Jessica Marie Myers v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 26, 2016

JESSICA MARIE MYERS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Greene County
No. 15CR008 John F. Dugger, Jr., Judge

No. E2015-02037-CCA-R3-PC – Filed November 23, 2016

The Petitioner, Jessica Marie Myers, appeals from the Greene County Criminal Court’s
denial of her petition for post-conviction relief from her convictions for first degree
murder and reckless endangerment, for which she is serving an effective life sentence.
The Petitioner contends that the post-conviction court erred in denying relief on her
ineffective assistance of counsel claims. We affirm the judgment of the post-conviction
court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

Jessica C. McAfee, Greeneville, Tennessee, for the appellant, Jessica Marie Myers.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
James B. (Jimmy) Dunn, District Attorney General; Cecil C. Mills, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner’s convictions relate to a burglary at the victims’ home following an
altercation between the Petitioner’s then-boyfriend, who was the Petitioner’s
codefendant, and the victims regarding pills. During the burglary, Jimmy Cutshall was
shot and killed, and Rhonda Cutshall was shot in the head but survived. The State
proceeded on a criminal responsibility theory relative to the Petitioner’s guilt. The jury
found the Petitioner guilty of first degree premeditated murder and two counts of first
degree felony murder for Mr. Cutshall’s homicide, and reckless endangerment for Ms.
Cutshall’s shooting. This court affirmed the convictions but remanded the case for
merger of the first degree murder convictions. State v. Jessica M. Myers, No. E2012-
01814-CCA-R3-CD, 2013 WL 5436955, at *1, 10-12 (Tenn. Crim. App. Sept. 27, 2013),
perm. app. denied (Tenn. Feb. 12, 2014).

Codefendant Shawn Jones was tried before the Petitioner, was convicted of first
degree murder, and was sentenced to life. State v. Shawn Anthony Jones, No. E2012-
00480-CCA-R3-CD, 2013 WL 4041135, at *1 (Tenn. Crim. App. Aug. 9, 2013), perm.
app. denied (Tenn. Jan. 15, 2014). A second codefendant, Chad Rader, who drove the
Petitioner and Mr. Jones to the burglary but did not participate otherwise, pleaded guilty
to an unspecified lesser offense after the Petitioner’s trial.

The Petitioner filed the present post-conviction action and, as relevant to this
appeal, alleged that trial counsel had provided ineffective assistance in failing to (1)
address the DNA evidence adequately, (2) file a motion to suppress the Petitioner’s
pretrial statement, (3) raise issues in the previous appeal, and (4) raise a motion to
dismiss in a timely manner.

At the post-conviction hearing, trial counsel testified that he learned about the
existence of evidence consisting of a fingernail inside a glove shortly before he met with
the prosecutor to request a plea offer for second degree murder in exchange for the
Petitioner’s testimony against her codefendant. Counsel said the prosecutor stated that no
offers would be made. Counsel said that he did not file a motion to suppress the
fingernail and glove evidence but that he took the position during the plea discussion with
the prosecutor and during his cross-examination of the State’s forensic witnesses about
the State’s inability to associate the fingernail and glove with a specific time or place. He
said the fingernail and glove evidence was the only forensic proof tying the Petitioner to
the crimes but did not think it was the “big reason” the Petitioner was convicted. He said
he and the Petitioner discussed this evidence. Although counsel did not specifically
recall having done so, he said he was “sure” he had questioned the State’s expert about
the significance of the presence of DNA from three individuals on the glove. He agreed
that the fingernail analysis showed the Petitioner’s DNA and that the glove analysis
showed the codefendant’s and Rhonda Cutshall’s DNA.

Trial counsel agreed that a large bag of clothing was recovered from the
codefendant’s house. He agreed that most of the clothing items were tested for DNA
evidence. He said he raised in closing argument the possibility that cross-contamination
had occurred. He noted that a Tennessee Bureau of Investigation (TBI) agent admitted
that cross-contamination could occur. He agreed that in view of the evidence of possible
cross-contamination, he did not think it was necessary to request expert funding for
independent DNA testing. He did not recall whether any evidence was presented to show
which individuals owned various items of clothing from the bag.

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 Trial counsel testified that his defense focused on showing that the Petitioner had
not been the shooter and that she had been a victim of a “brute,” referring to the
codefendant. He said he had hoped the evidence of the codefendant’s aggressiveness
could be used to show “battered woman syndrome” such that the Petitioner had been
forced to participate in the offenses and did not have the intent to commit murder or the
predicate felonies of the felony murder counts. He said that he contacted a psychiatrist
with whom he had worked previously and who he thought was “the best in the state,” that
the psychiatrist agreed to work for court-appointed rates, and that the psychiatrist met
with the Petitioner. Counsel said that after the meeting, the psychiatrist informed him
that in the psychiatrist’s opinion, the Petitioner did not have battered woman syndrome or
post-traumatic stress disorder. Counsel said that he asked the court for funds to hire a
second psychiatrist to serve as a defense expert but that the court denied the request.
Counsel asked the Petitioner’s father to provide the expert funds, but the father did not.

Trial counsel testified that despite the lack of expert assistance, he presented a
battered woman defense through testimony of the Petitioner’s family members and a
former police officer who had arrested the codefendant and had seen the Petitioner’s
bruises. Counsel noted that the evidence of the Petitioner’s participation was limited to
her “kicking down [the] door,” and counsel said the proof showed the Petitioner twice
kicked and tried to get away from the codefendant but that the codefendant had run after
the Petitioner and forced her to participate.

Trial counsel testified that he filed a motion requesting that the State be prohibited
“from referring to any evidence that [the Petitioner] was the trigger puller” because the
State had offered evidence at a previous trial that the codefendant had pulled the trigger,
but he said the trial court denied his motion. Counsel said, however, that he argued the
Petitioner was less culpable than others who may have been involved in the crime.

Trial counsel testified that the Petitioner gave three statements to law enforcement
before counsel was appointed. He noted that she had given a statement, that she had been
incarcerated, and that she had sent two requests to talk with the police again while she
was incarcerated. He also noted that a trial court’s ruling on a denial of a motion to
suppress would not be reversed absent abuse of discretion and said he had not raised the
court’s denial of the motion to suppress in the appeal because he did not think relief
would be granted. He acknowledged that the Petitioner and two other individuals gave
incriminating statements.

Trial counsel acknowledged that he did not meet with the Petitioner, who was
incarcerated in the Department of Correction, before filing the appellate brief. Counsel
said, however, that he always provided his clients with a copy of the filed appellate brief.

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He said he did not raise an appellate issue regarding the trial court’s denial of funding for
a second defense expert because he thought the ruling was within the trial court’s
discretion.

Trial counsel acknowledged that Codefendant Jones’s family, particularly his
grandmother, “raised a stink” because they thought the Petitioner was “some sort of evil
woman or something like that.” Counsel said, however, that the codefendant’s family’s
feelings were unrelated to the State’s decision not to extend a plea offer to the Petitioner.
Counsel said that if the State had made an offer, he would have communicated it to the
Petitioner, without regard to whether he thought the offer was favorable to the Petitioner.

Trial counsel testified that early in the case, he noticed a defect in the indictment
because the “true bill” box had not been checked. He said he was aware of Tennessee
Rule of Criminal Procedure 12(b)(2)(B), which stated that generally, an allegation
regarding a defective indictment must be raised before the trial. He noted, however, that
the rule also stated that the court could hear a claim at any time if the indictment failed to
show jurisdiction or failed to charge an offense. He said that he decided to wait to raise
the issue in the motion for judgment of acquittal because jeopardy attached when the jury
had been sworn but that the trial judge noticed the defect before the motion for judgment
of acquittal. He said he had not raised the issue earlier because he did not want to give
the State the opportunity to cure the defect. Counsel said the court called the grand jury
foreperson as a witness to remedy the defect. He said that notwithstanding the grand jury
foreperson’s testimony, he made a motion to dismiss for lack of jurisdiction, which the
court denied. Counsel said that the appellate courts had ruled repeatedly that the motion
had to be raised before the trial and that this court held accordingly in the Petitioner’s
case. He noted, however, that this court merged the Petitioner’s murder convictions into
a single count. He said that the merger foreclosed the opportunity to raise the issue
regarding the deficiency of the indictment in the Tennessee Supreme Court.

Trial counsel testified that he did not raise an appellate issue regarding jury
sequestration because the jury pool came from another county. He said that he
considered the choice not to request a sequestered jury to be a matter of trial strategy and
that he had been concerned about the jurors developing a “mob mentality” if they were
sequestered. He said that although he had filed a motion to sequester the jury in the trial
court, he did not argue the motion. He said he had discussed the strategy relative to the
sequestration issue with the Petitioner.

The Petitioner testified that she had faced the death penalty in the conviction
proceedings and that the State would be able to seek the death penalty if she were granted
post-conviction relief. She said that although the jury was chosen from Hamblen County

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for her Greene County trial, she thought the jury should have been selected from a more
distant county that had not had media coverage of the case. She said a jail inmate from
another county had been aware of her case due to media coverage in the inmate’s home
county. She also said that a person who lived in Johnson City had seen media coverage
of her case. She thought the jury should have been sequestered to prevent their accessing
social media during the trial but acknowledged she never voiced any concern to trial
counsel during the trial. She denied that she and counsel discussed the danger of a “mob
mentality” if the jury were sequestered but acknowledged they discussed the possibility
that sequestered jurors might discuss the case and convince one another of things that
would be harmful to the defense. She acknowledged that a sequestered jury might “cut
both ways.”

The Petitioner testified that trial counsel did not ask a forensic expert to explain
the meaning of “degraded DNA.” She thought the existence of degradation would
indicate the DNA had been present for more than three or four days. She thought
counsel’s failure to ask questions about degraded DNA hurt the defense “[b]ecause [the
jurors] see that as my fingernail in the glove and that was the glove that was used in the
shooting.” She acknowledged that the glove contained DNA from herself, Codefendant
Jones, and the female victim. The Petitioner did not recall whether counsel questioned
her during her trial testimony about how many times she had worn the gloves. She said
she had told counsel that she had worn the gloves and other unspecified items when
hunting. She did not recall whether counsel mentioned in closing argument the
possibility she had worn the gloves on other occasions.

The Petitioner testified that in her opinion, trial counsel should have filed a motion
to suppress the fingernail and glove evidence because this evidence contained degraded
DNA. She did not recall whether she and counsel discussed the possibility of having the
evidence suppressed. She thought that if the jury did not understand what degraded DNA
meant, it might have convicted her solely on the basis of this evidence.

The Petitioner agreed that the bag of clothing contained both her and Codefendant
Jones’s clothing. She agreed that the laboratory report specified which items of clothing
contained DNA evidence and that traces of the victims’ blood was identified on some of
the clothing. She said she had advised trial counsel of the clothing items she wore but
that he had not presented the evidence at the trial. She said that the only blood on her
clothing was a spot on a pair of pants, that the stain “could not be localized,” and that no
DNA could be identified. She said that Codefendant Jones’s clothing contained blood
“splatter” and that hers did not. Nevertheless, she said, the jury was not informed of
which clothing was hers and which was Codefendant Jones’s.

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 The Petitioner testified that she, not trial counsel, found the defect in the
indictment and that she brought it to his attention. She said counsel stated he could try to
get the case dismissed and that it might go back in front of the grand jury. She
acknowledged that the court noted the defect before counsel mentioned it at the trial.

The Petitioner acknowledged that trial counsel filed a motion to suppress her
pretrial statements. After reviewing a copy of the appellate brief, she stated that the
suppression and change of venue issues had not been raised on appeal and that she
thought they should have been raised. She said she had been unable to talk to counsel
regarding the issues to be raised on appeal and agreed that counsel chose the issues.

The Petitioner testified that she had not heard about the defense’s consulting
psychiatrist’s findings until the day of the post-conviction hearing. She said, however,
that trial counsel had advised her that the psychiatrist did not find “PTSD or . . . battered
wife” syndrome and that there was no reason to call the psychiatrist as an expert. The
Petitioner acknowledged that counsel mentioned he had tried to obtain funds for a second
defense psychiatric evaluation and that counsel attempted to obtain funds for the second
evaluation from the Petitioner’s father. She said her father was unable to provide the
funds. She said she and counsel discussed how the lack of a defense psychiatric expert
could harm the defense. She said her father could testify to the abuse she suffered from
Codefendant Jones. She noted the defense psychiatrist talked to her about three years
after the offense and stated that at this point, she did not have to worry about
Codefendant Jones.

The Petitioner testified that she and trial counsel discussed the facts surrounding
the offense. She said that she and Codefendant Jones had argued that night, that she “did
not want to go,” and that she could not have overpowered Mr. Jones, particularly when he
had a gun. She said that she had not understood the concept of felony murder but that
counsel had explained “first degree murder” and felony murder to her. She said they
discussed the fact that she could be found guilty of felony murder even if she were not
the “main person that does it.” She said counsel explained burglary to her and
acknowledged that the State presented sufficient evidence for the jury to convict her of
burglary. She agreed that she had kicked the door of the victims’ home and that the
female victim’s property was found in “our” possession. She said she told counsel that
Codefendant Jones wanted her to kick in the door, that she kicked the door, that it did not
open, and that Codefendant Jones kicked open the door. She said counsel explained that
although she had not been successful, she had attempted and admitted her involvement.
She agreed that she had hoped to convince the jury that her participation had not been her
idea and that she had not known Codefendant Jones was going to commit the shootings.
She acknowledged that Codefendant Jones had mentioned that he wanted to rob Mr.

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Cutshall. She said Codefendant Jones had put the gloves and mask on her. She said she
kicked him twice trying to get away from him.

When asked how she thought trial counsel’s actions and inactions had contributed
to her guilty verdicts, the Petitioner testified, “I think the jury didn’t completely
understand certain evidence, certain things, he could have explained in a little more
detail.” When asked to explain why counsel’s actions and inactions affected the verdict,
she said she thought the “jury . . . would have seen the evidence in a different light
instead of two trigger people.”

The Petitioner testified that trial counsel did not “bring [an] offer to” her. She said
he told her at one point that there had been an offer but that it had been revoked because
Codefendant Jones’s grandparents objected to the district attorney’s not extending an
offer to Codefendant Jones while making plea offers to her and Codefendant Rader. She
said counsel did not tell her the terms of the withdrawn offer. She said that before
counsel told her about the withdrawn offer, she and counsel had discussed plea offers she
would be willing to accept, which she said included facilitation of an unspecified offense
or “second degree.” She said she did not ask how long the offer had been available. She
said Codefendant Rader pleaded guilty after her trial.

The Petitioner testified that she told trial counsel about her concern that a juror
knew Jennifer Paxton, a jail employee. She said counsel shook his head and did not think
it was “such a big deal.” She agreed that she did not tell counsel to remove the juror on
this basis. She said that she and counsel had no discussion about challenging a juror
whose business had been burglarized but that counsel should have challenged the juror.
She agreed she left picking the jury to counsel. She thought that these jurors might have
been biased in favor of law enforcement and that it might have affected her trial.

The Petitioner acknowledged that she liked trial counsel and that they talked at
length about her case. She said she trusted him. She said she never asked the trial court
to remove counsel as her attorney.

Charlsey Anderson, Codefendant Jones’s grandmother, testified that she had
talked to an assistant district attorney general about the case but that she was unaware of
whether the State made any plea offers to the Petitioner. She denied that she told the
Petitioner’s counsel previously that multiple offers were made to the Petitioner and
Codefendant Rader. She did not recall having gone to the district attorney general’s
office when she was upset because she thought the State was going to enter into a plea
agreement with the Petitioner but acknowledged she “said it on the phone.” She
maintained, however, that she did not know whether the State made a plea offer to the

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Petitioner. When asked if she and her husband went to the district attorney general’s
office to complain about the State being “nice” and “too easy on” the Petitioner, she
responded, “No, I didn’t say they was [sic] too easy on her.”

Joseph Fred Myers, Jr., the Petitioner’s father, testified that at some point, trial
counsel told him in person that a plea “deal” might be “in the works” for the Petitioner
and Codefendant Rader. Mr. Myers said, however, that he never heard the terms of the
deal. He said counsel advised him in a subsequent telephone conversation that
Codefendant Jones’s grandparents had objected to the Petitioner’s receiving a plea offer
because Codefendant Jones had been tried and wanted the Petitioner to face a trial, as
well. Mr. Myers agreed that it was his understanding the grandparents’ objection was the
reason a plea offer was taken “off the table.” He was unaware whether counsel ever
advised the Petitioner of a plea offer.

The post-conviction court denied relief in a written order. This appeal followed.

Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services

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rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

I

Failure to Address DNA Evidence Adequately

The Petitioner contends that trial counsel provided ineffective assistance by failing
to address adequately certain matters related to the DNA evidence. Relative to the glove
and fingernail evidence, she contends that counsel should have lessened its harmful
impact by questioning the State’s forensic expert about the amount of time the DNA
evidence had been on the glove and questioned the Petitioner about the possibility her
fingernail had been left in the glove before the crimes occurred. She argues,
alternatively, that counsel should have filed a motion to suppress the glove and fingernail
evidence. She also argues that counsel should have asked her to identify which items of
clothing from a bag recovered at Codefendant Jones’s house were hers. The State
contends that the post-conviction court correctly denied relief. We agree with the State.

The trial proof showed that on the day after the crime, a bag containing several
articles of clothing was collected during a police search of Codefendant Jones’s house.
The house had been searched by the police the previous day, but the bag of clothing had
not been present at that time. The bag contained a glove, and a fingernail was discovered
inside the glove when it was examined by the TBI. Forensic analysis revealed the
presence of DNA from three individuals, and the testing did not exclude the Petitioner,
Codefendant Jones, and one of the victims as its contributors. Testing revealed that the
fingernail was the Petitioner’s. By the Petitioner’s own admission, she wore gloves
during the crimes, although she claimed codefendant Jones placed them on her forcibly.
Jessica M. Myers, 2013 WL 5436955, at *4, 6-7.

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 A. Glove and Fingernail Evidence

1. Examination of Witnesses

The trial record, which was received as an exhibit at the post-conviction hearing,
reflects that trial counsel did not ask the Petitioner about other occasions on which she
wore the glove. It reflects, however, that at the end of redirect examination, counsel
asked the Petitioner if she shot the victims, and she responded that she had not. It
likewise reflects that counsel’s cross-examination of the State’s serology DNA expert
focused on the expert’s lack of ability to identify when the fingernail was left in the
glove. During cross-examination, the expert stated that he had no basis for determining
how “old” the fingernail was. He also said that testing would not establish the timeframe
within which DNA had been left on an object.
Relative to this issue, the post-conviction court noted in its order denying relief
that the Petitioner gave three incriminating statements to law enforcement, that her
testimony placed her at the crime scene, and that she had attempted unsuccessfully to
kick in the door. The court found that the Petitioner’s fingernail merely corroborated her
presence at the scene and determined that the Petitioner failed to carry her burden of
proving her claim by clear and convincing evidence.

Trial counsel elicited the Petitioner’s testimony that she did not shoot the victims.
She admitted in her testimony that she had been present, and she acknowledged at the
post-conviction hearing that she knew Codefendant Jones wanted to steal pills from the
victims’ home and that she kicked the door at Codefendant Jones’s insistence.
Questioning the Petitioner about other times she may have worn the glove would not
have diminished the incriminating nature of the facts. The State’s expert testified on
cross-examination that the testing which had been performed would not establish when
the fingernail was left inside the glove or when DNA was deposited on the glove. The
Petitioner failed to carry her burden of establishing deficient performance by counsel and
prejudice from counsel’s actions. The post-conviction court did not err in denying relief
on this basis.

2. Suppression

The Petitioner also contends that trial counsel provided ineffective assistance
because he failed to file a motion to suppress the fingernail and glove evidence as unduly
prejudicial. She bases this argument upon her own opinion expressed in her post-
conviction testimony that a laboratory report showing “degraded” DNA on the glove
indicated that the material had been on the glove for some time. The Petitioner did not
offer expert proof at the post-conviction hearing to support her claim that the conclusion

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to be drawn from degraded DNA was that it had been present for some time. As we have
noted, the State’s serology DNA expert testified at the trial that the testing performed did
not establish how long the DNA had been present on the glove and that he could not offer
an opinion regarding how long the fingernail had been in the glove. The Petitioner has
not provided any citation to authority to support her claim that this evidence should have
been suppressed as unduly prejudicial. We note that Tennessee Rule of Evidence 403
provides for exclusion of relevant evidence if its probative value is outweighed by the
danger of unfair prejudice. This is an evidentiary matter, in contrast to suppression of
evidence, which generally addresses constitutional concerns. See, e.g., State v. Meeks,
262 S.W.3d 710 (Tenn. 2008) (addressing constitutionality of a warrantless search); State
v. Garcia, 123 S.W.3d 335 (Tenn. 2003) (addressing constitutionality of a vehicle stop
and whether consensual search of vehicle was sufficiently attenuated from an unlawful
detention); State v. Binette, 33 S.W.3d 215 (Tenn. 2000) (addressing constitutionality of a
warrantless traffic stop). The Petitioner has not articulated a constitutional basis for
suppressing the evidence. The Petitioner failed to carry her burden of establishing
deficient performance by counsel and prejudice from counsel’s actions. The post-
conviction court did not err in denying relief on this basis.

B. DNA Evidence on Clothing

The Petitioner contends that trial counsel provided ineffective assistance because
he failed to ask her to identify which items of clothing from the bag recovered at
Codefendant Jones’s house were hers. She argues that this evidence could have assisted
the jury in determining her credibility about her version of events and whether she was
the shooter. The State contends that because it relied on a criminal responsibility theory
at the trial, the identity of the shooter was irrelevant in view of the Petitioner’s admission
she was with codefendant Jones and that she kicked the victims’ door.

At the post-conviction hearing, the Petitioner did not testify about which items of
clothing were hers. Without this evidence, the post-conviction court was without a basis
for determining how it might have corroborated the Petitioner’s testimony and
demonstrated that she was not the shooter. As the State notes, it relied upon a criminal
responsibility theory as to the Petitioner, and she admitted her presence and participation
in the offenses in her pretrial statements and testimony. The Petitioner failed to carry her
burden of establishing deficient performance by counsel and prejudice from counsel’s
actions. The post-conviction court did not err in denying relief on this basis.

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 II

Failure to File Motion to Suppress Petitioner’s Pretrial Statements

The Petitioner contends that trial counsel provided ineffective assistance by failing
to file a motion to suppress her pretrial statements based upon her impairment from
Xanax ingestion and the fact that she was “scared, confused, and pressured into giving
statements.” The State contends that the Petitioner did not establish ineffective assistance
because the evidence shows that her statements were given upon her request to speak to
officers.

This issue was not raised in the pro se or amended post-conviction petitions. The
amended petition alleged that trial counsel provided ineffective assistance by failing to
raise an appellate issue regarding the propriety of the trial court’s ruling on the
Petitioner’s “motion to suppress statements in violation of her right against self-
incrimination, or because it was taken under circumstances highly likely to show duress,
coercion, or undue influence.” In fact, the trial record reflects that counsel filed a motion
to suppress a pretrial statement made by the Petitioner, albeit on the basis the statement
had been made after she requested an attorney. The post-conviction court was not asked
to, and did not, address an allegation of ineffective assistance of counsel due to the failure
to file a motion to suppress the Petitioner’s pretrial statements. Consideration of this
issue is waived. See, e.g., Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. 2004) (“[A]n
issue raised for the first time on appeal is waived.”).

III

Failure To Raise Appellate Issues

The Petitioner contends that trial counsel provided ineffective assistance by failing
to raise appellate issues regarding (1) a motion to suppress the Petitioner’s pretrial
statements and the DNA evidence, (2) a motion for a change of venue, and (3) the DNA
results as impacting the sufficiency of the evidence. The State contends that the post-
conviction court did not err in denying relief because the evidence showed that counsel
relied upon his professional judgment in choosing the issues to raise in the appeal.

The Petitioner’s complaint relates, in part, to trial counsel’s failure to consult with
the Petitioner about the issues to be raised in the appellate brief. She has not identified,
however, any information or input she had which would have affected counsel’s
decisions about the issues to be raised. Likewise, she has not cited authority to show that
she was entitled to relief on the issues she complains counsel did not raise. She

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complains, “The likelihood of a remand, or new trial, was . . . limited [by counsel’s
failure to raise additional issues] and entirely based upon the issues presented in the
appellate brief. So, counsel should have explored all options for reversal, not just the
limited issue(s) he presented.” Trial counsel’s testimony reflects that he considered the
issues and raised the ones he thought held the possibility for appellate relief. His
testimony reflects that he did not raise issues for which he thought the possibility of relief
did not exist. Counsel is “not required to raise every conceivable issue on appeal.” See,
e.g., Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004). As a general principle, the
decisions regarding which issues to be raised on appeal are within counsel’s sound
discretion. See id. The post-conviction court did not err in determining that the
Petitioner failed to carry her burden of proving that counsel’s performance was deficient
and that she was prejudiced by his actions and inactions. The court did not err in denying
relief on this basis.

IV

Failure to Make a Timely Motion to Dismiss

The Petitioner contends that trial counsel provided ineffective assistance because
he failed to make a timely motion to dismiss Count 1 of the indictment, which the record
reflects charged first degree premeditated murder, based upon the “true bill” box not
being checked. The State contends that counsel elected to wait until jeopardy attached in
order to foreclose the State from remedying the defect, and that in any event, the
Petitioner cannot show prejudice because if counsel had made the motion in the time
specified by the Rules of Criminal Procedure, the State would have corrected the error.

Trial counsel testified at the post-conviction hearing that he was aware of the
defect in Count 1. He said that he was aware, as well, that Tennessee Rule of Criminal
Procedure 12(b)(2)(B) provided that generally, an allegation regarding a defective
indictment must be raised before the trial. He noted, though, that the rule also stated that
the court could hear a claim at any time if the indictment failed to show jurisdiction or
failed to charge an offense. Counsel elected to wait to raise the issue and planned to do
so in the motion for judgment of acquittal because jeopardy attached when the jury had
been sworn. According to the proof at the post-conviction hearing, the trial judge noticed
the defect before a motion for judgment of acquittal was made. Counsel said he had not
raised the issue earlier because he did not want to give the State the opportunity to cure
the defect.

The trial transcript reflects that during the State’s case-in-chief, the following
transpired:

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 THE COURT: Something that has arisen about this trial, and it
has just come to my attention inadvertently that I was sitting up here and
opened the file, and I don’t think any of the lawyers have caught it yet. I
don’t think –

[TRIAL COUNSEL]: I think I have, your Honor; I was going
to make it, it’s the fact that count one of the indictment does not checked
[sic] a true bill or a no true bill; is that right?

The court noted that no defect existed as to the remaining counts of the indictment. The
court called the grand jury foreperson, who testified that Count 1 was a true bill and that
he had failed to check its status as such on the indictment. Counsel made a motion to
dismiss the indictment on the basis that jeopardy had attached, although acknowledging
that the State still had felony murder charges pending against the Petitioner. The court
denied the motion and ruled that the State could proceed on Count 1.

Trial counsel challenged the trial court’s ruling in the previous appeal. In
determining that the Petitioner was not entitled to relief, this court examined relevant
cases and said, “It would appear, based on the cases cited and the dicta in [State v.
Applewhite, 597 S.W.2d 328 (Tenn. Crim. App. 1979)], that the error is not jurisdictional
and was therefore waived when the defendant failed to raise it prior to trial.” Jessica M.
Myers, 2013 WL 5436955, at *14. The court went on to conclude that even if the failure
to check the “true bill” box on the indictment was jurisdictional, could not be waived, and
invalidated the first degree premeditated murder conviction, any error was harmless in
view of the felony murder conviction. Id. In a footnote, the court acknowledged the trial
court’s attempt to cure the defect that occurred in this case and stated that due to the
Petitioner’s inability to obtain relief, it would not address the effect of the trial court’s
effort to cure the defect. Id. at *14 n.7. This court also directed the trial court to merge
the conviction for Count 1 with the convictions for felony murder. Id. at *14.

In evaluating trial counsel’s conduct, we note that this court acknowledged the
lack of clarity in the existing caselaw and an ambiguity in the statute regarding the
requirements for a determining what constitutes the finding of a true bill. See id. at *13.
The Petitioner has cited no authority other than the opinion in her previous appeal and the
relevant Rule of Criminal Procedure to support her position that counsel’s performance
was deficient. We note that had counsel pursued a motion to dismiss before the trial, the
State would not have been foreclosed from returning to the grand jury to seek a new
indictment. We cannot conclude that the evidence preponderates against the post-
conviction court’s determination that counsel did not perform deficiently. In any event,

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dismissal of Count 1, charging first degree premeditated murder, would have availed the
Petitioner no benefit because no issue existed with regard to the counts charging felony
murder. Ultimately, the Petitioner was convicted of the felony murder counts, which
were merged with Count 1. We conclude, therefore, that the trial court did not err in
determining that the Petitioner failed to prove that she received ineffective assistance of
counsel in this regard. She is not entitled to relief on this basis.

In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.

_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE

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