Richard Frank D'Antonio v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Jackson February 14, 2012

RICHARD FRANK D’ANTONIO v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2002-C-1280 J. Randall Wyatt, Jr., Judge

No. M2011-01378-CCA-R3-PC - Filed June 27, 2012

The Petitioner, Richard Frank D’Antonio, appeals the denial of post-conviction relief from
his first degree murder conviction and resulting life sentence. He contends that the trial court
erred in determining that he received effective assistance of trial counsel. Upon review, we
affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J OHN E VERETT W ILLIAMS, J., joined.

David M. Hopkins, Nashville, Tennessee, for the Petitioner-Appellant, Richard Frank
D’Antonio.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Thomas B.
Thurman and Kathy Maronte, Assistant District Attorneys General, for the Appellee, State
of Tennessee.

OPINION

The Petitioner was convicted by a Davidson County jury of first degree premeditated
murder and assault with intent to commit murder. State v. Richard Frank D’Antonio, No.
M2003-03052-CCA-R3-CD, 2005 WL 2874657, at *1 (Tenn. Crim. App., at Nashville, Oct.
26, 2005), perm. app. denied (Tenn. May 1, 2006). The Petitioner received a life sentence
for the first degree premeditated murder conviction; however, the conviction for assault with
intent to commit murder was subsequently dismissed based on the statute of limitations. Id.
The Petitioner’s conviction and sentence were affirmed by this court. Id. On direct appeal,
this court summarized the proof presented at the Petitioner’s trial:
 At the time of his death, the victim was Chart Director for Cashbox
magazine. The victim was hired for this position by the defendant in 1987.
The defendant, in 1987, was the Division Manager at Cashbox but was not
employed there at the time of the victim’s death.

Sharon Pennington, a record promoter for Step One Records in March
of 1989, testified that she and the victim were good friends. She stated that
they had attended a movie on March 9, 1989, and that she dropped the victim
off at his office in the early evening. She said the victim was
uncharacteristically “nervous” and “fidgety” that day.

Ms. Pennington said that the Cashbox chart for independent artists was
not legitimate and that the victim had been taking steps to make it legitimate
and improve its image. She said that Chuck Dixon’s control over the
independent artists chart at Cashbox was so widely known that the magazine
was often derisively called “Chuckbox” by members of the music industry.
Ms. Pennington knew Chuck Dixon from her company having hired him as an
independent record promoter. She knew the defendant due to his work at
Cashbox and he was often with Dixon at meetings with her employers. She
recalled that the defendant had a back injury at that time.

On the day of the victim’s death, Ms. Pennington had received two
angry phone calls from Dixon asking her to relay messages to the victim.
Dixon wanted the victim to restore some stations that had been dropped from
those used to compile the charts. She explained that starter or smaller radio
stations have a larger play list, making it easier for a promoter to obtain play
for particular songs. The victim had dropped several smaller stations in favor
of stations with larger listening markets. This caused problems for Dixon in
manipulating the selection of songs to be played. After she told the victim
about Dixon’s calls and that Dixon was upset, the victim responded that he
expected Dixon to be upset.

Sammy Sadler was, in March 1989, promoting and recording for
Evergreen Records. His promoter was Chuck Dixon. Sadler and the victim
were “acquaintances and becoming friends.” Sadler met the victim at the
Cashbox office on March 9, 1989, and the two went out to eat and then went
to Sadler’s office at Evergreen Records. The two men left and went to the
victim’s car which was parked on Sixteenth Avenue South. As Sadler was
entering on the passenger side, a man, wearing gloves and a mask and

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displaying a gun, appeared at Sadler’s door. Sadler threw up his arms to
protect his head and was shot once. Sadler did not recall making his way to a
nearby apartment for assistance. Sergeant Kenny Dyer questioned Sadler that
night, and Sadler reported that the assailant was wearing all black clothing and
a ski mask. Sadler also thought the assailant was a black male of slender build.

On the night of the murder, two Belmont students witnessed the
incident. Robert Lyons, III, was driving down 16th Avenue South; his
passenger was Allison Kidd (now Chimento). Lyons witnessed the victim roll
out of his car and start running. A man came from the other side of the
victim’s car and started pursuing the victim, shooting two or three times. The
victim fell, and the assailant ran to him and shot the victim three more times.
Lyons stated that the shooter had on a black ski mask, black clothing, and held
in his right hand a blue-steel revolver. He estimated that the shooter was 5'10"
to 6' tall and had a stocky build. Lyons stated that the eye holes in the
shooter’s mask were large enough for him to see that the shooter was
Caucasian. He described the shooter as running with an unusual side-to-side
gait. The police responded to a call of a shooting within three minutes.

Allison Kidd Chimento recalled driving down Music Row on March 9th
with Bob Lyons a little after 10:00 p.m. when two men ran in front of their car.
One man was fleeing from a man dressed in black and a ski mask, carrying a
black gun in his right hand. She saw the shooter stand over the fallen victim
and fire repeated shots. Mrs. Chimento said the assailant was from 5'9" to 6'
tall and overweight in the mid-section. The shooter fled between buildings to
the east.

On March 9, 1989, Phillip Barnhart lived in an apartment on Sixteenth
Avenue South. He heard shots and looked out his window where he saw two
men running down the street in a “zigzagged” fashion until they ran out of his
vision. Barnhart thought one man was wearing a ski mask. Sammy Sadler
was able to come to Barnhart’s apartment, where he collapsed.

Donnie Lowery was in his apartment on Sixteenth Avenue South on the
night of the victim’s murder. He heard gunshots and looked out his window.
He witnessed a man chasing and shooting at another man. When the victim
fell, the shooter went to the body and shot another two or three times. The
man was shooting with his right hand and, when he ran off, it was with an
“abnormal gait,” “somewhat like a limp.” He said the shooter was 5'10" to 6'
tall and had a “stocky build.”

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 Kathy Hunter was visiting Lowery at the time of the shooting. She saw
a man running and yelling, being pursued by a man dressed in black. When
the victim fell, his pursuer walked up and shot him two or three more times.
She stated the assailant was wearing a ball cap, as well as a ski mask. She
estimated the assailant’s height as 5'10" to 6' and said he was “stocky built.”

Officer Charles Anglin, an employee in the Identification Division of
Metro Nashville Police Department, was one of the officers who gathered
evidence at the scene. Among the items found were a spent projectile found
near the victim’s head and a ball cap near the victim’s right foot. A hair found
in the ball cap was submitted to the FBI for analysis. Agent Douglas
Deedrick, a hair and fiber expert, testified that the black hair had
characteristics of cat hair.

Detective Pat Postiglione interviewed the defendant on March 28, 1989.
He described the defendant as cooperative but nervous. The defendant
appeared to be in discomfort and complained of back problems. Detective
Postiglione observed that the defendant was heavier in March of 1989 than at
the trial.

Detective Bill Pridemore was the lead investigator of the victim’s
murder in 1989. He stated that two projectiles were removed from the victim’s
body during the autopsy. Those, together with the projectile found at the
scene, were submitted for testing, as was a baseball cap found at the scene.

In February of 1993, Detective Pridemore learned that an individual
named Steve Daniel had sold the defendant a handgun in 1989. Detective
Pridemore interviewed Mr. Daniel and was provided with four spent bullets
and one live round of ammunition which Daniel said was similar to that
supplied the defendant when the defendant bought the gun. It was Detective
Pridemore’s understanding that the ammunition was obtained by Daniel after
the defendant had purchased the gun.

By April of 2002, Detective Pridemore had been assigned to the cold
case files within the Metro Nashville Police Department and was again
working on this case. He contacted Steve Daniel and learned that the gun sold
to the defendant had been test fired at Daniel’s home on March 9, 1989, the
day of the defendant’s purchase. Detective Pridemore went to the scene of the
test firing in Flintstone, Georgia and there recovered thirteen projectiles that
were embedded in the ground. These were submitted to the TBI for testing.

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 In July of 2002, Detective Pridemore went to Las Vegas, Nevada, to
escort the defendant back to Nashville after his arrest. The defendant made a
statement when he was informed of the murder charge, that it must be about
Kevin. At a later date, after the defendant’s transfer back to Nashville, the
defendant told Detective Pridemore that he would talk to him about the case
if Pridemore could arrange for him to be housed in a private cell.

Detective Pridemore stated that he had measured the defendant in
stocking feet and that he was 5'11" tall. He also testified that Chuck Dixon
had died in 2001.

TBI Special Agent Tommy Heflin testified as an expert in firearms and
ammunition analysis. He stated that the two projectiles removed from the
victim’s body and the third projectile found at the crime scene were all fired
from the same weapon. He identified them as .38 caliber, .357 size wad-cutter
lead projectiles, and most probably were reloads. Agent Heflin also examined
the thirteen projectiles found at Flintstone, Georgia. Of those, he concluded
that one was fired from the same gun barrel that was used to shoot Kevin
Hughes. That projectile was also a lead wad-cutter.

Dr. Mona Gretzel Case Harlan-Stevens, a forensic pathologist,
performed the autopsy of the victim. She testified that four separate bullets
struck the victim’s body, and two were recovered. The cause of death was a
gunshot wound to the head, and the manner of death was homicide.

Steven Daniel, a convicted marijuana dealer, began cooperating with
Georgia and federal officers and became known to the Nashville police. He
testified that he had known the defendant since 1985 or 1986 and that they
visited in each other’s homes. The defendant was at Daniel’s home in
Flintstone, Georgia on March 9, 1989. Daniel said the defendant arrived
unannounced in mid-afternoon and wanted to buy a pistol. Daniel sold the
defendant a thirty-eight (.38) pistol and provided reloaded thirty-eight (.38)
caliber bullets with the gun. The two men test fired the gun behind Daniel’s
house. The defendant left Daniel’s house between 6:15 and 7:00 p.m. (CST).

Daniel stated that he remembered the date due to the defendant bringing
it up in conversation several times later, as well as the defendant’s then wife,
Carolyn, having made inquiries about that evening. The defendant told Daniel
to tell Carolyn that he had not left Daniel’s home until after the 11:00 p.m.

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(EST) news that night. According to Daniel, the drive from his home in
Flintstone to Nashville takes about two hours and fifteen minutes.

In 1993, Daniel reported to Georgia authorities that he might have
information about a murder case. Daniel had seen a television program on
Crime Stoppers concerning Kevin Hughes’ murder. The program made
reference to the assailant’s strange running gait. Daniel had witnessed the
defendant run and described it as “a real strange gait . . . more like an animal
would run than a person.”

At the request of the police, Daniel recorded phone conversations with
the defendant. In one conversation, the defendant ma[de] reference to renewed
police interest in “when that boy got killed up here . . . out on Music Row” and
request[ed] Daniel to say, if asked, that the defendant left Daniel’s house after
the 11:15(EST) news that night. Daniel stated that the defendant brought up
this date three or four different times in their various conversations. When
Daniel asked about the gun he had sold the defendant, the defendant said,
“[I]t’s gone.” Daniel stated that he cooperated with the Nashville detectives
when contacted again in 2002 and that he showed them the area where he had
test fired weapons at his former home in Flintstone.

Gene Kennedy testified that he had been promoting and producing
records for twenty-eight years. He stated that he had, until about 1988,
promoted to Cashbox magazine. Kennedy was approached by Chuck Dixon,
who offered to promote to Cashbox for him in return for a fee of $1500 and a
purchase of an ad in Cashbox by Kennedy. Kennedy refused and, for a period
of two and one-half to three years, Kennedy’s promoted records did not appear
on the Cashbox charts. Kennedy believed that, in 1989, the Cashbox charts
were controlled by Dixon and the defendant and that the charts lacked
legitimacy. Kennedy had lunch with the victim a week before the victim’s
death and said the victim was acting “very nervous.” On cross-examination,
it was established that some records promoted by Kennedy in 1989 were
charted in Cashbox. He claimed to have no knowledge of this as he had quit
following the Cashbox charts.

Tom McEntee served as Division Manager of Cashbox from November
of 1985 to April of 1987. He had hired the defendant to assist with the charts.
When McEntee left Cashbox, the defendant took his place. McEntee said the
defendant was friends with Chuck Dixon and had gone to work with Dixon
when the defendant left Cashbox in 1988 or 1989. McEntee explained that

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charts could be manipulated either by false reporting from radio stations
controlled by an interested person, e.g., a promoter, pocket stations, or could
simply be altered by the person compiling the charts.

Robert Metzger testified pursuant to a use immunity agreement with the
district attorney. He had worked as a producer and promoter since 1971. He
testified that, in the late 1980’s, Cashbox’s chart was the only exposure
independent artists had in the Nashville music community. He said that the
defendant was then in charge of Cashbox. In order to have a song charted, it
was required that you hire Chuck Dixon and buy an ad in Cashbox. Initially,
Metzger’s clients paid the defendant this fee, although Metzger was aware
Dixon received part of the money. The minimum amount of money for six or
seven weeks on the chart was $2500. Metzger illustrated the illegitimacy of
the system by recounting that after a payment by his client, there was a
problem with manufacturing the record. Nevertheless, the record, “Gal from
San Antone,” appeared on the Cashbox chart before a single copy was
available for play or sale.

Metzger had seen the victim at a radio seminar shortly before the
murder. There he observed the victim and Chuck Dixon having a heated
argument. Metzger was unable to hear the words exchanged but said that
Dixon was trying to give the victim money and that the victim repeatedly
refused to accept it. After this incident, Metzger had a meeting with the
defendant and Chuck Dixon. One of Metzger’s artists was about to release
two more records and was preparing to pay $15,000 to have the records
charted and to keep them charted for an extended time. Metzger expressed his
concerns to Dixon in the following manner:

Metzger: I told him, I said, Chuck, you know, I saw
you and Kevin having this big argument
out at the Radio Seminar. And I said, you
know, he’s already dropped some of your
pocket stations, which weakens your
ability to keep a record in for a long time.
And I know he’s about to drop a bunch
more of your pocket stations. And I said,
Chuck, I’m not going to, you know, give
you this fifteen thousand dollars unless I
know for a fact you can handle Kevin
Hughes.

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 Assistant DA: Did you also explain to him something that
you had heard?

Metzger: I did, General. I said, you know, the rumor
is all over Music Row is that Kevin is
going to go to the media and expose this
chart fixing scheme you guys are working
at Cashbox. And I said, you know, if he
does that, you know, this is going to look
very bad on me and my clients and
everybody involved in this.

Dixon responded that he was aware of the rumor and said, “I will
handle Kevin Hughes. And if I, you know, can’t handle him, he’ll be gone.”
The defendant was present during this conversation. Upon receiving those
assurances, the $15,000 was paid, plus an advertisement taken in Cashbox
magazine. In return, the artist’s release was the highest charted independent
record, and he was named Cashbox Male Vocalist of the Year. Metzger
clarified that the defendant was not employed at Cashbox during the time of
the foregoing conversation but that he had become partners with Chuck Dixon.

Steve Hess was hired at Cashbox by Chuck Dixon as an assistant chart
director a few weeks before the victim’s death. After the victim’s death, Hess
assumed the duties of chart director and was trained by the defendant. Hess
did not know whether Dixon was employed by Cashbox, but the owner of the
magazine, George Albert, had made it clear that Dixon was in charge. Dixon
did not maintain an office at the Cashbox site but was frequently in the
Cashbox office. Hess was not instructed to manipulate the charts and, to his
knowledge, they were compiled legitimately during his tenure.

Gary Bradshaw worked as a music promoter in 1989. He had known
the victim, and the victim had expressed his dissatisfaction with his job at
Cashbox and an intent to leave his job. About three months after the victim’s
death, Bradshaw was contacted by Chuck Dixon and agreed to work with him.
He learned that the Cashbox charts were illegitimate. A chart position could
be acquired by hiring Chuck Dixon for $1500 to $2000 and by paying Cashbox
for an advertisement costing $750. Bradshaw testified that Dixon had control
over the reporting of over half the 125 stations that reported to Cashbox.
Those controlled were known as pocket stations.

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 The defendant was working for Dixon when Bradshaw came to work
at Cashbox, but Bradshaw was unaware of any duties performed by the
defendant. Bradshaw stated that when Dixon would become angry with
someone, he would comment that their fate could be the same as Kevin’s.
Bradshaw stated that he saw firearms in the Cashbox office and that Dixon
carried a weapon. The first time Bradshaw met Dixon, two of Dixon’s
“henchmen” frisked Bradshaw.

Sharon Corbett worked in the same building which housed Cashbox in
1989 and was a good friend of the victim. She testified that the victim had
become unhappy with his job and was thinking of resigning. She also knew
the defendant and said that he favored his hip to the point it was noticeable
when he walked.

Cecilia Bragg was hired as a receptionist at Cashbox in 1987. She
knew the victim, Chuck Dixon, and the defendant. She said that Dixon came
to Cashbox regularly. She noted that the defendant had a bad back and limped.
Immediately before the victim’s murder, she said the victim seemed to be
concerned and upset.

Sandra Daens worked at Cashbox in May of 1987. She had overheard
the defendant tell others that chart positions could be acquired for the price of
an advertisement in the magazine. She said Chuck Dixon was a frequent
visitor with the defendant at Cashbox. She was fired by the defendant in
September of 1987.

Mara Langlois, an investigator with the Davidson County District
Attorney’s office, served a search warrant at the home of Chuck Dixon in
January of 2001. Two payment books containing names and dollar amounts
were seized. One book’s entries began in 1987 and ended in 1988 (orange
book). Another book’s entries began in 1990 and ended in 2000 (red book).
No records were recovered from the period from October 1988 through 1989.
The total amount of the payments in 1988 was $138,757.09. There were five
payments from the defendant in 1988, totaling $3499. No payments from the
defendant were reflected after 1988. The 1990 payment total was
$295,796.97, and the total for 1990 through 2000 was $2,188,787.05. Dixon’s
rolodex contained the defendant’s Las Vegas telephone number.

Carolyn Cox had been married to the defendant from 1986 until July of
1989. She testified that the defendant earned $13,000 per year when employed

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 at Cashbox. After leaving, the defendant started an artist development
business and worked with Chuck Dixon. After leaving Cashbox, the defendant
acquired two houses, three cars, a grand piano, and a motorcycle.

Ms. Cox stated that on March 9, 1989, the defendant was not at home
when she went to bed between eleven p.m. and twelve o’clock midnight. She
was awakened by a phone call from Chuck Dixon at 3:00 a.m. She told Dixon
that the defendant was not at home. After she had hung up the phone, the
defendant appeared and asked who had called. The defendant told her he had
been at Steve Daniel’s house. Later, the defendant instructed her to tell police
investigators that he was at home on the night of the victim’s murder. Ms. Cox
stated that during their marriage, the defendant suffered from a hiatal hernia
and a bad back. She also said that they owned a black cat in 1989. She further
testified that the defendant was right-handed.

Id. at *1-7.

On November 15, 2006, the Petitioner filed a timely pro se petition for post-conviction
relief. Following the appointment of counsel, the Petitioner filed an amended post-
conviction petition on November 17, 2008.

Post-Conviction Hearing. The Petitioner was represented at trial by the District
Public Defender for Davidson County and an assistant public defender. The district public
defender who defended the Petitioner at trial died prior to the April 19, 2011 post-conviction
hearing, and only the Petitioner and the assistant public defender who represented the
Petitioner at trial testified at this hearing. A copy of the trial transcript, this court’s opinion
on direct appeal, and documents related to the district public defender’s representation of
Milton Reyes in an unrelated 1988 case were entered as exhibits. These documents showed
that the district public defender defended Reyes in 1988 against the charges of assault with
intent to commit murder, malicious shooting, and aggravated assault. The victim in the 1988
case against Reyes was Carl Hanson, who had no connection to the facts in the Petitioner’s
case.

The Petitioner testified that the district public defender and the assistant public
defender represented him at trial. The Petitioner said he specifically requested that the
assistant public defender be appointed to his case, even though the district public defender
had wanted another attorney in his office to be assigned to the case.

The Petitioner said he met with the district public defender one to two times and did
not see him again for a few weeks. He then called the public defender’s office and requested

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to see him, and they met again. He stated that when he and the district public defender met
they would “have screaming arguments over different issues of the case” and sometimes the
district public defender would “get mad and leave.” The Petitioner said that he met with the
district public defender “maybe ten times” throughout the course of the representation and
that these meetings typically lasted fifteen to twenty minutes. The Petitioner claimed that the
district public defender told him that he was going to win the Petitioner’s case. Although the
Petitioner brought up the issue of pursuing alternative suspects several times during their
meetings, the district public defender told him that “he didn’t want to go chasing [sic] any
rabbit holes.” The Petitioner acknowledged that the district public defender provided him
a copy of the discovery received from the State and admitted that he had been able to review
this discovery prior to trial.

The Petitioner claimed that the district public defender “didn’t really have a [defense]
strategy” at trial. He also claimed that he smelled alcohol on district public defender’s breath
when they met to discuss his case. The Petitioner said he and the district public defender
“just argued and screamed at each other for . . . lots of times. And finally, he would send [the
assistant public defender] out to talk to me.” The Petitioner acknowledged that he had a
“pretty good relationship” with the assistant public defender. He claimed the assistant public
defender believed that they should have pursued alternative suspects in the case and wanted
him to testify at trial. The Petitioner said he preferred this defense strategy and wanted the
assistant public defender to handle the case instead of the district public defender, who he
claimed “didn’t seem to want to do anything.”

The Petitioner said that the district public defender was granted a seven-week
continuance of his trial. During that period, the Petitioner remembered meeting with the
assistant public defender but did not recall meeting with the district public defender. The
Petitioner and the assistant public defender continued to talk about an alternative suspect
defense theory, but the attorney informed the Petitioner that the case “was [the district public
defender’s] baby, that his hands were tied.”

The Petitioner claimed that the district public defender provided ineffective assistance
of counsel because he failed to locate and subpoena Milton Reyes, an alternative suspect, for
trial. The Petitioner said he had requested that the district public defender hire a private
investigator to investigate certain alternative suspects, especially Reyes. He claimed the
police report indicated Reyes had confessed to several different people that he had shot two
individuals on Music Row. He said the district public defender “just shrugged that [defense
theory] off.”

The Petitioner also said that the district public defender provided ineffective
assistance of counsel in failing to locate George Woodall, Randy Smith, and Ricky

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Denoblough for trial. The Petitioner claimed these men were important because they were
the individuals “that Milton Reyes tried to buy a gun off of or bought a gun off of [sic] and
told that he had shot two people on Music Row.” The Petitioner said that the district public
defender, in refusing to investigate or subpoena these individuals, claimed that “he would
win this case and he didn’t need to pursue them.” He also said that the district public
defender believed “the whole case was about [Chuck] Dixon and . . . he could win it on that
ground.”

In addition, the Petitioner claimed that the district public defender provided ineffective
assistance of counsel in failing to withdraw from his case because of a conflict of interest
stemming from the district public defender’s representation of Reyes in an earlier, unrelated
case. He said that neither of his attorneys informed him of the district public defender’s
earlier representation of Reyes. The Petitioner asserted that the district public defender said
he was not going to pursue Reyes or the other witnesses because he could not find them and
the court would not give him the money to hire a private investigator to locate them. He
claimed that if he had known of the district public defender’s prior representation of Reyes,
he would have fired him.

The Petitioner further alleged that the district public defender provided ineffective
assistance of counsel because he prevented the Petitioner from testifying at trial. The
Petitioner claimed that the district public defender “strongly urged” him not to testify at trial
and “more or less strong[-]armed [him] to waive [this right].” However, the Petitioner
claimed that he and the assistant public defender believed that he should testify. He asserted
that his testimony would have “rebutted” Karen Cox’s testimony that he was not at home the
night of the victim’s murder and would have shown that they were having marital problems
at the time the offense occurred. The Petitioner also asserted that his testimony would have
impeached Sandra Daens’s testimony because he could have shown her as a “disgruntled
employee” that he fired two years before the murder. He also said he would have testified
about Steve Daniel’s limp, the fact that Daniel owned a white vehicle similar to the vehicle
seen near the scene of the crime, and the fact that Daniel sold guns in Nashville and had sold
guns to Chuck Dixon, even though Daniel claimed that he was not friends with Dixon.
Finally, the Petitioner stated he would have testified about his lack of motive and his
innocence.

On cross-examination, the Petitioner acknowledged that he tried to have the assistant
public defender who represented him at trial appointed to represent him in his post-
conviction case. He further acknowledged that he never informed the trial court that he was
dissatisfied with either attorney assigned to his case or that he believed the district public
defender was an alcoholic. The Petitioner also admitted that the district public defender
pursued the defense theory at trial that Steve Daniel had killed the victim because Daniel had

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the murder weapon in his possession and because Daniel admitted that he had a limp from
foot surgery. He also admitted that he signed a waiver stating that he understood his right
to testify and that he was voluntarily waiving this right. Moreover, he acknowledged that he
informed the trial court at trial that he was voluntarily waiving his right to testify in his own
behalf. Finally, the Petitioner acknowledged that none of the witnesses that the district
public defender allegedly failed to investigate were present to testify at the post-conviction
hearing.

The assistant public defender who also represented the Petitioner at trial testified that
he began working in the public defender’s office in 2001 or 2002 and was assigned to the
Petitioner’s case after the Petitioner’s specifically requested him. The assistant public
defender said he did not recall meeting the Petitioner prior to trial; however, he remembered
several meetings during trial. He also said that, at the time of trial, he believed the proper
defense strategy was to pursue all of the alternate defense theories but that the district public
defender did not agree with him regarding this strategy. He also stated that the district public
defender, early in the representation, decided to pursue the theory that Steve Daniel was the
“most likely alternative suspect” because he had possession of the murder weapon. The
assistant public defender said he and the district public defender drove to Chattanooga to find
Daniel, but Daniel was not home and refused to return their phone calls. However, he said
the district public defender was able to get Daniel to admit at trial that he walked with a limp
and that he had a relationship with Chuck Dixon.

The assistant district attorney said that although he had only been working in the
criminal court a couple of months at the time, the district public defender had tried hundreds
of jury trials at the time of the Petitioner’s trial, so there “wasn’t much of a conflict” between
him and the district public defender, given that the district public defender was his “boss and
he told [him] what to do.” The assistant public defender recalled a conversation he had with
the district public defender about pursuing alternate defense theories, wherein the district
public defender “pulled rank” on him and told him that “this was his case” and they were
going to try it his way. The assistant public defender also recalled a discussion that he and
the district public defender had with the Petitioner’s attorney in Las Vegas regarding the
viability of pursuing all of the alternate defense theories and that the attorney in Las Vegas
agreed with the district public defender that the case should be tried using a reasonable doubt
defense.

The assistant public defender also recalled having a very brief conversation with the
district public defender regarding the fact that the district public defender had represented
Milton Reyes several years before in an unrelated case. At the time, the assistant public
defender asked his boss if he believed he had a conflict because of the prior representation,
and his boss responded in the negative. The assistant public defender said, “I don’t

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remember if [my boss] said, harumph or no or we’re not going to do that. But my thought
was – my belief from my boss [was] we’re not talking about that anymore. That’s not
something I care to discuss or that’s not something that I take seriously.” He added, “I felt
like [my boss] was in a much better position than I was [to make that call,] and . . . I didn’t
think it was my place to second guess my boss’[s] decision that he did not have a conflict.”
He also said, “I don’t recall thinking, boy, this is something that’s really worrying me, should
I call the Board. I really thought, I believe [the district public defender] thought it was not
a conflict.” He said that the district public defender “decided not to raise the issue, that it
wasn’t important.”

The assistant public defender said he remembered Reyes’s name being in the file
because Reyes had confessed to two individuals that he had shot somebody. However, he
said that the district public defender did not think much of Reyes’s confession because Reyes
either “had an alibi or [had] pa[s]sed the polygraph, one of those two things.” He said,
“There was some reason that [the district public defender] didn’t believe he was a viable
suspect.” He also stated he did not believe that his boss ever investigated Reyes or the
witnesses to which Reyes made his confession. The assistant public defender said he never
informed the Petitioner of his boss’s prior representation of Reyes and was not aware if his
boss ever informed the Petitioner of this fact. The assistant public defender described his
boss’s reasoning regarding conflict of interest issues:

What I recall from [the district public defender] in general is that he believed
that [p]ublic [d]efenders used the conflict of interest rules to get out of trying
hard cases. And he believed that they did it too much. And so my thought at
the time, the reason I didn’t push it further, is I thought he was engaging in that
analysis. I thought that he thought unless someone shows me a real life
conflict, then I’m not going to get off [the Petitioner’s case]. It’s not
something he would have brought up to the Court unless he believed it was an
actual conflict, I believe.

The assistant public defender was aware that the Petitioner and the district public
defender argued often during the case. He believed that the Petitioner wanted his boss to do
a lot of work on the case that his boss felt was unnecessary. He also said that there was never
any discussion about having private counsel defend the Petitioner because of the personality
conflict between the district public defender and the Petitioner.

The assistant public defender said his boss had tried over three hundred cases,
including a number of capital cases, and “had a very good reputation as a trial lawyer.” The
assistant public defender said that the district public defender’s “ethics were beyond

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reproach.” Regarding the Petitioner’s allegations that the district public defender was an
alcoholic, the assistant public defender stated:

At the time of this trial, [the district public defender] and I were not
close friends. We became very close friends, especially after I left the [public
defender’s] office[,] and he wasn’t my boss. I never knew him to drink. He
would have an occasional – he was one of those people who had a glass of
wine on holidays. A[nd] if he won a trial, he might pour a Scotch. He wasn’t
a drinker.

He also said he never saw the district public defender meet a client or go to court while under
the influence of alcohol. He explained, “[The district public defender] came to work at 6:00
a.m., usually six days a week. He . . . was a workaholic. He was not an alcoholic. . . . I’m
not saying he never touched alcohol. It just wasn’t his habit.”

The assistant public defender said that the Petitioner never told him that the district
public defender was forcing him not to testify. He said, “My recollection is we came to sort
of a mutual agreement that given where the case was and what we had gotten from Mr.
Daniel it was time to shut it down.”

On June 9, 2011, the post-conviction court filed its order denying relief. Following
entry of this order, the Petitioner filed a timely notice of appeal.

ANALYSIS

Standard of Review. Post-conviction relief is only warranted when a petitioner
establishes that his or her conviction is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103 (2010). The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal
unless the evidence preponderates otherwise. When reviewing factual issues,
the appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of their
testimony are matters for the trial court to resolve. The appellate court’s
review of a legal issue, or of a mixed question of law or fact such as a claim
of ineffective assistance of counsel, is de novo with no presumption of
correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for

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post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Ineffective Assistance of Counsel. The Petitioner contends that trial counsel
provided ineffective assistance of counsel in failing to investigate Milton Reyes as an
alternative suspect, failing to inform him that he had previously represented Reyes, which
he alleges was a conflict of interest, and in failing to call him to testify in his own behalf at
trial. The State responds that the Petitioner failed to present Reyes or any other related
witnesses at the post-conviction hearing and that trial counsel’s representation of Reyes in
an unrelated case fifteen years before the Petitioner’s case was not a conflict of interest. In
addition, the State asserts that the Petitioner voluntarily signed a waiver of his right to testify.
We agree with the State.

Vaughn repeated well-settled principles applicable to claims of ineffective assistance
of counsel:

The right of a person accused of a crime to representation by counsel
is guaranteed by both the Sixth Amendment to the United States Constitution
and article I, section 9, of the Tennessee Constitution. Both the United States
Supreme Court and this Court have recognized that this right to representation
encompasses the right to reasonably effective assistance, that is, within the
range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.

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at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘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.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694).

We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89.

First, the Petitioner contends that trial counsel provided ineffective assistance of
counsel in failing to investigate Milton Reyes as an alternative suspect. The Petitioner asserts
that Reyes confessed to shooting two individuals on Music Row, which was “the crime for
which [the Petitioner] was tried.” However, as noted by the post-conviction court, the
Petitioner failed to present Reyes or any other relevant witnesses at the hearing on his
petition and “failed to produce sufficient evidence to establish the existence of [Reyes’s]
statement.” This court has concluded that “[w]hen a petitioner contends that trial counsel
failed to discover, interview, or present witnesses in support of his defense, these witnesses
should be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990). The presentation of the witness at the post-conviction
hearing is the only way for the petitioner to establish:

(a) a material witness existed and the witness could have been discovered but
for counsel’s neglect in his investigation of the case, (b) a known witness was
not interviewed, (c) the failure to discover or interview a witness inured to his
prejudice, or (d) the failure to have a known witness present or call the witness
to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.

Id. Accordingly, we conclude the record supports the post-conviction court’s determination
that the Petitioner failed to carry his burden of establishing the deficiency and prejudice
prongs required to prevail on an ineffective assistance of counsel claim.

Second, the Petitioner argues that trial counsel provided ineffective assistance of
counsel in failing to inform the Petitioner that he had previously represented Reyes in a prior
case, which he alleges was a conflict of interest. In response, the State argues that the record

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supports the post-conviction court’s determination that trial counsel investigated Reyes as
an alternative suspect but rejected this defense theory after discovering that Reyes either
passed a polygraph test or possessed a valid alibi for the time of the offenses. The State also
argues that trial counsel was not required to withdraw or tell the Petitioner of his
representation of Reyes in the unrelated 1988 case because trial counsel’s representation of
Reyes did not constitute an actual conflict of interest. Moreover, the State argues that the
Petitioner failed to establish that trial counsel obtained any evidence relevant to the
Petitioner’s case during his representation of Reyes in 1988 and that the Rules of
Professional Conduct do not prohibit trial counsel’s later representation of the Petitioner.
Finally, the State asserts the Petitioner failed to establish that trial counsel’s performance was
adversely affected by his earlier representation of Reyes in the unrelated 1988 case. We
agree with the State that the Petitioner is not entitled to relief on this issue.

Tennessee Supreme Court Rule 8 states that “a lawyer shall not represent a client if
the representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if . . . there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.” Tenn. Sup.Ct. R. 8, RPC 1.7(a)(2) (emphasis
added). In addition, “[a] lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client unless the former
client gives informed consent, confirmed in writing.” Tenn. Sup.Ct. R. 8, RPC 1.9(a)
(emphasis added).

“[A]n actual conflict of interest includes any circumstances in which an attorney
cannot exercise his or her independent professional judgment free of ‘compromising interests
and loyalties.’” State v. White, 114 S.W.3d 469, 476 (Tenn. 2003) (quoting State v.
Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000) (quoting Tenn. R. Sup. Ct. 8, EC 5-1)). “[I]f
an attorney actively represents conflicting interests, prejudice is presumed.” Netters v. State,
957 S.W.2d 844, 847 (Tenn. Crim. App. 1997) (citing Strickland, 466 U.S. at 692; Cuyler
v. Sullivan, 446 U.S. 335, 349-50 (1980); State v. Thompson, 768 S.W.2d 239, 245 (Tenn.
1989)). However, unless the Petitioner proves that trial counsel was burdened by an actual
conflict of interest, he must establish that trial counsel’s performance was deficient and that
he was prejudiced by this deficiency. Strickland, 466 U.S. at 692.

We conclude that the Petitioner failed to establish that the district public defender was
burdened by an actual conflict of interest. Consequently, the Petitioner was required to prove
that the district public defender’s performance was deficient and that this deficiency
prejudiced his defense. Here, the post-conviction court found that the district public
defender’s representation of Reyes in an unrelated case fifteen years prior to the Petitioner’s

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trial “did not impair or otherwise affect his independent professional judgment[,]” especially
given the district public defender’s strategic decision to focus on Steve Daniel as the most
likely alternative suspect. The court accredited the assistant public defender’s testimony that
Reyes either had an alibi or passed a polygraph test regarding the offense in this case and that
the district public defender’s “ethics were beyond reproach.” Finally, the post-conviction
court determined that the Petitioner failed to carry his burden of establishing the deficiency
and prejudice prongs required to prevail on an ineffective assistance of counsel claim. We
conclude that the record supports the findings and conclusions of the post-conviction court.

Lastly, the Petitioner contends that trial counsel provided ineffective assistance of
counsel in failing to call the Petitioner to testify in his own behalf at trial. He claims that his
testimony “would have countered [the testimony of the] State’s witnesses that he was not
home during the time the victims in this case were shot.” He also claims that his testimony
“would have . . . provided [evidence] that Steve Daniel drove a car similar to the one
observed at the scene of the crime[] and that Mr. Daniel walked with a limp, as did the
alleged shooter in this case.” Finally, he asserts that his testimony would have shown “that
Mr. Daniel and the victims had personal problems, establishing a motive for Mr. Daniel to
have committed these crimes.” The Petitioner argues that he was prevented from presenting
a complete defense because trial counsel did not allow him to testify.

In response, the State argues that the Petitioner’s “contradictory testimony about the
voluntary nature of his decision not to testify effectively negates his claim[] that he wanted
to testify and that [the district public defender] coerced him not to testify.” It further argues
that the record supports the post-conviction court’s finding that there was no evidence to
support the Petitioner’s claim of coercion. We conclude that the Petitioner is not entitled to
relief on this issue.

In denying relief, the post-conviction court determined that “there was no credible
evidence presented at trial to support the Petitioner’s allegation that [the district public
defender] coerced the Petitioner into not testifying at trial.” The court also found that the
Petitioner signed a waiver of his right to testify at the conclusion of the State’s case and was
thoroughly questioned by the trial court regarding whether the waiver was knowingly and
voluntarily given. In addition, the court determined that it was unlikely that the Petitioner
was “strong[-]armed” by the district public defender, given the Petitioner’s testimony at the
post-conviction hearing that he and the district public defender often had differences of
opinion during and before trial. Finally, the post-conviction court determined that the
Petitioner failed to carry his burden of establishing the deficiency and prejudice prongs
required to prevail on an ineffective assistance of counsel claim. The record clearly supports
the ruling of the post-conviction court. Accordingly, we affirm the post-conviction court’s
denial of relief.

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 Conclusion. We conclude that the Petitioner has failed to meet his burden of
establishing that he received ineffective assistance of counsel. Accordingly, we affirm the
judgment of the post-conviction court.

_________________________________
CAMILLE R. McMULLEN, JUDGE

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