Larry Stephen Brumit v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 18, 2003 Session

LARRY STEPHEN BRUMIT v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Rutherford County
No. F-51873 Don R. Ash, Judge

No. M2003-00488-CCA-R3-PC - Filed May 12, 2004

The petitioner, Larry Stephen Brumit, filed for post-conviction relief from 1996 convictions for two
counts of first degree murder and one count of conspiracy to commit first degree murder. The post-
conviction court denied the petition. In this appeal, the petitioner argues (1) that the petition was not
barred by the applicable statute of limitations; and (2) that he was denied the effective assistance of
counsel. The judgment is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which THOMAS T. WOODA LL and NORMA
MCGEE OGLE , JJ., joined.

W.H. Stephenson, II, Nashville, Tennessee, for the appellant, Larry Stephen Brumit.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney
General; and William C. Whitesell, District Attorney General, for the appellee, State of Tennessee.

OPINION

Following a jury trial, the petitioner was convicted of two counts of first degree murder, for
which he received concurrent sentences of life with parole, and one count of conspiracy to commit
first degree murder, for which he received a consecutive sentence of twenty-five years. This court
affirmed the convictions and sentences on direct appeal. See State v. Larry S. Brumit, M1999-
00154-CCA-R3-CD (Tenn. Crim. App., at Nashville, Apr. 28, 2000). On December 4, 2000, our
supreme court denied permission to appeal. In determining that the evidence was sufficient to
support the convictions, this court summarized the proof at trial as follows:

The charges . . . stem from the shooting deaths of two victims, James Albert
“Bubba” Summar, II, and Brian Anthony Bettis. . . . [B]oth victims were discovered
dead behind a trailer located on Liberty Gap Road in a remote area of Rutherford
County.
 * * *
The [s]tate presented several witnesses who linked the [petitioner] socially to a
“circle” of people who dealt marijuana, including Wayne Cartwright and [co-
defendant] Mike Rhodes, with whom he was known to be friends. Evidence
presented at trial also established that [the victims] were known to be friends. In
addition, the [s]tate presented evidence that before his death, victim Summar worked
as a police informant and was named in an indictment against Cartwright.

Witnesses testified that both the [petitioner] and co-defendant Rhodes were
upset that Summar had been working undercover with police. Doug Bicknell and
Josh Summar both testified that the [petitioner] and Summar did not like each other.
Bicknell quoted the [petitioner] as saying that Summar was a “punk” and that “he
would see that the little punk would get what was coming to him” because of his
involvement with police. Bicknell also quoted the [petitioner] as saying that “he let
his gun do his fighting for him.” Furthermore, Martin Rhodes stated that he had seen
the [petitioner] with a .38 caliber handgun, the same type of weapon which was used
to kill Bubba Summar.

On the evening of the murders, Summar informed friends that he and Bettis
were to meet with Rhodes. He took a box of marijuana with him to the trailer. At
the same time, Rhodes, who was intoxicated, and the [petitioner] discussed meeting
Summar and then went to the trailer, where the victims’ bodies were later found.
Tabitha Rhodes testified when they returned, the [petitioner] and her husband pulled
into her driveway on the night of the murders so quickly that they startled her. She
stated that while her husband “rustl[ed] around on the floorboard,” the [petitioner]
“darted out to his car and left.” Bettis’ pistol was later found behind Rhodes’ home.
Tabitha Rhodes also reported that the [petitioner] told her, “it did not have to happen
that way, that they drew on him first and he did what he had to do.”

The [petitioner’s] roommate, Donald Ivey, testified that when the [petitioner]
arrived home on the night of the shootings, he immediately began to wash clothes
while he ran water for a bath. When Ivey jokingly asked the [petitioner] whether he
had killed someone, the [petitioner] first did not respond but later answered, “You
can't help being in the wrong place at the wrong time; can you?” Furthermore, the
medical examiner who performed autopsies on the victims’ bodies testified that
Bettis likely coughed up blood before his death and agreed that a person in close
proximity to Bettis at the time would likely have been splattered with blood.

The [petitioner] himself admitted his presence at the trailer at the time of the
shootings. He also presented inconsistent versions of the shootings to police, but
insisted that his co-defendant Rhodes actually fired the shots that killed both victims.
In addition, Lieutenant Detective Gage introduced an audio tape of a conversation
between the Defendant and co-defendant Rhodes in which the Defendant made,

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 among others, the following statements: “If nothing had ever been said, we'd be
walking out today”; and “What was originally agreed on was if they had me, that you
would take responsibility.”

Id., slip op. at 2,10-11.

On December 27, 2001, over a year after the denial of an application for permission to
appeal, the petitioner filed a pro se petition for post-conviction relief alleging, among other things,
the ineffectiveness of trial counsel. The post-conviction court appointed counsel and set the matter
for a hearing, expressing concern in its written order that the petition was filed outside the applicable
one-year statute of limitations. At the hearing, the post-conviction court initially heard testimony
concerning the timeliness of the petition but also accepted proof on the petitioner’s substantive
claims.

With regard to the timeliness issue, the petitioner testified that based on a letter he had
received from his appellate counsel, he believed that he had until December 18, 2001, to file his
post-conviction petition. The letter, which was dated December 18, 2000, contained the following
information:

I have received notice that the [s]tate [s]upreme [c]ourt denied our permission
to appeal. This will end my representation of you in this matter. We have now
appealed as far as I am able to appeal.
You now have one (1) year within which to file a [p]ost-[c]onviction petition.
You must notify the trial court that you need the necessary documents with which to
file. You must also advise them (through the clerk’s office) that you are indigent and
need counsel appointed.

The petitioner, who was in solitary confinement at the time he prepared his petition, testified that he
initially tried to mail the petition on December 3. According to the petitioner, a notary public who
visited his cell on that date to notarize his signature, informed him that she did not “handle” mailing.
The petitioner explained that he was on “lock down” twenty-three hours a day and that an officer did
not arrive to collect the petition for mailing until the 7th, one year and three days after the denial of
the application for permission to appeal to our supreme court. He contended that although the
petition had been date stamped by the court clerk as having been filed on December 27th, he had
received a return receipt indicating that it had been delivered on the 10th. The petitioner claimed that
appellate counsel had not sent him a copy of the supreme court’s order denying his application for
permission to appeal and adamantly maintained that the document had not been enclosed in the
letter.

Appellate counsel testified that he represented the petitioner at sentencing and at the motion
for new trial as well as in his direct appeal to this court. He confirmed sending the December 18,
2000, letter to the petitioner but could not recall whether he had enclosed the supreme court’s order

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denying permission to appeal. He acknowledged that the failure to have done so would have been
“an omission on [his] part.”

With regard to the petitioner’s substantive claims, the petitioner’s trial counsel, who was an
assistant public defender, testified that his office was appointed to represent the petitioner at the
inception of the case. He recalled that at their initial meeting, the petitioner insisted that he was not
present at the time of the offenses. Trial counsel testified that at the preliminary hearing, however,
the state produced a transcript of a recorded conversation between the petitioner and his co-defendant
Rhodes wherein each had made inculpatory statements while seated together in the back seat of a
police car. According to trial counsel, the petitioner had also given videotaped statements to the
police and these statements were edited by stipulation before being presented to the jury. Although
he could specifically recall having reviewed all of co-defendant Rhodes’s unedited videotaped
statements with the petitioner, trial counsel could not remember whether they had reviewed the
petitioner’s unedited statements. Trial counsel explained that his file did not include any
correspondence to the petitioner because they usually communicated “face to face.” Although there
was nothing to indicate that he had sent the petitioner copies of the various motions and orders filed
in the case, he insisted that “[a]t some point [he] gave [the petitioner] copies of everything.”

Trial counsel testified that the defense theory at trial conceded that the petitioner was present
at the time of the offenses but argued that his co-defendant Rhodes was the perpetrator of the crimes.
He denied having represented to the petitioner that it was important that the petitioner be jointly tried
with Rhodes but acknowledged that “[i]t probably would have been better from our standpoint, I
guess looking back on it. If we would have had somebody else sitting there in the courtroom to point
the finger at.” Trial counsel initially stated that he had opposed the state’s severance motion but he
agreed that the transcript indicated that the motion had been attended by another assistant public
defender who announced that the defendant was “taking no position in regard to [the severance]
motion.” Trial counsel explained that he had a physical ailment at that time. He agreed that there
were differences between the first and second versions of the cruiser conversation transcript
produced by the state and acknowledged that he did not object or otherwise draw attention to the
differences. It was trial counsel’s opinion, however, that the transcript “didn’t . . . really hurt us.”
While pointing out that he may have gone to hear some of the testimony, trial counsel testified that
he never planned to attend the trial of co-defendant Rhodes and never promised the petitioner that
he would. He acknowledged that he did not interview all of the persons identified on the state’s
witness list and yet noted that another assistant public defender working on the case had
“interviewed some people on his own.” He recalled that there was evidence that the victims were
drug dealers and considered that to be favorable for the defense: “I felt like it was in . . . [the
petitioner’s] best interest[] for the victims and the man that he was blaming . . . [to] be presented in
the worst light possible.” According to trial counsel, a claim of self-defense was not feasible because
the petitioner “said he didn’t do it.”

The petitioner testified as a part of the evidentiary hearing that he first met with trial counsel
at the jail “a few days” after his arrest and that they later met “a few times” before trial. He claimed
that trial counsel never provided him with paperwork and would not interview witnesses. The

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petitioner recalled that trial counsel’s initial defense theory was to discredit Rhodes because “he
[had] told so many lies in his statement to the police.” He contended that in February of 1996, he
was “suddenly” brought to appear in court and that upon his arrival another attorney advised him that
trial counsel “had to be somewhere else” and she would be representing him. The petitioner asserted
that they “got into an argument and the next thing I know she stands up and says something to the
[c]ourt, sits back down, it’s over with and we leave. I didn’t even know what we were there for.”
He claimed that when he later discovered that the proceeding had been a severance hearing, trial
counsel explained that he planned to attend the trial of co-defendant Rhodes in order to learn the trial
strategy of the prosecution. The petitioner stated that he and trial counsel argued “hot and heavy”
and yet claimed that the only document that he received from trial counsel was a copy of the first
version of the transcript of his police-car conversation with co-defendant Rhodes. According to the
petitioner, trial counsel showed him a two-hour edited version of his videotaped statements to police
but never showed him the unedited videotapes. It was his recollection that when trial counsel
attempted to get a transcript of co-defendant Rhodes’s trial, he was permitted only portions of the
record. The petitioner acknowledged that he escaped from jail on January 29, 1996, returning two
days later. It was his contention that he did not initially lie to trial counsel regarding his involvement
in the offenses.

Appellate counsel, who was appointed to represent the petitioner for purposes of the motion
for new trial and direct appeal, testified that he initially asked for the file from the public defender’s
office but was denied access because the petitioner had filed a civil lawsuit against trial counsel.
Appellate counsel recalled that he was given the file, which he did not believe to be complete,
approximately one to one and one-half years later. It was his opinion that there was “a complete lack
of investigation” by trial counsel. Appellate counsel testified that he would have moved to suppress
the petitioner’s squad-car conversation with co-defendant Rhodes on the grounds that it was not in
furtherance of any conspiracy. He stated that he would have challenged the admissibility of the
petitioner’s videotaped statements on the grounds that they were involuntary, and he contended that
he would have objected to the testimony of Bicknell. Appellate counsel explained that he did not
present the ineffectiveness of trial counsel on appeal because he did not want to adversely affect the
petitioner’s potential post-conviction claims.

At the conclusion of the hearing, the post-conviction court found that the petitioner’s claims
were barred by the statute of limitations. It also held that the petitioner had failed to prove that he
was entitled to relief on the grounds of ineffective assistance of counsel.

I
Initially, the petitioner asserts that the trial court erred by finding that his claims were time-
barred, contending that the “interest[s] of justice” require a determination that his petition was timely
filed. The state argues otherwise.

The original Post-Conviction Procedure Act of 1967 did not include a statute of limitations.
On July 1, 1986, the General Assembly adopted a three-year statute of limitations. See Tenn. Code
Ann. § 40-30-102 (repealed 1995). In 1995, our legislature passed the new Post-Conviction

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Procedure Act, which is applicable to all petitions filed after May 10, 1995, and provides, in
pertinent part, as follows:

(a) Except as provided in subsections (b) and (c), a person in custody under
a sentence of a court of this state must petition for post-conviction relief under this
part within one (1) year of the date of the final action of the highest state appellate
court to which an appeal is taken or, if no appeal is taken, within one (1) year of the
date on which the judgment became final, or consideration of such petition shall be
barred. The statute of limitations shall not be tolled for any reason, including any
tolling or saving provision otherwise available at law or equity. Time is of the
essence of the right to file a petition for post-conviction relief or motion to reopen
established by this chapter, and the one-year limitations period is an element of the
right to file such an action and is a condition upon its exercise. Except as specifically
provided in subsections (b) and (c), the right to file a petition for post-conviction
relief or a motion to reopen under this chapter shall be extinguished upon the
expiration of the limitations period.

Tenn. Code Ann. § 40-30-202(a). In 2003, the Post-Conviction Procedure Act was renumbered
within the Code. It now appears at sections 40-30-101 through 40-30-122.

Rule 2(G) of the Tennessee Rules of Post-Conviction Procedure governs filings:

Papers required or permitted to be filed by the rules of post-conviction
procedure, when filed by an attorney or a pro se petitioner who is not incarcerated,
are filed when received by the clerk of court.
If papers required or permitted to be filed by these rules are prepared by or on
behalf of a pro se petitioner incarcerated in a correctional facility and are not received
by the clerk of the court until after the time fixed for filing, filing shall be timely if
the papers were delivered to the appropriate individual at the correctional facility
within the time fixed for filing. . . . Should timeliness of filing or service become an
issue, the burden is on the pro se petitioner to establish compliance with this
provision.

Tenn. Sup. Ct. R. 28 § 2(G) (emphasis added). Similarly, Tennessee Rule of Criminal Procedure
49(c) provides, in pertinent part, as follows:

If papers required or permitted to be filed pursuant to the rules of criminal
procedure are prepared by or on behalf of a pro se litigant incarcerated in a
correctional facility and are not received by the clerk of the court until after the time
fixed for filing, filing shall be timely if the papers were delivered to the appropriate
individual at the correctional facility within the time fixed for filing.

Tenn. R. Crim. P. 49(c).

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 Tennessee Code Annotated section 40-30-202(b) establishes when a court may consider a
petition filed outside the statutory limitations period. That statute provides as follows:

(b) No court shall have jurisdiction to consider a petition filed after such time
unless:
(1) The claim in the petition is based upon a final ruling of an appellate court
establishing a constitutional right that was not recognized at the time of trial, if
retrospective application of that right is required. . . . ;
(2) The claim in the petition is based upon new scientific evidence
establishing that such petitioner is actually innocent of the offense or offenses for
which the petitioner was convicted; or
(3) The claim asserted in the petition seeks relief from a sentence that was
enhanced because of a previous conviction and such conviction in the case in which
the claim is asserted was not a guilty plea with an agreed sentence, and the previous
conviction has subsequently been held to be invalid.

Tenn. Code Ann. § 40-30-202(b).

In Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our supreme court held that in certain
situations application of the statute of limitations in a post-conviction proceeding might violate
constitutional due process. In determining whether there has been such a violation, the essential
question is whether the time period allowed by law provides the petitioner a fair and reasonable
opportunity to file suit. Id. In Burford, the petitioner could not have filed within the three-year
limitation absent a determination on his prior post-conviction petition. Our supreme court ruled that
Burford was “caught in a procedural trap and unable to initiate litigation . . . despite the approach
of the three-year limitation.” Id.

Recently, in Williams v. State, 44 S.W.3d 464 (Tenn. 2001), our supreme court held that
strict application of the statute of limitations to cases in which a petitioner has been unilaterally
deprived of the opportunity to seek second-tier review of his convictions might violate due process.
Williams’s attorney filed a motion to withdraw as counsel some nine months after his convictions
were affirmed by this court. His motion included an assertion that he had timely sent a notification
of the disposition of the appeal but later learned that Williams did not receive the notification.
Counsel then asked for additional time within which to file an application for permission to appeal
to the supreme court. The request was denied as untimely. Williams then filed a pro se petition for
post-conviction relief outside the one-year statute of limitations. Our supreme court ruled that “due
process considerations may have tolled the running of the statute of limitations for filing a post-
conviction petition” and remanded the case “for an evidentiary hearing to determine the
circumstances surrounding [Williams’] filing of his post-conviction petition.” Id. at 467.

In Williams, our high court emphasized that an attorney’s misrepresentation, as opposed to
mere negligence, could result in due process tolling. Id. at 468-71. It determined that “an attorney’s
misrepresentation . . . would also be beyond a defendant’s control” and could preclude the defendant

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from independently seeking relief. Id. at 469. Specifically, the court concluded that “[i]f Williams
was under the impression that a Rule 11 application was pending during this time, then he was
precluded from acting pro se to pursue post-conviction relief while presumably being represented
by counsel.” Id. at 471. Our supreme court observed that “[t]he question, then, is whether the
appellee was, in fact, misled to believe that counsel was continuing the appeals process, thereby
requiring the tolling of the limitations period.” Id. The limitations period is tolled “during [the] time
when the [petitioner] was unable to seek [post-conviction] relief.” Id. at 464.

At the close of the hearing, the post-conviction court ruled on the timeliness issue as follows:

And . . . the case of Marco D. Butler vs. State of Tennessee, which is a
[s]upreme [c]ourt case, . . . talks about delivering to an appropriate individual. . . .
And it says, . . . any such calculus should include an accounting of the rules,
guidelines and[/]or customary practices relating [to] the prison mail system used by
the correctional facility in question, as well as any other factors deemed appropriate
under the circumstances. And [the petitioner] . . . put on no proof as to what those
circumstances would be. . . . And I don’t believe that you didn’t know it was
December 4th. . . .

Our supreme court denied the petitioner’s application for permission to appeal on December
4, 2000. Any petition for post-conviction relief was, therefore, due to be filed on or before
December 4, 2001. The petitioner’s signature on the pro se petition was notarized on December 3,
2001, the date on which the petitioner claims to have initially presented the petition to the attesting
notary public for filing. Thus, under Post-Conviction Procedure Rule 2(G) and Tennessee Rule of
Criminal Procedure 49, the filing would have been timely if the notary public were the “appropriate
individual at the correctional facility” to receive it for mailing. There is no evidence in the record
regarding the prison’s mail system or the role of the notary, if any, therein. So, as hard as the result
may be, it appears that the trial court correctly ruled that the petitioner failed to meet his burden of
proof. In Butler v. State, 92 S.W.3d 391, 391 (Tenn. 2002), our high court stated as follows:

Determining who is an “appropriate individual” for purposes of filing
post-conviction petitions under Rule 28 § 2(G) or Tennessee Rule of Criminal
Procedure 49(c) will be a question of fact best resolved by the various trial courts of
this state. We decline to adopt a bright-line rule in this regard because different
correctional facilities may have divergent guidelines or customs regarding the
appropriate individual(s) to whom prisoners should file legal mail. However, any
such calculus should include an accounting of the rules, guidelines, and/or customary
practices relating to the prison mail system used by the correctional facility in
question, as well as any other factor(s) deemed appropriate under the circumstances.

With the record devoid of any proof of the circumstances surrounding the mailing of the petition,
the petitioner has not demonstrated that his filing was timely by virtue of his having presented it to
the notary public.

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 Likewise, the petitioner’s claims are time-barred even if the statute of limitations was tolled
by appellate counsel’s failure to fully advise the petitioner regarding the date that our supreme court
denied permission to appeal. In our view, the December 18, 2000, letter from appellate counsel was
inadequate to inform the petitioner of the statute of limitations. The letter did not purport to include
a copy of the supreme court’s order denying permission to appeal and appellate counsel conceded
that he did not recall having enclosed a copy. The letter did not contain the date of the order. Thus,
by use of the Williams rationale, due process concerns may have tolled the statute of limitations until
December 18, 2001. The post-conviction judge, however, who heard the testimony first-hand and
was able to observe the demeanor of the witnesses, concluded that the petitioner had actual
knowledge of the correct statute of limitations. See Brooks v. State, 756 S.W.2d 288, 289 (Tenn.
Crim. App. 1988). Most importantly, any entitlement to tolling for reasons of due process would
not be of benefit to the petitioner. While claiming to have presented his petition to prison authorities
for mailing on December 7, the petitioner was unable to produce evidence as to the rules of the
prison mail system, the identity of the person who accepted the petition for mailing, or any other
factors that would explain the whereabouts of the petition between that date and December 27, when
it was received by the post-conviction court clerk. Although he contends that he received a return
receipt indicating that the petition had been received by the court clerk on December 10, he has
failed to produce the document. Accordingly, the trial court’s determination that the petitioner’s
claims are barred by the one-year statute of limitations is affirmed.

II
The petitioner also asserts that trial counsel was ineffective for failing to adequately
investigate, failing to adequately research the applicable law, failing to seek the admission of “vital
testimony,” and failing to object to inadmissible evidence. It is our conclusion that even if the
petitioner’s claims were not time-barred, these grounds would not be a basis for relief.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the standard of review
as follows:

Because 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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

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 On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f).
Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy
of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). On appeal, the findings of fact made by the post-conviction court are conclusive and will not
be disturbed unless the evidence contained in the record preponderates against them. Brooks v.
State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that
the evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.
App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the trial court. Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App.
1997). When reviewing the application of law to those factual findings, however, our review is de
novo, and the trial court’s conclusions of law are given no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19 S.W.3d 762, 766 (Tenn.
2000).

In this case, the post-conviction court made the following findings:

Based upon the facts that I’ve seen on this record, I cannot find that you
carried your burden by clear and convincing proof that [trial counsel’s representation]
did fall below [the Strickland] standard. Somebody got killed. Obviously, [co-
defendant] Rhodes isn’t one of the great men of American History, but I don’t think
[trial counsel’s] representation of [the petitioner] fell below that standard.
And secondly, even if it did, which I don’t think it did, . . . [t]he benchmark
for judging any claim of ineffective assistance of counsel, must be where the
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.
[E]ven with the complaint that [the petitioner has], I do not think that [he] meet[s]
prong two by clear and convincing evidence.

Initially, the petitioner claims that trial counsel failed to adequately investigate the case,
alleging generally that “basic preparation was not performed.” More specifically, he complains that
trial counsel failed to conduct any legal research and that trial counsel failed to attend (and learn
from) the trial of co-defendant Rhodes. Because the petitioner does not specify what legal research
he contends should have been done and does not assert any particular prejudice as a result of any

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failure, this claim fails both prongs of the Strickland test. As to the other claim, trial counsel was
unable to recall whether he had attended any of the Rhodes trial. While attendance at the co-
defendant’s trial may have been helpful, it was not a requirement. Adequate preparation, no matter
how it is accomplished, is the standard. It is unclear whether trial counsel ever obtained any portion
of the Rhodes transcript. The record contains a written motion for a copy of the transcript as filed
by trial counsel but there is no indication of the trial court’s ruling. A transcript could have been as
helpful to the defense as attendance at the trial. On direct appeal, the petitioner contended that the
trial court had erred by failing to provide a “free, complete” transcript. See Larry S. Brumit, No.
M1999-00154-CCA-R3-CD, slip op. at 16. That implies that trial counsel had something less than
a full record. It does appear that at some point trial counsel obtained the jury instructions given in
the Rhodes trial. Nevertheless, the petitioner does not allege any specific prejudice as a result of trial
counsel’s failure to either attend Rhodes’ trial or acquire a complete transcript. See id. (finding that
the petitioner had failed to demonstrate on direct appeal how he was prejudiced by the trial court’s
denial of the transcript). The record does reflect that trial counsel conferred with the petitioner,
obtained discovery from the state, interviewed numerous witnesses, filed pre-trial motions for
suppression of the petitioner’s statement, sequestered voir dire, and a change of venue, filed motions
in limine, and made special jury instruction requests. From all of this, it is our conclusion that the
evidence does not preponderate against the post-conviction court’s determination that the petitioner
has failed to prove by clear and convincing evidence that trial counsel’s preparation was inadequate.

Next, the petitioner asserts that trial counsel was ineffective for failing to oppose the
severance of co-defendant Rhodes. The grant or denial of a motion for severance of defendants is
a matter that rests within the sound discretion of the trial court. State v. Burton, 751 S.W.2d 440,
447 (Tenn. Crim. App. 1988). Rule 14 of the Tennessee Rules of Criminal Procedure governs
severance of defendants and provides in pertinent part as follows:

(2) The court, on motion of the State or on motion of the defendant other
than under subdivision (c)(1), shall grant a severance of defendants if:
(i) before trial, it is deemed necessary to protect a defendant’s right
to a speedy trial or it is deemed appropriate to promote a fair determination
of the guilt or innocence of one or more defendants; or
(ii) during trial, with consent of the defendant to be severed, it is
deemed necessary to achieve a fair determination of the guilt or innocence of
one or more defendants.

Tenn. R. Crim. P. 14(c)(2).

Initially, the petitioner fails to specify the grounds on which trial counsel should have
opposed the state’s severance motion or to demonstrate that trial counsel would have been successful
had he done so. Absent from the record is the transcript of the trial court’s hearing on the motion
to sever. It is, of course, the duty of the appellant to prepare a complete and accurate record on
appeal. Tenn. R. App. P. 24(b). The failure to prepare an adequate record for review of an issue
results in a waiver of that issue. Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997).

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Here, trial counsel testified that in hindsight it might have been beneficial for the petitioner and co-
defendant Rhodes to have been tried jointly. On claims of ineffective assistance of counsel,
however, the defendant is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Under
these circumstances, this court cannot conclude that trial counsel was ineffective for failing to
oppose the state’s severance motion.

The petitioner next contends that trial counsel was ineffective for failing to introduce
evidence that a nine millimeter handgun had been recovered from behind the residence of co-
defendant Rhodes. He argues that the evidence would have been relevant and probative because a
handwritten sheriff’s department report indicates that the victim Summar was shot with a nine
millimeter bullet. The report, which is entitled “Victim Assessment Sheet Mortuary/Autopsy,”
includes Summar’s identification information and descriptions of both the wounds to and items
recovered from the body. The record is clear, however, that Tennessee Bureau of Investigation
testing established that the bullet was a .38 caliber. The medical examiner also testified at trial that
the bullet that killed Summar was “either a .38 or .357.” See Larry S. Brumit, No. M1999-00154-
CCA-R3-CD, slip op. at 9. Thus, introduction of the report would have been of little benefit to the
defense.

Next the petitioner argues that trial counsel was ineffective for failing to seek suppression
of his conversation with Rhodes in the police cruiser. Initially, the record reflects that trial counsel
did, in fact, file a motion to suppress. There is, however, no transcript of any hearing and no
indication of a ruling. No testimony regarding the motion was presented at the hearing. Again, it
is the duty of the appellant to prepare a complete and accurate record for our review and failure to
do so will generally result in waiver. Tenn. R. App. P. 24(b); Thompson, 958 S.W.2d at 172. It is
our conclusion that trial counsel challenged the admissibility of the cruiser conversation, albeit
unsuccessfully, and that the claim by the petitioner is without merit.

In connection, the petitioner also complains that trial counsel should have questioned certain
inconsistencies between the first and second versions of the cruiser conversation transcript as
produced by the state. There appear to be two differences between the first transcript, typed by a
sheriff’s department employee and the second, prepared by a certified court reporter. The first
transcript provides, in pertinent part, as follows:

[RHODES]: We’re both history if we don’t get that [first degree murder
charge] off us. We are a memory.
[PETITIONER]: What was originally agreed on was to have me.
[RHODES]: Well I know but that, . . . .
* * *
[RHODES]: And the truth Larry if you hadn’t said anything to Bubba you
would have walked.
[PETITIONER]: . . . . Yeah it’s just . . .

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The second transcript indicates the same conversation snippets as follows:

[RHODES]: We’re both history if we don’t get that [first degree
murder charge] off of us. We are a memory.
[PETITIONER]: What was originally agreed on was if they had me that
you would take the responsibility –
[RHODES]: Well, I know that . . . .
* * *
[PETITIONER]: – and the truth was if you hadn’t have said anything to
Bubba, we would have walked. Yeah, it’s just –

Initially, the transcript of the petitioner’s trial is not included in the record and does not
appear to have been introduced in the post-conviction court. In consequence, this court cannot
ascertain the method by which the transcripts were used at trial or what testimony may have been
elicited about them. With the burden of proving his clams by clear and convincing evidence, the
petitioner should have assured inclusion of the trial transcript. See Tenn. Code Ann. § 40-30-210(f).
Additionally, the actual tape recording of the conversation, rather than the transcripts, should have
been entered into evidence for the jury’s consideration. In our view, the discrepancies complained
of by the petitioner are minor in the context of the entire transcript and the changes in the second
version could be read to benefit the petitioner. Under these circumstances, this court cannot
conclude that the petitioner has satisfied either prong of the Strickland test.

Finally, the petitioner asserts that trial counsel was ineffective for failing to object to certain
testimony from Doug Bicknell, the victim Summars’s second cousin. Without the trial transcript in
the record, Bicknell’s testimony is not before this court. In the opinion on the petitioner’s direct
appeal, this court summarized the relevant portion of Bicknell’s testimony as follows:

After the [petitioner] began to work for Brentwood Log Homes, Bicknell, the
[petitioner], and other employees were sent to Ohio to build a log house, where they
stayed at the same motel. Bicknell recalled an incident involving the [petitioner] that
occurred while they were in Ohio: He and the other Brentwood Log Homes
employees were sitting in the motel room drinking one day, and the [petitioner] and
another employee ‘were talking about [the victim Summar] being a snitch.” Bicknell
recalled that when he defended his cousin, the [petitioner] “said that he would see
that the little punk would get what was coming to him.” Bicknell reported that he
“told [the petitioner] if he messed with my cousin, me and him would have dealings,”
and the [petitioner] “said he was getting too old for all that fighting.” Bicknell
testified that the [petitioner] then “reached in his bag and pulled his gun and said he
let his gun do his fighting for him.”

Larry S. Brumit, No. M1999-00154-CCA-R3-CD, slip op. at 3. This court rejected the petitioner’s
challenge to the testimony on the ground that it was waived by trial counsel’s failure to make a
contemporaneous objection. See id. at 13.

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 The state contends that the petitioner has “put forth no proof that had such an objection been
made, the trial court would have granted it.” We must agree. The petitioner does not assert the
grounds on which he claims Bicknell’s testimony should have been excluded, arguing only that it
was “prejudicial.” Thus, the petitioner is not entitled to relief on this claim.

Accordingly, the judgment of the post-conviction court is affirmed.

___________________________________
GARY R. WADE, PRESIDING JUDGE

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