the Petitioner‘s 

statements because it was the Petitioner‘s statements to the police that were used to 

establish probable cause for the search warrants. Counsel stated that had his motion to 

suppress the Petitioner‘s statements been granted, the search warrant and the resulting 

seizure of the Petitioner‘s jeans would not have been admissible. Counsel reiterated that 

in his ―studied professional opinion‖ he believed that attempting to suppress the 

statements and thereby ―any fruits of those statements was the preferable way to go.‖ 

Counsel testified about his approach to the DNA evidence presented at trial. He 

agreed that his main theory in relation to the DNA was ―inadvertent transference,‖ 

meaning that because the Petitioner had lived in the residence her DNA ―necessarily‖ 

would have been found in the residence. The presence of the Petitioner‘s DNA in the 
30

residence from when she lived there could have contributed to transference of her DNA 

to the outside of the glove tip found near the victim‘s body. Additionally, in furtherance 

of this defense theory, he stated that there were about thirty or more police officers at the 

crime scene as well as the domestic help and the EMTs possibly altering the crime scene. 

As far as the victim‘s blood on the Petitioner‘s jeans, Counsel said he had no ―good 

explanation‖ for it. He agreed this piece of evidence was damaging, as well as the bleach 

found on the same pair of the Petitioner‘s jeans. 

Counsel testified about his preparation for the DNA evidence in this case as 

follows:

I hired Lawrence Kobilinsky, who is one of the I think foremost 

experts in the field of DNA, consulted with him, traveled at my own 

expense up to New York to visit with him. As I would in any case, I tried 

to educate myself as much as I can through interviewing experts and doing 

my own reading and research. And [the Petitioner] was invaluable in 

helping with the DNA evidence because of her medical training and back 

ground. She‘s got a strong, strong science background. 

Counsel said that, based on Dr. Kobilinsky‘s suggestion, he requested the bench notes 

and the Tennessee Bureau of Investigation (―TBI‖) materials. When asked if he 

requested the TBI‘s raw data, Counsel said that he believed the raw data was included in 

the bench notes but, nevertheless, his request was based upon the information Dr. 

Kobilinsky needed to review the case. Counsel said that he did not believe there was a 

―significant break‖ in the chain of custody and, therefore, did not challenge chain of 

custody. 

Counsel testified about his decision not to call Dr. Kobilinsky as a witness at trial 

as follows:

Dr. Kobilinsky when it came time as we got closer to trial in 

February he told me that he was reluctant to write a report - - this is 

February 16th, 2010 - - that he‘s reviewed the material, he felt like the TBI 

crime lab had done what they were supposed to do, he thought that their 

conclusions were straightforward, he said he can‘t say anything about the 

inside of the glove tip, he feared he could not make a difference in the case. 

He believed that he could assist me with cross-examination, that he could 

assist me with concepts like transference, and help me in cross-examining 

the State‘s expert. He said he did not want to make things worse for [the 

Petitioner], once he‘s on the stand he‘s anybody‘s expert. And those were 

the reasons why he was not advanced as a witness. 
31

Counsel said that he spent ―a lot of time‖ talking with the Petitioner about the DNA 

evidence and an explanation for the DNA on her jeans. Counsel agreed that he did not 

call an expert to testify that a presumptive blood test did not confirm that the substance 

was blood. He said that, based upon the testimony that multiple items that had 

presumptively tested for blood were not blood, ―it was pretty obvious‖ that the 

preliminary test did not equate with a finding of blood. At trial, during crossexamination, Counsel asked the TBI DNA analyst about whether she had excluded the 

substance found on the Petitioner‘s jeans as semen, and she responded that she did not 

test the substance for semen. Counsel explained this strategy, saying that, under the 

guidance of his expert witness, he ―obliquely referenc[ed]‖ that the TBI did not know 

what the substance was in an attempt to ―blunt the force [of the testimony] that it was 

blood on her jeans.‖ 

Counsel described the presence of DNA on the glove tip recovered from the crime 

scene outside the door where the victim was found strangled as ―a problematic piece of 

evidence.‖ He reiterated that his tactic was to assert that the Petitioner‘s DNA would 

naturally be all over the house because she had resided there. The defense position was 

that while the Petitioner was living in the residence, she used latex gloves for cleaning, 

dying her hair, and other purposes. Counsel stated that he sent the glove tip to an expert, 

John Nordby.1 The information provided by Mr. Nordby was used during a Daubert

challenge. Counsel said that, in retrospect, Dr. Nordby was ―really pretty disappointing.‖ 

He explained that he would give Mr. Nordby ―a specific assignment,‖ and then Mr. 

Nordby would ―run off on his own and then send you a bill for it.‖ Counsel agreed that 

the TBI DNA analyst claimed that the Petitioner‘s DNA was on both sides of the glove 

tip. The defense challenged that assertion, responding that there was insufficient DNA, 

only three alleles, on the outside of the glove. The TBI crime lab, however, said that the 

Petitioner could not be excluded as opposed to determining the results were inconclusive. 

Counsel was provided with a complete copy of the Petitioner‘s and her mother‘s, 

Ms. Sanders, phone records. He confirmed that there was no indication that there was a 

phone call between the Petitioner and Ms. Sanders on the morning the murder was 

discovered. Counsel said that the records were consistent with Ms. Sanders‘s testimony 

at trial and her statements to Detective Putnam at the crime scene. 

Counsel agreed that he did not object to the State‘s representation of the order of 

protection as acting to protect the children during opening argument. He agreed that the 

 

1

 John Nordby‘s last name is spelled two ways in the records: (1) ―Nordby‖; and (2) 

―Nordeby.‖ We are unclear as to the correct spelling but use the version from the postconviction hearing transcript for consistency.
32

order of protection was for the victim only and that the Petitioner could still have contact 

with the children. He noted, however, his cross-examination of Lieutenant Pylkas where 

he extensively questioned him about the parameters of the order of protection and that it 

did not apply to contact with the children. 

Post-conviction counsel questioned Counsel about instances where the Petitioner 

alleged Counsel failed to object to inadmissible evidence of the victim‘s ―prior bad acts.‖ 

One such allegation related to Sergeant Chick‘s testimony about finding shopping bags in 

the Petitioner‘s vehicle after the Petitioner‘s murder. Counsel agreed that, at trial, 

Sergeant Chick testified about items found in the cargo area of the Petitioner‘s vehicle. 

Counsel explained that he addressed this testimony during his cross-examination of 

Sergeant Chick. Counsel said that, through cross-examination, he was able to establish 

that the shopping bags contained home furnishings for the Petitioner‘s temporary 

apartment to make the apartment ―a little bit more personal‖ for the children when they 

visited. These purchases, to benefit the children, had been agreed upon between the 

victim and the Petitioner prior to the victim‘s death. 

Post-conviction counsel then questioned Counsel about Paul Breeding‘s testimony 

about the Petitioner‘s demeanor. Counsel responded that he did not recall the testimony 

and asked to see the transcript of the exchange. He noted that he believed Mr. Breeding 

had ―little credibility‖ with the jury and that Mr. Breeding‘s testimony had been 

impeached by another State witness. Post-conviction counsel then withdrew his question 

regarding Mr. Breeding‘s testimony.

On cross-examination, Counsel testified that, before entering private practice, he

worked as an assistant district attorney in Chattanooga and as an assistant U.S. attorney in 

both Florida and Nashville. Counsel confirmed that he had handled ―dozens and dozens‖ 

of jury trials during his career. Counsel not only represented the Petitioner on the 

homicide charge but also on charges for evading arrest, reckless endangerment, three 

counts of violating an order of protection, and ―a series‖ of harassing phone calls. He 

also made an appearance for her in a civil dispute and filed a motion on her behalf in 

probate court. In addition to his 112 meetings with her during his twenty-one month 

representation of the Petitioner, he also spoke with her almost daily by phone. He agreed 

that he spoke frequently with Ms. Sanders as well. 

Counsel testified that he represented the Petitioner at a ―much reduced legal fee‖ 

and believed both the Petitioner and Ms. Sanders were satisfied with his representation. 

Counsel referenced a letter dated May 2009 from Ms. Sanders thanking Counsel for his 

representation. About the allegation that he failed to demonstrate that the glove tip found 

at the crime scene was probably planted, Counsel testified that he had no information to 

support that the glove tip was planted. Counsel agreed that the Petitioner believed the 
33

autopsy was a partial autopsy based upon her experience working at the medical 

examiner‘s office while a medical student. He shared Dr. Deering‘s autopsy report with a 

defense expert, Dr. John Arden, who agreed with Dr. Deering‘s cause of death. 

Post-conviction counsel questioned Counsel about his decision not to introduce 

evidence of the victim‘s poor character. Counsel testified about the information he 

received from a private investigator, Ms. Holt, who was referred to him by the 

Petitioner‘s attorney in civil matters, Andrew Cate. Ms. Holt had interviewed a cab 

driver identified by the Petitioner and then met with Counsel to relay the cab driver‘s 

statements about the victim. Counsel said that his notes reflected that Ms. Holt conveyed 

to him concerns about the cab driver‘s credibility. When Counsel reviewed the cab 

driver‘s affidavit, ―it sounded exactly like some of the things that [the Petitioner] had told 

me‖ just weeks before the Petitioner ―stumbled upon‖ this cab driver. Ms. Holt also told 

Counsel that the victim might have sold drugs to Harpeth Hall students. Counsel stated 

that he had never heard allegations of the victim selling drugs to Harpeth Hall students. 

Counsel stated that he was unaware of any legal basis to enter evidence of alleged marital 

misconduct or sexual deviancy on the part of the victim.

Counsel confirmed that he hired two DNA experts, Lawrence Kobilinsky and John 

Nordby. Neither expert indicated there was any issue with chain of custody in the case. 

He agreed that one of the theories Mr. Kobilinsky posited was that there was a possibility 

the mixture found on the Petitioner‘s jeans could have been the Petitioner‘s blood and the 

victim‘s semen. 

Upon further questioning by the post-conviction court about the box of latex 

gloves obtained at Walgreens the night of the murder, Counsel testified that the proof was 

that the Petitioner had the gloves and during a time frame that was not beneficial to the 

defense. The trial court had ruled that neither party could address the issue of whether 

the gloves were stolen and, thus, there was no proof presented at trial on whether the 

gloves were purchased, intentionally stolen, or inadvertently taken from the store.

Thomas Deering, the medical examiner who conducted the victim‘s autopsy, 

testified that he met with Counsel before trial. He denied telling Counsel that it was 

physically impossible for the Petitioner to strangle the victim. He said that he was 

presented with the scenario of a sixty inches tall, ninety-five pound woman committing 

the strangling. He responded that it was not impossible but improbable and not ―typical.‖ 

He said that once the ―strangle with the ligature was established then it was certainly 

possible.‖ Dr. Deering said that his testimony at trial was that there was tremendous 

force that caused the hyoid to press hard against the cervical spine and that there was 

bruising to the muscles on the back of the voice box, which would require ―somebody 

very strong or a ligature applied strongly.‖ Dr. Deering confirmed that the injuries 
34

indicated that the victim struggled against the ligature. Dr. Deering testified that the 

autopsy revealed two aspirin in the victim‘s stomach. 

Upon questioning by the post-conviction court, Dr. Deering testified that, in this 

case, he conducted ―a full autopsy with toxicology.‖ He said that he was unaware of any 

dispute about the cause of death in this case. 

David Dingler, the victim‘s former business partner, testified that he first met the 

victim in March 1999. Clayton Associates, Mr. Dingler, and the victim began a ―startup‖ business together. Clayton Associates had forty percent ownership of this business, 

Mr. Dingler had forty percent, and the victim held twenty percent ownership. Mr. 

Dingler said that in January 2004, ―me and [the victim] and Clayton Associates had a 

very large business divorce.‖ During the course of the ―business divorce,‖ Mr. Dingler 

said that ―certainly some of the character issues came out.‖ He said that the victim could 

be truthful or ―very untruthful‖ depending on the situation. He recalled that the victim 

was well-liked in the business community but that he ―could have‖ had ―enemies in the 

business.‖ 

Mr. Dingler recalled an incident where he and the victim were returning from a 

trip to Nashville and stopped at a liquor store. The victim came up to the register with a 

case of wine and Mr. Dingler noted that the victim did not drink wine. The victim 

responded that the wine was for the Petitioner. Mr. Dingler thought this was odd in light 

of the fact that the Petitioner had just been released from ―rehab.‖ 

Mr. Dingler testified that he worked for a medical company who sold latex gloves 

for about twelve years ―in the seventies.‖ In his experience with latex gloves, he found 

that latex rips in a ―saw tooth‖ pattern. He said that when he learned there was a latex 

glove tip recovered in this case, he found that ―very incredible.‖ He viewed the glove tip 

and noticed that the edging was straight like it had been cut rather than a saw tooth 

pattern if it had torn. Mr. Dingler admitted that he did not have any ―knowledge‖ of 

Walgreens latex gloves specifically.

At this point in the hearing, the post-conviction counsel wanted to use Trial 

Exhibit 55, the box of Walgreens gloves found in the Petitioner‘s car, to demonstrate 

what a tear on a latex glove would look like. The post-conviction court denied the 

Petitioner‘s request to tear up a trial exhibit. The post-conviction court suggested that the 

Petitioner‘s attorney might want to purchase a box of Walgreens gloves if he wished to

do a demonstration. The Petitioner‘s attorney responded that Walgreens stopped selling 

latex gloves in late 2012 or early 2013. The post-conviction court again denied the 

Petitioner‘s request to rip up five gloves from the trial exhibit. When Mr. Dingler offered 

to use some latex gloves he had brought from home, the State objected to the introduction 
35

on the basis that Mr. Dingler‘s latex gloves were not the same type or brand of glove. 

The post-conviction court agreed with the State and denied the Petitioner‘s request to use 

a different type of latex glove for a live demonstration. 

Mr. Dingler testified that it had been a long time since he had worked with latex 

gloves but, based upon his memory, there were various manufacturers for gloves that 

were sold under private labels. He guessed that there were ―probably five or six in the 

world.‖ He stated that he believed that all latex gloves were ―very close to each other‖ in 

thickness and would all rip in the same fashion. The Petitioner‘s attorney then attempted 

to have Mr. Dingler compare how the latex gloves Mr. Dingler had brought from home 

compared with the feel of the latex tip found at the crime scene. The Petitioner‘s attorney 

explained that he was seeking a lay opinion from Mr. Dingler and the post-conviction 

judge on the textures of the two gloves. The post-conviction judge declined to provide a 

―lay opinion‖ on the ―feel‖ of the two gloves. The Petitioner‘s attorney again sought to 

have Mr. Dingler rip the gloves he had brought from home to show whether the rip was 

―saw tooth.‖ The post-conviction court allowed it, and Mr. Dingler ripped multiple 

finger tips from a glove. The Petitioner‘s attorney asked Mr. Dingler to rip ten tips of a 

glove and submitted them as evidence. As he was tearing the gloves, Mr. Dingler said 

that he would characterize the ease of which one can tear a latex glove as ―hard.‖ He said 

that most people removed a latex glove from their hand starting at the cuff not the 

fingers. 

On cross-examination, Mr. Dingler testified that he was not present during the trial 

when Special Agent Linda Littlejohn, a TBI agent, testified about the latex gloves. He 

agreed that he never heard any testimony about how the glove tip became detached from 

the remainder of the glove. He agreed that latex gloves are easily cut with scissors or 

another sharp item. He stated that his degree is in business and his career has been in 

sales as a vendor. 

Elliott Webb, an asset protection manager for Walgreens, testified that a UPC code 

is a universal product code assigned to merchandize. These codes allowed a business to 

track inventory. He confirmed that someone could look up surveillance video based upon 

the time an item was sold by Walgreens. 

William Watson, an independent forensic consultant, testified as an expert in 

forensic DNA analysis and serology. Dr. Watson testified that a presumptive blood test 

indicated the possible presence of blood but there were other items that could cause a 

positive reaction from the test in addition to blood. Dr. Watson said that bacillus, E. coli, 

and salmonella can all render a false positive on a presumptive blood test. Additionally, 

plant extracts such as potatoes, tomatoes, kidney beans, horseradish, and milk could

cause a false positive. He also mentioned gastric secretions released through vomiting, 
36

―saliva in some instances,‖ leather, ―some types of soap,‖ and paper. Finally, he 

mentioned chromium, magnesium, lead, and iron in ―salt form can cause a false positive 

result.‖ Dr. Watson said that the TBI performed two presumptive blood tests on the 

Petitioner‘s jeans in this case. 

Dr. Watson testified that the DNA mixture found on the Petitioner‘s jeans and the 

positive presumptive blood test from the DNA mixture were not sufficient information to 

confirm the presence of blood on the jeans. He explained that items worn against the 

skin, such as jeans, can have DNA on the material without the presence of blood. 

According to the TBI report, there was a mixture of at least two persons‘ DNA on the 

jeans, and the balance of the DNA from the two contributors was ―about equal.‖ Dr. 

Watson said that the ―equal mixture‖ was inconsistent with DNA transfer from touch (the 

Petitioner‘s DNA) mixed with DNA from a blood stain (the victim‘s DNA) because the 

DNA from the blood stain should be ―significantly more.‖ He said that, assuming the 

blood was from the victim, he would ―expect to see a stronger contribution from the 

blood contributor.‖ Given the quantity of the DNA found, Dr. Watson did not believe the 

stain was a mixture of blood and touch cells. Dr. Watson stated that another possible 

explanation for the DNA results is that the Petitioner‘s and the victim‘s biological 

children would share alleles from both parents. The result, therefore, may have been a 

mixture of the children‘s DNA on the Petitioner‘s clothing. 

Janice D. Holt, a private investigator testified that she investigated a cab driver, 

Nathan Sterns, in connection with the Petitioner‘s case. Ms. Holt told Counsel about the 

content of her conversation with Mr. Sterns. She said that Mr. Sterns had driven the 

victim on several occasions to gay bars. Ms. Holt was also told by ―several different 

people‖ that the victim gave the Petitioner prescription pills and ―a lot of wine.‖ There 

were also allegations that the victim provided drugs to Harpeth Hall students. Ms. Holt 

stated that she never conveyed to Counsel that she doubted the veracity of Mr. Stern‘s 

statements. Ms. Holt spoke with one of the victim‘s neighbors in an attempt to confirm 

Mr. Stern‘s assertions, and the neighbor‘s wife asked Ms. Holt to leave immediately. 

On cross-examination, Ms. Holt testified that she first spoke with the Petitioner 

when the Petitioner suspected the victim was cheating on her. The Petitioner, however, 

never hired Ms. Holt to investigate; they only spoke on the phone twice. Mr. Cate later 

hired Ms. Holt related to the probate proceedings involving the Petitioner. Mr. Cate 

asked Ms. Holt to share the information she had found about the victim‘s sexuality with 

Counsel. She provided Counsel with the information, but Counsel never employed her. 

Johnny Lawrence, a Metropolitan Nashville police officer at the time of the 

murder, testified that, at trial, he testified about stepping on a coat hanger that was on the 

closet floor ―just beyond‖ the victim. Officer Lawrence explained that another officer 
37

noted a stain on a box inside the closet that might be ―a cast-off-blood stain.‖ When 

Officer Lawrence moved closer for better inspection he stepped on a ―dry cleaner type 

coat hanger.‖ He did not realize until later that he left a boot imprint on the paper portion 

of the hanger. When asked about the specific time related to the collection of various 

evidence, Officer Lawrence said he could not recall. 

On cross-examination, Officer Lawrence testified that he did not plant any 

evidence at the crime scene in an attempt to frame the Petitioner. He stated that he did 

not see any other officers plant evidence. He explained that once he cleared the upstairs, 

anyone who went upstairs would have been escorted by him. 

The State called TBI Special Agent Jennifer Shipman as an expert witness in the 

field of forensic science. Agent Shipman was the original scientist who performed the 

DNA analysis related to this case. Special Agent Shipman confirmed that the TBI Crime 

Laboratory is ASCLD/LAB accredited which requires the laboratory to follow very rigid 

and specific procedures. Special Agent Shipman explained that her name was not 

included on the chain of evidence for the latex glove tip because she worked on the 

evidence with Linda Littlejohn, who was listed on the chain of custody, in the 

Microanalysis Unit. Because of this, the evidence was never ―directly‖ in her possession. 

Special Agent Shipman stated that she was not aware of any contamination or alteration 

of the exhibit. 

Upon questioning by the post-conviction court, Special Agent Shipman testified 

that she did not find any documentation of contamination in the file for this case. She 

further explained that, if there was contamination, the TBI was obligated to document 

and notify the parties. 

After hearing the evidence, the trial court issued an order denying relief. It is from 

this judgment that the Petitioner appeals.

II. Analysis

On appeal, the Petitioner contends that: (1) Counsel was ineffective; (2) the postconviction court erred by ―refusing to inspect, or allow inspection of, physical evidence;‖

and (3) the search warrants used to obtain the Petitioner‘s DNA and clothing lacked 

probable cause and specificity. The State asks us to affirm the post-conviction court‘s 

denial of relief.

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. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual 
38

allegations in the petition for post-conviction relief by clear and convincing evidence. 

T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate 

the evidence below; all questions concerning the credibility of witnesses, the weight and 

value to be given their testimony, and the factual issues raised by the evidence are to be 

resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 

(Tenn.1999) (citing Henley v. State, 960 S.W.2d 572, 578–79 (Tenn.1997)). A postconviction 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 can 

be overcome only when a preponderance of the evidence is contrary to the postconviction court‘s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (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.

A. Ineffective Assistance of Counsel

The Petitioner alleges numerous deficiencies in Counsel‘s representation of the 

Petitioner, including: (1) Counsel‘s failure to challenge the search warrants based upon 

claims of lack of specificity and lack of probable cause; (2) ―generally botching the DNA 

and serology evidence;‖ (3) Counsel‘s failure to pursue a defense based upon the theory 

that the glove tip was planted; (4) assertions made in opening argument that were later 

unsupported by the proof; (5) Counsel‘s failure to ―use‖ exculpatory evidence in the form 

of phone calls and a ―suspicious‖ footprint found near the victim‘s body; (6) inadequate 

cross-examination of I.C. about his prior inconsistent statements; (7) inadequate defense 

of the Petitioner‘s character; and (8) Counsel‘s failure to ―impeach the victim as a 

hearsay declarant.‖ 

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). The 

following two-prong test directs a court‘s evaluation of a claim for ineffectiveness:

First, the [petitioner] 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 [petitioner] by 

the Sixth Amendment. Second, the [petitioner] must show that the 

deficient performance prejudiced the defense. This requires showing that 

counsel‘s errors were so serious as to deprive the [petitioner] of a fair trial, 

a trial whose result is reliable. Unless a [petitioner] makes both showings, 

it cannot be said that the conviction or death sentence resulted from a 

breakdown in the adversary process that renders the result unreliable.
39

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 

S.W.2d 417, 419 (Tenn. 1989). 

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.‖ House 

v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 

(Tenn. 1996)).

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 should avoid the 

―distorting effects of hindsight‖ and ―judge the reasonableness of counsel‘s challenged 

conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct.‖ 

Strickland, 466 U.S. at 689-90. 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. Finally, 

we note that a defendant in a criminal case is not entitled to perfect representation, only 

constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. 

Crim. App. 1996). In other words, ―in considering claims of ineffective assistance of 

counsel,  ̳we address not what is prudent or appropriate, but only what is constitutionally 

compelled.‘‖ Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.

Cronic, 466 U.S. 648, 665 n.38 (1984)). 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. 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 (quoting Goad, 938 S.W.2d at 369). 

If the petitioner shows that counsel‘s representation fell below a reasonable 

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by 

demonstrating ―there is a reasonable probability that, but for counsel‘s unprofessional 

errors, the result of the proceeding would have been different.‖ Strickland, 466 U.S. at 

694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability 

must be ―sufficient to undermine confidence in the outcome.‖ Strickland, 466 U.S. at 

694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
40

Following the hearing, the post-conviction court issued a lengthy and detailed 

order explaining its reasoning in denying the Petitioner relief. At the conclusion of the 

order, the post-conviction court summarized the Petitioner‘s complaints with regard to 

ineffective assistance of counsel and its findings:

A review of the post-conviction testimony and exhibits introduced 

over the course of the four hearings as well as the trial record itself shows 

that Trial Counsel conscientiously and effectively represented his client. 

The vast majority of claims raised by Post-Conviction Counsel concern 

difference in litigation styles and cross-examination strategies, which does 

not constitute ineffective assistance of counsel, warranting post-conviction 

relief. 

The State in its brief also summarizes the crux of the Petitioner‘s arguments on 

ineffective assistance of counsel as follows:

The petitioner articulates an extraordinary number of ways in which she 

would have handled each ground differently from trial counsel. Mere 

disagreements with counsel‘s choices do not however, constitute 

deficiency.

We agree. After a thorough review of the record, we find no deficient performance on 

the part of Counsel. To the contrary, the record reveals that Counsel was thorough, 

conscientious, his trial strategies reasonable, and his decisions informed. The fact that 

the Petitioner was convicted at trial is not an indication of deficiency in Counsel‘s 

representation but rather a reflection of the weight of the State‘s evidence against the 

Petitioner. We conclude that Counsel‘s services were well within the range of 

competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. 

Nonetheless, we specifically address each of the Petitioner‘s issues in turn. 

1. Motions to Suppress

The Petitioner asserts that Counsel‘s decision to file a motion to suppress the 

Petitioner‘s statements to police rather than attacking the search warrants constitutes 

deficient performance. The State responds that Counsel‘s decision to forego filing 

motions to suppress the search warrant seeking the Petitioner‘s jeans and her DNA 

sample was a strategic decision based on extensive preparation and research; thus, the 

trial court properly denied relief. We agree with the State.
41

At the post-conviction hearing, Counsel testified that the basis for the warrants 

used to search the Petitioner‘s apartment and to obtain her DNA came from her 

statements to the police. The probable cause provided in support of the search warrant 

states:

[The Petitioner] told detectives that the clothing she was wearing was 

what she had on when she went to [the marital] residence. [The Petitioner] 

later told detectives she was wearing other clothing when she went to the 

[marital] residence. [The Petitioner] pointed to several pieces of clothing 

and initially consented to let detectives collect the clothing. [The Petitioner] 

then revoked consent before all the clothing could be collected. 

The search warrant sought to recover ―clothing used in the Homicide.‖ The Petitioner‘s 

statements to police about being inside the residence the night of the murder and 

specifically what she wore at that time were used in seeking a search warrant to obtain 

her DNA. 

In its order denying relief, the post-conviction court made the following findings: 

Trial Counsel testified that he does not believe the warrants were 

overbroad on their face; thus, he felt the better approach was to suppress 

Petitioner‘s statements and he filed a motion to do so. Specifically, on 

January 9, 2009, Trial Counsel filed a ―Motion to Suppress Statements 

Made by Kelley Cannon to Metro Police on June 23, 2008‖, which moved 

to suppress: (1) any statements Petitioner made during the two police

interviews on June 23, 2008, (2) all testimony of law enforcement agents 

relating to their observations while recording and documenting said 

statements, and (3) any evidence that was the result of the investigator leads 

obtained as a result of said statements. The Court held a hearing on the 

motion to suppress statements as well as other evidentiary motions on July 

8, 2009. See Ex. 5.

Trial Counsel testified about his legal tactic, explaining that since the 

police used Petitioner‘s statements as probable cause in their warrant, he 

also requested the suppression of any investigatory leads thereof; thus, had 

the suppression motion been granted, the clothes would have suppressed as 

well. Trial Counsel stated, ―I believe it was the more effective way to seek 

suppression of items.‖ The Court finds Trial Counsel‘s testimony credible.

Trial Counsel‘s strategic decision did not fall below the objective standards 

of reasonable counsel. Accordingly, Petitioner has failed to demonstrate by 
42

clear and convincing evidence that Trial Counsel was ineffective for not

filing an alternative suppression motion. 

We agree with the post-conviction court that Counsel‘s performance was not 

deficient in this respect. As we earlier stated, Counsel should not be deemed to have 

been ineffective merely because a different strategy, now in hindsight, may appear to be 

preferable. Williams, 599 S.W.2d at 279-80. The Petitioner is not entitled to relief as to 

this issue. 

We note that the Petitioner relies on State v. Meeks, 867 S.W.2d 361 (Tenn. Crim. 

App. 1993), in asserting that Counsel was deficient. In Meeks, a search warrant was 

issued for the defendants‘ residence and directed the search for and seizure of ―evidence 

of said armed robbery or robberies.‖ Id. at 372. The Court found that more particular 

descriptions of the stolen items could have been obtained from the victims and should 

have been included in the warrant to distinguish the victims‘ property from the 

defendants‘ similar property lawfully possessed. Without more particular descriptions,

the executing officers were left free to seize innumerable items regardless of their actual 

relationship to the robbery. In the instant case, the officers were searching the 

Petitioner‘s residence for the Petitioner‘s belongings that she had physically identified for 

the police. In our view, the warrant describes the character of the property subject to 

seizure with sufficient particularity ―to enable the searcher to reasonably ascertain and 

identify the things which are authorized to be seized.‖ State v. Henning, 975 S.W.2d 290, 

297-99 (Tenn. 1998); See also, State v. Meadows, 745 S.W.2d 886, 891 

(Tenn.Crim.App.1987).

Accordingly, we conclude that the Petitioner has failed to show that Counsel was 

deficient in this respect. 

2. DNA and Serology Evidence

The Petitioner argues that Counsel was ineffective for ―bungl[ing]‖ the scientific 

evidence related to the blood on the victim‘s jeans. Generally, she attacks Counsel‘s 

representation in two respects: first, she challenges Counsel‘s use of expert advice and, 

second, she challenges his cross-examination of Special Agent Shipman. The State 

responds that Counsel‘s consultation with two experts who informed his decisions about 

trial preparation and presentation entitles his strategy to deference. We agree with the 

State. 

The post-conviction court made the following findings:
43

The Court finds Trial Counsel‘s testimony credible. Although Trial 

Counsel did not present an expert witness at trial, he sought expert services. 

Due to the evidence of the case, however, the experts‘ opinions did not 

differ significantly from the State‘s own experts to justify calling them at 

trial. Trial Counsel, therefore, made the strategic decision to point out 

deficiencies in the State‘s case by cross-examining the State‘s experts with 

the knowledge he gleaned from consulting with the retained defense 

experts. The trial record reflects that Trial Counsel addressed the DNA 

evidence throughout the trial, including in his opening statement, his crossexamination of the State‘s expert, and during closing argument. For 

example, during the cross-examination of TBI Agent Shipman, Trial 

Counsel explored: (1) DNA testing revealed four unknown females in the 

results; (2) jeans identified by TBI as 4a with a mix of DNA and blood 

could be a result of DNA and other bodily fluids like urine or semen; (3) 

threshold peaks and when insufficient; and (4) the concept of transference 

and the Locard Exchange Principle.

Based on the above, the Court finds that Petitioner has failed to 

establish by clear and convincing evidence that Trial Counsel‘s 

performance fell below the standard of a reasonable attorney. 

As to the Petitioner‘s challenge of Counsel‘s use of expert advice, she specifically 

attacks his failure to call a DNA expert for the defense and his failure to request 

―electronic raw data.‖ At the post-conviction hearing, Counsel testified that he flew to 

New York, at his own expense, to meet with Dr. Kobilinsky, a man Counsel described as 

one of the foremost experts in DNA in the United States. Dr. Kobilinsky requested 

certain items in order to review the case and, pursuant to this request, Counsel provided 

Dr. Kobilinsky with the requested items: the TBI lab reports, bench notes, and the TBI 

manual. After review of this information and detailed discussions with Counsel, Dr. 

Kobilinsky felt that the TBI ―did what [they were] supposed to do,‖ and he did not 

believe his testimony would benefit the Petitioner. Dr. Kobilinsky did, however, help 

prepare Counsel for the cross-examination of the State‘s expert. 

Additionally, Counsel employed John Nordby to assist with his preparation for the 

evidence regarding the glove tip introduced at trial. Although Mr. Nordby was not as 

beneficial an expert as Counsel might have hoped, he helped develop the strategy that the 

Petitioner‘s DNA would naturally be found in her former home, including on latex gloves 

that she used for a variety of household purposes. Counsel further acknowledged the 

Petitioner‘s strong background in science and her input regarding decisions about the 

DNA evidence. This evidence indicates that Counsel made a studied strategic decision 

not to call a DNA expert. Counsel sought qualified experts in the field, provided them 
44

with the requested items they needed to evaluate the case, and then made trial decisions 

based on their advice and guidance. 

Next, the Petitioner asserts that Counsel failed to object when Special Agent 

Shipman referenced the stain on the Petitioner‘s jeans as blood when only a presumptive 

blood test had been performed. She also argues that Counsel should have challenged the 

chain of custody and alleged contamination of the jeans. In addition to the above quoted 

references to Counsel‘s cross-examination of Special Agent Shipman, the post-conviction 

court made the following findings: 

When Trial Counsel was asked why he did not call an expert to 

testify that preliminary tests for blood do not mean an item[] has tested 

positively for blood, he responded there was no need for an expert to make 

this obvious point to the jury; further, it was an issue that he addressed 

through cross-examination. As to Petitioner‘s jeans specifically, identified 

by the TBI as 4C in their reports, Trial Counsel testified that based on his 

discussions with Dr. Koblinsky he asked questions to obliquely reference 

that the State did not know what biological materials were present on the 

jeans – blood, semen, urine, etc. – to ―blunt the force that they did not know 

it was blood on the jeans.‖ Trial Counsel stated he pursued this strategy 

under the guidance of an expert and felt it was the best way to deal with the 

scenario by characterizing it as something other than blood. The Court 

credits Trial Counsel‘s testimony and finds his actions demonstrated a 

reasonable trial strategy based on the evidence. 

Counsel testified about his extensive research and employment of experts on DNA 

analysis. Following their advice, he employed the strategy of undermining the State‘s 

evidence about the certainty of the substance on the Petitioner‘s jeans being blood. He 

did not directly object to Special Agent Shipman‘s reference to blood but on crossexamination, elicited responses that presented to the jury, through the State‘s witness, the 

possibility that the substance might be something other than blood. 

As to the assertion that Counsel should have challenged the testing on the basis of 

chain of custody and contamination, there is nothing in the record that would have 

supported these allegations. In his review, Dr. Kobilinsky did not identify any issues

involving the contamination or the chain of custody of the DNA evidence upon which 

Counsel could have challenged the test results. The Petitioner‘s witness, at the postconviction hearing, Dr. Watson, likewise could identify no specific indication of 

contamination. Agent Shipman confirmed that there was no documentation, as is 

required, of contamination and confirmed the accuracy of the chain of custody documents 

accompanying the evidence. 
45

Accordingly, we conclude that the Petitioner has failed to show by clear and 

convincing evidence that Counsel was deficient in his preparation and strategy for the 

DNA evidence in this case. To the contrary, the record shows that Counsel was thorough 

in his preparation and his decisions regarding strategy were well-informed. The 

Petitioner is not entitled to relief as to this issue.

3. Theory of Planted Evidence

The Petitioner contends that Counsel was ineffective for failing to introduce 

evidence that the glove tip found near the victim‘s body was planted and by failing to 

introduce a photograph of Walgreens brand latex gloves present at the crime scene. The 

State responds that the post-conviction court correctly found that Counsel‘s strategy was 

reasonable. We agree with the State. 

About Counsel‘s failure to present a theory that the glove tip was planted, the 

post-conviction court found:

Other than blanket assertions and speculations, Petitioner has 

provided no proof demonstrating any evidence was planted in this case, by 

law enforcement or civilians. Even the post-conviction petition uses 

hedging language alleging that ―the single glove tip found at the crime 

scene was probably planted. 

. . . .

As to whether Trial Counsel considered arguing to the jury that 

gloves were planted Trial Counsel responded that he did not say that

anything was planted, rather his argument to the jury is that the State failed 

to present a coherent story and insinuate ―there was a lot of confusion under 

which the glove tip was found and conclusions can be drawn.‖ In short, 

Counsel‘s position was not that the scene was compromised by the police, 

but that he raised questions regarding how the evidence was collected. The 

Court finds Trial Counsel credible and his strategic decision based on 

reasonable investigation. 

(citations to the record omitted).

The evidence does not preponderate against the post-conviction court‘s findings. 

Counsel testified that, at the preliminary hearing, he questioned Detective Putnam about 

the gloves found in the back yard and Detective Putnam‘s unsubstantiated suspicion that 
46

the gloves found outside of the house might have been planted. Both Detective Putnam 

and Detective Lawrence testified that they did not, nor did they see anyone else, tamper 

with evidence at the crime scene. According to the record, the glove tip was found near 

the victim‘s body in the bedroom and had both the victim‘s and the Petitioner‘s DNA on 

it. Counsel‘s trial strategy, developed in conjunction with an expert, was to show, as an 

explanation for her DNA on the glove tip, that the Petitioner, as a former resident, used 

latex gloves for a variety of household uses. Counsel also emphasized evidence in 

support of this theory that the crime scene was compromised, thereby allowing for 

inadvertent transference. The Petitioner also asserts that Counsel should have presented 

proof that the glove was cut rather than torn to establish that the glove was planted and 

not left behind by the Petitioner. In light of the evidence, we conclude that Counsel‘s 

strategy was reasonable and informed.

As to the Petitioner‘s assertion that Counsel should have presented a defense that 

―the killer,‖ rather than the police, planted the glove tip, there is no evidence in the record 

to support that there was a third party involved in the victim‘s murder. It was the 

Petitioner‘s DNA on the glove tip, the Petitioner‘s fingerprint on the closet door frame, 

and the Petitioner‘s fingerprints on the partially opened window in the house. 

The Petitioner also faults Counsel for failing to introduce a photograph of a box of 

Walgreens latex gloves found inside the victim‘s home. Counsel testified that part of his 

trial strategy was to show that latex gloves were routinely used in the home by the 

Petitioner. At trial, police records were introduced indicating the multiple locations that 

latex gloves were found inside the residence. Although the photograph of a box of 

Walgreens latex gloves found in the master bedroom was not introduced at trial, the jury 

was presented with evidence that latex gloves could be readily found inside the residence. 

Accordingly, the Petitioner has failed to show by clear and convincing evidence 

that Counsel was deficient and that she was prejudiced by such deficiency. The 

Petitioner is not entitled to relief as to this issue.

4. False Promises in Opening Argument

The Petitioner asserts that Counsel was ineffective for making two ―promises‖ to 

the jury in opening argument that were not supported by the proof presented at trial. She 

alleges that he ―promised to show that it was physically impossible for [the Petitioner] to 

have killed the victim‖ and that he ―promised‖ the State‘s medical examiner would agree 

that ―the Petitioner was innocent.‖ The State responds that the Petitioner has failed to 

overcome the presumption that Counsel exercised reasonable judgment. We agree with 

the State.
47

The right to make an opening statement is protected by statute, which states that 

―all parties to the action shall have the right prior to the presentation of any evidence in 

the case to make an opening statement to the court and jury setting forth their respective 

contentions, views of the facts and theories of the lawsuit.‖ T.C.A. § 20-9-301(2012). 

Opening statements are not evidence but simply set forth the arguments and theories 

which will be relied on by the parties at trial. State v. Van Tran, 864 S.W.2d 465, 475 

(Tenn. 1993). They are ― ̳are intended merely to inform the trial judge and jury, in a 

general way, of the nature of the case and to outline, generally, the facts each party 

intends to prove.‘‖ State v. Sexton, 368 S.W.3d 371, 415 (Tenn. 2012), as corrected 

(Tenn. Oct. 10, 2012) (quoting State v. Stout, 46 S.W.3d 689, 713 (Tenn. 2001) 

superseded by statute as stated in State v. Odom, 137 S.W.3d 572, 580-81 (Tenn. 2004)). 

Opening argument, like closing argument, must be predicated on evidence introduced at 

trial and should only refer to admissible evidence. Sexton, 368 S.W.3d at 415. Opening 

statements may not be used ―to present speculation and conjecture which is unsupported 

by admissible proof.‖ Stout, 46 S.W.3d at 713.

The post-conviction court first reviewed Counsel‘s opening statements and 

concluded that Counsel had discussed physical impossibility as one of the reasonable 

hypotheses in the case. The court noted that Counsel‘s summary of the testimony was 

substantially consistent with the actual evidence presented at trial. The post-conviction 

court found:

Accordingly, based on a review of the trial transcript alone, the 

Court finds that Petitioner has failed to demonstrate that Trial Counsel 

failed to follow through with the defense set forth in the opening statement. 

She has not demonstrated by clear and convincing evidence that Trial 

Counsel gave any ―false promises‖ to the jury. Nonetheless, the Court 

heard testimony from Trial Counsel on this issue at the post-conviction

hearing.

Specifically, Trial Counsel agreed that physically impossibility 

formed a substantial part of the defense strategy and was ―the largest piece 

of the defense.‖ Trial Counsel acknowledged that during his opening 

statement he informed the jurors that State‘s witness, Dr. Deering, would 

say it takes a powerful person to have strangled [the victim]. Trial Counsel 

explained he based the remarks in his opening statement on the ―many 

meetings‖ he had with Dr. Deering. Trial Counsel detailed a meeting in 

January 2010, where he brought retired police officer Ricky Roll with him 

and they went over ―expansively‖ all of the autopsy photographs with Dr. 

Deering. Trial Counsel testified that, ―Any representations I made to the 
48

jury were from the meetings Mr. Roll and I had with [Dr. Deering] as well 

as follow up phone calls.‖

Trial Counsel agreed that Dr. Deering‘s trial testimony was not 

―quite as strong‖ as when Trial Counsel interviewed him, citing that Trial 

Counsel was ―not the most recent person‖ to talk to Dr. Deering as the State 

had spoken with Dr. Deering last. When asked why Trial Counsel did not 

call Mr. Roll as a witness to impeach Dr. Deering, Trial Counsel responded 

that he did not feel Dr. Deering changed his testimony to the degree to 

warrant calling Mr. Roll for impeachment purposes; further, while Mr. Roll 

was present at the meeting, Trial Counsel testified that he was the one who 

conducted the interview and served as the scrivener; he did not believe Mr. 

Roll could recall all of the statements Dr. Deering made during the 3-4 hour 

interview since Mr. Roll‘s primary purpose in being there was to make 

copies of all the photographs.

A large portion of Trial Counsel‘s post-conviction testimony 

involved reiterating the specific details of the conclusions made by Dr. 

Deering and Dr. Arden (which mirror the doctors‘ respective testimony in 

the trial transcript) as well as the contents of his discussions with both 

experts and his notes summarizing said discussions, which were admitted 

as Exhibits 7 and 8. Although the Court found the record disproved 

Petitioner‘s allegation, the Court finds Trial Counsel‘s testimony to be 

credible and related to a reasonable trial strategy based on the 

circumstances; thus, no post-conviction relief is warranted. Petitioner has 

failed to demonstrate by clear and convincing evidence that Trial Counsel 

was ineffective or that she was prejudiced by the alleged ineffectiveness.

(footnotes omitted).

The evidence does not preponderate against the trial court‘s findings. We have

reviewed Counsel‘s opening arguments and discern no ―promises‖ made to the jury. 

Counsel introduced the theory of physical impossibility during opening argument 

consistent with his trial strategy that the victim‘s size and physical state at the time of the 

murder was not consistent with the State‘s theory of how the murder occurred. Counsel 

then described Dr. Deering‘s projected testimony, which was consistent with his actual 

testimony describing the ―remarkable‖ nature of this strangulation case that he had only 

seen ―very rarely‖ in other autopsies. Dr. Deering described the injuries the victim 

sustained as a result of a struggle and the ―moderate to large amount of force‖ applied to 

the victim‘s neck. Counsel also introduced other witnesses who testified to the 

Petitioner‘s compromised state at that time due to alcohol and health-related issues in 

support of the defense theory of physical impossibility. 
49

In our review of the opening argument, we identify no statement promising Dr. 

Deering would agree that the Petitioner is innocent. Counsel did state, ―And I think [Dr. 

Deering] is going to tell you, ladies and gentlemen, that the strangulation in this case was 

accomplished with so much force that it had to be somebody who was extremely 

powerful to have done it.‖ At the post-conviction hearing, Counsel explained that this 

statement was consistent with his pre-trial discussions with Dr. Deering but that by the 

time of trial, Dr. Deering‘s testimony was not ―quite as strong.‖ Counsel reasonably 

relied on his discussions with Dr. Deering and his opening argument is a reflection of his 

interview of Dr. Deering. Further, although Dr. Deering‘s testimony was not as strong as 

Counsel anticipated, it remained substantially consistent with Counsel‘s summary in the 

opening argument. Counsel‘s statements were neither speculative or conjecture, rather 

the statements were based upon his extensive discussions with Dr. Deering.

Accordingly, we conclude that the Petitioner has not proven that Counsel was 

ineffective in this respect; thus, she is not entitled to relief as to this issue. 

5. Failure to Use Exculpatory Evidence

The Petitioner alleges that Counsel failed to use exculpatory evidence. 

Specifically, she challenges his use of cell phone records for the limited purpose of 

showing that the victim frequently called the Petitioner in the weeks leading up to the 

murder rather than showing that the Petitioner attempted to call the victim after he was 

dead in support of her innocence. Further, she asserts that Counsel should have used 

phone records to show that the Petitioner never called her mother on the day of the 

discovery of the victim‘s death to rebut proof that she allegedly called her mother and 

confessed. The Petitioner also argues that Counsel failed to ―use‖ the ―suspicious 

footprint‖ found next to the victim‘s body as exculpatory evidence. 

a. Phone Records

About the Petitioner‘s allegation that Counsel was ineffective in his use of the 

phone records, the post-conviction court made the following findings:

Trial Counsel explained that the portion of calls he had highlighted 

for the jury stopped at June 22, 2010, at 10:38 p.m., to show that prior to 

[the victim]‘s death there were forty-six calls between the Petitioner and 

[the victim], with thirty-five calls initiated by [the victim], and eleven calls 

initiated by Petitioner. When questioned why he did not highlight the postdeath call, Trial Counsel responded that while one construction of the postdeath call is that Petitioner was unaware [the victim] was dead, the other is 
50

the State using it against Petitioner to claim she was creating an alibi, which 

was the State‘s characterization for Petitioner‘s dinner at Bricktop‘s 

restaurant. 

Trial Counsel testified that he consulted with Petitioner, and together 

they determined which calls were relevant to highlight for the jury. The 

Court finds Trial Counsel‘s testimony credible and that Trial Counsel made 

a reasonable strategic decision based on thorough investigation. Moreover, 

although the post-death call was not highlighted in the trial exhibit, Trial 

Counsel still brought said call to the jury‘s attention during his crossexamination of Detective Putnam. Petitioner, therefore, has not established 

by clear and convincing evidence that Trial Counsel was ineffective nor has 

she established that she was prejudiced by the alleged deficiency. 

The evidence does not preponderate against the post-conviction court‘s findings. 

Counsel‘s decisions about the use of the phone records were informed. He considered 

the possible negative implications of emphasizing the ―post-death‖ phone call, and, after 

consultation with the Petitioner, made the strategic decision not to highlight the call on 

the phone record. 

The Petitioner also alleges that Counsel failed to rebut the Petitioner‘s ―alleged 

confession‖ to her mother by introducing the victim‘s phone records indicating she had 

not spoken with her mother on her cell phone on the morning of June 23, 2008. In 

support of her contention that the State alleged at trial that she ―confessed‖ to her mother, 

the Petitioner refers to this Court‘s order denying her petition to rehear, in which we refer 

to Ms. Sander‘s ―bizarre testimony.‖ This Court‘s order is not proof that at trial there 

was an allegation that the Petitioner confessed to her mother. In the second amended 

petition, the Petitioner cites to a portion of the transcript that contains the housekeeper‘s 

testimony. The housekeeper, Vickie Shams, testified that she called the Petitioner‘s 

mother and ―was shocked‖ by her response to the news that the victim was dead. Ms. 

Shams said that Ms. Sanders‘s response to hearing this news indicated that she already

knew the victim was dead. 

In its order denying relief on this issue, the post-conviction court stated, ―at no 

time during the trial was it said that Petitioner called [and] confessed to Ms. Sanders.‖ 

The Petitioner identifies no portion of the trial transcript indicating a confession and, like 

the post-conviction court, we find no portion of the record in support of this contention. 

Any inference that may be taken from Ms. Shams‘s testimony was clarified by Ms. 

Sanders‘s testimony. Ms. Sanders testified that she first learned of the victim‘s death 

from Ms. Shams. Ms. Sanders stated that she did not speak with the Petitioner on the 

morning she learned of the victim‘s death. She said that she and the Petitioner were 
51

―somewhat estranged‖ and that she did not know the Petitioner‘s cell phone number. 

Furthermore, the phone records, showing that the Petitioner did not call or receive a call 

from her mother, were introduced at trial.

Accordingly, we conclude that the Petitioner has not shown by clear and 

convincing evidence that Counsel was deficient in how he used the Petitioner‘s phone 

records at trial. The Petitioner is not entitled to relief as to this issue.

b. Shoe Print

The Petitioner asserts that Counsel was ineffective for not ―using the suspicious 

footprint found next to the body.‖ The State responds that the proof at trial and the postconviction hearing was that the shoeprint belonged to Officer Johnny Lawrence. As to 

this issue, the trial court made the following findings:

Officer Johnny Lawrence testified at the post-conviction hearing 

about this issue. He explained that during the investigation he was training 

Investigator Primm. While they were in the boys‘ bedroom investigating 

the closet where the body had been found, they observed some stains that 

appeared to be ―cast-off bloodstain.‖ Officer Lawrence testified he was 

unable to obtain a clear view from outside the closet, so he ―took two steps 

in‖, stepping on a ―drycleaner type hanger with paper on it.‖ Officer 

Lawrence testified he knew he stepped on the hanger because of the sound 

he heard, but at the time he stepped on it, he did not realize he had left a 

boot print. 

Photographs of the hanger were taken as part of the crime scene 

process. When the boot print was brought to Officer Lawrence‘s attention 

later by Detective Putnam, Officer Lawrence recognized the treads as 

matching his work boots. Officer Lawrence testified at trial about the 

hanger, and, the trial record reflects the photographs of the closet showing 

the hanger were [sic] admitted at trial as exhibit 16A and 16B.

Officer Lawrence denied planting any evidence to frame Petitioner 

for the murder of [the victim], adding that he did not even know [the 

Petitioner]. Officer Lawrence did not observe any other officers plant 

evidence.

Trial Counsel was not specifically asked about this issue during his 

post-conviction testimony.
52

(Citation to the record omitted).

The evidence does not preponderate against the post-conviction court‘s findings. 

Officer Lawrence testified about stepping on the hanger, specifically noting it at the time, 

but not realizing he had left a boot print until he saw a photograph of the boot print. 

Officer Lawrence identified the print as matching the tread of his boots, and he confirmed 

that he had stepped on the hanger, causing the boot print. Aside from the Petitioner‘s 

bare assertion that the boot print belonged to ―the killer,‖ there is no evidence to support 

the identity of another person having left the boot print. Accordingly, we find no 

deficiency on Counsel‘s part with respect to the boot print. The Petitioner is not entitled 

to relief as to this issue.

6. Cross-Examination of I.C.

The Petitioner asserts that Counsel was ineffective for failing to properly crossexamine I.C. about his inconsistent statements made during a forensic interview. At trial, 

two years after the murder, I.C. testified that, on the night of the murder when the 

Petitioner awoke I.C. in the middle of the night to take him to her apartment, I.C. asked 

the Petitioner if he could retrieve a pillow from his bedroom, and she told him no. He 

said that he exited the upstairs with the Petitioner down the front stairs rather than the 

rear stairs located near his bedroom. Near the time of the murder, a victim witness 

coordinator with the District Attorney‘s office conducted a forensic interview with I.C. 

In this interview, I.C. said he exited the upstairs by way of the rear stairwell and, as he 

passed his bedroom, observed a couch pushed against the closet door. By the time of 

trial, I.C. had no recollection of this statement or seeing the couch. 

The post-conviction court found:

The Court finds Trial Counsel‘s testimony credible and that Trial 

Counsel made a reasonably based strategic decision. 

The fact that Post-Conviction Counsel disagrees with the tactic and 

would have pursued an alternative strategy – i.e., ―The moment that [I.C.] 

took the stand against his mother, trial counsel had a sacred duty to destroy 

him.‖ -- does not undermine the validity of the strategic decision employed 

by Trial Counsel. The Court of Criminal Appeals has ―acknowledge[d] the 

unique difficulty of cross-examining a child at trial‖ and Trial Counsel‘s 

cross-examination demonstrated he was prepared and aware of the child‘s 

previous statements. Jimmy Greene v. State, No. E2000-00426-CCA-R3-

PC, 2001 WL 237343, at *10 (Tenn. Crim. App., at Knoxville, Mar.6, 

2001). The Court finds that Trial Counsel‘s decision was reasonably based. 
53

(Citations omitted). 

The evidence does not preponderate against the post-conviction court‘s findings. 

Counsel testified that the Petitioner was ―devastated‖ that her young son had to testify at 

trial and wanted him ―off the stand‖ as soon as possible. Neither Counsel nor the State

believed I.C. to be a crucial witness. Counsel was aware of the forensic interview and 

had reviewed it. As such, he was aware of the inconsistent statements, as well as 

statements I.C. made that were damaging to the Petitioner; therefore, he chose not to play 

the recording at trial. Counsel believed it was ―cleaner‖ to cross-examine Detective 

Putnam about I.C.‘s inconsistent statement, and he did so. Through Counsel‘s crossexamination, Detective Putnam acknowledged that, during the forensic interview, I.C.

had said he saw a couch pushed against the closet. This evidence supports that Counsel 

had a strategic plan for handling I.C.‘s inconsistent statements. This Court has previously 

held that a petitioner is not entitled to, with the benefit of hindsight, second-guess an 

attorney‘s reasonably based trial strategy and criticize a sound but unsuccessful tactic. 

Dellinger v. State, 279 S.W.3d 282, 295 (Tenn. Jan. 2009) (citing Thompson v. State, 958 

S.W.2d 156, 162 (Tenn. Crim. App. 1997). We conclude that the Petitioner has failed to 

show that Counsel was ineffective in his cross-examination of I.C. 

The Petitioner also asserts that Counsel should have called F.C., I.C.‘s younger 

brother, to rebut I.C.‘s statements. At the post-conviction hearing when Counsel was 

asked why he did not call the younger sibling to testify, Counsel responded, ―I‘m not in 

the business of calling small children and hoping they‘re going to carry the water for me 

as a witness.‖ Counsel testified that his strategy was to address the inconsistent 

statements through Detective Putnam, and he did so. We find no deficiency in this 

strategy. 

7. The Admission of Prior Bad Acts

The Petitioner argues that Counsel was ineffective for ―not defending against a 

wide variety of inflammatory accusations.‖ The State responds that the Petitioner is not 

challenging the absence of a strategy but rather is disagreeing with Counsel‘s strategy;

because Counsel‘s strategy was based on informed preparation, the Petitioner has failed 

to prove deficient performance by clear and convincing evidence. We agree with the 

State. 

a. I.C.’s Testimony About the Use of a Knife

The Petitioner asserts that Counsel was ineffective for failing to challenge I.C.‘s 

―accusation‖ that the Petitioner ―fought the victim while wielding a knife.‖ I.C. testified:
54

―[The victim] went outside with his phone, and my mom came out with a 

knife, pushed him down trying to undo his phone battery so he couldn‘t call 

the police, like pushed him down onto the ground. He was like fighting 

trying to get her off. And she was trying to undo the battery from his 

phone.‖

At the post-conviction hearing, Counsel disagreed with the characterization that I.C.

testified he ―saw [the Petitioner] standing over [the victim] wielding a knife.‖ Counsel 

testified that I.C.‘s account was ―exactly‖ what the Petitioner had told him about the 

incident that ―the only reason she had the knife‖ was to remove a battery from the 

victim‘s phone. As the Petitioner points out, the victim‘s petition seeking an order of 

protection makes no mention of a knife used in the assault, the police do not document 

the Petitioner ―wielding‖ a knife, the 911 tape indicates no use of a weapon, and the 

Petitioner was not charged with a crime for committing an assault with a deadly weapon. 

Because this was not an allegation presented at trial, Counsel could not have been 

expected to challenge such an ―accusation.‖ The Petitioner is not entitled to relief as to 

this issue.

b. Walgreen’s Latex Gloves

The Petitioner asserts that Counsel was ineffective for failing to challenge the 

allegations that the Petitioner stole gloves from Walgreens. The State responds that this 

allegation is not supported by the record. 

According to the post-conviction court, it ruled on a pre-trial motion that neither 

party could use the term ―shoplift‖ at trial but that the State could argue that the video 

surveillance footage did not show the Petitioner paying for the gloves. The Petitioner 

does not cite to and we find no testimony in the record that the Petitioner stole or 

shoplifted the gloves. At the post-conviction hearing, Counsel testified that the Petitioner 

is seen on the surveillance video footage leaving the store with the gloves but is not 

shown paying for the gloves. The Petitioner denied intentionally stealing the gloves to 

Counsel but there remained the possibility that she walked off inadvertently without 

paying for them. Counsel‘s investigator found no proof that the Petitioner purchased the 

box of latex gloves. Counsel was limited by the trial court‘s ruling and the surveillance 

footage. The Petitioner has failed to show that Counsel was ineffective in this regard. 

To the extent that the Petitioner attacks Counsel for allowing the trial court to 

instruct the jury on how to consider the evidence, the purpose of a limiting instruction is 

to protect the defendant. Counsel‘s failure to object to the trial court instructing the jury 

to only consider the evidence for the intended purpose does not constitute a deficiency.
55

Finally, the Petitioner accuses Counsel of failing to furnish documentation of her 

purchase; however, on post-conviction, the Petitioner has not furnished the 

documentation for which she criticizes Counsel for failing to provide. Therefore, she has 

failed to prove her allegation by clear and convincing evidence. The Petitioner is not 

entitled to relief as to this issue. 

c. Violation of the Order of Protection

The Petitioner claims that Counsel was deficient for allowing testimony at trial 

that the Petitioner was arrested for violating an order of protection that forbid contact 

with her children. The State responds that the Petitioner has failed to show how 

Counsel‘s strategy concerning the order of protection caused her prejudice.

 

The post-conviction court made the following findings:

Trial Counsel testified that he represented Petitioner on several of 

her cases. He explained the order of protection violations were charged 

under a different case number, 2008-D-3864. He stated he had been 

successful at dismissing the charges in General Sessions, but the State 

decided to indict. The 2008-D-3864 case tracked case no. 2008-C-2809, 

which the State tried first. Once Petitioner was convicted on the murder 

charge, the State elected not to proceed with case no. 2008-D-3864.

Trial Counsel explained that the order of protection may have been 

valid as to [the victim] but not valid as to Petitioner‘s children. Trial 

Counsel noted the language about the children in the orders, but ―seized up 

on it in both motions‖ because his reading of the statute did not preclude 

Petitioner from having contact with her children. 

Post-Conviction Counsel inquired why Trial Counsel did not object 

when the State referenced the order in its opening statement, directing Trial 

Counsel to page 20 of the [trial] transcript. Trial Counsel pointed out that 

the State was referring to the incident of May 21, 2008, which prompted 

[the victim] to seek an order of protection for him and his children. Trial 

Counsel testified that the State‘s opening statement was partially accurate 

because Petitioner was not to be at the house at Bowling Avenue, but Trial 

Counsel elected not to make a contemporaneous objection at that time even 

though Petitioner was still permitted to see her children. Instead, [he] 

addressed the issue through the questioning of witnesses at trial. 
56

When Post-Conviction Counsel asked why Trial Counsel did not 

object during Mr. Hollins‘s testimony about the order of protection, Trial 

Counsel pointed out that he did raise an objection, which the Court 

sustained. The trial record supports Trial Counsel‘s testimony. 

When Post-Conviction Counsel asked why Trial Counsel did not 

object when Officer Pylkas misstated that Petitioner had her children when 

there was an order of protection preventing her from doing so, Trial 

Counsel explained that (1) the transcript reflects that Officer Pylkas‘s 

testimony to the State‘s question was ambiguous and the officer did not 

―pick up on [the ADA‘s] language regarding the children‖, and (2) Trial 

Counsel addressed the issue on cross-examination. Trial Counsel further 

testified that he pursues a mindful litigation strategy where he opts to 

address issues through cross-examination rather than ―constantly jumping

up‖ making objections. The Court credits Trial Counsel‘s testimony and 

finds that the trial record supports Trial Counsel‘s post-conviction 

testimony. Petitioner‘s request for post-conviction relief is denied as to this 

claim as Petitioner has not demonstrated by clear and convincing evidence 

that Trial Counsel was ineffective or that she was prejudiced by any alleged 

deficiency.

(Citations to the record omitted). 

The evidence does not preponderate against the trial court‘s findings. As we 

earlier stated, a petitioner is not entitled to, with the benefit of hindsight, second-guess an 

attorney‘s reasonably based trial strategy and criticize a sound but unsuccessful tactic. 

Dellinger, 279 S.W.3d at 295. Counsel‘s strategy with addressing issues regarding the 

scope of the order of protection was informed and based upon adequate preparation. We 

conclude that the Petitioner has failed to show by clear and convincing evidence that 

Counsel was deficient as to this issue.

d. “Callousness”

The Petitioner asserts that Counsel was ineffective because he lodged no objection 

to the allegations that the Petitioner exhibited ―emotional callousness‖ regarding the 

victim‘s death. She identifies the State‘s reference during closing argument to the 

Petitioner‘s ―shopping spree‖ following the victim‘s death, and Mr. Breeden‘s testimony 

that the Petitioner sounded unemotional when describing the victim‘s death. The State 

responds that the Petitioner has failed to prove her allegation by clear and convincing 

evidence. 
57

In its order denying relief, the post-conviction court found:

Trial Counsel testified about the shopping bags and how the 

―shopping spree‖ had been addressed at trial: Petitioner recently had moved 

to her own apartment and had purchased furnishings for the apartment. 

Counsel‘s decision constituted a trial strategy tactic as to how he 

approached the State‘s evidence against his client.

Trial Counsel testified that Paul Breeding had little credibility and 

was impeached by the State‘s own witness, Rick Green. When PostConviction Counsel [asked] why he did not object during the State‘s 

questioning of Mr. Breeding, Trial Counsel responded he would need to see 

his cross-examination to provide an explanation. Post-Conviction Counsel

then withdrew the question, waiving any issues as to the Trial Counsel‘s 

handling of Mr. Breeding‘s testimony.

The evidence does not preponderate against the trial court‘s findings. The 

Petitioner is not entitled to relief. 

e. “Orders of Protection, Domestic Assault, being “Psychotic,” on Drugs”

The Petitioner finally asserts that Counsel ―should have objected to the many 

accusations of domestic hearsay.‖ She addresses ―accusations‖ raised in a 911 call and 

through John Hollins‘s testimony. 

As to the Petitioner‘s complaint that Counsel allowed in ―accusations‖ through the 

911 call, the post-conviction court found;

Trial Counsel affirmed that he filed a motion in limine to exclude the 

entire phone call. While acknowledging that 911 calls are generally 

considered nontestimonial in nature, Trial Counsel explained that the 

argument he made was the caller in this case, [the victim], was a lawyer 

―who gratuitously included things that were not necessary to resolve the 

situation.‖ Although the trial court denied the motion and the appellate 

court affirmed the decision, Trial Counsel maintained his motion was the 

appropriate challenge tailored to the facts of this specific case, citing that 

the ultimate goal was to have portions of the 911 call redacted since there 

was a legal basis for the call‘s admission. The Court finds Trial Counsel‘s 

testimony credible and his decision a reasonable trial strategy. 
58

The Petitioner argues that Counsel should have tried other means of excluding the 

recording of the 911 call; however, we find no deficiency with Counsel‘s strategy in this 

regard. Once again, because Counsel employed a strategy that did not prove successful 

does not mean Counsel was ineffective. House, 44 S.W.3d at 515. Counsel identified his 

argument as the basis for an exclusion of the evidence then drafted and filed a motion in 

limine in furtherance thereof. His strategy was both informed and reasonable and we 

cannot find fault solely on the basis that it was ultimately unsuccessful. Id. The 

Petitioner is not entitled to relief.

The Petitioner also argues that Counsel was ineffective for failing to object during 

the trial testimony of the victim‘s divorce attorney, Mr. Hollins and various documents 

associated with the parties divorce entered through Mr. Hollins. The record indicates that 

Counsel did object at one point; however, the Petitioner faults Counsel for not lodging 

continuing objections to Mr. Hollins‘s testimony. The Petitioner asserts that Counsel 

―should have been especially ready to object to nearly every word that came out of 

Hollins‘s mouth,‖ but cites no specific testimony warranting an objection by Counsel. 

Further the Petitioner does not state what grounds existed for any objection to Mr. 

Hollins‘s testimony. Therefore, the Petitioner has not proven her allegation by clear and 

convincing evidence.

Counsel testified at the post-conviction hearing that the documents complained of 

were admissible as self-authenticating records; thus, he believed he had no basis for 

exclusion. The post-conviction court credited Counsel‘s testimony. After reviewing the 

record, we conclude that the Petitioner has not proven by clear and convincing evidence 

that Counsel was ineffective in this regard. The Petitioner is not entitled to relief as to 

this issue. 

8. Victim’s Character

The Petitioner asserts that Counsel was ineffective for failing to attack the victim‘s 

character. The State responds that the Petitioner has failed to prove that David Dingler‘s 

opinion, Janice Holt‘s testimony, and the alleged statements of business associates who 

did not testify at the hearing would have been admissible; therefore, she is not entitled to 

relief. We agree with the State.

The post-conviction court found: 

Petitioner‘s Counsel elicited testimony about [the victim]‘s 

character, including: (1) Mr. Dingler testified about [the victim]‘s business 

associates who told Mr. Dingler, ―what comes around goes around‖ when 

they informed Mr. Dingler of [the victim]‘s death; and (2) private 
59

investigator Janice Holt testified about a cab driver (Nathan Stearns) whom 

she spoke to who provided hearsay related to [the victim]‘s sexual history. 

Post-Conviction Counsel also introduced a collection of photographs, 

depicting what he characterized as a ―paint ball mask‖ that he implied could 

have been used as part of sexual acts. The May 21, 2008 domestic dispute 

was touched on as well: ―Given the arguably silly nature of charging a wife 

for squeezing her husband‘s bicep, trial counsel should have fiercely

impeached the victim‘s character for truthfulness.‖

Post-Conviction Counsel questioned Trial Counsel about some of 

this proposed impeachable evidence. Trial Counsel testified that [the 

victim]‘s ―unfaithfulness [was] pretty well known‖ and that it came up 

during trial testimony at several points. Trial Counsel stated he was aware 

of rumors circulating about [the victim]‘s sexuality, but he did not give 

them much credence. Trial Counsel knew Andrew Cate, one of [the]

attorneys for Petitioner‘s civil proceedings, had hired investigator Janice 

Holt, and Trial Counsel had been present at a meeting with Mr. Cate and 

Ms. Holt, where Ms. Holt described her interview with a cab driver. Trial 

Counsel found the cab driver‘s statements ―utterly ridiculous‖ and lacking 

credibility. Although Trial Counsel did not credit Ms. Holt, he testified that 

he made clear to Mr. Cate and Petitioner that they could pursue any leads,

and he would not impinge upon their investigation. Trial Counsel 

interviewed some of [the victim]‘s social friends such as Jim Weathers and 

Bob Delaney, both of whom knew [the victim] was unfaithful to his wife, 

but neither credited the rumors of homosexual affairs.

Trial Counsel affirmed that he knew the victim was found unclothed 

in the children‘s bedroom where he slept, and that police recovered a wine 

class with unknown female DNA, information that came before the jury. 

Likewise, Trial Counsel was aware that semen was recovered from the 

crime scene, but stated it is unknown whether or not the victim engaged in 

sexual relations before death since there is no proof and no ameli found in 

the semen. Trial Counsel, however, testified he had ―never heard anything 

about a paintball mask‖ until the subject came up at the post-conviction

hearing; thus, it was not an issue he considered for trial. Trial Counsel 

testified that he could not recall if police collected the bed sheets from the 

boys‘ room where [the victim]‘s body was found. He did not recall seeing 

the bed sheets in the serology report. As part of pre-trial investigation, 

Trial Counsel went to the property room to view all of the physical 

evidence with General Miller.
60

The Court finds Trial Counsel‘s testimony credible. When asked as 

to why Trial Counsel did not introduce specific character evidence, Trial 

Counsel articulated a response demonstrating reasonable trial strategy 

based on investigation of the facts of the case.

Moreover, as the Court noted during the post-conviction hearing, 

although Post-Conviction Counsel cited character evidence that he referred 

to as ―prior bad acts‖ of the victim, he did not provide any Rule of 

Evidence as to how any of the information brought forth during the postconviction hearing could be admissible at tria1. None of the post-hearing 

briefing addresses this issue. The vast majority of evidence Petitioner

proposes to introduce to show [the victim]‘s ―poor character‖ is 

inadmissible under the Tennessee Rules of Evidence, including Rules 

404(b), 412, 403—to name a few. Accordingly, Petitioner‘s request for 

post-conviction relief is denied as to this claim as Petitioner has failed to 

meet her burden of clear and convincing evidence as to either prong of the 

Strickland standard. The Court notes, however, that some evidence such as 

[the victim]‘s alcoholism and marital infidelity did come before the jury 

through other testimony.

(Citations to the record and footnotes omitted).

The evidence does not preponderate against the trial court‘s findings. The

Petitioner is not entitled to relief as to this issue.

B. Post-Conviction Court’s Denial of the Petitioner’s request to Touch and Tear 

Trial Exhibits

The Petitioner contends that the post-conviction court improperly denied her 

request to destroy and to touch sealed trial exhibits. The State responds that the postconviction court did not abuse its discretion by denying the request. We agree with the 

State.

At the post-conviction hearing, the Petitioner alleged that latex material produces a 

jagged edge when it is torn, inconsistent with the smooth edge of the latex glove tip 

found near the victim‘s body. To demonstrate this, the Petitioner sought to tear the 

Walgreens gloves entered at trial as evidence. The post-conviction court denied this 

request. The Petitioner then sought to have the post-conviction court give ―lay 

testimony‖ about the difference in how the glove tip found near the victim‘s body felt 

versus the Walgreens gloves. Once again, the post-conviction court denied the 

Petitioner‘s request and declined the invitation to serve as a lay witness. 
61

In the order denying relief, the post-conviction court addressed the issue of the 

glove tip as it related to the Petitioner‘s ineffective assistance of counsel claim, finding it

was ―unclear‖ what relevance there was in whether the glove was torn or cut. 

We agree with the post-conviction court that the Petitioner has not shown the 

relevance of whether the latex glove tip was cut or ripped. The Petitioner‘s DNA was 

found on the glove tip that was located near the victim‘s body. This DNA evidence is 

unchanged regardless of whether the tip was ripped or torn. A demonstration at the postconviction hearing involving the latex glove would have no consequence unless the 

demonstration aided the post-conviction court in determining that the Petitioner had 

suffered prejudice at trial. 

The Petitioner notes that, at the post-conviction hearing, the post-conviction judge 

stated that it was not the trier of fact. It appears this was a misstatement by the judge who 

was understandably troubled by the Petitioner‘s unconventional request that the judge 

provide lay testimony during the post-conviction hearing. We agree with the Petitioner 

that the post-conviction court is the trier of fact in a post-conviction hearing which is the 

primary reason that the post-conviction court should not also offer testimony at the postconviction hearing. The Petitioner is not entitled to relief as to this issue. 

C. Warrants

The Petitioner claims that she was deprived of her federal and state constitutional 

rights to be free of unreasonable searches and seizures and that she was deprived of the 

opportunity to pursue the search-and-seizure claim because of the ineffective assistance 

of her trial counsel.

We have already considered the Petitioner‘s claim as it relates to ineffective 

assistance of counsel. Now, we consider the Defendant‘s claim of constitutional 

shortcoming related to the search and seizure. This claim of a free-standing 

constitutional error must fail, however, because the issue was not presented to the trial 

court via a pretrial motion to suppress as is required by Tennessee Rule of Criminal 

Procedure 12(b)(2)(c). The failure to pursue a pretrial motion constitutes waiver unless 

good cause is shown for the failure to move for suppression in a timely manner. Tenn. R.

Crim. P. 12(f); State v. Roger Odell Godfrey, No. 03C01-9402-CR-00076, slip op. at 3-4 

(Tenn. Crim. App., Knoxville, Mar. 20, 1995); State v. Hamilton, 628 S.W.2d 742, 744 

(Tenn. Crim. App.1981); State v. Zyla, 628 S.W.2d 39, 41 (Tenn. Crim. App., 1981); 

State v. Davidson, 606 S.W.2d 293, 295 (Tenn. Crim. App. 1980).
62

There was no good cause for failing to pursue the suppression motion to a hearing 

and a dispositive order. In fact, as we concluded above, failure to pursue the matter was a 

calculated, deliberate action of trial counsel. As a result, the free-standing constitutional 

search-and-seizure issue is waived. See T.C.A. §§ 40-30-106(g) (2012); see also State v. 

Miller, 668 S.W.2d 281, 286 (Tenn. 1984).

Justice McCanless, speaking for the Court, in Arthur v. State, 483 S.W.2d 95 

(Tenn. 1972), explained the reasoning:

There must be a finality to all litigation, criminal as well as civil. 

The courts, the executive branch of government, the legal profession, and 

the public have been seriously inconvenienced by the prosecutions of 

baseless habeas corpus and post-conviction proceedings. Defendants to 

criminal prosecutions, like parties to civil suits, should be bound by the 

judgments therein entered. When they fail to make timely objection to 

errors of the courts they must not be allowed at later times of their own 

choosing - often, perhaps, after witnesses against them have become 

unavailable - to assert those grounds in post-conviction actions.

483 S.W.2d at 97.

We agree that it is not permissible for a defendant in a criminal case to pursue a 

particular strategy at trial upon one ground, deemed by the defendant to be proper, and 

then, later in a proceeding for post-conviction relief, to assert that this strategy now

complained of violated a constitutional right; failure to assert the constitutional ground at 

trial must be held to constitute a waiver of the right to make such an objection. State v. 

Miller, 668 S.W.2d 281, 286 (Tenn. 1984).

III. Conclusion

After a thorough review of the record and the applicable law, we conclude that the 

Petitioner was afforded the effective assistance of counsel. Further, we conclude that the 

post-conviction court did not err when it denied the Petitioner‘s request to destroy trial 

exhibits and declined to provide lay testimony. Finally, we conclude that the Petitioner 

waived our review of her free-standing constitutional claim that the warrants were overly 

broad. Accordingly, we affirm the post-conviction court‘s judgment.

____________________________________

ROBERT W. WEDEMEYER, JUDGE