### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs F ebruary 5 , 2002

RODNEY D. PALMER v. STA TE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-23950 Chris Craft, Judge

No. W2001-01571-CCA-R3-PC - Filed June 28, 2002

A Shelby County jury convicted the Petitioner of attempted second degree murder, a Class B felony,

a nd three c ounts of aggra vated as sault, a Cl ass C felo ny. The tr ial cour t ordere d the Petiti oner to

serve an effective twenty-six-year sentenc e in the Tennessee Department of Correction. This Court affirmed th e Petitioner’s convicti ons on appeal, and the Tennessee Supreme Court denied pe rmission to appeal. The Petitioner filed a petition for post-conviction relief. Following a hearing, the court denied post-conviction relief. The Petitioner now appeals the denial of post-convic tion relief. Finding no error, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined.
Robert Little, Memphis, Tennessee, for the Appellant, Rodney D. Palmer.

Paul G. Summers , Atto rney Genera l and Repo

rter; Kim R. Helper , Assistan

t Attorne y Gener al; William L. Gibbons, District Attorney General; and Katrina Earley, A ssistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION

A Shelby County jury convicted the Petitioner, Rodney Palmer, of attempted second degree murde r, a Class B felony, and three counts of aggravated assa ult, a Class C fel ony. He wa s sentenced to ten years in the Department of Correction as a Range I, standard offender for the attempted second degree murder conviction and to eight years as a Range II, multiple offender f or eachaggravated assault conviction. The ten-year sentence and two of the eight-year sentences are consecutive to each other, a nd the remaining eight-year sentence is concur rent for an effective twenty-s ix year sentence. This Court affirmed the Petitioner’s convictions on appeal. See State v. Palmer
, 10 S.W.3d 638 (Tenn. Crim. App. 1999). The Tennessee Supreme Court denied permission to appeal. Subsequently, the Pet itioner f il ed a petition for post-conviction relief. Following-2-

appointment

of counsel, the Petitioner filed an amended petition. After a hearing, the court denied post-conviction relief. The Petitioner now appeals the denial of post-convic tion relief.

The fac ts of the underlyin g case, a s stated b y our Cour t on appea

l, are a s follows: BelindaPalmer, the defendant’s wife, testified that in February 1997, she lived with th e defenda nt, her two sisters, Tameka and Tracy Parsons, and her cousin, John Gross. She said that she was in the hospital for two weeks in October 1996 following gastro- bypass surgery

and that s he retur

ned to the hospital for seven days in January 1997. She said that on Friday, February 14, 1997, she had not yet returned to work after getting out of the hospital. She said thatshe believed that the defendant smoked crack cocain e p urchased with his income tax refund over that wee kend from Valentine's Day until she saw him on Monday night or early Tuesday morning.

Mrs. Palmer testified that at 8:00 a.m. on Tuesday, February 18, the defenda nt asked her to take hi m to work, but she refused and told him to leave. She said that she was in the bathroom when the defendant stabbed her in the chest, back, a

nd arm. She

said that either just before or as he was stabbing her, the de fenda nt said, “ B**ch, I'm going to put you in the Med.” She said that after he stabbed her, she lay on t he bathroomfloor in shock and y elling. She said that s he has sc ars from a ll three wounds and that she has nightmares about the incident.

Tameka Parsons testified that she lived wit h her sister, Mrs. Palmer, and the defendant in February 1997. She said th at the defendant left the houseFriday night, F ebruary 14, and returned early Tuesday morning around 2:00 a.m. She sa id that between 8:00 and 8:30 a.m., she heard Mrs. Palmer and the defendant arguing in the master bedroom. She said that Mrs. Palmer had been on the telephone that morning withher father telling him that she was tired of the defenda ntspending his money on drugs and that she wanted him out of her house.

Tameka Parsons testified that she then heard Mrs. Palmer yelling and that she thought that Mrs. Palmer and the defendant were fighting, but she did not know that he was stabbing her. She said that she and her sister, Tracy Parsons, kicked open the bedroom door and that the d

efenda nt came out of the

bedroom a

nd stabbe d them. She said that h

e first stabbed her

on her arm and under her arm, using a large kitchen knife. She said that she and her sister did not fight with the defendant or say anything to him before he stabbed them. She said that her sister pulled her from the hall into her room, and they closed the door. She said that she kicked the door open in order to help Mrs. Palmer.

John Gross testified that in February 1997, he live d on Jansse n Street w ith Mrs. Palmer. He said that at that time, Mrs. Palmer was sick and was having complications from surgery. He said t hat on the morning of

Februar y 18, Mrs. Palmer called her father and told him that the defendant ha d notbeen there over the-3-

previous weekend, that

she was tired of it and did not want to live like that anymore, and that she w anted to g et a divor ce. He s aid

that Mrs. Palmer asked the defendant to leave, and

the defendant responded that he was not going anywher e. He said that the defendant and Mrs. Palmer began to argue he atedly in the living room, and they moved to the mast

er bedr oom at the

defenda nt’s req uest. He said that the defendant locked the bedroom door.

Mr. Gross tes tified tha

t he could

hear Mr s. Pa lme r yelling. He said that he was standing behind Mrs. Palmer’s sisters when they kicked the bedroom door open. He said the defen dant ca me toward the sisters with a large chef’s knife a nd began stabbing them. He said the knife was six inches long and about two inches wide. He said that the sisters did not say anything to the defendant before the stabb ing nor did they have anything in their hands.

Mr. Gross testified that he turned and ran outside onto the porch intending to get help. He said th at the de fendant ran aft er him an d stabbed

him o nc e in the right shoulder. He said that he had not said anything to the defendant before the defenda nt stabbed him and that he was on the cordless telephone trying to get help. He said the defendant then entered the house, grabbe d Mrs. Palmer’s purse and car keys, and drove away in her car. He said that he did not know if the de fendant took the knife with him when he left. He said that he lost a lot of blood from the stab wound and that he was treated and released f rom the hospital.

Trac y Parsons te stified th at on the m orning of Februar y 18, 1997, she was a

t Mrs

. Palmer’s house. She

said that t

he defe ndant and Mrs. Palme

r first arg ued in the living room. She s aid that th ey were loud but tha

t she was n ot paying a

ttention to what they were arguing about. She said they went into the bedroom and Mrs. Palmer started yell ing. She said that she and her sister, Tameka Parsons, kicked the door open and that s he could s ee Mrs. Palmer g asping for breath on the floor of the bathroomconnected to the master bedroom. She said that within a few sec onds, the defendant stabbed her

and her sister. She said that she was stabbed in the chest and in the upper back. She said that she did not have anything in her hands and did not say anything to the defendant before he stabbed he r.
Tracy Parsons testified that she is four feet, eleven inches tall and that she weighs one hundredfifteen pounds. She said that she was in thehospital for three days after the defendant sta bbed her . She said that her lungs collapsed and that a chest tube was inserted through her side.

On cross-e

xaminatio n, Trac y Parsons t esti fied that when they kicked the bedroom door open, Tameka was closer to the defenda nt. She said thatthe defe

ndant ca me out of the bedroom as soon as the do or open ed. She said that the hallway was wide enough for the defendant to pass through even though she and Tameka were

standing-4-

there and that she was onl y par tially blocking the doorway. She said that the defendant stabbed h

er first in the chest, then he stabbed her back as she was turning away from him. She said that the defendant then went down the hal l and int o the living room. She said that she and Tameka went into Tameka’s bedroom and close d the door. She said she saw the defendant come o ut the front door, go back in the house, and come

out again withkeys. She said that she did not see or hear him attack anyone after he went back in the house.

Officer Russell Stevens of the Memphis Police Department testified that he was on duty the morning of Februa ry 18, 1997, and that he received a call to go to 4452 Janssen. He said that when he arrived, two ambulances w ere already on the scene, and attendants were taking two females from the house. H e said that he saw a bleeding male outside, and a paramedic advised him that three people w ere cr

itically injured.

Officer Stevens said that he went inside and saw Mrs. Palmer lying in the middle of the living room floo r on her side. He said that he could see that she was bleeding from her upper body but that a pillow drenched with blood blocked his view of the wound. He said th at M rs. Palmer w as talking on the telephone, trying to get

someone to take careof her children and that she was hysteric al. He sa id that Mrs

. Palmer told him that she had been fighting with the defendant in the master bedroom and that the f

ight had e sc alated . He said that she told him that the defendant said, “You’re a smart b**ch. I’m going to se

nd you to the Med” and then he stabbed her.

Officer Stevens sa

id that in the master bedroom, he found a dayplanner on the bed. In the dayplanner, he found the defendant’s identification and a glass cylinder used to smoke crack. He said that the door to the bedroom appeared to have been kicked or forcibly pushed open.

The defendant testified that in 1991 he received a one -year sentence fo r reckl ess endangerment

and a two -year s entence

for thef t. He said that on February 18, 1997, he lived at

4452 Janssen with his wife, her two sisters, and her cousin. He said that at that time, he had be en worki ng at Jolly Royal Furn

iture for eight month s. He said that on Friday, February 14, he went home after work, stayed at his house for three to four hours, and then went to his mother’s house. He said that h

e left be cause hi s wife’s sisters and cousin and some o ther peo ple were prepar ing to have

a party fundedby their income tax refunds. He said that he had received his paycheck that day, not a n income t

ax refu nd. He sa id that Mrs

. Palmer had returned to work two weeks earlier and that she had just gotten home from work when he le ft. The defendant stated that he smoked crack that we ekend.

The defenda

nt testified that Mrs. Palmer pic ked him up at his mother’s house at about 12:35 p.m. or close to 1:00 a.m. on Tuesday. He said that he awoke at 6:30 or-5-

7:00 a.m. and prepared for work. He said he asked Mrs. Palmer to take him to work, and t h ey began to argue because she r efused to take him to work and told him that she wanted h

imoutof the house. He said that they argued for about twenty minutes starting in the living room and then continuing in their bedroom where he locked the door. He said th at when he realiz ed that they could notcome to an understanding, he went to get

the car keys from Mrs. Palmer’s purse, which was hanging on the back of the bedroom door. He stated that Mrs. Palmer grabbed him aroun d the wai st to try to stop him from leaving in the car. He said that he and Mrs. Pa lmer then got into

a physical fight and that when her sisters and cousin heard them bumping into things, they kicked open the bedroom door.

The defenda

nt testif ied that when Mrs. Palmer’s sisters and cousin started toward him, he grabb ed a stea

k knife f rom the dr

esser or from a chair in the bedroom. He said that he had not put the knife there. He said that Mrs. Palmer was still holding him around the waist with h er shoulder in his stoma

ch pushing

him backw ard into the bed. He said

that as the

others r ushed into

the room, he stabbe d Mrs. Palm er in the back. He said that Tameka and Tracy got on him and he stabbed them.

The defendant testified that he then ran to the back door in the kitchen. He said

that Mr. Gross was running in front of him and that he went to the back door to avoid Mr. Gross, who went to the front door. He said that the back door was locked and that he wen t back to the bedroom to get the keys to the door and the car. He said that Tameka and Tra cy were no longer

in the bed

room. He

said that h

e got the k

eys, asked Mrs. P almer if she was alright, and ran to the front door. He sa id that Mr. Gross was blocking the front door and he stabbed Mr. Gross. He said he th en left in his and Mrs. Palmer’s car. He said he tried to use the c ellular phone to call 9-1-1 but that 9-1-1 was not accessible in that area. He said he then c alled Mrs. Palmer’s father and asked him to come to t he house and check on everyone. He said that three or four days later he turned himself in to the police.

On cross-e

xaminatio n, the def

endant te stified th at Mrs. Pa lmer’s th r ee-yea r-old daughter and Tameka’s baby were also in the house at the time of the incident. He admitted that

on that morning, he and Mrs. Palmer argued in part over his drug use. He said that h

e did not have t

he knife until all f our peop le came in the bedroom and that as he was stabbing them, they wer e still atta cking him. He said th at at the t ime Tracy attacked him, he had not yet stabbed Tameka. He a dmitted that

he stabbed Mr. Gross in the back. He

said it wa s necess ary to stab the victims because he thought that he was being attacked. He said that he did not know if anyone had anyth ing in their hands when they attacked him. He said that he did not have to go the hospital after the incident

and that he was treated by his mother. He said that he was f ive fee t, eleven inches tall and weighed one hundred seve nty pounds.-6-

At the hearing on the petition for post-conviction relief, t he Petition er testif ied that he did notmeet with trial counsel until the Friday prior to the Monday that his case was supposed to go to trial. The Petitioner tes tif ied that prior to that meeting, he had not met with trial counsel since Octobe r. (The record indicates that Petitioner’s trial was in Februar y, 1998.) According to th e Petitioner, when he m

et with tri al counse

l, she stated that she “already had a ca se prepared . . . to go to trial” and that she was going to argue t he le sser-included offense of aggrava ted assault. The Petitioner testified that he was “set up” and stated that he gave trial counsel “papersof conspiracy,” but trial counsel just “folded [them] up and said that [was not] what she was going to do.”

The Petitioner explained that he wanted to argue tha t thr ee of the State’s witnesses, the victim’s two sisters and the victim’s cousin, had conspired against him and that he was merely acting in self-defense. The Petitioner testified that he wanted to present evidence on self-defense, but “by the time they presented the things that they was going to do, [the trial judge] didn’t want to hear it.” The Petitioner recalled that trial counsel “brought up the issue” of self-defense, but the trial judge stated that he had not heard enough evidence for it to be “played” in the courtroom.

The Petitioner testified that tria l counsel didnot cross-examine any witnesses regarding selfdefense and stated that the only time that self-defense was di scussed wa s when trial counsel was examining the Pe titio ner. Thus, the Petitioner maintained that “by the time it got to [him] there wasn’t enough evidence to even sa y self-d efense .” The Pe

titioner s tated tha

t he was n ot able to convey his conspiracy theory to the jury because trial counsel “w as already prepared to do the thing that s he wante d to do.” The Petitioner did not deny stabbing the victims in this case. Instead, he maintained that tria

l counsel asked him

specific questions at trial and did not give him “an opportunity to explain [himself].”

The Petitioner

testifie d that he m

et with tri al counse

l only once before trial. However, he stated that he met trial counsel when “she took the case.” The Petitioner testified that when trial counsel took h is ca se, she “went over the case” with him and talked to him about a bond he aring. The Petitioner reported that he saw trial counsel before the bond hearing and told her that his wife wanted to speak to h

er, but tr ial couns el stated

that meet ing with the

victim would be a conflict of interest

. According to the Petitioner , trial co unsel sta ted that sh

e would not interv

iew the vi ctims.

The Petiti oner als o testifie d that he d id not see any disco very mat erials un til the day of his trial. The Petiti oner sta

ted that tr ial couns el did con

vey the Sta

te’s for ty-year offer to him . Th e Petitioner explained that at the bond hearing, trial counsel brought it to the State’s a ttention th at it

was mistaken i n relyi ng on certain convictions that the Petitioner did not have. The Petitioner acknowl edged tha

t he was se

ntenced to twenty- six years instead of forty years. When questioned if the Petitioner thought that he might have “gotten off entirely” if his evidence had been presented, the Petitioner stated, “No, I’m not saying that at all.” The Petitioner testified, “No, I don’t think they would have ac quitted me , but I don’ t think that they woul d have we

nt to the a ssumption th at I deliberately got up one morning and started stabbing my family, who[m] I love very much.”-7-

When asked if he had any complaints about trial counsel’s perfor manc e at his s entencing hearing, the Petitioner testified that he did not understand why trial counsel and the trial judge “agreed to take the casesas one ca se and then at the end of the trial they decided to split it up.” The Petitioner testified that trial counsel only discussed “ranges” with him before trial and did no t discuss his possible sentence.

The Petitio ne r stated that he “never got a proper self- defense trial.” He testified that trial counsel did not discuss his case or the law with him. The Petitioner testified that he was interviewed by a psychia

trist, but trial counsel did not examine the psychiatrist at trial. The Petitioner stated that trial counsel did not present enough evidence to argue self- defense.

On cross-examination, the Petitioner estimated that trial counsel met with him three times while he was in

jail. The

Petitioner

testifie d that tria

l counsel never di scuss ed h is preliminary hearing with him. He

stated tha

t the only tim es tha t he and tr ial couns el “rea

lly” talke d about his

case was when

they dis cussed t he bond hearing and when they met on the Friday “prior to” the Monday trial. The Petitioner testifiedthat he hada copy of the indictment, but trial counsel did not go over it with him.

The Petitioner testified that on the Friday before trial, he gave trial counsel a folder containing paperwork that the Petitioner believed would show “conspiracies and self-de fense,” but trial counsel told the Petitioner that it was too late for such information. According to the Petitioner, the paperwork that he gave her included state ments by his wife and“affidavits that were presented to [him]” which would have show n tr ial couns el “why [ the Petitio ner] thought that th is was sel f defense [and “w hy this def

ense”] would

work in trial.” The Petitioner testified that he did research in the jail library and gave trial counsel information on conspiracy and se lf-defense.

Trial counsel t

estified that she h ad been

employed

at the Publ

ic Defender’s Office for

eleven years and that she was as signed to t he capit al-def ense tea m. She stat

ed that she was ap

pointed to represent the Petitioner on July 22, 1997. Trial counsel testified that not counting the trial, she met withthe Petitioner at least four times when the Petitioner had “report dates.” One of those occasions

was the bond hearing. Trial counsel stated that she b elieved

she visite d the Petiti oner twic e in jail and spoke with

him on the te

lephone t wice. Tr ial couns el reca

lled that d uring thos e meetings, she spoke to the Petitioner about his case.

Trial counsel testified that she receiv ed discov ery a co uple of w eeks af

ter rec eiving the

case
a nd that on August 22, 1997, she reviewed the discovery materials, as we ll as the preliminar y hearing file. Trial counsel stated that she also reviewed with the Petitioner theinterviews of three of the victim s, includi ng that of the Petitio ner’s wi fe. Tria l counsel didnot reca

ll whether she told the Petitioner that she had or ha d not inter

viewed h is wife. Sh

e stated that bec ause

the Petitioner’s wife was interviewed when the Petitioner was in General Sessions Court, trial counsel did not know if she ask ed the investigator to question her again. In addition, the Petitioner’s wife made a statement to the police. Trial counsel maintained that sheshared all of the discoverymateria ls with-8-

the Petitioner; however, she stated that she did not believe that the witness statements were included in the discovery materials until after the witnesses testified at trial.

Trial co unsel tes tif

ied that sh

e was “s ure” tha

t she spoke

to the Petit

ioner ab out possibl e defense s. She explaine d that the papers t hat the Pe titioner s aid he ga

ve to trial counsel on the Friday before his trial “were kind of like notes that he had written down.” According to trial counsel, the notes included

some cas e law an d the Petiti oner’s t houghts asto how the

State’s p roof fit i nto that

case law. Regarding the Petitioner’s conspiracy theory, trial counsel told the Petitioner that it “was notgoing to fl

y in this trial. ” Howev er, tria l counsel told the Pe

titioner t hat they c ould

try to argue self-defense or the lesser char ge of aggravated assault.

Trial counsel stated that

the State made the Petitioner an offer of forty years; however, trial counsel notified the State that the Petitioner was a Range I offender. The State did not make another offer. Trial counsel testified that the Petitioner ultimately received a sentenc e of twen

ty-six ye ars. Although trial counsel contacted a psychologist to evaluate the Petitioner, the psychologist was not examinedat

trial because he had determined that the Petitioner was c ompetent to stand trial and that there were not any insanity defenses.

Trial counsel could not recall if shewent over sentencing with the Petitioner. She noted that “early on,” they went over ranges, and she explaine d to him that he was a Range I. Tr ial counsel also stated that she “tell[s] all [her] clients if they [have] multiple indictments they can get stacked time.” However, she did not have any specific notes a s to what she told the Petitioner.

Trial counsel t

estified that she c ould not re

member if

she argu ed the the ory of self-defe nse at the Petitioner’s trial and stated that it was “very possible” that she did not. She stated that if the judge was not going to charge it, it did not make sense to argue it.

Trial counsel c ould not recallif she moved to sever the Petitioner’s offenses. Trial counsel could also not recall if she filed a response to the State’s written motion to sentence the Petitioner consecutively. Trial counsel testified that she did not argue that the Petitioner’s drug use diminished his ability for intent or that it was a mitigating factor because “he had already slept it off and then the next day . . . is when it happened.”

ANALYSIS

A. Ineffective Assistance of Counsel

The Petitioner argues that he received ine ffective assistance at

trial. Specifically, the Petitioner argues that trialcounsel was ineffective by not properly pursuing

a claim of self-defense. In order to

obtain pos t-convic tion relie f, a petitioner mus tshow that his or her conviction or sentence is void orvoidable because of the abridgment of a constitutional right. Tenn. Code Ann. § 40-30- 203. The petit

ioner be ars the b urden of

proving factua l alleg ations in

the petition for post-conviction relief by clear and convincing evidence. Id. § 40-30-210(f). A post-conviction cou rt’s f actual-9-

findi ngs are subject to a de novo review b y th is Court; ho wever, we must ac cord the se fac tual findi ngs a presumption of correctness, which is overcome only when a preponde rance of the evidence is contrary to the post-c onviction court’s factual findings. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). A post-convict ion cou rt ’s co nc lu si on s o f l aw ar e s ub je ct to a p ur el y de novo review by this Court, with no presumption of correc tness. Id. at 457. The Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed question of law and fact and, as such, is subject to de novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).

The righ t of a crim inall y a ccus ed to repr esen tatio n is g uara

ntee d by both t he Sixt h Amendment

to the United States Constitution and Article I, Section 9 of the Tenne ssee Constitution. Id. ; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 197 5). Th is right to representation includes the right to “reasonably

effective” assistance. Burns , 6 S.W.3d at 461. In reviewing a claim of ineffective assistance of counsel, this Court must determine whether the advice g iven or serv ice s rendered by the attorney

are within the range of competence de manded of attorn

ey s in crimin al case s. Baxter
, 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counse l, a petitioner

mu st show that “counsel’s representation fell below an objective standard of reasonablenes s, ” Strickland v. Washington , 466 U.S. 668, 688 (1984), and that this performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn.1 993). To s atisfy the requ irement o f prejud

ice, a pe titioner m ust show a

reasona ble probabil ity that, but for counsel’s unreasonab le e rror, the fact f inder would have h ad reas onable doubtregarding the petitioner’s g uilt. Strickland , 466 U.S. at 695. This rea sonable p robabilit y mu st be “suffic ient to und

ermine c onfidenc e in the ou tc ome.” Id. at 694; see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994).

This standard also applies to claims arising out of the plea proce ss. Hill v. L ockhart , 47 4 U. S. 52, 58 (19 85). To sa tisfy the requ irement o f prejud

ice in a c ase involving a g uilt y pl ea, th e petitioner must demon strate a

reasona ble proba bility that, but f or counse l’s erro rs, he or she

“would not have pleaded guilty

and would have insisted on going to trial.” Id. at 59.

When evaluating an ineffec t ive as sist ance of couns el cla im, t he revi ewing c ourt s houl d jud ge the attorney’s pe

rformance within the context of the case as a whole, taking into account all relevant circumst ances. Strickland , 466 U.S. at 690 ; State v. Mitchell , 753 S.W.2d 1 48, 149 (T enn. Crim. App. 1988). The reviewing court must evaluate the que stionable con duct fro m t he attorney’ s perspective at the time. Strickland
, 466 U.S. a t 690; Cooper , 849 S.W.2d at 746; Hellard v. State
, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the revie wing court must be highly def erent ial and “should indu lge a st rong p resumptio n that counsel’s conduct falls within the wide range of

reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

The Petitioner

argue s that tria

l counsel was def icient by not prope rly pursuing his claims of self-defense and conspiracy . The post-conviction court, in its order deny ing relief, stated,-10-

A reading of the

trial transcript reveals that the [P]etitioner made

a terrib le witnes s, particu larly

on cr oss-e xamination, when he w as asked questions concer

ning his version of th e off

ense which he could not answer or explain. From the phy sical evidence and facts of the case, this Court cannot see it possible that any jur y could

ever believe the viciou s, brutal stabbing of these four unarmed victims could ever have been co mmitted in

self-defense. As an example, John Gross, was stabbed in the back as he turned awa

y, per t he [P etitioner ’s] testimony at trial, guilty only of blocking a d oo rw ay. [The ] Pet itio ner’s a ttorn ey asked th e tria l jud ge to charge selfdefense, but was refused that instruction, due to the lack of self-defense proof in the record. She testif

ied in the hearing that she c ould

not in good conscience argueselfdefense to the jury

if they wer

e not going to be instructed on it. Instead, she arg

ued that he did not intend to kill, but only injure, and asked forconvictions on the lesserincluded offense of [a]ggravated [a]ssault, in fact succe eding in getting three of [the] [P]etitioner’s indicted charges reduced to that of fense . She also had all of the witnesses interviewed by he r investigator except

Tamicka [sic] Parsons, who refused to be interviewed. [The] Petitioner has suggested nothing a dditional that

his attorney could have done to inves tigate

or prepa re for tr ial than w hat was a lready done in thi s
case. In thi s Court’s o

pinion, his attorne

y di d the best

she could with very few facts in [the] [P]etitioner’s favor.

In our view, the findings of the post-conviction court are f ully supported by

the evidence presented at the pos t-convic tion heari ng and in by record on appeal. The only evidence that the Petitioner offeredin support of his contention that he stabbed the four unarmed victims in selfdefense was his own testimony . In a ddition, hi s theory

that the f our victim s conspir

ed aga inst him

was also unsupported at trial. We agree with the post-conviction court that the Petitioner “ suggested nothing additional that his attorney could have done to investigate or prepar e for trial than what was already done in this case.” This issue is without merit.

B. Application of Tennessee Rule of Evidence 615

The Petitioner

next argues that th

e trial court erred by denying his motion to exclude trial counsel from the courtroom during his testimony. Tennessee Rule of Evidence 615 provides that “[a]t the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other

adjudicatory hearing.” However, the r ule does not authorize the exclusion of “a person whose presence is shown by a party to be essential to the presenta tion of the party’s cause.” Tenn. R. Evid. 615. “The pa

rty seek ing to avoi d sequestration bears the burden of proving that a Rule 615 exemption applies.” El Paso Pitts v. State, No. W2001-0 1563-CCA- R3-PC, 2002 Tenn. Cri m. App. LEXIS 353 , at *9 (Te

nn. Crim. App., Jackson, Apr. 17, 2002) (citing United States v. Ortiz , 10 F. Supp.2d 1058, 1060 (N.D. Iowa 1998)). Application of Rule 615 is within the sound discretion of the trial court. State v. H arris , 839 S.W.2d 54, 68 (Tenn. 1992).

In this case, appellate co unse l, at the b eginning o f the hea ring on the

petition f

or postconviction relief, requested that all witnesses, including trial counsel, be exclude d from the-11-

courtroom

pu rsua nt to Tennessee Rule of Evidence 615. The post-conviction court denie d the Petitioner’s request

and rule d that tria

l counse l was “a n essential witness for the [S]tate.” In allowing trial cou

nsel to re main in the

courtro om, the post-conviction court noted that trial counsel is “familiar with her file a nd it would be a great

help to the

state to understan d this and t he issues
, if [trial counsel] were to hear the testimony.”

We conclude that the post-conviction court did not abuse its discretion in allowing trial counsel to remain

in the cou

rtroom d ur ing the Pet

itioner’ s testimony . Our Cour t has previously stated, “Given the special circumstances which ar ise in a pos t- conviction proceeding in which a petitioner claims tha

t his trial a

ttorney w as ineff

ective, it is entire

ly reasona

ble to conclude that the trial attorney’s presence would be essential for the presentation of the state’s case.” State v. Je rome Brown , No. 03C01-9107-CR-00201, 1992 Tenn. Crim. App. LEXIS 761, *22 (Tenn. Crim. App., Knoxville, Oct. 6, 1992). Moreover, even if the post-conviction court’s ruling qualifie d as an abuse of discretion, the Petitioner has failed to articulateany prej udice. T hus, this iss ue is without merit.
Accordingly, the judgment of the post-conviction court is AFFIRMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE