IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 13, 2003 Session

STATE OF TENNESSEE v. ROBERT KERN HOLLOWAY

Direct Appeal from the Circuit Court for Dickson County

No. CR5515 Allen Wallace, Judge

No. M2002-01904-CCA-R3-CD - Filed September 17, 2003

A Dickson County jury convicted the defendant, Robert Kern Holloway, of second degree murder,

a Class A felony, and he was sentenced to forty years to be served at 100% as a violent offender.

On appeal, he argues: the evidence was insufficient to support his conviction; the trial court

improperly instructed the jury regarding the mens rea element of second degree murder; and the trial

court abused its discretion in ruling on his pro se motion for a new trial which alleged ineffective

assistance of counsel. Upon review, we affirm the judgment of the trial court as to the defendant’s

conviction but vacate its ruling as to the pro se ineffective assistance of counsel claim.

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

Vacated in Part

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID H.

WELLES, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Robert Kern Holloway.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;

Dan M. Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

Trial

On March 13, 2001, a fight broke out between two inmates in the “B-Pod” at the Dickson

County Jail, in which the defendant, also known as “Chow Hound,” stabbed the victim, Mark Hall,

multiple times with a “shank,” or homemade knife. After the victim collapsed, the defendant called

prison officials over the intercom. When prison officials arrived, the victim had a faint pulse and
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was transported to the Horizon Medical Center emergency room where he later died as a result of

multiple stab wounds.

At trial, several of the inmates who were present in B-Pod on the day of the altercation

testified to the events leading up to the victim’s death. That morning, prison officials were upset

with the inmates in B-Pod because they refused to clean up. After several requests that the inmates

clean their pod, prison officials turned off the power, denying the inmates television and phone

access. After the power was turned off, the victim approached the defendant and asked to use the

defendant’s shank, apparently to get to another source of electricity to attach a wire to heat his coffee

or to try and make a television set operable. The defendant refused and told the victim to “go on and

leave me alone,” or “I want it to be over,” to which the victim replied, “[I]t’s not over” or “[I]t’s not

over with by a long shot.”

The victim then proceeded toward his bunk in another section of the pod and went to the door

of the pod to receive his medications from the prison nurse. Shortly after the victim returned to his

bunk, the defendant approached and stabbed him with a shank. The victim was unarmed.

Several of the inmates testified that, after the initial stabbing, they heard the victim say “put

the shank down, fight like a man.” The defendant did not put the shank down and proceeded to

follow the victim around several areas of the pod. Each time the victim stopped, the defendant

stabbed him a few more times. At some point during the altercation, the victim attempted to pick

up a milk crate and swing it at the defendant. Finally, the victim collapsed near the stairs and the

defendant called for prison officials. 

Deputy Tracy Gage and Nurse Wendy Smith, who had just administered medications to the

inmates in B-Pod prior to the altercation, both testified that the defendant did not inform them that

he was having a problem with the victim. They also said that, while they were administering

medications to the inmates in C-Pod, they heard the inmates in B-Pod kicking the door and

screaming. Gage then radioed for assistance.

Captain John Patterson testified that he and Lieutenant Bruce responded to Deputy Gage’s

call. Upon entering B-Pod, Patterson noticed the victim, who appeared to have been stabbed, lying

under the stairwell. Patterson said the victim had a “very faint pulse,” and he moved the victim in

order to administer CPR. He accompanied the victim to the hospital, where the victim later died.

Patterson identified a videotape of the area where the attack occurred and explained in detail what

was shown on the tape as it related to the incident.

Patterson also testified that it was prison policy to separate inmates who were having

problems. The separation of inmates occurs immediately if an inmate notifies prison officials, orally

or in writing, of a problem he is having with another inmate and separation is automatic for fighting.

Patterson also stated that he had not received any complaints from the defendant regarding the victim

before or on the day of the incident.
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Detective B. J. Gafford of the Dickson County Sheriff’s Department was called to the jail to

investigate the events that transpired on March 13, 2001. Gafford testified that a search of the

shower area in the B-Pod uncovered a weapon, which he described as “a piece of plastic or maybe

plastic and tissue on the handle and sharpened on the end.” He also observed two small holes in the

shower curtain and found two other shanks in a vent above a urinal in the shower area.

Buddy Tidwell, an investigator with the district attorney general’s office, was also called to

the scene to investigate. Tidwell testified that while he was searching the G-Pod, the defendant told

him to check the mop buckets. Tidwell discovered that two of the mop buckets had removable metal

handles. A yellow mop bucket with a missing handle was found in a janitorial closet “right off the

common area outside of ‘B’ pod.” He compared the handle of one of the buckets to the shank found

in the shower and explained its resemblance to the shank: 

It’s unique in size. It’s about, maybe, a quarter inch or 3/8th of an

inch in diameter. It’s got a particular sort of farrow on the end of it

that’s peculiar to this mop bucket handle; and it appears to have some

sort of black paint or enamel and at various places portions of the

paint are chipped or missing; and this description matches the

description of that shank exactly.

Offie Johnny Dotson, an inmate housed in the B-Pod of the Dickson County Jail, testified

that the defendant and the victim, who was “highly tempered,” had been arguing and the defendant

told the victim, “[Y]ou want to take something, take this.” He also said that the defendant “had

killing in his eyes.” Dotson recounted a prior conversation that he and the defendant had, in which

the defendant stated “he was fixing to take somebody out. That he didn’t want to be back on the

street. He wanted to spend the rest of his life in the penitentiary . . . .” Dotson also recalled telling

defense counsel, prior to trial, that the victim was the aggressor. 

Daniel Stindt, an inmate at the Dickson County Jail, also testified to the events in question

and said that he originally thought that the dispute was over food, but he later learned that it was over

a shank. Stindt recalled the defendant telling him that he had gotten the shank off a mop bucket.

Stindt heard the defendant tell the victim, “Do you want to take my shit? Do you want to steal my

shit? Do you want to take this? Well, take this,” after which the defendant stabbed the victim.

Stindt testified that the defendant had a “look of evil” during the altercation. He also saw the

defendant walking toward the shower area after the fight.

Chris Hollis, an inmate at the Dickson County Jail who was bunking with the victim on the

day of the murder, testified that he heard the defendant tell the victim, “[H]ere’s your shank now,”

prior to stabbing the victim. 

Detective Andy Davis of the Dickson County Sheriff’s Department testified that he was

called to the crime scene to locate any blood and diagram the crime scene. His diagram, showing

the location of the blood droplets in the pod, was made an exhibit to his testimony.
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Dr. Charles Harlan, a forensic pathologist, testified that he performed the autopsy on the

victim. He said that the victim had been stabbed at least eight times in the front and at least seven

times in the back, grouping three of the back wounds together. The wounds ranged from one to five

inches deep. One of the stab wounds pierced the victim’s lung and another pierced his aorta causing

severe internal bleeding. The immediate cause of death was loss of blood caused by multiple stab

wounds. Dr. Harlan also testified that the victim’s blood tested negative for the presence of drugs

or alcohol.

The defendant then put on his case in chief. First, he called Earnest Pleasant, an inmate in

the B-Pod of the Dickson County Jail, who testified that the victim approached the defendant several

times and asked to borrow his shank. Each time the defendant refused these requests. Pleasant

admitted that, on the day of the altercation, he told one of the detectives that he had not seen

anything. Pleasant said that, prior this altercation, he had witnessed the victim fight two other people

while in jail.

Next, the defendant testified. He said that prior to the fight, the victim asked him for his

shank on three separate occasions and the defendant refused. Then, the victim left the defendant’s

area of the pod and proceeded to his bunk. He stated that the victim was unarmed. Testifying that

he was acting in self-defense, the defendant recounted the incident:

And then I looked over and I saw [the victim] standing there

and whisper [sic] to [another inmate]. So at that point I thought that

he was, you know, he had given me a mean look, you know; and I

thought at that point he was discussing what he was going to do to

me. . . .

So I just sort of lost it at that point; and ran over to him; and

– because this has been an ongoing process. He’d been bothering me

for quite awhile trying to pick a fight; and stabbed him a couple of

times. 

Well, then he runs [to another section of the pod]. Now I ran

out behind him, okay, not stabbing him. I ran out behind him; and the

reason I ran out behind him is because I had stabbed him, that’s true;

but I ran out behind him in order – because I didn’t know what he was

going to do. I didn’t know if he was going to go seek a weapon and

retaliate or what, so at that point I stopped. He stopped and I stopped.

When I stopped, I stopped probably four to five feet from him

– when I stopped, he came towards me; and when he came towards

me, he had that look in his eyes; and he started talking about, put the

shank down, come on let’s fight, put the shank down; and he comes
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towards me. I’m still standing there at that point. I’m not making

any effort to proceed forward. He’s coming towards me. 

. . . .

I wasn’t getting along with him to begin with, so why am I

going to loan him the shank to stick me with, so then I stabbed him

a couple more time [sic]. So he comes around right through here

[another section of the pod]; and once again he stops and I stop. Then

he came towards me and grabbed my shirt, you know; and when he

grabbed my shirt, he ripped my shirt; and I stuck him a couple more

times, you know.

So then he runs over here where the milk crates were that they

kept ice in; and I followed, not stabbing him, you know, I followed;

and then he grabs the milk crate and comes at me with the milk crate

and swings the milk crate; and I blocked the milk crate with my hand,

you know; and stuck him a couple more times, you know; and the

whole time he’s hollering, put the shank down, you know, come on

lets fight, put the shank down. But I stopped and he’s not making any

attempt to avail himself of the situation. He’s still proceeding on the

attack, you know.

So anyway, he runs over here [another section of the pod], you

know, and I followed over there, you know, and I can’t remember at

that point if I stuck him or not to be honest with you, you know; but

then he runs over here and when he runs over here, [another section

of the pod], he’s under the steps. Well, there’s a table right there and

I stop probably about right in here somewhere, if I remember

correctly; and then he drops; and when he dropped, you know, I run

over and hit the button to try to get him some help, you know. 

The defendant also testified that he brought the shank to his pod from H-Pod and made the

handle out of plastic “probably three or four nights prior to [the altercation].” He said that he hid

the shank behind a milk crate within his reach and retrieved it after he and the victim had their

argument.

Motion for New Trial Hearing

At the hearing on his motion for a new trial, the defendant persisted on arguing the claims

set out in his pro se motion for new trial, that trial counsel had been ineffective, asking the court to

“rule on it.” The defendant also asked the court to appoint him new counsel to advise him regarding

whether he should raise the post-conviction issues at the motion for a new trial, a request which the
6

trial court denied. Defense counsel asked the court to refrain from ruling on the defendant’s pro se

complaints that trial counsel was ineffective, while the defendant argued at length that the trial court

should rule on the claims. Although the trial court explained, in brief, the danger in making an

ineffective assistance of counsel claim in a motion for new trial, the defendant persisted, explaining

his rationale:

Well, according to Kendricks versus the State, Your Honor,

the way I read this, is moreover we have previously warned

defendants and their counsel of the dangers of raising the issue of

ineffective assistance of trial counsel on direct appeal because of the

significant amount of development and fact finding the issue entails.

So what they’re suggesting is, in my interpretation of that, is

that the issues should be raised at the motion for new trial because it

would be difficult to raise it later on.

Now what you’re saying is that if I raise it now and you rule

on it now, I can’t raise it later.

The defendant’s trial counsel, representing him at the hearing on the motion for new trial,

asked that the trial court not rule on the pro se request without first appointing additional counsel

for the defendant. Acceding to the defendant’s insisting that he wanted the trial court to rule on his

ineffective assistance of counsel claims, the court did so, ruling that counsel had not been ineffective.

ANALYSIS

I. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to support his conviction for second

degree murder because there was no proof that he “intended to kill the victim.” He asserts that, at

most, the proof showed he was acting in self-defense.

In considering this issue, we apply the familiar rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,

190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.

App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set

aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a

reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be

given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
7

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory

of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the

rationale for this rule:

This well-settled rule rests on a sound foundation. The trial

judge and the jury see the witnesses face to face, hear their testimony

and observe their demeanor on the stand. Thus the trial judge and

jury are the primary instrumentality of justice to determine the weight

and credibility to be given to the testimony of witnesses. In the trial

forum alone is there human atmosphere and the totality of the

evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,

370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted

defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

The defendant was convicted of second degree murder which is defined as “[a] knowing

killing of another.” Tenn. Code Ann. § 39-13-210(a)(1) (1997). The testimony of all of the

witnesses to the altercation, including the defendant, was that the victim asked the defendant to use

his shank, and the defendant refused. The victim then went to another area of the pod. Thereafter,

the defendant, by his own testimony, went to find the unarmed victim and “stabbed him a couple of

times.” Further, the testimony of all the witnesses, including the defendant, was that after the initial

stabbing, the victim attempted to run away and the defendant followed him. Each time the victim

stopped, the defendant stabbed him a few more times. This process repeated itself until the victim

finally collapsed. Additionally, Dr. Harlan testified that the victim died as a result of the multiple

stab wounds. These wounds were one to five inches deep and three of them pierced the victim’s left

lung, right lung, and aorta. 

Based on the evidence, a reasonable jury could have concluded from the victim’s multiple

stab wounds, facilitated by the defendant’s following the victim after each subsequent stabbing, that

the defendant was not acting in self-defense but, instead, intended to kill the victim. Accordingly,

we conclude that the evidence readily supports the defendant’s conviction for second degree murder.

II. Jury Instruction

The defendant argued in his motion for new trial and on appeal that the trial court erred in

instructing the jury regarding the definitions of the “knowing” mental state as it pertains to second

degree murder, and that this error was not harmless because it “lessen[ed] the State’s burden of

proof.” 
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To prove second degree murder, the State was required to show that the defendant

“knowingly” killed the victim. As to “knowingly,” the trial court instructed the jury by reading

Tennessee Code Annotated section 39-11-106(a)(20):

“Knowingly” means that a person acts knowingly with respect

to the conduct or to circumstances surrounding the conduct when the

person is aware of the nature of the conduct or that the circumstances

exist. A person acts knowingly with respect to a result of the person’s

conduct when the person is aware that the conduct is reasonably

certain to cause the result. 

To assess this issue, we will review the opinion of this court in State v. Page, 81 S.W.3d 781

(Tenn. Crim. App. 2002), in which the defendant made similar claims as to the trial court’s

instruction as to “knowingly.” The juvenile defendant in Page was tried as an adult and convicted

of second degree murder for causing the death of the victim by striking him in the back of the head

with a baseball bat. Id. at 782. At trial, Page admitted he had swung the bat at the victim, but

claimed he did it only to intimidate him, had not intended to hit him in the head, and could not

believe that he had died. Id. at 785. Defense counsel conceded that the defendant had hit the victim

in the head, but argued that the defendant had been intoxicated, was unable to appreciate his conduct,

and had “‘no understanding of how wrong it was . . . how severe it was at that time.’” Id. In Page,

the trial court instructed the jury as to “knowingly” by presenting three options: “(1) that his conduct

is of a particular nature; or (2) that a particular circumstance exists; or (3) that the conduct was

reasonably certain to cause the result.” Id. at 786 (emphasis in original). On appeal, the defendant

argued, as in the present case, that the trial court lessened the State’s burden of proof by instructing

the jury that the knowing element of second degree murder could be established not only by the

defendant’s awareness that his conduct was reasonably certain to cause the result, but also by the

defendant’s awareness that his conduct was of a particular nature or that a particular circumstance

existed. Id. at 786. We agreed and remanded the case for a new trial for the jury to be instructed that

the knowing mens rea of second degree murder requires that the defendant have acted with an

awareness that his actions were reasonably certain to cause the death of the alleged victim. Id. at

790.

Likewise, in State v. Keith T. Dupree, No. W1999-01019-CCA-R3-CD, 2001 WL 91794,

at *3 (Tenn. Crim. App. Jan. 30, 2001), the trial court had instructed as to “knowingly” utilizing the

pattern jury instruction then in effect, which provided that it was established if the person was aware

“either: (1) that his conduct is of a particular nature; or (2) that a particular circumstance exists.”

The instructions omitted the part of the “knowingly” definition providing that “[a] person acts

knowingly with respect to a result of the person’s conduct when the person is aware that the conduct

is reasonably certain to cause the result.” See Tenn. Code Ann. § 39-11-106(a)(20). The court in

Dupree explained why the instructional error was not harmless:

We are unable to find harmless error. The sole issue in this

case was whether the killing was knowing or accidental. In other
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words, the sole issue was whether the defendant was aware that his

conduct was reasonably certain to cause the result. Yet, this element

was not conveyed to the jury, and a lesser standard was set forth.

2001 WL 91794, at *4.

A further consideration in the court’s determination in Dupree that the error in instruction

was not harmless was the fact that the jury had asked the trial court the question, “According to the

law, does pointing a gun at someone else assume that the person pointing the gun ‘knows’ that the

gun will hurt the other person?” Id. at *5.

In State v. Tony Martin, No. W2001-02221-CCA-R3-CD, 2003 WL 261937, at *8 (Tenn.

Crim. App. Feb. 7, 2003), perm. to appeal denied (Tenn. June 30, 2003), the trial court gave

instructions identical to those in the present appeal. The majority determined that the instructional

error was harmless because, had the trial court given the proper instruction, the jury, considering the

evidence, would not have reached a contrary result. Id. at *9. There, like here, the defendant

claimed self-defense. Id. The Martin court reasoned:

The primary dispute in this trial was whether the defendant fired his

gun at the victim first or was fired upon first, prompting him to wield

his gun in self-defense. It is undisputed that the defendant had a

handgun, pulled it out, and that the gun was fired and caused the

death of the victim. It belies common sense to believe that, if the

defendant did indeed fire his gun first at close range, he was not

aware that his conduct was reasonably certain to result in the death of

the victim.

Id.

Here, the facts show that the defendant and the victim were involved in an argument. At no

time during this argument or the subsequent altercation was the victim armed. The defendant

testified that the victim left after the argument. Thereafter, the defendant located the victim and

“stabbed him a couple of times” with a shank that was one-fourth to three-eighths of an inch in

diameter and long enough to penetrate the victim’s body five inches. The victim fled the area and

went to another section of the pod. The defendant followed and, when the victim stopped, “stuck

him a couple more times”; this process repeated itself until the victim finally collapsed. The

defendant stabbed the victim multiple times, piercing the victim’s right lung, left lung, and aorta.

Given the brutality and thoroughness of this attack, we conclude, as did the court in Martin,

that the instructional error as to the definition of “knowingly” was harmless, it being clear to the

defendant that his conduct was reasonably certain to result in the victim’s death. Additionally, we

note that the trial court instructed the jury on the lesser-included offenses of criminally negligent
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homicide and voluntary manslaughter and also included a self-defense instruction. By its verdict,

the jury rejected the defendant’s version of the events. This issue is without merit.

III. Ineffective Assistance of Counsel Claim at Hearing on Motion for New Trial

At the hearing on the motion for new trial, the defendant sought to argue his pro se claims

of ineffective assistance of counsel, despite his counsel’s requests that the court not rule on the

claims. The defendant asserted that trial counsel was ineffective because he failed to (1) introduce

evidence that the victim was a drug user; (2) impeach the credibility of the State’s witnesses,

specifically Dr. Charles W. Harlan who, according to the defendant, was under investigation for

“botched autopsy reports and other related ethical practices”; (3) interview and present witnesses

who could testify as to the tensions between the defendant “and friends of another inmate and his

family members,” which was relevant, in the defendant’s view, to the issue of weapons being in the

jail; and (4) introduce character evidence of the victim and the defendant. The defendant also

claimed that his attorney was ineffective because he advised the defendant not to raise his ineffective

assistance of counsel claims during the hearing on the motion for a new trial. 

As this court has noted on a number of occasions, “the practice of raising ineffective

assistance of counsel claims on direct appeal is ‘fraught with peril’ since it ‘is virtually impossible

to demonstrate prejudice as required’ without an evidentiary hearing.” State v. Blackmon, 78

S.W.3d 322, 328 (Tenn. Crim. App. 2001), perm. to appeal denied (Tenn. 2003). In fact, the

defendant complains that the trial court did not afford him a fair evidentiary hearing as he pressed

his pro se ineffective assistance of counsel claims during the hearing on the motion for new trial.

We agree that there was not an evidentiary hearing as to the claims of ineffective assistance of

counsel; and the procedure insisted upon by the defendant illustrates precisely the problems in

ignoring the Post-Conviction Procedure Act, see Tenn. Code Ann. §§ 40-30-201 to -310, and

particularly section 40-30-210 providing for an evidentiary hearing on post-conviction claims. We

do not believe that the defendant’s efforts should result in his relinquishing his right to file, at the

appropriate time, a post-conviction petition. Accordingly, we vacate the ruling of the trial court as

to the defendant’s claim that trial counsel was ineffective and direct that this ruling does not bar his

filing a post-conviction petition in accord with the Post-Conviction Procedure Act.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court

as to the defendant’s conviction for second degree murder. We vacate the ruling finding that the

defendant did not receive ineffective assistance of counsel at trial and allow the defendant to present

this claim at a subsequent proceeding should he wish. 

___________________________________ 

ALAN E. GLENN, JUDGE