IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 18, 2012 Session
DERRANN WILLIAM ESTILL v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County
No. 2007-A-25 J. Randall Wyatt, Judge
No. M2011-01313-CCA-R3-PC - Filed August 21, 2012
The Petitioner, Derrann William Estill, appeals the Davidson County Criminal Court’s denial
of his petition for post-conviction relief from his conviction of especially aggravated
kidnapping and resulting seventeen-year sentence. On appeal, the Petitioner contends that
he received the ineffective assistance of counsel at trial and on appeal, that he is entitled to
relief based upon cumulative error, and that the post-conviction court failed to address
adequately his claims of due process violations. Based upon the oral arguments, the record,
and the parties’ briefs, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.
Susan L. Kay, Jake R. Hayes, and Nadia S. Mozaffar, Nashville, Tennessee, for the appellant,
Derrann William Estill.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
We glean the following relevant facts from this court’s opinion in the Petitioner’s
direct appeal:
The appellant was charged with especially aggravated
kidnapping and domestic assault against his wife, Robin Rogers.
Just prior to opening statements at trial, the appellant pled guilty
to domestic assault. He proceeded to trial on the remaining
charge.
Lieutenant Andrea Swisher testified that in August 2006,
she was a sergeant with the Metropolitan Nashville Police
Department and was assigned to the Domestic Violence
Division. Shortly after 6:00 p.m. on August 26, Lieutenant
Swisher was on patrol and received “a serious call for service.”
She went to the scene of the reported incident but did not see
anything. Another officer arrived and reported that he also had
not seen anything suspicious. Lieutenant Swisher received an
incident update over her police radio and was directed to another
location. The suspect vehicle, a pickup truck, was supposedly
“headed outbound on Murfreesboro Road.” Lieutenant Swisher
drove in that direction and began looking for the truck. She
learned the truck had turned onto the Trevecca University
campus, so she turned into an entrance gate that was usually
closed. She noticed the gate was open, looked onto a side street,
and saw the pickup truck. She got out of her patrol car, drew
her weapon, and ordered the truck’s driver, who was the
appellant, onto the ground. Lieutenant Swisher held him at
gunpoint until another officer arrived.
Lieutenant Swisher testified that she heard the victim
crying hysterically inside the truck. She approached the vehicle
and saw the victim lying on her back on the passenger side. The
victim’s hands were tied together, and her hands were tied to her
feet. The victim could not move and said, “[P]lease help me,
please help me.” Lieutenant Swisher crawled into the truck and
tried to untie the electrical cord that was binding the victim.
However, the cord was too tight, so Lieutenant Swisher
borrowed a knife from another officer and cut the cord off the
victim. She noticed that the truck’s back window was in the bed
of the truck.
Lieutenant Swisher testified that after she helped the
victim out of the truck, she saw an open knife on the passenger
seat. The victim had been lying on the knife, and Lieutenant
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Swisher asked the victim if she was injured. The victim “started
pointing out . . . areas that were . . . hurt,” and Lieutenant
Swisher took photographs. The victim said that the appellant
had hit her on the top of her head with his fist and that her head
was hurting. Lieutenant Swisher looked for a bump on the
victim’s head and saw blood in the victim’s hair. The victim
lifted her shirt, and Lieutenant Swisher saw a bite mark on the
victim’s back. The victim also had ligature marks on her arms
and legs. Lieutenant Swisher said the appellant acted arrogant
in that he did not believe he had done anything wrong. During
the appellant’s booking process, Lieutenant Swisher told him
that he was going to be charged with kidnapping, and the
appellant responded, “[S]he’s the one that kidnapped me.”
Lieutenant Swisher informed the victim about obtaining an
order of protection against the appellant, but the victim did not
want one. The victim also did not want to go to a hospital, so a
detective drove her home. Lieutenant Swisher acknowledged
that none of her reports mentioned that the appellant was
arrogant or that he claimed the victim kidnapped him. She also
acknowledged that the victim told her the appellant only used
the knife to remove the truck’s rear window. Lieutenant
Swisher did not check the appellant for injuries.
....
The victim testified that she had known the appellant for
only a couple of months before they married on July 10, 2006.
On August 26, 2006, the victim and the appellant lived together
in Nashville. She said that the incident in question began about
4:00 a.m. and that the appellant’s personality “would change
about that time every day.” The appellant began arguing with
the victim and threatening her.1 Suddenly, the appellant gave
the victim the keys to the pickup truck and said, “[W]ell, let’s
go.” The victim got into the truck and locked all the doors. She
said she was trying to get away from the appellant because she
“didn’t want to go through it again.” As the victim was backing
1
We note that according to the trial transcript, the victim testified, “And he just started looking at
me, saying, be safe, you better be safe, just be safe, don’t -- you know, just kind of threatening words.”
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the truck out of the driveway, the appellant jumped into the bed
of the truck. The victim began driving “a little wild,” trying to
get the appellant out of the truck. The victim stopped the truck
and told the appellant to get out, but he refused. The victim was
scared and continued driving. The appellant “popped out” the
truck’s back window and bit the victim on her back, leaving a
scar. He also hit the victim on the top of her head with his fist
several times.
The victim testified that the appellant climbed into the
truck, pulled her out of the driver’s seat, and put her onto the
passenger seat. The victim said that “the next thing I knew I
was hogtied.” She could only turn her head and “thought that
was going to be the end of it.” She then heard a police officer
say, “[S]top, get out of the truck with your hands up.” The
appellant got out, and the victim said, “Help me.” The victim
was crying and devastated, and Lieutenant Swisher took
photographs of the victim while she was tied. When the officer
untied the victim, the victim discovered that the knife had been
“up under me.” She said she did not remember seeing the
appellant with the knife and that she could not remember “if I
seen him with the knife trying to pop the window out.” She said
she was not worried about the knife because she was “more
worried about him.” When asked if the appellant possessed the
knife prior to entering the truck, the victim said, “I think he had
it on him, because he carried it a lot.” Lieutenant Swisher took
photographs of the victim’s injuries, including the bite mark on
her back, and told her about obtaining an order of protection.
However, the victim was not interested in obtaining an order.
She acknowledged that she was convicted of aggravated assault
in 1998.
On cross-examination, the victim testified that she
thought she saw the knife when the appellant opened the rear
window but that she was not sure. The appellant did not cut the
victim, did not waive the knife in her face, and did not threaten
her with the weapon. The victim did not know how the knife
ended up underneath her on the passenger seat. She said that the
incident may have started at 4:00 p.m., not 4:00 a.m., and that
she and the appellant were arguing about being out of crack
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cocaine and not having money to buy more. They had been
using drugs throughout the day, and the victim also had been
drinking beer. The victim acknowledged that drug use could
make a person emotional and disoriented.
The victim testified that about three weeks prior to this
incident, she was admitted to Baptist Hospital because the
appellant tried to suffocate her by putting his hands over her
mouth. She denied that she was admitted to the hospital for a
drug overdose and said that the appellant told the hospital staff
she tried to kill herself by taking a drug overdose. However, she
acknowledged that drugs were in her system and stated that if a
doctor said she overdosed, then “that’s what it is, I guess.” She
denied being on drugs at trial or being under psychiatric care.
She said she did not obtain an order of protection against the
appellant, that she did not want to hurt him, and that she “just
wanted to go home and get away from him.”
On redirect examination, the victim testified that she was
not “high” on drugs when the appellant kidnapped her and that
she did not feel intoxicated. Initially, the victim claimed she
spent six or seven days in Baptist Hospital during the prior
incident, but she later acknowledged that she may have spent
only three days in the hospital.
State v. Derrann William Estill, No. M2007-02782-CCA-R3-CD, 2009 Tenn. Crim. App.
LEXIS 531, at **2-9 (Nashville, July 7, 2009).
On direct appeal, the Petitioner claimed that (1) the trial court erred by failing to
define “possession” adequately when the jury requested a definition during jury deliberations,
(2) the evidence was insufficient to support the conviction, and (3) his sentence was
excessive. Id. at **1-2. Finding no reversible error, this court affirmed the appellant’s
conviction and sentence. Id. at *2. Our supreme court denied the Petitioner’s application for
permission to appeal. State v. Derran William Estill, No. M2007-02782-SC-R11-CD, 2009
Tenn. LEXIS 803 (Nashville, 2009).
The Petitioner filed a timely petition for post-conviction relief, arguing that he
received the ineffective assistance of counsel at trial and on appeal. The post-conviction
court appointed counsel, and counsel filed an amended petition. In the amended petition, the
Petitioner claimed, in relevant part, that he received the ineffective assistance of counsel at
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trial because (1) he did not have an opportunity to participate in jury selection, (2) counsel
failed to inspect the pickup truck before it was sold at police auction, (3) counsel failed to
present evidence to the jury about his mental health, (4) counsel did not present any evidence
on his behalf, and (5) counsel failed to cross-examine the victim effectively about her drug
use and about her being in the hospital previously for a drug overdose. The Petitioner also
claimed that he received the ineffective assistance of counsel on direct appeal because
counsel failed to communicate sufficiently with him and failed to raise the following issues:
(1) the trial court should have ruled that his 2001 theft conviction was inadmissible for
impeachment purposes; (2) the trial court erred by denying his motion to suppress his
statement, “She kidnapped me”; (3) the victim’s testimony that the Petitioner threatened her
by saying, “[B]e safe, you better be safe,” was inadmissible pursuant to 404(b), Tennessee
Rules of Evidence; (4) Lieutenant Swisher improperly testified that the victim suffered from
domestic violence syndrome; and (5) during closing arguments, the defense allowed the State
to define “possession” improperly and refer to the Petitioner’s guilty plea for domestic
assault. Finally, the Petitioner claimed that the State’s failure to preserve the truck as
evidence, the State’s allowing Lieutenant Swisher to testify about the victim’s suffering from
domestic violence syndrome, the trial court’s failure to instruct the jury properly on
“possession,” and the insufficiency of the evidence violated his rights to due process.
At the evidentiary hearing, the then fifty-seven-year-old Petitioner testified that he
served in the U.S. Navy from 1970 to 1975 and was still married to the victim. Prior to his
arrest in this case, the Petitioner did not work because he was disabled due to a “bad back”
and memory loss. After the Petitioner’s arrest, the police impounded his pickup truck. Trial
counsel met with the Petitioner twice, and the Petitioner told counsel to inspect the truck.
The victim had claimed that she received a concussion from hitting the truck’s windshield,
and the Petitioner wanted counsel to look for blood spots and broken glass in the truck. He
said he also wanted counsel “to get measurements from seat to seat where the knife was
supposed to have been.” However, the Petitioner learned the truck had been sold at a police
auction. The Petitioner said that after he learned the truck had been sold, he went on a
hunger strike because he was not receiving the representation he deserved. The hunger strike
lasted about three weeks. During the strike, trial counsel offered to visit the Petitioner if he
would end the strike. The Petitioner stopped the hunger strike, and counsel met with him
twice before trial.
The Petitioner testified that during jury selection, he sat “[o]n the far end to the right”
and did not participate. He said that some teachers were dismissed from the panel and that
he thought they “would be pretty good.” He stated that a judge and some “welfare women”
were on the jury and that he did not want them as jurors. At the time of his arrest, the
Petitioner was taking stress pills, muscle relaxers, and sleeping pills. He said that a 1997 car
accident had “messed up” his memory and speech and that trial counsel had him evaluated
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by a psychiatrist. The psychiatrist concluded that the Petitioner had problems with anger
management and control, but trial counsel did not present any evidence about the Petitioner’s
mental health to the jury. On the morning of trial, the Petitioner was very sick and had a
fever. He did not receive any medication for his illness and thought the trial would be
postponed, but counsel wanted to proceed.
The Petitioner testified that counsel should have called Leah White, the victim’s
friend, to testify about the victim’s drug problem. He said the owner of the pickup truck and
the police officer who transported the Petitioner to jail also should have testified. The police
officer could have testified that the Petitioner did not have any identification on his person
and was not wearing shoes at the time of his arrest, which supported the Petitioner’s claim
that he did not kidnap the victim. The Petitioner said that when trial counsel cross-examined
the victim, “they didn’t got into specifics” with her and did not ask about her drug use. The
jury never received a definition of “possession.” The Petitioner never met with appellate
counsel but wrote a letter to counsel and talked with him twice on the telephone.
On cross-examination, the Petitioner acknowledged that he talked with trial counsel
three times in court. Between those court dates, counsel met with him twice in jail. The
Petitioner acknowledged that he gave counsel the names of some witnesses and that counsel
investigated witnesses. However, counsel did not investigate all of his witnesses. He said
that he was diagnosed with stress and uncontrollable anger issues but that he did not know
the specific name of his mental health diagnosis. The Petitioner acknowledged that he had
never been involved in jury selection previously but said that “[y]ou can look at people and
judge them, I think.” On the day of trial, the Petitioner told trial counsel that he was sick and
not feeling well. He said that although he did not tell the trial court about his illness, his
telling counsel “should have been enough.” He said that he did not know about the victim’s
drug use before he married her and that he learned in jail she also had a history of
prostitution. He acknowledged that when Lieutenant Swisher found the victim, the victim’s
hands were tied. When asked how the victim’s hands became tied, the Petitioner answered,
“I think I did it.” The Petitioner acknowledged that although appellate counsel never met
with him, counsel had access to his file.
Appellate counsel testified for the Petitioner that he was an assistant public defender
and took over the case after the trial court denied the Petitioner’s motion for new trial.
Appellate counsel said that he did not talk with the Petitioner but that he talked with trial
counsel “[quite] a bit” about the case. Although appellate counsel could not remember any
specific conversations with trial counsel, he said that he always talked with a defendant’s trial
attorney during his preparation of the defendant’s appellate brief. On direct appeal, appellate
counsel raised sufficiency of the evidence, sentencing, and the jury instruction on
“possession.” Appellate counsel did not raise as error the admissibility of the Petitioner’s
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prior theft conviction because the Petitioner did not testify at trial and because trial counsel
did not make an offer of proof regarding the Petitioner’s proposed testimony. Appellate
counsel said that the offer of proof should have been made during the trial or during the
motion for new trial hearing and that “case law is pretty clear that without an offer of proof
it would be very difficult for an appellate court to find reversible error.” Regarding the
Petitioner’s statement to police that “she kidnapped me,” the trial court had concluded that
the Petitioner did not make the statement in response to police interrogation. Therefore,
appellate counsel did not raise the issue on direct appeal. Appellate counsel also did not
address on appeal the victim’s testimony that the Petitioner told her, “[B]e safe.” Although
the victim had interpreted the Petitioner’s statement as a threat, there was no evidence of
prior bad acts by the Petitioner in conjunction with the statement. Therefore, appellate
counsel did not argue on appeal that the statement was inadmissible under Rule 404(b),
Tennessee Rules of Evidence. Appellate counsel said he did not think trial counsel objected
to Lieutenant Swisher’s testimony. Therefore, appellate counsel did not argue on appeal that
the officer’s testimony about domestic violence syndrome was inadmissible. Trial counsel
also did not object to the improper definition of “possession” or the State’s closing argument.
Appellate counsel said he did not raise on appeal the State’s failure to preserve the pickup
truck because “I don’t recall there being an issue raised about the truck prior to trial.”
Appellate counsel also did not address on appeal the Petitioner’s mental state because he did
not think the Petitioner’s mental state was an issue at trial.
Trial counsel testified for the State that in 2006, she was an assistant public defender
and began representing the Petitioner after his arrest. She met with the Petitioner one time
in jail before his arraignment. The Petitioner began a hunger strike, so counsel visited him
again to check on him. She said that she also saw the Petitioner on court dates and that she
typically met with clients at least one time between court dates. She and/or co-counsel met
with the Petitioner fourteen or fifteen times before trial. When asked if she and co-counsel
discussed all of the issues with the Petitioner, she said, “I felt that we did the best that we
could.” Dr. Montgomery, a mental health professional, evaluated the Petitioner. Trial
counsel said that the Petitioner had “potential brain injury problems” due to a car wreck and
that she arranged for him to have “various brain scans.” She said that she did not remember
the Petitioner’s official diagnosis but that his diagnosis had something to do with impulse
control and anger management. The Petitioner’s diagnosis did not produce a defense to the
crimes, so defense counsel relied on the definition of “possession” and whether he possessed
the knife as his defense. Trial counsel said that she did not remember jury selection in the
Petitioner’s case. She said that, typically, she and co-counsel asked the client to inform them
of “concerns” the client had about potential members of the jury. She did not remember
whether the Petitioner participated in discussions about jury selection. However, she said,
“If a defendant doesn’t want somebody on their jury[.] I don’t argue with that I just take
them off of the jury.”
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Trial counsel testified that she would have liked to have seen the Petitioner’s pickup
truck but that she discovered the truck had been sold. Trial counsel said that she found some
photographs of the truck on an old police auction website and that “I think that was kind of
the best that we could do at that point.” Counsel filed a pretrial motion to prohibit the State
from impeaching the Petitioner with his prior convictions. She acknowledged that she filed
a motion to suppress the Petitioner’s statement to police and said that she thought she also
filed a motion to prohibit Lieutenant Swisher from testifying about domestic violence
syndrome. Counsel recalled that the Petitioner had a runny nose at trial and needed a box of
tissues. If he had been too ill to assist with his defense, trial counsel would have informed
the trial court.
Trial counsel testified that she spoke with Leah White and someone named “Quentin”
before trial and that they corroborated the Petitioner’s information about the victim’s drug
addiction and erratic behavior. Their testimony would have been helpful if the victim had
denied her drug use. However, the victim conceded at trial that she was a drug user and had
been using drugs on the day of the crimes. Trial counsel said she cross-examined the victim
and “would have cross-examined [the victim] to the extent allowed by the Court.” Trial
counsel stated that she asked the victim about the victim’s drug use but that she did not
remember if she asked the victim about the duration of a “high.” The Petitioner may have
wanted the officer who transported him to jail to testify. Trial counsel did not remember
whether the State made a reference to the Petitioner’s guilty plea to domestic assault during
its closing argument. However, counsel was not sure a reference to the plea would have been
objectionable.
On cross-examination, trial counsel acknowledged that eight months after the crimes,
she asked the district attorney for permission to inspect the Petitioner’s truck. However, the
truck had been sold in December 2006, before the Petitioner was indicted. Trial counsel said
that she did not remember if the Petitioner was taking medication before his arrest. Trial
counsel raised the Petitioner’s mental health issues at sentencing but not at trial. She also
agreed that the Petitioner was visibly ill at trial. Trial counsel acknowledged that she may
not have questioned the victim about how long a “crack high” lasted and that the defense
presented no witnesses. Regarding the definition of “possession” that the trial court gave to
the jury, trial counsel said,
I know that initially we were . . . asking for a really strong sort
of concrete definition . . . I think perhaps it came down to a
choice between something that the State wanted versus just
common sense and I think we preferred common sense as the,
as the choice was made to us.
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Trial co-counsel testified that he had been an attorney with the public defender’s
office for fourteen years, that he had participated in about two trials per year, and that he and
co-counsel met with the Petitioner “numerous” times. Their strategy was to show that the
Petitioner was guilty of a lesser-included offense such as simple assault or aggravated assault
and that the victim was not trustworthy. The defense hired Dr. Montgomery to evaluate the
Petitioner, but a mental health defense did not develop from the evaluation. The Petitioner
provided defense counsel with the names of a few witnesses, and counsel met with Leah
White and Quentin Sherwood. Defense counsel had photographs of the Petitioner’s truck,
and their inability to inspect the truck did not affect the Petitioner’s defense. Regarding jury
selection, co-counsel explained, “I think we probably involved [the Petitioner] in the sense
that usually [counsel] and I sit on either side of the client and sort of lean in and discuss the
. . . jury selection process as we go in terms of strikes or in terms of what jurors are
appropriate.” The Petitioner was not feeling well at trial. Co-counsel said that if the
Petitioner had been “that sick,” co-counsel probably would have made a motion for a
continuance. The definition of “possession” was important to the Petitioner’s defense. Co-
counsel said that the definition was an issue at trial but that “I don’t recall exactly.”
On cross-examination, co-counsel testified that the Petitioner was arrested in August
2006 and that the pickup truck was sold in December 2006. In April 2007, defense counsel
looked for the truck and learned it had been sold. Co-counsel did not remember if
photographs of the truck showed the inside of the cab. The Petitioner was taking some
mental health medications before his arrest, but co-counsel did not know if the Petitioner
received his medications in jail. As for jury selection, co-counsel said that “I don’t think we
have ever had a trial where we would have the client sit on one end or the other end.” Co-
counsel cross-examined Lieutenant Swisher at trial but did not remember if he objected to
her testimony about domestic violence syndrome. He said he thought the defense filed
“something pretrial about that” and that “I do remember [Lieutenant Swisher] spent a lot of
time talking about that.” The Petitioner did not testify at trial, and defense counsel did not
make an offer of proof as to his proposed testimony. Co-counsel said that he did not object
to the State’s mentioning the Petitioner’s guilty plea during closing arguments because the
Petitioner “probably did that in front of the jury when the indictment was read I would guess,
but I am not sure.”
The post-conviction court filed a written order denying the petition for post-conviction
relief. Regarding the Petitioner’s claim that he did not participate in jury selection, the court
noted that trial counsel and co-counsel testified that their general practice was to consult with
a client during jury selection. The court found that the Petitioner’s testimony about the issue
was “doubtful” and concluded that he failed to establish he was prevented from participating
in jury selection or was prejudiced by not participating. Regarding trial counsel’s failure to
inspect the pickup truck, the post-conviction court concluded that trial counsel’s inability to
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look over the truck was not detrimental to the defense because counsel viewed photographs
of the truck. As to the Petitioner’s claim that trial counsel failed to present evidence about
his mental health to the jury, the court concluded that the Petitioner failed to establish
deficient performance or prejudice because Dr. Montgomery’s evaluation did not support a
legal defense of insanity or incompetency.
Regarding the Petitioner’s contention that trial counsel failed to cross-examine the
victim effectively, the post-conviction court noted that it had reviewed the victim’s testimony
on cross-examination regarding her drug use, her being previously admitted into the hospital
for a drug overdose, her taking the Petitioner’s truck on the day of the crimes, and her driving
the truck erratically in an attempt to throw him out of the truck. The court concluded that the
Petitioner failed to establish that defense counsel rendered deficient performance or that the
Petitioner was prejudiced by any deficiency.
As to the Petitioner’s claim that he received the ineffective assistance of appellate
counsel because counsel failed to consult with him, the post-conviction court found that
although appellate counsel did not personally meet with the Petitioner, counsel
communicated with him over the telephone. The court stated that appellate counsel was a
“skilled and competent attorney who handles appellate work for the Davidson County Public
Defender’s Office” and concluded that the Petitioner failed to establish deficient performance
or prejudice.
Next, the post-conviction court addressed the Petitioner’s claim that he received the
ineffective assistance of appellate counsel because counsel failed to raise certain issues on
direct appeal. First, regarding the Petitioner’s claim that appellate counsel failed to raise the
admissibility of his prior theft conviction, the court stated only that counsel did not render
deficient performance and that the Petitioner failed to establish prejudice. Second, the court
found that appellate counsel was not ineffective for failing to raise the admissibility of the
Petitioner’s statement that “she kidnapped me” because the statement was not the product of
an interrogation and, therefore, was admissible at trial. Third, as to counsel’s failure to argue
on appeal that the Petitioner’s “be safe” statement was inadmissible pursuant to Rule 404(b),
Tennessee Rules of Evidence, the post-conviction court found that although the victim
interpreted the statement as a threat, she did not elaborate on a prior bad act. Fourth, as to
counsel’s failure to raise the inadmissibility of Lieutenant Swisher’s testimony about
domestic violence syndrome, the post-conviction court found that “Lieutenant Swisher was
providing an explanation as to why the victim did not seek an order of protection against the
Petitioner, and her answer was speculative in nature.” The court noted that counsel was not
required to raise every issue on appeal and that counsel’s failure to raise the issue did not
prejudice the Petitioner. Finally, regarding counsel’s failure to raise the State’s improper
definition of “possession” and reference to his guilty plea to domestic assault during closing
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arguments, the post-conviction court stated that it had reviewed the transcript of closing
arguments and that the State did not refer to the definition. The post-conviction court also
found that the State did not refer to the Petitioner’s guilty plea during closing arguments and
that, in any event, the Petitioner pled guilty to domestic assault in front of the jury on the
morning of trial. The court noted that the trial court instructed the jury not to infer anything
from the Petitioner’s guilty plea. The post-conviction court concluded that the Petitioner
failed to establish that he received the ineffective assistance of counsel on appeal or that he
was prejudiced by any deficiency.
Lastly, the post-conviction court addressed the Petitioner’s claims that his due process
rights were violated when the State failed to preserve the truck, when the State allowed
improper testimony from Lieutenant Swisher, when the trial court failed to provide a
definition of “possession” to the jury, and when the jury convicted the Petitioner despite the
insufficiency of the evidence. The court concluded that the Petitioner’s allegations were
“either waived for purposes of the Petitioner’s Post-Conviction Petition or previously
determined in a prior proceeding.” The post-conviction court denied the petition for post-
conviction relief.
II. Analysis
To be successful in a claim for post-conviction relief, a petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.
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When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Notably,
[b]ecause a petitioner must establish both prongs of the test, a
failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an
insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
1. Trial Counsel
The Petitioner contends that he received the ineffective assistance of counsel at trial
because trial counsel failed to allow him to participate in jury selection; failed to inspect his
truck before it was sold; failed to present evidence regarding his mental health; and failed to
cross-examine the victim effectively about her drug use, previous admission to the hospital
for a drug overdose, taking the Petitioner’s truck, and trying to throw the Petitioner out of the
truck.
The post-conviction court specifically accredited trial counsels’ testimony that the
Petitioner sat between them and had the opportunity to express his concerns about potential
jurors. Neither counsel nor co-counsel remembered the Petitioner asking that a potential
juror be removed from the panel. In any event, even assuming that the Petitioner was not
allowed to participate in jury selection, the Petitioner has not explained how any specific
juror resulted in his receiving an unfair trial. Therefore, he has failed to show that he was
prejudiced by his alleged inability to participate in jury selection. Regarding the Petitioner’s
truck, counsel testified that they wanted to inspect the truck but learned it had been sold.
Counsel looked at photographs of the vehicle, and co-counsel testified that their inability to
inspect the truck did not affect the Petitioner’s defense. We note that the State introduced
a photograph of the bed of the truck and a photograph of the knife lying on the passenger seat
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into evidence at trial. The Petitioner has failed to show that counsel’s being unable to inspect
the truck prejudiced his case. Regarding his mental health, the Petitioner again has failed to
demonstrate that he received the ineffective assistance of counsel or that he was prejudiced
by any deficiency because his mental health examination did not provide a defense to the
crime.
As to the Petitioner’s claims that trial counsel failed to cross-examine the victim
effectively, we have carefully reviewed the trial transcript. On cross-examination, the victim
testified that on the day of the crimes, she and the Petitioner argued “about being out of drugs
and not having no money to get no more.” She also testified that she and the Petitioner used
drugs throughout the day and that she smoked crack cocaine more than one time. The victim
testified that cocaine was a “[v]ery evil” drug and that she had trouble remembering details
about the crimes because she was probably under the influence of drugs at the time of the
crimes. The victim acknowledged that three weeks before the crimes, she was admitted to
the hospital. At first, the victim maintained that she was admitted to the hospital because the
Petitioner put his hands over her mouth and nose until she collapsed. However, upon further
questioning by defense counsel, she acknowledged that drugs were found in her system and
that she was diagnosed with an “apparent overdose.” The victim also acknowledged on
cross-examination that she took the Petitioner’s truck on the night of the crimes and that he
jumped into the truck bed. She said she slammed on the brakes and did “everything [she]
could to get him out of the back of the truck.” In our view, trial counsel adequately
questioned the victim about her drug use and challenged her credibility. Therefore, we agree
with the post-conviction court that the Petitioner has failed to show that counsel rendered
deficient performance or that he was prejudiced by any deficiency.
2. Appellate Counsel
The Petitioner contends that he received the ineffective assistance of counsel on direct
appeal because appellate counsel failed to establish a relationship with him and failed to raise
the following issues: (1) the Petitioner’s 2001 theft conviction was inadmissible for
impeachment purposes; (2) the Petitioner’s statement that “she kidnapped me” was
inadmissible; (3) the victim’s characterization of the Petitioner’s “be safe” statement as a
threat was inadmissible pursuant to Rule 404(b), Tennessee Rules of Evidence; (4)
Lieutenant Swisher was allowed to give improper lay opinion testimony about the victim’s
suffering from domestic violence syndrome; and (5) during closing arguments, the State gave
the jury “improper legal definitions” and referred to the Petitioner’s guilty plea to domestic
assault.
As to the Petitioner’s claim that appellate counsel failed to establish a relationship
with him, the evidence shows that appellate counsel did not meet with the Petitioner but
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talked with him on the telephone. Appellate counsel also had access to the Petitioner’s file
and talked with trial counsel about the case. We agree with the post-conviction court that the
Petitioner has failed to show that counsel’s not meeting with him resulted in deficient
performance or that he was prejudiced by any deficiency.
Regarding the Petitioner’s 2001 theft conviction, the Petitioner has offered no
explanation as to why his conviction was inadmissible for impeachment purposes. He also
has not alleged that the use of his conviction resulted in his decision not to testify at trial. As
to his statement to police that “she kidnapped me,” the post-conviction court concluded that
the statement was admissible at trial because the trial court ruled the Petitioner did not make
the statement as part of a custodial interrogation. The Petitioner has failed to explain how
the trial court erred. Similarly, the Petitioner has failed to offer any explanation as to why
the Petitioner’s “be safe” statement constitutes a prior bad act that would be inadmissible
pursuant to 404(b), Tennessee Rules of Evidence. In order to show that appellate counsel
rendered deficient performance for failing to raise these issues on direct appeal, the Petitioner
must first show that the trial court erred in its rulings regarding the admissibility of the
evidence. The Petitioner has made no attempt to do that in this case. Therefore, he has failed
to demonstrate deficient performance or prejudice.
As to the improper testimony by Lieutenant Swisher, the Petitioner contends that the
officer’s testimony about domestic violence syndrome was inadmissible because she was
never qualified as an expert. Initially, we note that we have reviewed Lieutenant Swisher’s
testimony and can find no portion of her direct testimony in which she mentioned domestic
violence. On cross-examination, Lieutenant Swisher acknowledged that the victim did not
want to go to the hospital and chose not to get an order of protection against the Petitioner.
She explained that victims of domestic abuse often chose not to go to the hospital or get an
order of protection because they were afraid. On redirect examination, the State asked the
officer if she prosecuted this case on behalf of the victim. The officer answered, “I did. . .
. In domestic violence cases --[.]” The defense interrupted her testimony and objected, and
the trial court stated, “I don’t think she needs to get into great detail about domestic violence
cases.” Lieutenant Swisher’s testimony continued, and she said law enforcement could
prosecute on behalf of a victim in certain cases. On re-cross examination, the officer
acknowledged that she filled out a domestic violence form in this case and that she described
the Petitioner on the form as “calm.” She then explained that suspects in domestic violence
cases often appeared calm because they did not think they had done anything wrong. In
short, our review of the transcript reveals that Lieutenant Swisher’s testimony about domestic
violence occurred in response to questioning by the defense, not the State. Therefore, the
issue would have been waived on direct appeal, and the Petitioner has failed to show that
counsel rendered deficient performance.
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Finally, the Petitioner contends that during closing arguments, the State gave
“improper legal definitions” to the jury and improperly referred to his guilty plea to domestic
assault. The Petitioner has not explained what illegal definitions the State gave to the jury.
Moreover, our review of the trial transcript confirms that the State did not refer to the
Petitioner’s guilty plea in its closing argument. To the contrary, the Petitioner’s co-counsel
referred to the guilty plea during his closing argument, stating, “You saw him plead guilty
before you to domestic assault. . . . Mr. Estill accepted responsibility for that.” Therefore,
appellate counsel did not render deficient performance by failing to raise the issue on direct
appeal.
B. Cumulative Error
Next, the Petitioner contends that he is entitled to relief based upon cumulative error.
Specifically, he argues that trial counsel’s failure to investigate the truck, failure to challenge
the victim’s testimony, and failure to present any evidence on his behalf demonstrates that
he is entitled to relief based upon the cumulative error doctrine. However, the Petitioner has
not shown any error. Therefore, he is not entitled to relief.
C. Due Process
Finally, the Petitioner contends that the post-conviction court failed to address
sufficiently his claims of due process violations. In his petition, the Petitioner argued that
he was denied his rights to due process when the State failed to maintain the pickup truck;
the State allowed Lieutenant Swisher to testify that the victim suffered from domestic
violence syndrome; the trial court failed to provide a proper definition of “possession” to the
jury when the jury asked for a definition; and the jury convicted him against the weight of
the evidence. However, the Petitioner failed to object to the State’s preservation of the
pickup truck and opened the door to Lieutenant Swisher’s testimony about domestic
violence. Moreover, on direct appeal, this court found that the trial court’s definition of
“possession” was harmless error and that the evidence was sufficient to support the
conviction. Therefore, the post-conviction court properly concluded that the issues were
waived or previously determined.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the post-conviction court.
_________________________________
NORMA McGEE OGLE, JUDGE
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