Clarence Nesbit v. State of Tennessee

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 10, 2014 Session Heard at McKenzie1

CLARENCE NESBIT v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. P21818 Chris Craft, Judge

No. W2009-02101-SC-R11-PD - Filed November 14, 2014

The issue presented is whether the defendant is entitled to a new trial based on
ineffective assistance of counsel. A Shelby County jury convicted the defendant of first
degree premeditated murder and sentenced him to death. Following unsuccessful appeals,
the defendant filed for post-conviction relief on the grounds of ineffective assistance of
counsel. The post-conviction court granted the defendant a new sentencing hearing, but
denied him a new trial on the murder conviction. A majority of the Court of Criminal
Appeals affirmed, holding that any deficiency in trial counsel’s performance at the guilt
phase did not result in prejudice. We hold that the defendant has not proven by clear and
convincing evidence a reasonable probability that, but for the deficient performance of his
trial counsel, the result would have been different. We affirm the judgment of the Court of
Criminal Appeals and remand the case to the trial court for a new sentencing hearing.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed; Case Remanded to the Trial Court

S HARON G. L EE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.

Marty B. McAfee and Gerald Skahan, Memphis, Tennessee, for the appellant, Clarence
Nesbit.

1
Oral argument was heard on April 10, 2014, at Bethel University in McKenzie, Tennessee, as a part
of the Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor
General; James E. Gaylord, Assistant Attorney General; Amy P. Weirich, District Attorney
General; and John Campbell, Assistant District Attorney General, for the appellee, State of
Tennessee.

OPINION

I.

On the afternoon of May 20, 1993, nineteen-year-old Clarence Nesbit (“the
Defendant”) shot and killed twenty-year-old Miriam Cannon (“the victim”) in her apartment
in Memphis. The Defendant and the victim, who had known each other for about a month,
had a romantic relationship. The Defendant was arrested and charged with first degree
murder. In 1995, a Shelby County jury convicted him of first degree murder and sentenced
him to death. His conviction and sentence were affirmed on appeal. State v. Nesbit, 978
S.W.2d 872, 877 (Tenn. 1998); State v. Nesbit, No. 02C01-9510-CR-00293, 1997 WL
194864, at *21 (Tenn. Crim. App. Apr. 22, 1997).

In 1999, the Defendant timely filed a petition for post-conviction relief. He
subsequently amended and supplemented the petition. The Defendant asserted that his trial
counsel had provided ineffective assistance by failing to adequately investigate, prepare, and
present certain evidence at trial and by failing to timely convey to him a plea offer. Between
May 19, 2003, and December 19, 2006, the post-conviction court conducted evidentiary
hearings. By order entered September 9, 2009, the post-conviction court ruled that the
Defendant was not entitled to post-conviction relief as to the murder conviction, but was
entitled to a new sentencing hearing based on ineffective assistance of counsel. Both parties
appealed; the State dismissed its appeal.

A majority of the Court of Criminal Appeals affirmed the post-conviction court’s
decision. Nesbit v. State, No. W2009-02101-CCA-R3-PD, 2013 WL 1282326, at *63 (Tenn.
Crim. App. Mar. 28, 2013). Judge Joseph M. Tipton dissented, expressing the view that trial
counsel’s deficient investigation and trial preparation were prejudicial and warranted a new
trial. Id. at *64-68 (Tipton, P.J., dissenting). We granted the Defendant’s application for
permission to appeal.

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 II.

A.

The Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122 (2012),
provides that relief “shall be granted when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States,” id. § 40-30-103. A claim of ineffective assistance of
counsel is a mixed question of law and fact. Calvert v. State, 342 S.W.3d 477, 485 (Tenn.
2011) (citing Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); State v. Honeycutt, 54
S.W.3d 762, 766 (Tenn. 2001)). A defendant seeking post-conviction relief has the burden
of proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann.
§ 40-30-110(f); see also Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at
216). The factual findings of a post-conviction court are conclusive on appeal unless the
record preponderates against them. Tenn. R. App. P. 13(d); Mobley v. State, 397 S.W.3d 70,
80 (Tenn. 2013) (citing Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009); Vaughn v.
State, 202 S.W.3d 106, 115 (Tenn. 2006)). However, appellate review of a post-conviction
court’s conclusions of law is de novo with no presumption of correctness. Mobley, 397
S.W.3d at 80; Smith v. State, 357 S.W.3d 322, 336 (Tenn. 2011) (citing Calvert, 342 S.W.3d
at 485)).

Both the United States Constitution and Tennessee Constitution provide for the
assistance of counsel to criminal defendants. U.S. Const. amend. VI; Tenn. Const. art. I,
§ 9. These constitutional provisions guarantee not simply the assistance of counsel, but
rather the reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 934-36 (Tenn. 1975). Counsel’s
representation is constitutionally ineffective when it “so undermine[s] the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must
establish both (1) that counsel’s performance was deficient and (2) that such deficient
performance prejudiced the defense. Id. at 687; Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996). Thus, to prevail on a claim of ineffective assistance of counsel, a defendant must
prove both deficient performance and prejudice, and a court need not address both concepts
if the defendant fails to demonstrate either prong sufficiently. Strickland, 466 U.S. at 687;
Goad, 938 S.W.2d at 370.

Establishing deficient performance requires “showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

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Sixth Amendment.” Strickland, 466 U.S. at 687; Mobley, 397 S.W.3d at 80. “Effective”
counsel means the provision of advice or services is “within the range of competence
demanded of attorneys in criminal cases.” Baxter, 523 S.W.2d at 936 (quoting McMann v.
Richardson, 397 U.S. 759 (1970); see also Strickland, 466 U.S. at 687 (“[T]he proper
standard for attorney performance is that of reasonably effective assistance.”). The
reasonableness standard is an objective one, measured by the professional norms prevailing
at the time of the representation. Strickland, 466 U.S. at 678-88; Dean v. State, 59 S.W.3d
663, 667 (Tenn. 2001).

Proof of prejudice sufficient to establish constitutionally ineffective counsel is met by
showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Goad, 938
S.W.2d at 370. When examining a conviction that occurred as a result of a trial, “the
question is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. A
reasonable probability of being found guilty of a lesser charge also satisfies the prejudice
prong of Strickland. Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008).

The Strickland standard for determining whether a defendant received effective
assistance of counsel applies during plea negotiations as well as during trial. Missouri v.
Frye, 132 S. Ct. 1399, 1407-09 (2012); see also Hill v. Lockhart, 474 U.S. 52, 58-59
(1985). Accordingly, during the plea bargain process, as at all critical stages of the criminal
process, counsel has the responsibility to render effective assistance as required by the Sixth
Amendment. Frye, 132 S. Ct. at 1407-08; Harris v. State, 875 S.W.2d 662, 663, 665 (Tenn.
1994). “[A]s a general rule, defense counsel has the duty to communicate formal offers from
the prosecution to accept a plea on terms and conditions that may be favorable to the
accused.” Frye, 132 S. Ct. at 1408. A fair trial does not correct trial counsel’s deficient
performance in failing to convey a plea offer because of “the reality that criminal justice
today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 132 S.
Ct. 1376, 1381 (2012); accord Bush v. State, 428 S.W.3d , 20 (Tenn. 2014) (citing Frye, 132
S. Ct. at 1407; Wlodarz v. State, 361 S.W.3d 490, 503-04 (Tenn. 2012)).

In reviewing trial counsel’s performance, appellate courts must not use “20-20
hindsight.” Mobley, 397 S.W.3d at 80 (citing Felts v. State, 354 S.W.3d 266, 277 (Tenn.
2011)). Instead, “[a] fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689; accord Goad, 938 S.W.2d at 369. “[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the

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exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690; see also State
v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999) (“[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.”). “[T]he burden to ‘show that counsel’s performance
was deficient’ rests squarely on the defendant.” Burt v. Titlow, 134 S. Ct. 10, 17 (2013)
(quoting Strickland, 466 U.S. at 687).

With these principles in mind, we have carefully reviewed the evidence from the
Defendant’s post-conviction hearing. We find that the Defendant failed to prove by clear and
convincing evidence a reasonable probability that, but for his trial counsel’s deficiencies, the
outcome of the trial would have been different. Thus, the Defendant is not entitled to relief.

B.

According to the proof at the Defendant’s murder trial, the Defendant had known the
victim for about a month before her death.2 She lived with her five young children at the
Pershing Park Apartments in Memphis. Around 1:00 p.m. on May 20, 1993, the victim’s
sister, Constance Cannon, and a friend went to the victim’s apartment to take the victim to
the grocery store. Ms. Cannon knocked on the door, but no one answered. As they were
leaving, Ms. Cannon’s friend noticed one of the victim’s children looking out of the
window. Ms. Cannon returned to the apartment, and the victim opened the door to speak
with her but did not invite Ms. Cannon to come in, which was unusual. The victim asked
Ms. Cannon to come back at 3:00 p.m. Ms. Cannon saw that the victim was barefoot, had
a horizontal mark on her neck that Ms. Cannon had not seen the day before, and was fully
clothed. Ms. Cannon also noticed the Defendant, whom she had seen once before and knew
by the nickname “Red,” sitting on the living room couch with one of the victim’s
children. Ms. Cannon left and later telephoned the victim around 3:00 p.m. to confirm their
plans. When Ms. Cannon received no answer, she assumed the victim had made other
arrangements, and she did not return to the victim’s apartment.

James Shaw, a boyfriend of the Defendant’s aunt, Cynthia Nesbit, lived in the victim’s
apartment complex. On the afternoon of the shooting, as Mr. Shaw was sitting outside his
apartment, he heard a gunshot in a nearby apartment. Shortly afterward, he saw the
Defendant leave the area from which the gunshot had sounded, casually walk to his car, and
drive away. Mr. Shaw described the Defendant’s behavior as normal, except for the “funny
look” he observed in the Defendant’s eyes. Shortly after the Defendant left, Mr. Shaw saw
the victim’s children crying in the parking lot. When he asked about their mother, one of the
children said she was dead.

2
These facts are taken from this Court’s opinion in State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998).

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 Tracey Davis, the victim’s close friend and neighbor, testified that on the day of the
murder, she heard the victim’s children crying in their apartment and later saw three of them
walking toward her apartment. The children told her that their mother was asleep and they
could not wake her. Ms. Davis went to the victim’s apartment, found her dead body in the
kitchen, and called the police.

When the police arrived, the victim’s children explained that “Red” had shot their
mother. The police found the victim lying face up, fully clothed, with sandals on her
feet. Next to her body, the police found a cigarette butt, a match, a book of matches, and a
hair barrette. They also found four bullet cartridges on top of the refrigerator and a lead
bullet fragment on the kitchen floor at the door to the living room. A ricochet mark made
by a bullet was found approximately four feet eight inches above the floor on the wall behind
the stove. A hot curling iron lay on the kitchen counter.

After the shooting, the Defendant drove to the Royal Oaks Motel where his uncle,
Ashley Nesbit, was staying. In the bathroom of his uncle’s motel room, the Defendant hid
the .357 Magnum revolver used in the shooting. Later that day, he returned to the Pershing
Park Apartments and talked to Mr. Shaw. The Defendant first told Mr. Shaw that the victim
had shot herself while playing Russian roulette, but later told Mr. Shaw that he had
accidentally shot the victim. The Defendant also told Mr. Shaw that he had hidden the gun
in his uncle’s motel room. As Mr. Shaw and the Defendant were preparing to go retrieve the
gun, the police stopped their vehicle and apprehended the Defendant. With police
permission, Mr. Shaw went to the motel, retrieved the gun, and surrendered it to the
police. When questioned by the police, the Defendant explained that he had spent the night
before the murder at the victim’s apartment. He first said that the victim had been “playing”
with the gun when it discharged and killed her, but later said he accidentally shot her. He
claimed that he pulled the trigger believing the gun to be unloaded. When asked at trial how
he came to have the gun, he testified that he had been visiting his uncle at his motel room
when police officers arrived the night before the shooting . The Defendant testified that he
removed the gun from his uncle’s room and placed it under the seat of his car.

The Defendant testified that he arrived at the victim’s apartment at approximately 3:00
a.m., carried the gun inside, removed the bullets, and placed the gun and the bullets on top
of the refrigerator. He said that he slept on the victim’s living room couch and awoke around
10:00 a.m. The Defendant further stated that he and the victim talked until her sister arrived
at 1:00 p.m., and he heard the victim tell her sister to come back at 3:00 p.m. He was
preparing to leave in anticipation of the victim’s sister’s arrival when the shooting
occurred. He testified that he retrieved the gun from the top of the refrigerator and was
holding the gun while looking out the kitchen window. As he turned away from the window,
he held the gun in both hands and pointed it sideways to his left. He stated that, as he

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“fumbled” with the gun, it accidentally discharged and a bullet struck the victim. He left the
apartment without calling for emergency assistance and knowing that he was leaving the
victim’s young children in an apartment with their mother’s dead body. He denied inflicting
burns or other injuries to the victim.

Dr. O.C. Smith, the assistant medical examiner for Shelby County who performed an
autopsy of the victim, testified that the victim died from a single gunshot wound to her
head. The gun that inflicted the fatal wound had been held approximately twelve to thirty-six
inches from the victim’s head when it was fired. The bullet entered the victim’s body
through her left ear— about five feet above the floor—traveled in a downward trajectory
through the victim’s skull and brain, and exited behind her right ear at a height of four feet
eleven inches above the floor. The gunshot wound would have instantly incapacitated the
victim. Dr. Smith found no defensive wounds on the victim’s body and no signs of sexual
assault or activity.

Dr. Smith observed burns on the victim’s chin, neck, abdomen, and forearm. The
burns had been inflicted at various times, from six hours to mere minutes before the victim
had died. The burns ranged from severe first-degree to second-degree burns, comparable to
severe sunburns or scald burns caused by touching something hot. One of the burns, on the
left side of the victim’s neck, was in the shape of the numeral one (“1”). Another triangular
burn under the victim’s chin appeared to have been caused by an open flame. Other marks,
which appeared thermal in origin, could not be precisely identified. According to Dr. Smith,
the victim would have suffered moderate pain from the individual burns. The victim also had
bruising and scraping on the soles of her feet. Dr. Smith testified that the bruising and
scraping were caused by someone striking the victim’s feet with a long, hard, thin object,
such as a rod or a coat hanger, and were consistent with a relatively rare type of torture called
“falanga.” While none of these injuries was severe enough to require hospitalization,
according to Dr. Smith, the amount of force necessary to cause such bruising would inflict
great pain. In his opinion, the victim would have suffered a great deal of distress because the
injuries had been inflicted over an extended period of time. There were no marks found on
the victim’s body indicating that she had been restrained, but Dr. Smith noted that soft
ligatures would not have left marks and the victim could have been restrained by mental
intimidation.

At the post-conviction hearing, the Defendant called forty witnesses to testify,
including a series of lawyers who represented him during the trial proceedings. Lee Coffee
and Carolyn Watkins of the Shelby County Public Defender’s Office first represented the
Defendant. Mr. Coffee met with the Defendant and filed pre-trial motions on his behalf. He
observed no mental issues with the Defendant. Mr. Coffee’s representation ended within
weeks of his appointment to the case, when he accepted a position with the Shelby County

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District Attorney’s Office. Ms. Watkins had little recollection of the case, as she had left the
Public Defender’s Office three months before the Defendant’s trial. Ronald Johnson of the
Shelby County Public Defender’s Capital Defense Team took Mr. Coffee’s place as lead
counsel. Betty Thomas-Moore replaced Ms. Watkins. Ms. Thomas-Moore recalled spending
some time on the case but did not recall many of the specifics.

Mr. Johnson testified that, as a member of the Shelby County Public Defender’s
Office, he had tried seven or eight capital cases and at least fifteen murder cases prior to
1993. To prepare for the Defendant’s trial, he instructed an investigator in the office to
contact and interview witnesses. Mr. Johnson visited the murder scene and looked for
witnesses to interview, including Ms. Davis. He interviewed Dr. Smith before the trial. Mr.
Johnson did not interview Ms. Cannon before the trial, listen to her testimony from the
preliminary hearing, or interview the friend who accompanied her to the victim’s apartment
hours before the murder. He did not interview all of the police officers who testified at trial
but did review some of their reports. Mr. Johnson said he had ample time during the trial to
talk to witnesses, and he did not find it necessary to hire any expert witnesses. It was his
opinion that no expert witness was needed to counter Dr. Smith’s testimony. He testified
that, in his opinion, he was prepared for trial and had interviewed all the necessary witnesses.

As to the Defendant’s mental issues, Mr. Johnson identified a medical report that his
office received before the trial, which indicated that the Defendant had suffered a seizure
episode approximately one month prior to the shooting. Ms. Watkins testified that she did
not recall knowing about the Defendant’s seizure. Both Mr. Johnson and Ms. Watkins
agreed that, in hindsight, this fact should have triggered a request for funding for a
psychological evaluation. Mr. Johnson testified that he did not seek funding for a mental
evaluation of the Defendant because he saw no indication that the Defendant suffered from
a mental disease or defect.

Mr. Johnson also testified about an issue involving allegations of the Defendant’s
satanic worship, which arose during the trial when Mr. Johnson cross-examined Mr. Shaw
about the Defendant’s reputation in the community. Mr. Shaw responded that the Defendant
was respectful of his elders and did not bother anyone. The prosecutor, then on redirect
examination, asked Mr. Shaw whether he had heard that the Defendant was involved in
satanic worship, and Mr. Shaw answered that he had indirectly heard that information. After
this exchange, the trial court instructed the jurors that they could consider the allegations of
satanic worship only for the purpose of assessing Mr. Shaw’s credibility as a character
witness, but not as substantive evidence of satanic worship on the part of the Defendant. Mr.
Johnson testified that he had received impeachment information concerning the Defendant’s
prior criminal history and allegations of satanic worship before trial, but did not file any
motions in limine to suppress or limit the introduction of such information. He believed the

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evidence was not relevant or admissible, and he did not investigate whether the Defendant
was involved in satanic worship other than by asking the Defendant. Mr. Johnson conceded
that he opened the door to questions of Mr. Shaw’s knowledge regarding the rumors of
satanic worship by asking Mr. Shaw about the Defendant’s good character. No other witness
testified about satanic activity, nor was any substantive proof introduced about it.

As to the plea offer made by the State, Mr. Johnson testified that the State conveyed
to him a twenty-five-year plea offer on November 23, 1993. The offer was good until the
next court date on January 6, 1994. Mr. Johnson waited until January 5, 1994—the day
before a decision was due—to discuss the plea offer with the Defendant. The delay was due
to the interceding holidays and Mr. Johnson’s work on another murder trial. On January 5,
1994, he discussed the offer with the Defendant for approximately fifteen minutes. The
Defendant rejected the offer; he was adamant the shooting was accidental, and he did not
want to plead guilty. Mr. Johnson also discussed the offer with the Defendant the next day,
but the State revoked the offer when the Defendant failed to accept it. Mr. Johnson agreed
that relaying the plea offer to the Defendant the day before a decision was due might not have
given the Defendant sufficient time to discuss the offer with family members, but Mr.
Johnson believed it would not have made any difference. He testified that it was only after
the State filed its notice of intent to seek the death penalty that the Defendant’s opinion of
the plea offer began to change. At the Defendant’s family’s request, Mr. Johnson met with
the prosecutor and appealed to him to revive the offer. At that point, however, the best offer
available was for life imprisonment, and the Defendant refused to accept it.

Christine Glenn testified that as a capital case investigator for the Shelby County
Public Defender’s Office, she conducted the investigation for the guilt phase of the trial. She
stated that during the course of trial preparation, there were team meetings where information
was shared. Ms. Glenn developed witness sources from the Defendant, the witnesses listed
on the indictment, and other witness leads. Her notes did not reflect that the Defendant gave
her names of additional witnesses. Her records indicated that she interviewed Ms. Davis,
Tyron Cole, Joyce Hickman (the manager of the apartment complex where the shooting
occurred), Mr. Shaw, and Jimmy Thomas. There was no record that she interviewed any
other relatives, friends, or neighbors of the victim or the Defendant.

Elizabeth Benson, a mitigation expert for the Shelby County Public Defender’s Office,
testified that during the course of her investigation into the Defendant’s life, she obtained the
Defendant’s school records, which did not reflect that he was a special education student; she
obtained his work history, but his sole previous employer had gone out of business; and she
obtained his juvenile court records, which reflected only minor offenses. The Defendant had
no prior adult criminal record. Insofar as his medical history, Ms. Benson’s notes reflected
only medical visits for a head laceration as a child, the flu, and a seizure that occurred shortly

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before the murder. Ms. Benson did not recall if she brought the seizure episode to trial
counsel’s attention. Ms. Benson also interviewed the Defendant’s grandmother, Bernice
Stephenson, about the Defendant’s prior hospitalization, but did not discuss the Defendant’s
social or life history with her.

At the post-conviction hearing, the Defendant called several witnesses to testify about
the events on the day of the shooting. Ketoe Brown, who was incarcerated in the Shelby
County Jail for attempted murder at the time of the post-conviction hearing, testified that he
was a childhood friend of the Defendant. He testified that on the day before the shooting,
he was at the victim’s apartment with the Defendant for about fifteen to twenty minutes. He
stated that the victim did not act afraid of the Defendant. Mr. Brown was aware that the
Defendant was dating three women, including the victim, at the time of the shooting, but he
never knew the Defendant to be violent or saw the Defendant be violent with the victim. He
stated that he was not contacted by the Defendant’s trial counsel before the Defendant’s trial.

Quinton Curry testified that he lived in the same apartment complex as the
victim. Mr. Curry explained that on the morning of the shooting, between 8:00 a.m. and 9:00
a.m., he was outside of the apartment complex playing basketball with his nephew, Kareem
Curry. He saw the Defendant and the victim standing in the doorway of her apartment
hugging each other. They appeared to be happy. At some point that morning, the Defendant
showed Mr. Curry a gun and let him fire it in the air. He returned the gun to the Defendant,
and the Defendant and the victim went back into her apartment. Just as he turned his back,
he heard a gunshot. Mr. Curry left the complex. He did not volunteer any information to the
police, nor was he interviewed by the Defendant’s lawyers or the police about his knowledge
of the day of the murder. After Mr. Curry was excused as a witness, the post-conviction
court noted that he appeared to suffer from some type of mental impairment.

Kareem Curry, who was incarcerated in Wisconsin at the time of the post-conviction
hearing, testified that he dated the Defendant’s sister when they were young teenagers. The
Defendant appeared to be normal, not violent with women, and not involved in satanic
ritual. Kareem Curry testified to a different version of the day’s events than his
uncle. Kareem Curry said that on the day of the shooting, he and his uncle were walking to
play basketball at a nearby school when they came across the Defendant and the victim, who
were standing close together. Kareem Curry said his uncle stopped to speak to them, but he
did not testify that the Defendant allowed his uncle to fire a gun that morning nor that he
heard a gunshot. Although he lived in the victim’s complex for one or two years after the
shooting, no one interviewed him about the events on the day of the shooting.

James Shaw testified that, on the morning of the day of the shooting, he heard a
gunshot and observed Quinton Curry handing a gun back to the Defendant. The Defendant

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then walked to the victim’s apartment. Later that day, Mr. Shaw heard another gunshot and
observed the Defendant leaving the victim’s apartment. The Defendant looked at him with
an expression “like he had messed up.” The Defendant later returned and told Mr. Shaw he
had accidentally shot the victim, although he thought the gun was unloaded at the time. Mr.
Shaw stated that neither the Defendant’s attorneys nor any investigator for the Defendant
spoke with him before the trial.

Cynthia Nesbit, the Defendant’s aunt, lived with Mr. Shaw at the time of the shooting
and could see the victim’s apartment from her apartment door. She stated that shortly after
the shooting occurred, she saw the Defendant in the parking lot of her apartment
complex. The Defendant told her that he accidentally shot the victim, and he appeared
nervous, upset, and scared. Ms. Nesbit testified that she knew the victim to wear shoes that
were so short her heels would hang off the back of the shoe. Ms. Nesbit also noted that she
had seen burn marks on the victim’s neck before the shooting. In fact, the two women had
discussed how, when curling their hair with a curling iron, their arms often became so tired
that by the time they got to the back of their head, the curling iron would slip and burn them.

Tracey Davis stated that she lived in the Pershing Park Apartments, next door to Ms.
Nesbit and Mr. Shaw. She found the victim’s body the day of the shooting. Ms. Davis
testified that she was aware the victim and the Defendant were seeing each other, that the
victim liked him, and that the victim had never given her any indication that she was afraid
of the Defendant. Earlier in the day of the shooting, Ms. Davis saw the Defendant and the
victim “hugged up” together. While she heard children crying in the apartment that day as
she was doing her laundry, she never heard the adults crying or yelling. Ms. Davis also
testified that she had noticed a burn on the victim’s ear from the curling iron and knew the
victim often burned herself with the curling iron.

Patrick Nesbit, the Defendant’s uncle, testified that when he saw the Defendant after
the shooting, he appeared lost and confused. He testified that he never knew the Defendant
to be violent or to carry a gun.

Fred Nesbit, another of the Defendant’s uncles, testified he went to visit his brother,
Ashley Nesbit, at the Royal Oaks Motel on the day before the shooting. Ashley Nesbit
appeared to be under the influence of drugs and was in possession of a .38 caliber
pistol. Fred Nesbit was concerned for his brother and asked the Defendant to care for
him. Fred Nesbit stated he found out the next day that the Defendant had been arrested for
the victim’s murder. Although he knew him to have quite a few relationships with women,
Fred Nesbit never knew the Defendant to be violent or abusive. Fred Nesbit further stated
that before the murder trial, he had not been contacted by anyone on the Defendant’s behalf.

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 The Defendant also called several expert witnesses during the post-conviction
hearing. Rachael Geiser, a fact investigator for Inquisitor, Inc., testified as an expert in the
field of death penalty investigation regarding what should occur during preparation for the
guilt phase of a capital case. She explained that an investigation should not be limited to
information relayed by a defendant and stated that, in addition to interviewing a defendant
and his/her family, trial counsel or investigators should visit the crime scene, canvas the
neighborhood, and speak with any witnesses that were present at the crime
scene. Investigators should also perform a criminal history check on the victim. Ten years
after the murder, Ms. Geiser was able to locate multiple witnesses who claimed to have seen
the Defendant and the victim hugging each other near the time of the shooting, who knew
the victim never mentioned being in fear of the Defendant, who had observed that the victim
was in the habit of wearing slip-on “mule” shoes that were too small for her feet, and who
knew that she often burned herself with her curling iron. This information was relevant to
support the defense theory of negligent, reckless, or accidental shooting. Ms. Geiser testified
that the investigation leading up to the Defendant’s trial did not meet the minimum standards
of competent representation.

Glori Shettles, a capital case mitigation specialist with Inquisitor, Inc., testified that
she was able to find numerous witnesses to counter the State’s inferences that the Defendant
was involved in satanic worship. Oscar Jones, Joan Jahi, Alfred Campbell, Constance
Branch, Ernestine Branch, Ophelia Jones, Velma Cowens, Louise Cowens, and Ketoe Brown
all testified at the post-conviction hearing and could have refuted the State’s allegation that
the Defendant was involved in satanic worship. They variously testified that the Defendant
was raised in a Christian church, seemed to be a well-mannered young man, was not known
to be affiliated with any gang, and did not have a reputation for violence. Neither trial
counsel nor defense investigators contacted any of these witnesses before the murder trial.

Dr. Pamela Auble, a neuropsychologist, testified that she examined the Defendant in
preparation for the post-conviction hearing. Her testing indicated that the Defendant had an
I.Q. of 74 and was very impaired in his mental flexibility, i.e., his ability to take in
information, sensitize it, and change his behavior accordingly. As a practical matter, this
inability to adapt meant that the Defendant was prone to making the same bad decisions
repeatedly. These mental deficits would have contributed to his actions after the shooting
if, indeed, the shooting was accidental. She stated, for example, that leaving the scene was
consistent with him not knowing what to do. Dr. Auble expressed that it should have been
clear to anyone working with the Defendant that something was “not quite right.” His
intelligence deficit would be apparent, but his adaptation deficit would not necessarily have
been obvious. Dr. Auble also testified that there was no indication that the Defendant was
involved in satanic worship at the time of the shooting.

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 Forensic pathologist Dr. Richard Hudson was retained by post-conviction counsel to
review the forensic evidence. He testified that after analyzing the evidence, he agreed for
the most part with the opinions expressed by Dr. Smith at trial. He did not agree, however,
that the evidence necessarily supported a finding of torture. Most of the burns were on the
victim’s neck and the side of her head, although there were also burns on her arm and her
stomach. He stated that something hot, such as a curling iron, that touched the skin very
quickly could have caused the burns. He agreed an open flame could have potentially caused
a burn under the victim’s chin, which had sooting around it, but stated that soot or carbon
from a substance already smoldering on a curling iron could have also deposited the
soot. Based on the lack of tissue reaction, Dr. Hudson estimated that some of the burns
occurred within twelve to twenty-four hours of the victim’s death. As for the marks on the
bottom of the victim’s feet, although Dr. Hudson conceded that a metal rod striking the
bottom of the foot could have left such bruises, he also stated that it was possible they were
caused by wearing shoes that were too small. Further, Dr. Hudson concluded that falanga
was a rare and sophisticated form of torture, “highly unlikely” to be known by a
nineteen-year-old inner city youth with a low I.Q. and limited education. Dr. Hudson also
noted that there was no evidence that the victim was restrained in any way.

William Massey, a Memphis-based criminal defense attorney, testified as an expert
in the field of death penalty litigation. He stated that under American Bar Association
(“ABA”) standards, defense counsel in capital cases are held to a higher standard than
typically expected of a criminal defense attorney. He stated that the first task in preparing
for a capital case is to assemble a team consisting of lead trial counsel, co-counsel, a fact
investigator to investigate guilt/innocence issues, and a mitigation investigator, whose work
would be crucial if a defendant were to be found guilty. Typically, he would also try to
include a forensic psychologist as part of that team, although Mr. Massey conceded that
appointed counsel seeking funds for an expert witness would be required to show a
particularized need for such an expert. Mr. Massey stated that a capital defense team would
investigate the defendant and witnesses in order to develop evidence from every possible
source that would support a theory of defense. Mr. Massey highlighted the witness testimony
from the post-conviction hearing that indicated the Defendant and the victim were acting
affectionately toward one another on the morning of the shooting. He stated that such
evidence tended to rebut the State’s theory of premeditation and could have supported the
defense theory that the shooting was a mistake or an accident. Since post-conviction counsel
were able to find such witnesses years after the shooting, Mr. Massey stated that trial
counsel’s investigation in this regard was deficient. He believed that testimony from these
witnesses could have made a difference in the outcome of the murder trial.

As to the mental issues, Mr. Massey testified that trial counsel were deficient in failing
to seek the services of a forensic psychologist to evaluate the Defendant’s psychological

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state. Mr. Massey believed that the jury should have been permitted to consider the
Defendant’s low I.Q. in determining the Defendant’s intent, as it would have supported the
defense theory that, at best, the Defendant’s behavior was reckless or negligent, or that, at
worst, he lacked premeditation. Mr. Massey acknowledged, however, that the Defendant’s
low I.Q. was less compelling than other evidence omitted from the defense presentation. He
also agreed that the ABA Guidelines did not require capital defense counsel to retain the
services of a forensic psychologist or to investigate a defendant’s I.Q. Nevertheless, he
stated that doing so was part of the basic independent investigation required for an effective
criminal defense in capital cases. Mr. Massey was critical of trial counsel’s handling of the
issues relating to the Defendant’s involvement with satanic worship, the testimony that the
victim had been tortured, and the presence of an unlit cigarette and other items found near
her body. According to Mr. Massey, trial counsel’s failure to adequately investigate, prepare,
and present proof to rebut or explain these matters constituted deficient representation and
was prejudicial to the Defendant.

C.

The Defendant argues that trial counsel did not adequately investigate, prepare, and
present witnesses with knowledge of the events prior to the shooting, the Defendant’s mental
health, and the facts that could rebut allegations of satanic worship and torture. The
Defendant asserts that these witnesses were relevant to the issue of premeditation and, had
they been properly presented, the jury would have returned a guilty verdict of a lesser offense
than first degree murder.

Trial counsel has a duty to investigate and prepare a case, and this duty derives from
counsel’s basic function “to make the adversarial testing process work in the particular
case.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quoting Strickland, 466 U.S. at
690). Counsel’s duty is “to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. “The
reasonableness of counsel’s actions may be determined or substantially influenced by the
defendant’s own statements or actions[,]” and “what investigation decisions are reasonable
depends critically on such information.” Id. “[W]hen the facts that support a certain
potential line of defense are generally known to counsel because of what the defendant has
said, the need for further investigation may be considerably diminished or eliminated
altogether.” Id. Counsel is not required to interview every conceivable witness. See, e.g.,
Davis v. State, 912 S.W.2d 689, 700-01 (Tenn. 1995) (finding the failure to interview a
number of potential witnesses not to constitute deficient performance, as trial counsel had
nonetheless adequately investigated the case); see also Hendricks v. Calderon, 70 F.3d 1032,
1040 (9th Cir. 1995). The fact that a particular strategy or tactical decision failed does not
by itself establish deficiency. Goad, 938 S.W.2d at 369. Furthermore,

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 [n]o particular set of detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel. Rather,
courts must judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct, and
[j]udicial scrutiny of counsel’s performance must be highly deferential.

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (alternations in original) (citations omitted)
(quoting Strickland, 466 U.S. at 688-89) (internal quotation marks omitted).

At a post-conviction hearing, when a defendant presents a witness whom he claims
should have testified at trial, the post-conviction court must determine whether such
testimony would have been admissible and was material to the defense. Pylant, 263 S.W.3d
at 869.

If the post-conviction court determines that the proffered testimony would not
have been admissible at trial or that, even if admissible, it would not have
materially aided the [defendant’s] defense at trial, the post-conviction court is
justified in finding that trial counsel was not deficient in failing to call that
witness at trial.

Id. If the proffered testimony is both admissible and material, the post-conviction court must
assess the witness’s credibility. Id. at 869-70.

From a review of the record, it appears that the Defendant’s trial counsel spent a
minimal amount of time preparing for trial. They failed to interview a number of witnesses
before trial, and instead chose to talk to them at breaks during the trial. Their performance
was lackluster at best. The Defendant, however, was required to prove by clear and
convincing evidence both deficient performance and prejudice. Most of the proof at the
post-conviction hearing was devoted to proving the deficiencies of Defendant’s trial counsel.

Even assuming that trial counsel were deficient, the Defendant did not prove by clear
and convincing evidence that there was a reasonable probability that, but for any of these
failures, the result would have been different. First, as to the fact witnesses that the
Defendant’s trial counsel failed to interview or call at trial, there is no proof that their
testimony would have made a difference in the verdict reached by the jury. The
post-conviction court found that their testimony was either not relevant, not credible, or
inconsistent with the witnesses who had testified at trial. For example, at the post-conviction
hearing, Quinton Curry testified that he saw the Defendant and the victim hugging each other
in the doorway of the victim’s apartment between 8:00 a.m. and 9:00 a.m. on the day of the
murder. He said that the Defendant gave him his gun to shoot that morning and claimed to

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hear a gunshot from the apartment just a few minutes later. Kareem Curry, however, testified
to a different version of the morning’s events. He stated that he and his uncle were on their
way to play basketball at a nearby school and did not mention either that the Defendant gave
his uncle a gun to fire or that he heard a gunshot that morning. The testimony of the Currys
was also inconsistent with the Defendant’s testimony at trial. The Defendant testified that
he arrived at the victim’s apartment around 3:00 a.m., slept on her couch, and did not wake
up until 10:00 a.m. He claimed that before going to sleep, he removed all the bullets from
the gun, and he never mentioned shooting the gun the next morning with Quinton
Curry. Similarly, the post-conviction court found the testimony of both Ms. Nesbit and Mr.
Shaw about events that occurred after the shooting to be “extremely biased,” the result of a
“selective memory,” and untrue. Moreover, the court found that their testimony added
nothing new to the evidence presented at the guilt phase of the murder trial. We defer to a
post-conviction court’s findings as to the credibility of witnesses or the weight of their
testimony and will only substitute our findings of credibility and weight when the evidence
preponderates against the trial court’s findings. Wiley v. State, 183 S.W.3d 317, 325 (Tenn.
2006). In this case, the evidence does not preponderate against the finding by the
post-conviction court that the witnesses who testified regarding the Defendant’s conduct
before and after the murder were not credible.

The Defendant claimed that he accidentally shot and killed the victim. The jury heard
the Defendant’s conflicting stories about how the shooting occurred. He told Mr. Shaw that
the victim shot herself while playing Russian roulette. Then he told the police that the victim
had been shot while she was playing with the gun. He later told the police that he had
accidentally shot her. At trial, he testified that as he was holding the gun in both hands, he
pointed it sideways to his left, and then he “fumbled it” and accidentally shot the victim. All
of these versions of the shooting were in conflict with the assistant medical examiner’s
testimony that the bullet entered the victim’s body through her left ear about five feet above
the floor, traveled downward through her skull and brain, and exited behind her right
ear. The Defendant also failed to explain the multiple burn marks on the victim’s body or
the markings on her feet. The jury simply did not believe the Defendant’s version of the
shooting. The jury sees and hears witness testimony and is in the best position to weigh
evidence and make credibility determinations. Bolin v. State, 405 S.W.2d 768, 771 (Tenn.
1966). Accordingly, we defer to the jury’s credibility determinations in this case and find
that the Defendant is not entitled to relief for any failure on the part of trial counsel to
adequately investigate, prepare, and present witnesses with knowledge of the events prior to
the shooting, as it has not been shown that their testimony would have altered the verdict.

The Defendant next asserts that trial counsel were ineffective for failing to investigate
and develop proof of his mental deficits. Further, he contends that, based on the testimony
of neuropsychologist Dr. Auble, his deficiencies should have been readily apparent to trial

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counsel. As a result, the Defendant argues that this proof would have supported his defense
of mistake of fact or accident or possibly led to conviction for a lesser offense. The concept
of diminished capacity is “a rule of evidence which allows the introduction of evidence to
negate the existence of specific intent when a defendant is charged with a specific intent
crime.” State v. Phipps, 883 S.W.2d 138, 143 (Tenn. Crim. App. 1994) (citing Gayle Cohen,
Johnson v. State—Diminished Capacity Rejected As A Criminal Defense, 42 Md. L. Rev.
522, 524 (1983)). Although evidence of a defendant’s diminished capacity does not
constitute a defense capable of excusing or defeating a criminal charge, evidence of a
defendant’s mental condition may be relevant and admissible to rebut the mens rea element
of an offense. Id. Such evidence “is an attempt to prove that the defendant, incapable of the
requisite intent of the crime charged, is innocent of that crime but may well be guilty of a
lesser one.” Id. (citing United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir.
1990)). Testimony offered for this purpose “must demonstrate that the defendant’s inability
to form the requisite culpable mental state was the product of a mental disease or defect, not
just a particular emotional state or mental condition.” State v. Hall, 958 S.W.2d 679, 690
(Tenn. 1997).

Dr. Auble’s testimony failed to qualify as evidence of the Defendant’s diminished
capacity. She did not testify that the Defendant suffered from a mental disease or defect that
made him incapable of forming the requisite intent for first degree murder. The
post-conviction court noted that, because Dr. Auble did not testify as to the formation of
intent, she would not have been allowed to testify during the guilt phase of the trial. Further,
the Defendant did not present any other evidence suggesting that his capacity for forming the
necessary mental intent was diminished. Subaverage intellectual functioning does not
necessarily equate to a lack of capacity to premeditate. See Mobley, 397 S.W.3d at
84-88. While such evidence can be introduced at the Defendant’s new sentencing hearing,
there is no reasonable probability that, had trial counsel pursued this line of defense, the jury
would have reached a different result as to guilt. Therefore, even if this Court were to find
that the failure to investigate the Defendant’s limited I.Q. or psychological condition further
constituted deficient performance, the Defendant has not proven through clear and
convincing evidence a reasonable probability that, but for the deficiencies, the outcome of
the murder trial would have been different.

The Defendant next contends that trial counsel were ineffective by opening the door
to evidence of satanic worship during the testimony of Mr. Shaw, failing to object to the
satanic reference, failing to file a motion in limine to exclude such evidence, and failing to
investigate and prepare rebuttal to the evidence. At the murder trial, Mr. Shaw testified for
the State. On cross-examination, the Defendant’s trial counsel asked him about the
Defendant’s reputation in the community for peacefulness. He responded, “Yeah. He didn’t
bother nobody. You know, he’d help you if he could, but he never did—he never did bother

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nobody. He seemed like to me he always tried to stay away from, you know, trouble.” On
redirect, the State asked Mr. Shaw if he had heard rumors of the Defendant’s claims that the
Defendant worshiped Satan and needed to kill two people in order to get power. Mr. Shaw
responded that he had heard from others that the Defendant was involved in satanic worship,
but he later clarified that his opinion of the Defendant was generally positive and that he had
not heard these rumors from anyone with direct knowledge. After this exchange, the trial
court instructed the jury that specific instances of bad character could only be considered for
impeachment purposes and could not be considered as substantive evidence of the
Defendant’s good or bad character. Juries are presumed to follow the instructions of the trial
court. State v. Banks, 271 S.W.3d 90, 137 (Tenn. 2008). No other witnesses were asked
about satanic worship, and no substantive evidence of satanic ritual was ever
presented. Even if trial counsel were deficient in opening the door to evidence of satanic
worship during the testimony of Mr. Shaw, failing to file a motion in limine to exclude such
evidence, or failing to investigate and prepare rebuttal to such evidence, we find that, because
the evidence was only admissible for impeachment purposes, the Defendant has not proven
by clear and convincing evidence a reasonable probability that, but for the deficiencies, the
outcome of the murder trial would have been different.

The Defendant next asserts that trial counsel’s performance was deficient for failure
to investigate and locate witnesses who could rebut the allegations of torture. The Defendant
alleges that this failure undermined the Defendant’s theory that the shooting was
accidental. However, the bulk of the evidence and testimony regarding the injuries to the
victim and the possible causes of those injuries were introduced during the sentencing phase
of the trial. The Defendant has been granted a new sentencing hearing and is free to use
testimony from Dr. Hudson and other supporting witnesses to rebut the evidence of
torture. Insofar as the relevance of Dr. Hudson’s testimony to the guilt phase, we agree with
the lower courts that his testimony offering alternate explanations for the cause of the
victim’s wounds was speculative. With one exception, Dr. Hudson did not disagree with Dr.
Smith’s testimony that the burns to the victim were inflicted within hours of her death. Dr.
Hudson stated that, given the victim’s negative drug screen, it was unlikely the victim had
burned herself accidentally during that period. He also agreed that, based on the toughness
of the skin on the soles of the victim’s feet, she could have been hit without leaving any
marks. While believing that the victim habitually wearing shoes too small for her feet could
have caused the marks, Dr. Hudson also conceded the marks were consistent with being
beaten with a long, hard, thin object. The post-conviction court held that Dr. Hudson’s
testimony showed only minimal disagreement with Dr. Smith, and Dr. Hudson was at a
disadvantage because he did not personally examine the body. The evidence does not
preponderate against this finding of the post-conviction court, and we will not disturb
it. Accordingly, the Defendant failed to show by clear and convincing evidence a reasonable

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probability that any deficiency in not having a forensic pathologist or other expert testify in
the guilt phase affected the outcome of the murder trial.

The Defendant also alleges that trial counsel were deficient in failing to highlight the
fact that the victim was a smoker and the significance of the book of matches and an unlit
cigarette on the ground next to the victim’s body. The Defendant alleges counsel should
have argued that a person being tortured would not have had the freedom to light a cigarette,
and this position would have supported his theory that the shooting was an accident. We find
that this argument is more relevant to rebut the issue of torture at the sentencing
hearing. Even if trial counsel were deficient in failing to raise this possibility, the Defendant
failed to show by clear and convincing evidence a reasonable probability that, but for this
alleged deficiency, the result would have been different. Accordingly, the Defendant is not
entitled to relief on this point.

D.

Finally, the Defendant asserts that trial counsel’s representation was deficient because
of the failure to communicate the plea offer to him in a timely manner and to spend an
adequate amount of time to inform and educate him about the offer. He contends that given
his young age, inexperience with the criminal justice system, and intellectual deficits, trial
counsel should have conveyed the offer to him sooner and in such a manner that he could
have appreciated it and understood the ramifications of rejecting it.

Trial counsel has the duty to “promptly communicate and explain to the defendant all
plea offers made by the prosecuting attorney.” Frye, 132 S. Ct. at 1408 (citing ABA
Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d ed. 1999)). The promptness
standard is also included in the Tennessee Rules of Professional Conduct. See Tenn. Sup.Ct.
R. 8, RPC 1.4(a)(1) & cmt. 2 (requiring that the lawyer promptly consult with and inform the
client of the substance of a proffered plea bargain in a criminal case unless the client has
previously indicated that the proposal will be acceptable or unacceptable or has authorized
the lawyer to accept or to reject the offer). “[A] lawyer must abide by his client’s decision
[to accept or reject a plea] only after having provided the client with competent and fully
informed advice, including an analysis of the risks that the client would face in proceeding
to trial.” Burt, 134 S. Ct. at 19. The United States Supreme Court has held that a defendant
claiming that trial counsel’s performance was deficient in the plea negotiations process has
the burden to show by a reasonable probability that, but for counsel’s deficient
representation, (1) the defendant would have accepted the plea, (2) the prosecution would not
have withdrawn the offer, and (3) the trial court would have accepted the terms of the offer,
such that the penalty under its terms would have been less severe than the penalty actually
imposed. Lafler, 132 S. Ct. at 1385. We agree that this is the appropriate standard for

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determining whether a defendant is entitled to relief for ineffective assistance of counsel
during the plea negotiation process and therefore apply the Lafler standard here. See, e.g.,
Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013) (applying the Lafler standard when
analyzing ineffective assistance of counsel claims within the context of the plea negotiation
process); People v. Douglas, 852 N.W.2d 587, 606 (Mich. 2014) (same); Commonwealth v.
Marinho, 981 N.E.2d 648, 661 (Mass. 2013) (same).

Trial counsel waited some six weeks after receiving the twenty-five-year offer to
convey it to the Defendant and, when he did so, spent very little time discussing the
offer. Neither trial counsel’s heavy caseload nor the intervening holidays excused prompt
and diligent communication with the Defendant. However, the post-conviction court
accredited Mr. Johnson’s testimony that the Defendant asserted from the beginning that the
shooting was accidental and, thus, he would not plead guilty. The trial court did not find
credible the Defendant’s mother’s testimony that her son wanted to accept the plea offer. His
mother testified that this occurred during the “Ice Storm of 1994,” which the post-conviction
court observed occurred in February of 1994, well after the State withdrew the
twenty-five-year plea offer. The evidence does not preponderate against these credibility
determinations of the trial court.

Most significantly, the Defendant presented no proof that he would have taken the
plea offer had it been presented to him earlier. See State v. Garrison, 40 S.W.3d 426, 431
(Tenn. 2000) (stating that although the evidence established deficient performance by
counsel’s failure to convey a plea offer, prejudice was established only if the evidence also
showed a reasonable probability that the defendant would have accepted the plea offer if
properly conveyed). Because the Defendant failed to show that he would have accepted the
plea, he is not entitled to relief on this issue.

Conclusion

We conclude that the Defendant did not prove by clear and convincing evidence a
reasonable probability that, but for the deficient performance of his trial counsel, the verdict
of guilt for first degree murder would have been different. The judgment of the Court of
Criminal Appeals is affirmed, and the case is remanded to the trial court for a new sentencing
hearing. It appearing from the record that the Defendant is indigent, costs on appeal are
assessed to the State of Tennessee.

________________________________
SHARON G. LEE, CHIEF JUSTICE

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