State v. Honeycutt

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 7, 2001 Session

STATE OF TENNESSEE v. MICHAEL SHANE HONEYCUTT

Appeal from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 96-B-820 Cheryl Blackburn, Judge

No. M1998-00245-SC-R11-CD - Filed September 28, 2001

Michael Shane Honeycutt was convicted of aggravated child abuse; the Court of Criminal Appeals
affirmed the conviction. Honeycutt contends that he was denied effective assistance of counsel due
to trial counsel’s failure to employ a theory of defense seeking to establish the child’s mother as the
perpetrator. We hold that trial counsel’s performance was deficient in this regard and that this
deficiency prejudiced the outcome of the case. The judgment of the Court of Criminal Appeals is
therefore reversed, and this case is remanded to the trial court for a new trial.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Reversed; Remanded to the Criminal Court for Davison County

ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which FRANK F. DROWOTA, III,
C.J., E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Richard McGee, Nashville, Tennessee, for appellant, Michael Shane Honeycutt.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kim R.
Helper, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, Roger Moore,
Assistant District Attorney General, for appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

The following is a summary of the testimony. Misty Stacey and her eleven-month-old
daughter were living with Michael Shane Honeycutt, the defendant, in a Nashville apartment. On
October 4, 1995, Honeycutt was keeping the child while Stacey was at work. When Stacey came
home for lunch, she ate and played with the child. Shortly after she returned to work, she received
a telephone call from Honeycutt that the child had been injured. He told her that while he and the
child were watching television, she fell over. He picked her up and noticed blood in her mouth. She
appeared unconscious. He then shook the child to wake her up, and when she did not respond, he
called 911.

The child was taken to the hospital where she was treated by Joseph Gigante, M.D. Based
upon his examination of the child, Gigante determined that she had suffered two head injuries, retinal
hemorrhaging, and multiple bruises on her body. In order to determine the child’s medical history,
Gigante talked to Honeycutt and Stacey. When Gigante asked Honeycutt about the child’s injuries,
he responded that the child had been sitting down playing with toys when she suddenly fell over.
During Gigante’s interview with Stacey, she mentioned to him “that she did shake [the child]
multiple times on Monday, in a ‘playful way,’” and wondered whether the shaking could have caused
the child’s injuries.

Gigante opined that the bruises on the child’s forehead were consistent with accidents that
occur when a child is learning to walk, but that the other bruises were more commonly associated
with child abuse. He stated that it is possible, although not probable, that the child had suffered an
aneurism.1 He opined that the child’s injuries were caused a few hours before she lost
consciousness.

The child was also examined at the hospital by Jeff Creasy, M.D., a radiologist. Based upon
his review of the child’s records, it was his opinion that the child’s injuries were sustained within
the 48 hours before the call for emergency treatment. He stated that the results of the CAT scan2
would be consistent with an aneurism, but that it was unlikely an aneurism caused the child’s
injuries.

At the conclusion of the trial, the jury convicted Honeycutt of aggravated child abuse. After
a sentencing hearing, the trial court sentenced Honeycutt to a term of 24 years. Honeycutt filed
motions for new trial. The trial court conducted a full evidentiary hearing on each of the claims
Honeycutt asserted in the motions, including the claim of ineffective assistance of counsel, and,
ultimately, overruled them. The trial court denied the motions for a new trial. Honeycutt appealed

1
Gigante defined “aneurism” as “a dilatation of a blood vessel, where a blood vessel rather than being of normal
width, is dilated in a certain area and these ca n sometime s burst.”

2
A CAT scan, or computerized axial tomography, involves the use of x-rays to gather “anatomical information
from a cross-sectional plane of the body, presented as an image generated by a computer synthesis of x-ray transmission
data obtained in may different directions through the given plane.” Steadman’s Medical Dictionary 1459 (5 th ed. 1984).

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to the Court of Criminal Appeals on the issue of ineffective assistance of counsel;3 the court affirmed
the conviction.4

The issue we must determine is whether Honeycutt was denied his right to effective
assistance of counsel.

II. Standard of Review

The issue whether a petitioner has been denied the effective assistance of counsel is a mixed
question of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). A trial court’s findings
of fact are entitled to substantial deference on appeal unless the evidence preponderates against those
findings. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Under this standard, appellate
courts do not substitute their own inferences for those drawn by the trial court, and questions
concerning the credibility of the witnesses, the weight and value to be given their testimony, and the
factual issues raised by the evidence are to be resolved by the trial judge. Henley, 960 S.W.2d at
579. However, this Court reviews de novo the application of law to those factual findings to
determine whether counsel’s performance was deficient or whether the defendant was prejudiced by
that deficiency. Thus, when evaluating a claim of ineffective assistance of counsel, we review the
trial court’s findings of fact under a de novo standard, accompanied by a presumption that the
findings are correct unless the preponderance of the evidence suggests otherwise, while the trial
court’s conclusions of law are reviewed de novo with no presumption of correctness. Fields v. State,
40 S.W.3d 450, 457-58 (Tenn. 2001).

III. Analysis

Article I, section 9 of the Tennessee Constitution provides, in pertinent part, “[t]hat in all
criminal prosecutions, the accused hath the right to be heard by himself and his counsel . . . .” The
Sixth Amendment of the United States Constitution provides that in all criminal prosecutions, the
accused shall “have the Assistance of Counsel for his defense.” “These two constitutional provisions
are identical in import with the result that a denial of the Sixth Amendment right to the effective
assistance of counsel is simultaneously a denial of the right to be heard by counsel, as provided under
the Constitution of Tennessee.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

3
Claims of ineffective assistan ce of coun sel are gener ally more ap propriate ly raised in a petition for po st-
conviction relief rather than on dire ct appeal. See State v. Carruthers, 35 S.W.3d 516, 55 1 (Tenn. 2000); see also State
v. Anderson, 835 S.W .2d 600 , 606 (T enn. Crim. A pp. 199 2) (“Raising iss ues pertaining to the ineffective assistance of
counsel for the first time [on direct app eal] in the appella te court is a pra ctice fraught with p eril.”); cf. State v. Wilson,
31 S.W.3d 189 (T enn. 2000) (holding that a constitutional challenge to the validity of a guilty plea should be raised and
litigated in a petition for post-conviction relief rather than on direct appeal).

4
Honeyc utt also raised the following issues: (1) whether the trial court erred when it failed to instruct the jury
on lesser included o ffenses, and (2 ) whether the tria l court impo sed an exc essive sentenc e. State v. Ho neycutt, No.
M1998-00 245-CCA-R3-CD , 1999 WL 1 063546, at *1 (Tenn. Crim. App. Nov. 24 , 1999).

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undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984); see also State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

When a claim of ineffective assistance of counsel has been raised, a convicted defendant
must prove, by clear and convincing evidence,5 that: (1) counsel’s performance was deficient, and
(2) the deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S. Ct. at
2064; see also Burns, 6 S.W.3d at 461. “Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the adversary process that renders the result
unreliable.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

With respect to deficient performance, the proper measure of attorney performance is
“reasonableness” under prevailing professional norms. Id. at 688, 104 S. Ct. at 2065. This Court
has recognized that the standard for “reasonableness” is “whether the advice given, or the services
rendered by the attorney, are within the range of competence demanded of attorneys in criminal
cases.” Baxter, 523 S.W.2d at 936. The appellate court must be highly deferential and “must
indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland, 466
U.S. at 689, 104 S. Ct. 2052 (citation omitted); see also Burns, 6 S.W.3d at 462. Additionally, the
reviewing court should avoid the “distorting effects of hindsight” and “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065-66.

To establish prejudice, the second prong of the Strickland test, the defendant must show that
there is a reasonable probability that, but for counsel’s deficient performance, the result of the
proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. In other words, “[a]n error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.” Id. at 691, 104 S. Ct. at 2052.

We will begin by discussing the first prong of the Strickland test–deficient performance.
Honeycutt contends that trial counsel failed to employ and develop a theory of defense. Specifically,
Honeycutt contends that trial counsel’s performance was deficient due to his failure to present
evidence seeking to establish Stacey as the perpetrator. Trial counsel’s theories of defense were:
his was not a case of “Shaken Baby Syndrome,” and Honeycutt was not the perpetrator. Trial
counsel admitted in the hearing on the Motion for New Trial that he had no evidence to support the
first theory. In fact, trial counsel, in his opening statement, stated that he would not deny that the

5
Burns, 6 S.W .3d at 461 . Pursuant to T enn. Cod e Ann. § 4 0-30-21 0(f) (199 7), a post- conviction petitioner
seeking relief for constitutio nal claims is required to prove allegations of fact “by clear and convincing evidence.” See
id. at 461 n.5. “Althoug h, in this instance, the claim of ineffective assistance of counsel was raised on direct appeal, the
same standard should apply.” Id. (citing State v. Anderson, 835 S.W.2d 600 (Tenn. Crim. App. 1992)).

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child had been shaken. The State argues that trial counsel’s performance was not deficient in that
on cross-examination, both doctors testified to the possibility, although not probable, that the child
had suffered an aneurism. This concession by the doctors, however, does not neutralize trial
counsel’s implication in the opening statement that the child had been shaken.

Trial counsel did nothing to develop his second theory. Trial counsel knew that only
Honeycutt, Stacey, the child’s grandmother, and the child’s step-grandfather had access to the child
during the 48-hour period in which Creasy opined the injury had been inflicted. No evidence
implicated the child’s grandmother or step-grandfather. Trial counsel admitted, however, that there
was evidence to implicate Stacey, and the following evidence was available to him prior to trial:

1. Stacey had access to the child during the critical period (one
to two hours preceding loss of conscious).

2. Stacey admitted to a Department of Human Services worker
that she had shaken the child when the child was two days old
and stated “I could just suffocate” regarding the way the
child’s constant crying got on her nerves.

3. Stacey admitted to Detective Bernard that she had shaken and
slapped the child.

4. Tammy McCoy told Detective Meek that Stacey said the child
got on her nerves so bad that Stacey could smother her.

5. Stacey admitted to the detectives that she shook the child
“when she was a couple days old [because] her crying got on
my nerves.”

Trial counsel did not question Stacey about her access to the child or her incriminating statements.
He admitted that this was not a strategic decision. If trial counsel had questioned Stacey about the
substance of the above statements, he could, perhaps, have offered the jury an alternative theory
about how the child had been injured.6 In light of this evidence, which likely could have led the jury

6
The Court of Criminal Appeals correctly notes that much of this evidence would have been inadm issible
hearsay. Even if the statements themselves could not have been admitted, however, defense counsel certainly could have
questioned Stacey abo ut the substanc e of the statements (in other words, whether Stacey had a history of shaking or
slapping the child, whether she ever felt angry enough at the child to “suffocate” her, or whether she shook or slapped
the child in the time period before the child lost consciousness). If Stacey contradicted her out-of-court statements, the
statements could have been used to impeach her credibility. Even though the statements then would serve only as
impeach ment, not substantive, evidence, the jury still would be faced with an individual who had access to the child at
the time of her injur y and who h ad made significant, inconsistent statements whether she behaved abusively toward the
child. Given the entirely circumstantial nature of the case against Honeycutt, this evidence may reasonably have swayed
the jury to do ubt his guilt.

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to suspect that Stacey, rather than Honeycutt, committed the crime, and the lack of evidence to
support trial counsel’s chosen theory, we conclude that trial counsel’s performance was deficient in
his failure to develop the alternate theory of defense.

The second prong of the Strickland test requires a determination of whether trial counsel’s
deficient performance prejudiced the outcome of the case. The evidence against Honeycutt was
entirely circumstantial.7 The only evidence which directly linked Honeycutt to the crime was
Gigante’s testimony that the injury was inflicted one to two hours before the child became
unconscious and Honeycutt’s admission that he had access to the child during that period of time.
The record also indicates, however, that Stacey had access to the child during this same time frame
because she came home on her lunch break. Given the circumstantial nature of the evidence against
Honeycutt, we conclude that a reasonable probability exists that the introduction of evidence
implicating Stacey as the perpetrator, including her incriminating statements, may have raised a
reasonable doubt in the jurors’s minds as to Honeycutt’s guilt. Had the jury been presented with
this alternative theory, there is a reasonable probability that the result may have been different. Trial
counsel’s deficient performance, therefore, prejudiced the outcome of the case. Accordingly,
Honeycutt’s conviction is reversed, and this case is remanded to the trial court for a new trial.

IV. Lesser-included Offenses

The resolution of the ineffective assistance of counsel issue is sufficient to resolve this
appeal. In order to provide guidance to the trial court on remand, however, we proceed next to
address Honeycutt’s claim that the offenses of aggravated assault and reckless endangerment should
be regarded as lesser-included offenses of aggravated child abuse and that the trial court erred in
failing to instruct the jury regarding these offenses.

7
Although, unfortunately, the actual instructions given to the jury were not preserved in the transcript of the
proceedings, it appears from the proposed jury instructions included in the record that the jury was given the following
instruction:

When the evidence is made up entirely of circumstantial evidence, then before you
would be justified in finding the defendant guilty, you must find that all the essential
facts are consistent with the hypothesis of guilty, as that is to be compar ed with all
the facts proved ; the facts must exclude every other reasonable theory or hypothe sis
except that of guilt; and the facts must establish such a certainty of guilt of the
defendant as to convinc e the mind b eyond a re asonable doubt that the defenda nt is
the one who committed the offense. It is not necessary that each particular fact
should be proved beyond a reasonable doubt if enough facts are proved to satisfy
the jury beyond a reasonable doubt of all the facts necessary to constitute the crime
charged. Before a verdict of guilty is justified, the circumstances, taken together,
must be of a conclusive nature and tendency, leading on the whole to a satisfactory
conclusion and producing in effect a moral certainty that the defendant, and no one
else, committed the offense .

(Emph asis added .)

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 This Court established the analysis for determining whether an offense is a lesser-included
offense of a charged crime in State v. Burns, 6 S.W.3d 453 (Tenn. 1999).8 Under the Burns test, an
offense qualifies as a lesser-included offense if:

(a) all of its statutory elements are included within the statutory
elements of the offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that
it contains a statutory element or elements establishing (1) a
different mental state indicating a lesser kind of culpability;
and/or (2) a less serious harm or risk of harm to the same
person, property or public interest; or

(c) it consists of [facilitation, attempt, or solicitation] of the
offense charged or of an offense that otherwise meets the
definition of lesser-included offense in part (a) or (b) . . . .

Id. at 466-67 (Tenn. 1999).

Once it is resolved that an offense is a lesser-included offense of the charged offense, the
Court then must ascertain “whether the evidence justifies a jury instruction on such lesser offense.”
Id. at 467. As stated in Burns, “[t]he mere existence of a lesser offense to a charged offense is not
sufficient alone to warrant a charge on that offense.” Id. at 468. In deciding whether the evidence
supports a jury instruction on a lesser-included offense, a reviewing court must weigh the following
considerations:

First, the trial court must determine whether any evidence exists that
reasonable minds could accept as to the lesser-included offense. In
making this determination, the trial court must view the evidence
liberally in the light most favorable to the existence of the lesser-
included offense without making any judgments on the credibility of
such evidence. Second, the trial court must determine if the evidence,
viewed in this light, is legally sufficient to support a conviction for
the lesser-included offense.

Id. at 469. If the evidence would support a finding of guilt on the lesser offense, an error in failing
to charge that lesser offense will not be held harmless merely because the evidence also supports a
conviction on the greater offense. See id. at 472.

8
Trial courts have a duty to instruct the jury on all lesser-included offenses of the offense charged for which
the evidence w ould supp ort a convic tion. See State v. Burns, 6 S.W.3d 453, 463 (T enn. 199 9); State v. Langford, 994
S.W.2d 126, 128 (Tenn. 1999). At the time of trial in this case, that duty applied whether or not the defendant requested
lesser-include d offense instru ctions. Burns, 6 S.W.3d at 463.

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 A. Aggravated Assault

First, Honeycutt asserts that the trial court should have instructed the jury regarding the
offense of aggravated assault. Pursuant to the Burns test, we first compare the statutory elements
of the two offenses. The offense of aggravated child abuse, codified at Tenn. Code Ann. § 39-15-
402 (1999), consists of the following elements relevant to the case under submission:9

(1) Knowingly, other by accidental means;

(2) Abusing a child10 under 18 years of age; and

(3) Either:

(a) a deadly weapon is used; or

(b) the abuse causes serious bodily injury.

In comparison, the pertinent elements of aggravated assault, codified at Tenn. Code Ann. § 39-13-
102 (1999), are as follows:

(1) Intentionally, knowingly, or recklessly

(2) Committing an assault;11 and

(3) Either:

(a) a deadly weapon is used; or

(b) the assault causes serious bodily injury.

Thus, knowing or reckless aggravated assault qualifies as a lesser-included offense of aggravated
child abuse under part (a) of the Burns test because the elements of aggravated assault are included
within the offense of aggravated child abuse. In other words, the elements of aggravated child abuse

9
For the purposes of clarity and comparison, the elements of the relevant offenses set forth below have been
paraphrased.

10
Tenn. C ode Ann . § 35-14 -401(a) (2 000) de fines child abu se in pertinent p art as “knowin gly, other than by
accidental means, [treating] a child under eighteen (18) years of age in such a manner as to inflict injury.” W hile the
elements of assault are stated using somewhat different language than that of the child abuse statute, it is clear that
“treating . . . in such a manner as to inflict injury” and “[causing] bodily injury” are synonym ous.

11
The offense of assa ult is defined in T enn. Cod e Ann. § 39-13-1 01(a)(1 ) (1999 ) as “[i]ntentiona lly, knowingly,
or recklessly [c ausing] bo dily injury to ano ther.”

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consist of all the elements of knowing or reckless12 aggravated assault, plus the additional element
that the victim must be a child under 18 years of age. Intentional aggravated assault, on the other
hand, would not be a lesser-included offense of aggravated child abuse under part (a) of the Burns
test. Under part (b)(1) of the test, the only element which differs from the greater offense, the
intentional mens rea element, does not establish “a different mental state indicating a lesser kind of
culpability.” Thus, on remand, if the evidence presented at trial would justify an instruction on the
offense of knowing or reckless aggravated assault, a lesser-included offense instruction regarding
aggravated assault should be presented to the jury. No instruction will be required, however, for
intentional aggravated assault.

B. Reckless Endangerment

We next compare the elements of reckless endangerment to the elements of aggravated child
abuse to determine whether the trial court erred in failing to submit to the jury a lesser-included
offense instruction on this offense. The elements of reckless endangerment, codified at Tenn. Code
Ann. § 39-13-103(a) (2000), are as follows:13

(1) Recklessly engaging in conduct;

(2) Which places or may place another person in imminent
danger of:

(a) death; or

(b) serious bodily injury.

When compared to the elements of aggravated child abuse outlined in section A above, it is apparent
that part (a) of the Burns test is not satisfied because all of the elements of reckless endangerment
are not included within the offense of aggravated child abuse. The reckless mens rea element of
reckless endangerment is included within the knowing mens rea element of aggravated child abuse
because proof of knowing conduct also serves to prove recklessness. See Tenn. Code Ann. § 39-11-
301(a)(2). Reckless endangerment, however, contains a differing harm element (conduct which
places or may place another person in imminent danger rather than a requirement of serious bodily
injury). Therefore, if reckless endangerment is to be a lesser-included offense of aggravated child
abuse, the differing element must satisfy part (b)(2) of the Burns test. Because conduct which places
another person in imminent danger would contemplate a less serious harm than conduct which
actually causes serious bodily injury, part (b)(2) of the test is satisfied. Therefore, reckless
endangerment is a lesser-included offense of aggravated child abuse, and if the evidence at trial on

12
“When recklessness suffices to establish an element, that ele ment is also esta blished if a pe rson acts
intentionally or knowingly.” Tenn. Code Ann. § 39-11-301(a)(2) (200 0).

13
For the purposes of clarity and comparison, the elements of the offense set forth below have been paraphrased.

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remand would justify an instruction for reckless endangerment, a lesser-included offense instruction
regarding that offense should be submitted to the jury.

V. Conclusion

We conclude that trial counsel’s performance was deficient in failing to present evidence to
establish Stacey as the perpetrator. Given the circumstantial nature of the evidence and the available
evidence to support the alternative theory of defense, we hold that but for trial counsel’s deficient
performance there exists a reasonable probability that the outcome of the case may have been
different. We therefore conclude that Honeycutt was denied effective assistance of counsel. The
decision of the Court of Criminal Appeals is reversed, and this case is remanded to the trial court for
a new trial.

_________________________________
ADOLPHO A. BIRCH, JR., JUSTICE

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