IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 6, 2014 Session
BILLY McILLWAIN v. STATE OF TENNESSEE
Appeal from the Circuit Court for Gibson County
No. 17837 Clayburn Peeples, Judge
No. W2013-02306-CCA-R3-PC - Filed July 7, 2014
The Petitioner, Billy McIllwain, appeals the Gibson County Circuit Court’s denial of his
petition for post-conviction relief from his 2009 convictions for first degree murder, two
counts of aggravated assault, and possession of a deadly weapon with the intent to employ
it in the commission of the offense and his effective sentence of life plus six years. The
Petitioner contends that the trial court erred by denying him relief because he received the
ineffective assistance of counsel. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.
Brandon L. Newman (on appeal) and Jennifer Deen (at post-conviction hearing), Trenton,
Tennessee, for the appellant, Billy McIllwain.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Garry
Brown, District Attorney General; and Larry Hardister and Stephanie Hale, Assistant District
Attorneys General, for the appellee, State of Tennessee.
OPINION
This case arises from the Petitioner’s shooting and killing Jodie Alford, the mother
of his child. The Petitioner appealed his convictions, and this court affirmed the convictions
and summarized the facts of the case as follows:
During the June 3[, 2007] shooting incident, the Defendant also pointed
his weapon at Celia Kilburn and Mike Harris. Based on these actions, a
Gibson County grand jury returned a four-count indictment against the
Defendant, charging him with one count of first degree murder, two counts of
aggravated assault, and one count of possession of a deadly weapon with the
intent to employ it in the commission of an offense.
The Defendant and the victim had a tumultuous romantic relationship
and were involved in an ongoing custody battle. After an argument on the
morning of June 3, 2007, the victim left the Defendant’s residence in Jackson
with the child. She went to her father’s house in Dyer.
Brandon Browning testified that he had known the Defendant for about
ten years. He kept a black book bag for the Defendant, containing the
Defendant’s guns, because the Defendant, as a convicted felon, was not
allowed to have them in his possession. On the morning of June 3, around
11:15 a.m., the Defendant called Mr. Browning requesting his bag. According
to Mr. Browning, the Defendant sounded normal. Mr. Browning left the bag
outside for the Defendant, which the Defendant picked up on his way to Dyer.
Celia Kilburn, the victim’s aunt, testified that she lived at 246 Linden
Street in Dyer and that her brother, Tommy Alford, also lived on Linden
Street. Tommy Alford was the victim’s father. On the morning of June 3,
2007, the victim and her son were staying with her father on Linden Street.
When Mrs. Kilburn returned home that morning from church, she spoke with
the victim by telephone, ate lunch, and then walked to her brother’s house
about 12:45 p.m. Mrs. Kilburn saw the Defendant’s truck parked in the yard
as she walked toward the house. After stepping onto the porch, she heard a
“loud racket” coming from inside the house, so she opened the front door.
Mrs. Kilburn was met by the Defendant, who pointed a handgun at her. The
Defendant then turned and fired at the victim, who was sitting on the floor up
against the couch. Mrs. Kilburn ran from the house screaming, alerting the
neighbors, including Mike Harris. According to Mrs. Kilburn, when the
Defendant pointed the gun at her, she froze and was “waiting to die.”
Mike Harris, a paramedic, testified that he lived near Tommy Alford’s
house. On June 3, 2007, he was sitting on his front porch, when he heard a
“loud bang” and then someone screaming. He went to investigate and saw
Mrs. Kilburn running down the street toward her house. He asked Mrs.
Kilburn what was wrong, and she stated that “he shot her” and pointed toward
Tommy Alford’s house. Mr. Harris started toward the residence and, just
before he got to the driveway, he saw the Defendant exit the house. When the
Defendant saw Mr. Harris, he pointed the handgun at Mr. Harris, who
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immediately stopped and started “backing up.” The Defendant then lowered
his gun, got into his truck, and drove away. According to Mr. Harris, the
Defendant was very “casual” as he left the house. Mr. Harris felt “threatened”
when the Defendant pointed the gun at him, and he worried for the safety of
his nearby wife and child.
After the Defendant left, Mr. Harris went inside the house and started
rendering first aid to the victim, who was lying on the floor with a gunshot
wound to her chest. According to Mr. Harris, the victim was still making
voice responses when he entered. Prior to emergency personnel arriving on
the scene, the victim lost consciousness, and Mr. Harris attempted CPR. Mr.
Harris did not observe “any signs of life” as the victim was loaded onto the
ambulance.
Officer Ryan Shanklin, at the time of the shooting employed with the
Kenton Police Department, was informed about the shooting and given a
description of the Defendant’s truck. While patrolling, Officer Shanklin saw
a vehicle matching the description. The vehicle was parked in a driveway, and
the driver, later identified as the Defendant, was waving his arm out of the
driver’s side window to get Officer’s Shanklin attention. Officer Shanklin
stopped, asked the Defendant to exit the vehicle, and placed him in handcuffs.
According to Officer Shanklin, the Defendant, who did not appear to be
intoxicated, was crying and stated, “I know I f[-----] up” and “You don’t know
what she’s put me through with my kids.” The Defendant was then turned
over to Dyer City police officers. The Defendant was unarmed at the time he
was detained, and no weapon was found inside the truck.
The Defendant was transferred to the Dyer City Police Department.
After arriving at the station, Assistant Chief of the Dyer Police Department
Brad Oliver read the Defendant his Miranda rights. The Defendant signed a
waiver of rights form at 2:13 p.m. and, thereafter, gave a statement wherein he
admitted to shooting the victim. Sergeant Rodney Wilkins also witnessed the
statement, and the Defendant appeared “normal” to him, showing no signs of
intoxication. Also, according to Asst. Chief Oliver, the Defendant was upset
during the interview, but he did not exhibit any signs of intoxication.
A black book bag containing 9 mm rounds had been found abandoned
just outside the city limits of Dyer. Forensics determined that these rounds
were the same brand and caliber as the ones used to shoot the victim. The shot
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that killed the victim was fired somewhere between six inches and two feet
from the skin. The victim’s blood was found on the Defendant’s shorts.
Moreover, according to the victim’s mother, the Defendant had previously
threatened to kill her and the victim.
The Defendant testified on his behalf claiming that he was intoxicated
at the time of the shooting, that he did not intend to go to the residence to kill
the victim, and that the shooting was accidental. The Defendant’s mother
testified about the Defendant’s level of intoxication on the morning of June 3.
According to her, the Defendant had been drinking and admitted to taking a
“handful” of pills just prior to the shooting.
State v. Billy Earl McIllwain, Jr., No. W2009-00987-CCA-R3-CD, slip op. at 1-3 (Tenn.
Crim. App. Sept. 8, 2010), perm. app. denied (Tenn. Feb. 17, 2011).
The Petitioner filed a petition for post-conviction relief contending that he received
the ineffective assistance of counsel. He alleged that counsel failed to confer properly with
him, interview favorable witnesses, appear in court on his behalf at multiple hearings,
investigate his case adequately regarding his intoxication at the time of the offenses, file
proper pretrial motions, cross-examine the State’s forensic expert, make proper objections,
prepare an intoxication defense, advise him of his right against self-incrimination, request
relevant jury instructions, “perfect” a motion for a new trial and an appeal, raise proper issues
on appeal, and provide zealous representation.
At the post-conviction hearing, the Petitioner testified that he paid counsel $20,000
to represent him at the trial and that counsel met with him at the jail twice or three times. He
said, though, that counsel failed to appear at June and September 2007 scheduled court
appearances. He said counsel communicated by way of “notes” stating that he would meet
with the Petitioner but failed to come to the jail. He identified a September 26, 2007 letter
from counsel in which counsel admitted that he was about one week late in “notifying [the
Petitioner] of something.” The letter was received as an exhibit. We note at the outset that
several exhibits were received at the post-conviction hearing but are not included in the
appellate record.
The Petitioner testified that he filed a complaint with the Board of Professional
Responsibility because counsel failed to meet with him adequately and to provide discovery
and said that counsel did not provide or do everything he requested. He said that he hired
counsel in June 2007 and that by November, counsel no longer communicated with him. He
identified another letter in which counsel said he planned to meet with the Petitioner on
Saturday, March 1, 2008, about a motion. The Petitioner said counsel did not appear for the
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meeting. He identified his handwritten notes and agreed he wrote in the notes that counsel
failed to appear for four appointments as of March 1, 2008, and failed to appear in court on
January 4, 2008. He said counsel did not provide reasons for his absence.
The Petitioner testified that counsel had not investigated his case as of March 1, 2008,
and that counsel said the State would not allow the Petitioner to have discovery material. He
said that counsel only provided him “a couple of warrants and statements.” He said counsel
provided the defense’s request for discovery. Regarding defense witnesses, he said that he
asked counsel to speak with Joyce Herron, who was the Petitioner’s mother, Mary Katherine
Vandiver, Brandon Browning, Josh Chumney, Erica Pruitt, and Amber Browning. He said
that although counsel spoke to his mother occasionally, counsel had not spoken to the other
potential witnesses as of March 1, 2008, which was ten months into counsel’s representation.
The Petitioner testified that he explained to counsel the sequence of events on the day
of the shooting. He said he woke at 5:00 or 5:30 a.m., cared for his son, and began to cook
breakfast. He said that as he cooked, the victim went through his cell phone, became angry,
and began arguing and throwing things. He said that the victim told him she was leaving and
that he placed his son in the car seat. He said that the victim left and that he returned to the
house, began drinking whiskey, took a handful of Xanax and hydrocodone, and went for a
drive. He said he went to “Trenton and this stuff happened.” He said he told counsel about
these events and his intoxication. He denied counsel investigated his intoxication and
advised him about an intoxication defense.
The Petitioner testified that he asked counsel to obtain a copy of his recorded
statement to the police, that counsel said he would obtain a copy, and that counsel failed to
provide it. He denied counsel mailed him copies of statements or other evidence counsel
collected during his investigation but said counsel mailed him copies of witness statements
provided by the State. Regarding his police interview, he said he told counsel that he was
intoxicated and did not recall much from the interview. He said that he and counsel
discussed the police’s performing a blood alcohol concentration test but denied that counsel
investigated the test. Regarding forensic and ballistic evidence, he requested from counsel
information surrounding the shooting. He said that counsel told him only one shot was fired
but that evidence of two shots was presented at the trial. He said counsel told him that the
State did not permit counsel to view the reports before the trial. He said that it was important
that two shots were fired because one shot could indicate an accident but that two shots were
not an accident. He agreed he wanted counsel to investigate a possible accidental shooting
defense.
The Petitioner testified that counsel did not show him any of the photographs that
were admitted at the trial. Regarding the possible defense witnesses, he said he learned
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counsel only spoke to his mother and attempted to contact the victim’s brother, although he
did not know if counsel spoke with the victim’s brother. He said counsel wanted to know
if the victim’s brother would admit having an argument with the Petitioner on the morning
of the shooting. He said counsel told him that he was going to attempt to elicit such
testimony at the trial.
The Petitioner testified that at the trial, counsel told him “it would be best” if he
testified, although the Petitioner told counsel he did not want to testify when they discussed
it once or twice previously. He said that he did not want to testify at the trial but that he
listened to counsel because he was an attorney. He said counsel did not explain the
consequences of testifying and not testifying. He did not recall discussing with counsel the
facts of the case or preparing for the trial, although they discussed upcoming court dates.
The Petitioner kept a log of his contact with counsel, which was received as an exhibit.
The Petitioner testified that he wrote counsel twenty to thirty letters and that counsel
responded to three or four. He said that counsel last visited him at the jail one or two weeks
before the trial and that the conversation was about five to ten minutes. He denied he and
counsel had any other conversation about the trial in the week before the trial. He said he
and counsel agreed that counsel would call the Petitioner’s mother as a witness because she
talked to the Petitioner on the morning of the shooting. He said he asked counsel to
interview the arresting officer and the “forensic officer.” He said he wanted counsel to talk
to Ms. Vandiver because she had been living with him for about two months before the
shooting.
The Petitioner testified that he underwent a mental health evaluation upon the State’s
request, that the report said he was “okay,” that he asked counsel if the defense could have
an expert perform an evaluation, and that counsel “left it alone” and did not discuss it again.
Regarding counsel’s investigation, he said that his mother asked counsel if they needed to
hire an investigator and that counsel said it was unnecessary.
The Petitioner testified that he felt counsel did not do anything during the trial, that
counsel made no objections, that counsel did not question anyone, and that counsel “stood
there like he was asleep.” He did not believe counsel made a closing argument and said
counsel refused to ask the questions the Petitioner wanted asked. He identified a March 12,
2008 letter he wrote to counsel in which the Petitioner expressed concern for his case and
concern counsel was not providing information or communicating with him. He stated that
the letter also mentioned additional potential defense witnesses Jenny Jenkins and Jamie
Alexander. He said counsel told him that he never spoke to them.
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The Petitioner identified a May 15, 2008 letter from counsel in which counsel
discussed the difficulty he had in obtaining discovery information and stated that Gibson
County was the most difficult place to obtain discovery and that counsel would have to go
to the district attorney’s office to handwrite the police narratives. The Petitioner denied
counsel gave him the narratives or any other document, except the warrants and witness
statements. He identified a May 15, 2008 letter he wrote to counsel asking for a copy of the
“trial transcripts” and a “full motion of discovery” in order for him to review the evidence
and determine what was happening in his case. He said counsel responded to the letter. He
said that he wrote a second letter on May 26, 2009, requesting the same information but that
counsel did not respond. He said he was in prison by that time. He agreed he filed a
complaint with the Board of Professional Responsibility on August 4, 2009. He said that
three and one-half months after his trial, counsel returned one of the Petitioner’s letters with
counsel’s handwritten remarks, stating that the notice of appeal had been filed and that he
would forward the trial transcript to the Petitioner after it was completed.
The Petitioner testified that he wrote counsel on July 18, 2009, requesting
documentation showing that an appeal had been filed because he learned the time in which
an appeal could be filed was limited. He said counsel did not respond and that by July 2009,
he still had not received any documents from counsel regarding the appeal. He said that
counsel sent him a bill for the appellate process but that he received nothing else. He denied
receiving the appellate briefs or the trial transcript. He identified an August 25, 2009 letter
from counsel stating that counsel had recently received the transcript, that a copy of the
transcript was enclosed, and that counsel was working on the appeal. He denied, though, the
transcript was enclosed. He said he finally received the transcript from post-conviction
counsel about one and one-half months before the post-conviction hearing.
The Petitioner identified a May 23, 2011 letter he wrote to counsel providing
“paperwork for the appeal” and said counsel never responded. He did not recall meeting
with counsel before the pretrial conference. He said counsel filed a motion to suppress his
statement, which was denied. He said that counsel did not ask him to do anything to prepare
for the trial and that the Petitioner was not prepared for the trial. He said that when counsel
first began his representation, “everything seemed all right” and that counsel stopped talking
to him, coming to see him, and providing him with information after learning the victim’s
mother worked for an attorney in town.
On cross-examination, the Petitioner testified that the forensic analysis he referred to
previously was the competency evaluation. He agreed the evaluation report showed that he
had higher-than-average intelligence and that an insanity defense was impossible. The report
was received as an exhibit. He agreed that counsel filed motions to suppress and for a
change of venue and that the trial court denied both motions. The motions were received as
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exhibits. He agreed that counsel filed a motion for a new trial on April 8, 2009, although he
denied being notified of the motion. The motion was received as an exhibit. He denied
receiving a copy of this court’s opinion affirming his convictions. He said that although his
pro se petition for post-conviction relief mentioned this court’s opinion, someone else
prepared the petition. The trial transcript was received as an exhibit.
The Petitioner testified that counsel responded to half of his letters. When asked if
counsel was absent for any “major” court hearings, he said he felt all of his court appearances
were major. He did not recall which scheduled appearances counsel failed to attend. He
agreed that counsel called his mother, who was called as a witness at the trial, and that the
State called Brandon Browning as a witness. He said counsel did not ask Mr. Browning the
questions the Petitioner wanted asked, although he could not recall the relevant questions.
The Petitioner testified that on the day of the shooting, he drove from Dyer to Jackson
to pick up his gun and that he shot the victim, although he claimed the shooting was
accidental. Regarding his intoxication, he agreed each police officer testified at the trial that
he was not intoxicated, although he said, “What they said may not be true.” He agreed Mr.
Browning testified at the trial that the Petitioner “sounded normal” on the telephone. He
denied he and the victim had reconciled, although the victim stayed overnight at his house
the night before the shooting, and said he was dating Ms. Vandiver. He denied that the fight
he and the victim had on the morning of the shooting was about his sending text messages
to Ms. Vandiver. He said he “boot[ed]” Ms. Vandiver out of his house the night before the
shooting in order for the victim to stay overnight with their son. The Petitioner said he
wanted to spend a weekend with his son. He denied telling Ms. Vandiver that he wanted to
reconcile with the victim and that the victim was moving into his house.
The Petitioner testified that the police did not perform a blood alcohol concentration
test when he was questioned about the shooting. He agreed counsel asked each officer who
testified at the trial whether he was intoxicated but said, “It’s more to it than two questions.”
He could not state the questions that counsel should have asked the police officers. When
asked how he would have presented evidence of intoxication without testifying at the trial,
he said counsel could have presented evidence of his hospitalization for an overdose thirty
days before the shooting. He said he had a known drug problem. When asked what
questions he wanted counsel to ask his mother but did not ask, he said he did not recall.
The Petitioner testified that he knew he was not required to testify at the trial, although
counsel did not explain it to him, and that he knew there were benefits and pitfalls in each
decision. Although he denied choosing to testify, he agreed he “took the stand” based on
counsel’s advice that testifying was in the Petitioner’s best interest.
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The Petitioner testified that counsel should have questioned the medical examiner
about whether the victim was shot once or twice. He denied shooting the victim twice.
When asked what counsel should have asked the Tennessee Bureau of Investigation (TBI)
ballistics expert, he said, “[T]here was only one shot fired.” When the prosecutor stated that
the expert testified that there were two spent shell casings and five live unfired shells, the
Petitioner claimed the expert testified that he believed two shots were fired and that the
second went through the floor. He said counsel could have asked the expert many additional
questions, although he could not state what those questions were. He agreed he was not
arguing that counsel should have presented more evidence about his and the victim’s troubled
relationship.
On redirect examination, the Petitioner testified that had counsel called the potential
witnesses he provided counsel, evidence would have been presented about his and the
victim’s tumultuous relationship, the fight with the victim on the morning of the shooting,
and the fight with the victim’s brother the same day. He said witnesses would have rebutted
the State’s witnesses’s testimony that he was sober on the day of the shooting. He said that
he thought his aunt was living with his mother at the time and that counsel should have
determined if she saw him intoxicated that morning. He said, though, counsel asked him to
tell counsel what occurred from “Point A to Point B” and to give counsel a time line of the
events that day.
The Petitioner testified that counsel did not ask about his cell phone records or use the
records to “piece together” what occurred that day. He agreed his aunt and Ms. Vandiver
would have testified if asked. He said the victim threatened to prevent his seeing his son
after the victim went through his cell phone. He said that counsel’s last witness at the trial
was Drew Alford, the victim’s brother, and that he was concerned about calling Mr. Alford
as the last defense witness. He said the State should have called Mr. Alford. He said counsel
never stated that he interviewed Mr. Alford before the trial or that Mr. Alford would
corroborate the Petitioner’s testimony.
Mary Vandiver testified that she had known the Petitioner for seven years, that she
and the Petitioner were friends at the time of the shooting, and that they had been dating for
about one week when the victim died. She said that around lunchtime on June 3, 2007, she
talked to the Petitioner, who sounded “distorted.” She said she had difficulty understanding
the Petitioner but understood he was talking about his son. She said the Petitioner seemed
confused, had slurred speech, and was upset. She said he was usually a cheerful person. She
did not know where the Petitioner was when she talked to him. She said she could tell the
Petitioner was upset with someone but was not sure whom, although she assumed it was the
victim because he was talking about his son.
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Ms. Vandiver testified that she had never seen the Petitioner intoxicated. She said the
Petitioner might have had a drink with dinner but was cheerful, fun, and easy going. She said
she was concerned about the Petitioner after talking to him on the telephone because he was
upset and not “in a proper mind frame.”
Ms. Vandiver testified that counsel contacted her before the trial, that she remained
in contact with counsel and the Petitioner until the trial, and that she was available to testify
at the trial. She said she met with counsel and the Petitioner’s mother at counsel’s office in
August or September 2007. She said they discussed the Petitioner’s character, the type of
person he was, and if she talked to him on the day of the shooting. She said that counsel
asked her to testify but that she did not speak to him again. She said she wrote a statement
regarding the Petitioner’s character and faxed it to counsel’s office and left messages with
counsel’s secretary asking him to call her or the Petitioner’s mother. She said she was
present for the trial and would have testified if counsel had asked. She said that the
Petitioner treated her and her daughter well and that she had never seen the Petitioner act the
way he did on June 3, 2007.
On cross-examination, Ms. Vandiver testified that she recalled meeting with the TBI
in 2008 but did not recall telling the agent that the Petitioner told her days before the shooting
he was reconciling with the victim. She identified the statement she gave counsel and agreed
that she wrote in the statement the Petitioner was considering reconciliation with the victim
and that she did not mention the Petitioner’s slurred speech. The statement was received as
an exhibit.
On redirect examination, Ms. Vandiver testified that she wrote the statement at
counsel’s request and that she was not asked about the Petitioner’s intoxication. She agreed
she mentioned in her statement that the Petitioner lost custody of his son to the victim and was
sad and worried about his son. She said the Petitioner lost custody within one month of the
shooting. She agreed that she mentioned in the statement that the victim had threatened to
prevent the Petitioner from seeing his son and to create problems with the Petitioner’s
probation officer. She agreed she was upset about the Petitioner’s ending their relationship.
Joyce Herron, the Petitioner’s mother, testified that she paid counsel $20,000 to
represent the Petitioner in the murder and the child custody cases. She said she provided
counsel her daily notes of specific events that occurred between the Petitioner and the victim
since their son was born. She told counsel that on the morning of the shooting, the Petitioner
called her, that he was disoriented, and that she knew he had been drinking. She said that she
also saw the Petitioner around 9:00 or 10:00 that morning, that he was upset, that she could
not get him to talk much, and that he left. She said she thought the Petitioner was intoxicated
because she smelled whiskey in a cup from which he was drinking.
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Ms. Herron testified that the Defendant was withdrawn when he stopped by her house
that morning. She said the Defendant and the victim had fought for years. She said that the
Petitioner and the victim lived across the street from her, that the Petitioner brought his son
to her house before the victim left that morning, and that the Petitioner said she might not see
the baby again. She said the victim chased after the Petitioner, attempting to prevent him
from bringing his son to Ms. Herron. She said the Petitioner was crying and upset. She said
that when the Petitioner returned around 9:00 or 10:00 a.m., he was “messed up.”
Ms. Herron testified that she contacted counsel’s office “hundreds of times” and that
she called weekly and sometimes daily. She said counsel sometimes returned her calls. She
said that when she and counsel spoke, she asked questions but did not get many answers. She
said that she and the Petitioner waited a long time for paperwork and that counsel failed to
show up for meetings with the Petitioner. She said that the Petitioner was unhappy with
counsel’s representation and that she heard the Petitioner complain about counsel within the
first month of counsel’s representation. She said counsel said it took “this County” forever
to get things done before the trial.
Ms. Herron testified that she gave counsel the names of ten to fifteen potential
witnesses, that everyone was willing to testify, and that counsel never contacted them. She
said counsel discussed having the Petitioner evaluated and hiring an investigator, but she
refinanced her house to pay attorney’s fees and did not have funds for the additional expenses.
She said that she testified at the trial and that counsel told her she would testify just before
calling her as a witness. She denied counsel kept her informed of the court dates and prepared
her for testifying at the trial. She recalled meeting with counsel in his office during which
counsel read the definition of each charge against the Petitioner.
Ms. Herron testified that she thought counsel feared the victim’s family and that she
heard counsel state that he was afraid someone would shoot him for representing the
Petitioner. She said she provided information regarding the victim and the Petitioner’s
relationship but was not aware of counsel’s investigating further. She said counsel failed to
ask her at the trial about the Petitioner’s state of mind on the day of the shooting or about the
Petitioner and the victim’s relationship. She agreed, though, that counsel asked her at the trial
if the Petitioner was drinking on the day of the shooting and to describe the Petitioner’s
demeanor. She agreed she testified that she was concerned about the Petitioner’s leaving her
house because she knew he had been drinking and had a “bad state of mind.” She said she
told counsel about the victim and the Petitioner’s fighting, the Petitioner’s attempting to make
the relationship work, and the victim’s wanting the Petitioner to stay home all the time. She
said counsel did not ask her to review any of the State’s evidence.
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On cross-examination, Ms. Herron testified that counsel failed to present evidence of
the Petitioner and the victim’s domestic situation and of the Petitioner’s intoxication but later
admitted that she testified at the trial about both topics. She agreed testimony at the trial
showed that the Petitioner was granted custody of his son through a temporary restraining
order but said she was not present for all the trial testimony.
On redirect examination, Ms. Herron testified that she lived with her husband and sister
at the time of the offenses and the trial. She denied that her sister, Lisa Pennington, and the
Petitioner spoke on the morning of the shooting. She said she told counsel about her sister’s
being at the house when the Petitioner came to her house with his son on the morning of the
shooting. She said that Ms. Pennington went with her to counsel’s office a couple of times
but that counsel did not ask her questions.
On recross-examination, Ms. Herron testified that she did not see the Petitioner
consume pills on the day of the shooting, only alcohol. She agreed Ms. Pennington did not
leave the house when the Petitioner brought his son to see her on the morning of the shooting.
She agreed the Petitioner and Ms. Pennington had no interaction that day.
Lisa Pennington, the Petitioner’s aunt, testified that counsel did not contact her about
the Petitioner’s case, although she went with Ms. Herron to counsel’s office a couple of times.
She said she saw the Petitioner on the morning of the shooting, although she did not talk to
him. She said the Petitioner was upset and brought his son to see her and Ms. Herron. She
said she told counsel about the Petitioner’s demeanor when she went with Ms. Herron to
counsel’s office shortly after counsel was retained. She said she was never contacted by
counsel or asked to testify, although she agreed to testify if she were asked. She said that had
she testified, she would have told the jury that the Petitioner had been drinking that morning
and was upset after arguing with the victim. She said the Petitioner wanted to bring his son
to the Petitioner’s mother because he did not want his son to witness the argument. She said
that other than the Petitioner’s being upset she could not recall the Defendant’s demeanor.
On cross-examination, Ms. Pennington testified that the Petitioner was not intoxicated
when he brought his son to Ms. Herron and that the Petitioner was drinking afterward,
although she did not see the Petitioner after he took his son home. She said later, though, that
she went outside when the Petitioner returned later that morning and that he was intoxicated.
She agreed Ms. Herron was present.
Counsel testified that he began his representation of the Petitioner in June or July 2007
in the murder case and also represented the family in a Department of Children Services
(DCS) matter. He stated that he investigated everything he thought was necessary and that
Ms. Herron provided him with information he requested. He said Ms. Herron was the liaison
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between him and the Petitioner. He agreed that he met with Ms. Herron numerous times and
that Ms. Herron spoke to his paralegal more than him when she called his office. He said he
provided answers to all her questions. He said he gathered information about the case as he
could get it and filed his motion for discovery after the case moved to circuit court. He said
that he and another attorney visited the Petitioner in jail when the case was in general sessions
court and that the Petitioner was moved to the Madison County Jail after having “some
trouble.”
Counsel testified that he wrote the Petitioner a letter regarding the State’s discovery
package. He said the prosecutor’s office required him to come to the office to handwrite the
police narrative, which frustrated him because it delayed the discovery process. He told the
Petitioner about the delay. He said that at one court appearance, he took the State’s file to the
jail and reviewed it with the Petitioner page-by-page. He said they reviewed everything the
State had in its possession, including the police officers’ statements, the ballistics report, and
the autopsy report. He said he found a few things in the file that he had not previously
received from the State.
Counsel testified that a question existed about the number of shots that were fired and
that he was able to cross-examine the State’s expert at the trial. He said he thought only one
shot was fired, but the jury disagreed. He said his theory of the case was that only one shot
was fired and that the Petitioner did not act with premeditation. He said the Petitioner went
to Dyer where he and the victim argued. He said that when the Petitioner was there, a family
member of the victim kicked open the door, causing the Petitioner to fire the gun
instantaneously. He said that he conveyed this theory to the jury and that the Petitioner
testified consistently with the theory.
Counsel testified that he and the Petitioner discussed his testifying before the trial. He
said he asked the Petitioner to testify because he thought the jury needed to hear from the
Petitioner. He did not think he could establish provocation, an accidental shooting, or
intoxication without the Petitioner’s testimony. He said, though, it was the Petitioner’s
decision and recalled the Momon hearing.
Counsel testified that he communicated with the Petitioner many times and that he met
with the Petitioner about ten times. He agreed, though, that he probably missed a couple of
meetings at the jail. He said that if he missed a meeting, a reason existed for his absence and
that he made up for it at another meeting. He said he made a tactical decision not to call Ms.
Vandiver as a witness because he thought he presented enough evidence for the jury to
conclude that the Petitioner did not act with premeditation. He said that it was a difficult case
because of the turbulent relationship between the Petitioner and the victim and because “the
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grandmother . . . pushed the situation” until the worst happened and that he thought the jury
understood the situation.
Counsel testified that evidence of the restraining orders and child custody matter was
presented to the jury. He agreed Ms. Herron testified about the information provided in Ms.
Pennington’s post-conviction testimony, including the Petitioner’s being upset and intoxicated
and the child custody matter. Regarding an intoxication defense, he said he and the Petitioner
discussed whether the evidence showed he was intoxicated. He said that although he thought
the Petitioner was probably intoxicated, he “couldn’t get it to the jury like he wanted.” He
said that he cross-examined each police officer who had contact with the Petitioner shortly
after the shooting and that none of the officers provided evidence that the Petitioner was
intoxicated. He said it was as though the officers were prepared for his asking about whether
the Petitioner was intoxicated. He said that the Petitioner’s intoxication was raised at the
hearing on the motion to suppress his police statement and that a transcript of the questions
was presented at the hearing and at the trial. He said he attempted to present the audio or
video recording of the interview, but the trial judge denied his request.
Counsel testified that he received a copy of the ballistics report “late in the game” but
had it before the trial. He said that before the trial, he spoke with Brandon Browning, who
wanted to help the Petitioner. He said he questioned Mr. Browning during cross-examination
at the trial but noted that Mr. Browning “kept some guns” for the Petitioner because the
Petitioner was a convicted felon. He recalled the Petitioner obtained the gun used in the
shooting from Mr. Browning. He said that it was a “double-edged sword” and that he made
a strategic decision not to call him as a defense witness. He said that he could not recall if he
asked Mr. Browning if the Petitioner sounded intoxicated on the telephone but that if he did
ask, Mr. Browning did not provide the answer he wanted.
Counsel testified that the situation between the Petitioner’s and the victim’s families
was “as hostile as it gets.” He said that the Petitioner and Drew Alford argued on the day of
the shooting and that Mr. Alford threatened to shoot the Petitioner if he came to Dyer. He
said the victim’s family members would not cooperate with his investigation, which prevented
his interviewing them before the trial. He said he made a tactical decision to call Mr. Alford
as a witness because he hoped Mr. Alford’s hostility toward the Petitioner would come out
during his trial testimony. He agreed he met with the Petitioner about ten days to two weeks
before the trial to prepare the Petitioner.
Counsel testified that the Petitioner presented him with a list of character witnesses
whom the Petitioner wanted called at the trial. He said that the witnesses were discussed at
a pretrial hearing and that the prosecutor told counsel that if he presented favorable character
witnesses, the State would ask about the Petitioner’s previous felony convictions. He
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concluded that character witnesses were not relevant and did not need to be presented. He
agreed the Petitioner had previous felony convictions for assault, a drug-related offense, and
escape and had misdemeanor convictions for assault, drugs, and underage consumption. He
said character witnesses would have been asked about these convictions, which was not a
good trial strategy.
Counsel testified that the Petitioner underwent a mental health evaluation before the
trial and that he decided not to present an insanity defense. He said he did not think an
independent investigator was necessary in this case. He said that he was familiar with the
facts and that the child custody case was pending at the same time. He disagreed with the
Petitioner’s assertion that he failed to question witnesses and said the trial transcript reflected
his questioning the witnesses. He agreed, though, that he did not make a closing argument
and said it was his general practice in criminal cases. He could not recall the Petitioner’s
wanting him to ask specific questions of individual witnesses. He agreed he presented
evidence of intoxication and the domestic relationship through Ms. Herron.
Counsel testified that he did not have any type of relationship with the victim’s mother
and that he was not afraid of the victim’s family. He said he represented the Petitioner to the
best of his ability. He said he knew the victim’s mother worked for an attorney and had used
the attorney’s letterhead to sabotage the Petitioner’s relationship with his son. He said
sufficient evidence was presented about the Petitioner and the victim’s turbulent relationship
and that he did not see a reason to present further evidence. He said the jury understood the
“dynamic.”
Counsel testified that he represented the Petitioner through the appellate process and
that he instructed his staff to forward the trial transcript to the Petitioner. He did not know
why the Petitioner did not receive them. He agreed he filed a motion for a change of venue.
He said that although the trial court denied the motion, the court excused more than twenty-
five prospective jurors for cause and that the Petitioner received a fair trial.
On cross-examination, counsel testified that he did not dispute failing to appear for
four meetings with the Petitioner. He said, though, that he made up for any missed
appointments by going to see the Petitioner. He said that it was not his practice not to appear
for a meeting and not to send notification about his absence and that he should have sent the
Petitioner a note informing him of his absence. He said he communicated with the Petitioner
about the facts and the case generally throughout his representation. He denied knowing the
dates on which he spoke to the Petitioner and said he did not keep a log. He noted the jail
logged his visits with the Petitioner. He did not keep a log of his time in the Petitioner’s case
but maintained records of his investigation. He said he spoke with the Petitioner’s mother and
obtained relevant information from her. He said he spoke to Ms. Vandiver more than once.
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He said he considered calling Ms. Vandiver as a witness but concluded that they were “where
they needed to be” without her testimony. He talked to Ms. Pennington once when she came
to his office. He agreed he did not call her as a witness but said he investigated her statements
that she saw the Petitioner that morning and that he was intoxicated.
Counsel testified that he presented the Petitioner and his mother at the trial to refute
the police officers’ testimony that the Petitioner was not intoxicated on the morning of the
shooting. He agreed any testimony from them would have been self-serving and said he
probably should have called Ms. Vandiver and Ms. Pennington. He said he talked to the
victim’s brother before the trial who “indicated there were problems.” He denied that before
the trial, the victim’s brother admitted threatening the Petitioner but said that he thought the
victim’s brother might admit to it at the trial and show his hostility. He said that although the
victim’s brother was not present at the shooting, the victim’s brother was present for many of
the events leading up to the shooting and was in the best position to show the hostility
between the victim’s family and the Petitioner.
Counsel testified that he investigated and talked to each witness on the indictment. He
said he attempted to find a video or audio recording of the police interview. He said he
attempted to find other evidence of the Petitioner’s intoxication because he knew it probably
would have reduced the Petitioner’s sentence by twenty-five years. He agreed the Petitioner
and his mother provided a list of potential witnesses but denied calling Ms. Jenkins and could
not recall if he talked to Mr. Chumney.
Counsel testified that he knew the Petitioner’s state of mind from his representing the
Petitioner in the custody case and the Petitioner’s mother’s statements. He said, though, he
made a judgment call not to request a second mental health evaluation. He said an
investigator was unnecessary because the facts of the case “were right there in front.” He said
he began preparing for the trial on the day he read the warrant. He said he attempted
unsuccessfully to negotiate a plea agreement. He said he thought the jury would consider
manslaughter during its deliberations based on the fact that the Petitioner was startled by one
of the victim’s family members and that the gun went of instantaneously. He said he thought
the Petitioner was the best witness to show the shooting was accidental because he was
present during the shooting. He said that he and the Petitioner discussed his testifying and
that he told the Petitioner the prosecutor would “pick on him” because of his previous
convictions and the facts of the case.
Counsel testified that he probably did not respond to each of the Petitioner’s letters but
that he had “a lot of contact” with the McIllwain family. He said later, though, that he
responded to all the Petitioner’s letters and that the Petitioner received “all of his
information.” He said he dropped off a letter at the jail many times on his way home. He
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agreed that he filed the notice of appeal on April 13, 2009, and said that he communicated
with the Petitioner about the appeal. He agreed he filed a motion requesting an extension of
time to file the appellate brief because of his busy schedule.
Counsel testified that he did not attempt to mislead the Petitioner about the delay in
obtaining the discovery material. He said he decided not to pursue an insanity defense
because he did not think it would be successful based on the mental health evaluation. He did
not recall the Petitioner’s requesting a second evaluation. He said he thought he kept the
Petitioner informed throughout his representation. He did not recall telling the Petitioner at
the trial when the ballistics report was received as an exhibit that counsel thought only one
shot was fired. He said it was impossible that he did not know the State was going to present
evidence of two gunshots.
Counsel testified that he spent about thirty hours preparing for the trial in the three
months before the trial. He could not recall the length of time he and the Petitioner discussed
the issues that would arise. He said he received the photographs presented at the trial and
shared those with the Petitioner as part of the discovery package. He said he took the State’s
file to the jail and reviewed it with the Petitioner “well before the trial.” He denied telling
the Petitioner he was afraid of the victim’s family.
Counsel testified that the State attempted to present an audio recorded telephone
conversation between the Petitioner and Ms. Herron during which the Petitioner said he was
remorseful for his actions and wished he had killed the “whole MFing family.” After
reviewing the trial transcript, counsel said he objected to the State’s presenting the evidence
during Ms. Herron’s testimony, although he did not make a specific objection to the
recording’s admission.
On redirect examination, counsel testified that when he said he was required to write
the narratives, he was referring to the police reports. He said the State ultimately provided
copies of the reports, although he could not recall when. He said that although he did not talk
to each potential witness provided by the Petitioner and his mother, Ms. Herron provided
summaries of what she thought the witnesses would say if they testified.
On recross-examination, counsel testified that he did not recall if the Petitioner’s
previous convictions were more than ten years old. He said that his focus was on whether the
case was first degree murder. He said that he did everything he could to show the jury that
the Petitioner was intoxicated, that he did not act with premeditation, and that the victim’s
family member triggered the Petitioner’s firing the gun.
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The trial court denied post-conviction relief. The court stated that the evidence against
the Petitioner was overwhelmingly strong. It noted that there were a number of “problematic
aspects” to counsel’s representation but that counsel adequately represented the Petitioner.
Regarding the missed appointments with the Petitioner, the court found that counsel’s missing
the appointments did not affect the defense or the outcome of the case. The court found that
no evidence existed beyond mere accusation that a personal relationship existed between
counsel and the victim’s family or that any relationship affected counsel’s ability to provide
a vigorous defense.
Regarding counsel’s failure to present additional witnesses to show the Petitioner’s
intoxication, the trial court found that an argument existed that any additional testimony would
have been cumulative and “subject to the same argument about being too close” to the
Petitioner. The court noted that although counsel might have called additional witnesses, he
made a tactical decision that would not have affected the outcome of the trial. The court
noted that the Petitioner was entitled to fair, adequate, and effective representation, not a
perfect defense. The court found that counsel provided the effective assistance of counsel.
This appeal followed.
As a preliminary matter, the State argues in its brief that the appeal should be dismissed
because the Petitioner failed to file a timely notice of appeal and failed to request a waiver of
the notice. See T.R.A.P. 4. The Petitioner’s brief does not address the timeliness of the notice
of appeal.
The record shows that the trial court’s order denying post-conviction relief was entered
on March 19, 2013, and that an amended order was entered on September 24, 2013. The
amended order made no additional factual findings but stated that appellate post-conviction
counsel “is appointed” to represent the Petitioner and that appellate post-conviction counsel
“was not given notice of the original Order until September 10, 2013 and therefore was not
able to timely file an Appeal” on the Petitioner’s behalf. The amended order stated that
appellate post-conviction counsel “be given Notice to the proceedings in this matter to
adequately prepare an appeal” on the Petitioner’s behalf. The Petitioner’s notice of appeal
was entered on October 7, 2013. At oral argument, post-conviction appellate counsel
explained that he did not know he was appointed until September 2013, and that the trial court
amended the order to permit him time to file a notice of appeal. He requested this court waive
the timely filing of the notice of appeal in the interest of justice.
The record indicates that the trial court amended its order to allow appellate counsel
time to file a timely notice of appeal because counsel was unaware he was appointed to the
Petitioner’s case. The record shows, though, that the trial court lost jurisdiction on April 19,
2013, thirty days after the original order was entered. The trial court lacked the authority to
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amend the order. Thus, the notice of appeal was untimely. The notice of appeal, though, “is
not jurisdictional and the filing . . . may be waived in the interest of justice.” T.R.A.P. 4(a).
Because of the unique circumstances surrounding counsel’s appointment, we waive the timely
filing of the notice of appeal and consider the Petitioner’s contention that he received the
ineffective assistance of counsel in the interest of justice.
The Petitioner contends that he received the ineffective assistance of counsel. He
argues that counsel was ineffective in the pretrial and investigation stage of his case, during
the trial, during sentencing, and on appeal. We note first that at the post-conviction hearing,
no evidence was presented regarding counsel’s performance during sentencing or on appeal.
Regarding the Petitioner’s arguments related to the pretrial and trial stages of counsel’s
representation, the Petitioner provides a lengthy numerical list of grievances regarding
counsel’s representation. The Petitioner, however, fails to explain how each grievance
resulted in deficient performance and prejudice, fails to cite to the record, and fails to cite to
legal authority. At oral argument, this court inquired about the inadequate nature of the
Petitioner’s brief, and post-conviction appellate counsel conceded the brief failed to comply
with Tennessee Rule of Appellate Procedure 27. See T.R.A.P. 27(a)(6), (a)(7)(A), (B); see
also Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this court.”).
Post-conviction appellate counsel noted the lengthy list of grievances contained in the brief
and stated that the most viable argument surrounded counsel’s failure to present a strong
intoxication defense. Unlike the other assertions contained in the appellate brief, counsel
provided an argument supported by legal authority for this court to consider the merits of the
argument. Counsel, however, did not cite to the record in support of his argument. See
T.R.A.P. 27; Tenn. Ct. Crim. App. R. 10. We will consider whether counsel provided
ineffective assistance relative to the Petitioner’s intoxication, but because the Petitioner’s brief
significantly fails to comply with the rules governing the content of appellate briefs, the
remaining assertions are waived.
Regarding the Petitioner’s intoxication at the time of the shooting, he argues that
counsel provided ineffective assistance by failing to present evidence that his intoxication
prevented him from killing the victim with premeditation and by failing to request the
appropriate jury instructions. At oral argument, though, counsel conceded that evidence of
his intoxication was presented to the jury. Although not explained in his brief, we presume
the Petitioner asserts that counsel should have presented Ms. Vandiver and Ms. Pennington,
witnesses who testified at the post-conviction hearing regarding the Petitioner’s intoxication,
as witnesses at the trial because they could have provided additional testimony regarding the
Petitioner’s intoxication. The State responds that counsel was not deficient because evidence
of intoxication was presented at the trial, that the additional evidence of intoxication from Ms.
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Vandiver and Ms. Pennington did not bolster the Petitioner’s position that he was intoxicated
at the time of the shooting, and that additional evidence of his intoxication does not refute the
significant amount of proof establishing premeditation.
The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).
Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient and
(2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing that
counsel’s performance fell below a reasonable standard is not enough because the petitioner
must also show that but for the substandard performance, there is “a reasonable probability
that . . . the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
The Strickland standard has been applied to the right to counsel under article I, section 9 of
the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to show
that counsel’s representation fell below an objective standard of reasonableness or “outside
the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. The
prejudice prong requires a petitioner to demonstrate that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A reasonable probability means a “probability sufficient to undermine
confidence in the outcome.” Id.
The record shows that at the post-conviction hearing, Ms. Vandiver testified that she
received a telephone call from the Petitioner on the morning of the shooting, that she had
difficulty understanding him, and that she understood the Petitioner was talking about his son.
Although she had never seen the Petitioner intoxicated, she said the Petitioner seemed
confused, had slurred speech, and was upset. She said she could tell the Petitioner was upset
with someone but was not sure with whom, although she assumed it was the victim because
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the Petitioner was talking about his son. She was concerned about the Petitioner because he
was not “in a proper mind frame.” Ms. Vandiver admitted that counsel contacted her before
the trial and that she remained in contact with counsel and the Petitioner until the trial.
Ms. Pennington testified at the post-conviction hearing that she saw that the Petitioner
was upset on the morning of the shooting but could not recall his demeanor and that she heard
the Petitioner tell his mother, Ms. Herron, that he and the victim were fighting. She said she
saw the Petitioner drinking alcohol that morning. At the post-conviction hearing, Ms. Herron
testified that she told counsel about Ms. Pennington’s being at the house when the Petitioner
came to her house on the morning of the shooting.
Although Ms. Pennington saw the Petitioner drinking alcohol on the morning of the
shooting and Ms. Vandiver thought the Petitioner was confused, had slurred speech, was
upset, and was not in the proper frame of mind, neither Ms. Vandiver nor Ms. Pennington
testified to facts supporting a conclusion that the Petitioner was so intoxicated that he was
incapable of premeditation at the time of the shooting. Evidence of the Petitioner’s
intoxication was presented to the jury at the trial through the Petitioner and Ms. Herron’s
testimony. Although Ms. Pennington and Ms. Vandiver would have supported the Petitioner’s
contention that he was intoxicated the morning of the shooting, the testimony would not have
presented the jury with any new information. The record shows that at the trial Ms. Herron
testified about the Petitioner’s intoxication on the morning of the shooting and said that the
Petitioner had been drinking alcohol and that the Petitioner admitted to taking pills before the
shooting. At the post-conviction hearing, Ms. Herron agreed that counsel asked her at the trial
if the Petitioner was drinking on the day of the shooting and to describe the Petitioner’s
demeanor. She, likewise, agreed she testified at the trial that she was concerned about the
Petitioner’s leaving her house because she knew he had been drinking and had a “bad state
of mind.” The Petitioner testified at the trial that he was intoxicated at the time of the
shooting, that he did not intend to kill the victim, and that the shooting was accidental.
We note the overwhelming evidence of premeditation presented at the trial. After the
Petitioner and the victim fought, the victim went to her father’s house in Dyer, Tennessee,
miles from the Petitioner’s house in Jackson. The Petitioner called Mr. Browning asking for
one of the Petitioner’s guns. The evidence shows that Ms. Browning kept the Petitioner’s
guns at his house because the Petitioner was a convicted felon. We note that Mr. Browning
testified that the Petitioner “sounded normal” that morning on the telephone. The Petitioner
drove to Mr. Browning’s house, obtained the gun used during the shooting, and drove to
victim’s father’s house. The victim’s aunt, returning home from church, heard a loud noise
from inside her house, opened the door, and saw the Petitioner pointing a gun at her. The
record shows that the Defendant turned and shot the victim, who was sitting on the floor
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against a sofa. Officer Ryan Shanklin testified that the Defendant stated, “I know I f----- up”
and “You don’t know what she’s put me through with my kids.”
Counsel testified that he and the Petitioner discussed whether the evidence showed he
was intoxicated. He said, and the record confirms, that he cross-examined each police officer
who had contact with the Petitioner after the shooting. None of the officers provided
testimony at the trial that the Petitioner was intoxicated at the time of the shooting. Regarding
Ms. Vandiver, counsel said that he spoke to her more than once before the trial and that he
considered calling her as witness but concluded that sufficient evidence of intoxication was
presented to the jury without her testimony. Likewise, counsel spoke to Ms. Pennington
before the trial when she came with Ms. Herron to her office. He investigated her statements
regarding the Petitioner’s intoxication but decided not to call her as witness because Ms.
Herron provided the same information during her trial testimony. Although counsel agreed
he probably should have called Ms. Vandiver and Ms. Pennington because the Petitioner and
his mother’s testimony was self-serving, the evidence shows that the Petitioner had been in
a romantic relationship with Ms. Vandiver and that Ms. Pennington was the Petitioner’s aunt.
We conclude that the evidence does not preponderate against the trial court’s findings
and that the trial court did not err by denying post-conviction relief. The Petitioner has failed
to show that a reasonable probability exists that the result of the trial would have been
different had counsel presented additional evidence of the Petitioner’s intoxication. He is not
entitled to relief.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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