IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 25, 2016
DAVID ALAN HUNTER v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 284870 Don W. Poole, Judge
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No. E2015-02177-CCA-R3-PC – Filed December 1, 2016
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The petitioner, David Alan Hunter, appeals from the post-conviction court‟s denial of
relief from his conviction for first-degree murder and attempted especially aggravated
robbery. On appeal, the petitioner argues he received ineffective assistance of counsel
due to trial counsel‟s failure to adequately explain the benefits of accepting a plea
agreement despite his assertion of innocence and failure to convey a formal plea offer
made by the State. Following our review, we affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and ROBERT L. HOLLOWAY, JR., JJ., joined.
Lorrie Miller, Chattanooga, Tennessee, for the appellant, David A. Hunter.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Neal Pinkston, District Attorney General; and Cameron Williams, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
The petitioner was convicted by a Hamilton County Criminal Court jury of first
degree murder and attempted especially aggravated robbery, for which he received an
effective sentence of life imprisonment. This Court affirmed his convictions on direct
appeal, and our Supreme Court denied his application for permission to appeal. State v.
David A. Hunter, E2010-01351-CCA-R3-CD, 2011 WL 1532086, at *1 (Tenn. Crim.
App. April 20, 2011). On direct appeal, this Court recited the following underlying facts
and procedural history:
On March 16, 2008, James Fleming, Jr., a cab driver for Mercury
Cab Company, was shot in the head during a failed robbery attempt in the
St. Elmo area of Chattanooga. He died instantly. Two days later,
Chattanooga Police Department (CPD) Detective Justin Kilgore arrested
the [then] fifteen-year-old [petitioner] for Mr. Fleming‟s murder. Although
the [petitioner] confessed to shooting the victim, at trial he testified that
another individual, Dewayne Johnson, had committed the murder. The jury
convicted the [petitioner], as indicted, of the first degree felony murder and
attempted especially aggravated robbery of the victim.
Steve Troxler, a longtime resident of St. Elmo, was at home with his
family on the evening of March 16, 2008, when, at approximately 9:10, he
heard a gunshot followed by a crash. He went outside to investigate the
source of the noise and discovered that the victim‟s cab had crashed into a
nearby garage. When he looked inside the cab, Mr. Troxler discovered that
the victim had suffered a gunshot wound to the left side of his head. Mr.
Troxler was about to check the victim‟s pulse when his wife, a nurse, told
him not to because it was “too late.” He and other neighbors then waited
on the police, who soon arrived. Mr. Troxler did not see anyone running
from the victim‟s cab, but he did recall that there was a wooded area
adjoining a cemetery nearby.
Christine Edwards, the victim‟s niece, regularly rode with the victim
in his cab and was doing so on the night of March 16, 2008. She admitted
that they had smoked marijuana together earlier in the evening. She rode
with the victim to pick up a “fare” in the Alton Park area of Chattanooga.
She recalled that the individual entered the back seat of the cab from the
driver‟s side and that he was a young African American male dressed in
black clothing and wearing a “black doo rag” on his head. Ms. Edwards
later identified the individual as the [petitioner].
Ms. Edwards testified that the [petitioner] directed the victim to the
[petitioner‟s] destination, a green house in the St. Elmo area. As the cab
approached the residence, the victim turned on the interior dome light of
the cab. The [petitioner] then placed a gun to Ms. Edwards‟ head and told
her to “give [him] all [her] shit.” When Ms. Edwards reached for her purse,
the [petitioner] directed her to keep her hands up and then moved the gun to
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the victim‟s head. Ms. Edwards described an “ugly confrontation” between
the [petitioner] and the victim during which she was ordered out of the cab.
As she sat on the curb watching, the victim and the [petitioner] were
“tussling” and “wrestling with the steering wheel of the cab.” Finally able
to put the cab in drive, the victim drove the cab forward, skirting a
dumpster before crashing into a shed just as Ms. Edwards heard two
gunshots.
After the cab crashed, Ms. Edwards “got up and ran” several houses
away from the crash site. She saw the [petitioner] walking toward her, and
she entered a home through an unlocked front door. When the homeowner
met her in the hallway, Ms. Edwards reported that her uncle had been
robbed. The homeowner telephoned the police who arrived “within like a
minute.”
The police informed Ms. Edwards that her uncle had died. After
providing a statement to Detective Kilgore, Ms. Edwards reviewed several
photographic lineups but was unable to make any identification of the
assailant. She initially described the assailant as approximately 5‟8” in
height and weighing 145 to 150 pounds. The [petitioner], however,
weighed over 200 pounds and was taller than 5‟8”. Ms. Edwards first
identified the [petitioner] six weeks later upon seeing him at the juvenile
court transfer hearing. Despite the discrepancies between her description of
the assailant and the [petitioner‟s] actual physical characteristics, Ms.
Edwards stated, “I recognized him [at the transfer hearing]. I couldn‟t
believe that it was him, but they found him, that was him. The same guy I
described, it was him.”
Elizabeth Marlar Capecchi lived in the St. Elmo area of Chattanooga
on March 16, 2008. As she was putting her youngest son to bed that
evening, she heard knocking at her front door and walked to her foyer to
find Ms. Edwards in her home. She recalled that Ms. Edwards was “just
kind of yelling and screaming and sort of crying.” Ms. Edwards told Ms.
Capecchi that “[s]omeone tried to mug us” and “he‟s behind me.” Ms.
Capecchi looked out the side transom windows of her door to see someone
walking up the hill toward Forest Hills Cemetery. She described the
individual as a “kind of hefty, stocky black guy,” wearing dark clothing and
weighing about 220 pounds. She could not, however, see the individual‟s
face.
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Doctor James Kenneth Metcalf, Hamilton County Medical
Examiner, performed an autopsy of the victim and determined that the
victim died from a single gunshot wound to his head which entered above
and behind his left ear. The bullet pierced the skull on both sides and came
to rest just beneath the skin near the victim‟s right ear. Doctor Metcalf
opined that the victim‟s death was instantaneous.
Doctor Metcalf removed the bullet and provided it to CPD Detective
Chad Rowe who forwarded it to the Tennessee Bureau of Investigation
(TBI) Crime Lab for analysis. The parties stipulated that TBI Special
Agent Steve Scott identified the bullet as a .38 caliber automatic. Special
Agent Scott could not, however, match the bullet to any handgun due to
insufficient markings.
Former CPD Officer Brian Lockhart worked for the CPD crime
scene unit in March 2008. He swabbed the victim‟s cab for blood and other
DNA evidence. He also processed the vehicle for latent fingerprints and
gunshot residue evidence.
TBI Special Agent James Russell Davis, II, performed microanalysis
on items collected by Officer Lockhart. Testing revealed the presence of
gunshot residue on the driver‟s side headrest of the cab. No gunshot
residue was discovered on any clothing submitted for testing. Special
Agent Davis could not, however, determine the owner of the clothing that
was submitted for testing.
TBI Special Agent Jennifer Shipman performed serology testing on
samples collected by Officer Lockhart. Of the non-degraded samples
submitted, none matched the [petitioner] or Dewayne Johnson. Of the
blood samples submitted for testing, all matched the DNA of the victim.
TBI Special Agent Dabney Kirk performed fingerprint analysis of
the latent fingerprints collected by Officer Lockhart. Of the seven prints
submitted, only three were identifiable. None matched Dewayne Johnson
or the victim. One of the three prints matched the [petitioner]. Special
Agent Kirk acknowledged that there was no way to ascertain when the print
was left on the cab.
Detective Justin Kilgore used telephone logs from the cab company
to determine the telephone number of the last fare picked up by the victim.
Through the assistance of the cellular telephone carrier associated with the
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telephone number, Detective Kilgore ultimately determined that the cellular
telephone was owned by Leslie Bailey, the [petitioner‟s] mother. Further
assistance from the cellular telephone company enabled Detective Kilgore
to determine the precise location of the cellular telephone, leading to the
apprehension of the [petitioner] on March 18, 2008.
Detective Kilgore transported the [petitioner] to the CPD service
center where he placed the [petitioner] in an interrogation room. Knowing
that the [petitioner] was a juvenile, Detective Kilgore contacted the
[petitioner‟s] mother who arrived at the service center at approximately
9:30 p.m. Detective Kilgore did not question the [petitioner] while
awaiting Ms. Bailey‟s arrival. After a full explanation of his Miranda
rights, the [petitioner] initialed each right as an indication of his
understanding and signed a waiver of his rights. Detective Kilgore, the
[petitioner‟s] mother, and another officer witnessed the execution of the
waiver.
After being confronted with evidence concerning the telephone logs,
the [petitioner] admitted that, after spending March 16 with friends, he
went to “The Villages” where he telephoned the cab company. He used
“*67” to block his cellular telephone number from showing on the cab
company telephone‟s caller identification. When the cab arrived, he
entered the back seat through the driver‟s side and directed the cab driver to
take him to 44th Street in the St. Elmo area. The [petitioner] told Detective
Kilgore that there was a female passenger in the front seat with the driver.
When the cab stopped, the [petitioner] pulled a gun from his pocket and
held it to both the cab driver and the female passenger‟s heads. The
[petitioner] ordered the female from the vehicle. When the [petitioner]
demanded money from the cab driver, the cab driver “[t]ried to drive off.”
The [petitioner] admitted to Detective Kilgore that the cab driver “kept
trying to drive off and I shot him.” The [petitioner] said that the cab driver
hit another car before crashing into the garage. When the car stopped, the
[petitioner] fled the scene and walked back to the home of his best friend,
Ronald White. He said that he walked through a wooded area and a
cemetery on his way to Mr. White‟s home.
In his statement to police, the [petitioner] said that he was wearing
bright green shorts and a black t-shirt. He reported that the gun was a black
.38 caliber automatic that he had found in the grass a “couple of days”
earlier on Jackson Street. He claimed that he was walking with Mr. White
when he found the gun and that he concealed it in the back waistband of his
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pants. He said that after the shooting, he gave the gun to an unknown black
male on his way back to Mr. White‟s house. The [petitioner] told Detective
Kilgore that he looked up the telephone number to the cab company before
he left Mr. White‟s house that night. He said that he planned to rob the cab
driver before leaving but that he had no intention to kill anyone. The
[petitioner] did not obtain any money from his efforts.
Two days after the [petitioner] made his statement, the [petitioner‟s]
mother, Leslie Bailey, telephoned Detective Kilgore to tell him that the
[petitioner] had told her that Dewayne Johnson committed the offenses.
Detective Kilgore investigated this information and determined, based upon
an interview with Mr. Johnson and the absence of any physical evidence
linking him to the crimes, that Mr. Johnson had nothing to do with the
shooting.
At trial, Detective Kilgore admitted that the telephone records were
not “necessarily indicative” of who had placed the call to the cab company.
He also acknowledged at trial that the [petitioner‟s] physical characteristics
differed somewhat from the eyewitness descriptions and that the eyewitness
descriptions may more accurately describe Mr. Johnson. He reiterated,
however, that the [petitioner] possessed the cellular telephone within two
days of the offenses and that the [petitioner] confessed to the shooting.
Detective Kilgore also noted that the .38 caliber bullet recovered from the
victim was compatible for use in a .38 caliber handgun.
At trial, the [petitioner] testified that he was staying with Mr. White
during spring break on the weekend of March 16, 2008. He said that he
and his friends spent the day visiting friends. He said that they typically
walked but sometimes rode the bus or called a cab to get to their
destinations. After visiting several friends during the day, the [petitioner]
and Mr. White returned to Mr. White‟s home where they watched a movie.
Sometime during the evening while the [petitioner] and his friends were
outside, Mr. Johnson approached the [petitioner] with an offer to make
some “quick money.” The two men then planned the robbery of a cab
driver. The petitioner obtained the telephone number to the cab company
and telephoned for the cab on his cellular telephone. As the cab
approached, the [petitioner] changed his mind and abandoned the plan to
assist in the robbery. He gave Mr. Johnson his cellular telephone and asked
him to return it to him later that night. The [petitioner] testified that he
watched Mr. Johnson enter the vehicle and ride away, waited a few
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minutes, and walked to Mr. White‟s home where he and Mr. White washed
dishes and watched another movie.
Sometime after 9:00 p.m., Mr. Johnson called the [petitioner] and
returned the cellular telephone to him. In their brief conversation, Mr.
Johnson told the [petitioner] the details of the robbery but did not admit any
details about the shooting. The [petitioner] testified that he never saw Mr.
Johnson again. The victim‟s murder was reported during the 11 o‟clock
news later that night. Fearful of being labeled a “snitch,” the [petitioner]
did not contact the police or say anything to any of his friends concerning
his knowledge of the offenses.
The petitioner explained that he confessed to the police because
Detective Kilgore offered to help him with the judge and also because he
thought nothing would happen to him because of his juvenile status. When
he realized that he would be tried as an adult, he decided to disclose that
Mr. Johnson had committed the offenses. He denied getting into the cab
and having any involvement in the shooting. He claimed knowledge of the
details of the offenses based upon the brief, yet detailed, conversation
between himself and Mr. Johnson.
Ronald White testified at trial that he and the [petitioner] spent the
entire day of March 16 together except for about 10 to 15 minutes in the
evening when the [petitioner] went next door to visit a neighbor. Mr.
White said that when the [petitioner] returned, they washed dishes together
and watched a movie. He said that the [petitioner‟s] demeanor was normal
throughout the day and that he had never seen the [petitioner] with a gun,
either on March 16 or any other day. On cross-examination, Mr. White
acknowledged that the [petitioner] had told him he went next door to visit
the neighbor and that he did not actually see the [petitioner] at the
neighbor‟s house. He also expressed surprise that the [petitioner] had
confessed to Detective Kilgore that he went to “The Villages,” planned the
robbery, and shot the victim.
Marilyn Thompson, Mr. White‟s mother, testified that the
[petitioner] was with her son at her home on the evening of March 16. She
said that the boys had spent the day “just hanging out” because it was
spring break. She recalled that the [petitioner] went next door to the
neighbor‟s home for a few minutes, but she admitted that she did not
actually see him there because she had been asleep during part of the
evening. She never saw the [petitioner] with a gun that day or any other
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day. Her son and the [petitioner] left her home at approximately 11:30 p.m.
to go visit her son‟s girlfriend. She was “so surprised” when her son told
her two days later that the police “got Alan” for the murder of the cab
driver.
LaKeisha Boden, Mr. White‟s girlfriend, testified that the
[petitioner] and Mr. White came to her home around midnight on March
16. She said that she had met the [petitioner] several times before and that
nothing seemed unusual about his demeanor or behavior that evening. She
admitted that she had no knowledge of what the [petitioner] may have been
doing earlier that night.
In rebuttal, the State presented the testimony of Dewayne Johnson
who testified that he met the [petitioner] once several weeks before the
shooting and that they had gotten into a fight. He said that after that
incident, he never saw the [petitioner] again. He denied planning a robbery
of the cab driver. He said that he spent March 16 working with his school
youth conference and returned home at approximately 7:00 p.m., where he
remained for the rest of the night. On cross-examination, Mr. Johnson
admitted that he had lied to Detective Kilgore when he told him that he had
spent the day playing video games with friends that day.
Based upon this evidence, the jury convicted the [petitioner], as
charged, of the first degree felony murder and attempted especially
aggravated robbery of Mr. Fleming. At sentencing, the trial court imposed
a life sentence by operation of law, see T.C.A. §§ 39-13-202(c)(3), -208(c),
for the first degree felony murder conviction and a concurrent minimum
sentence of eight years‟ incarceration for the attempted especially
aggravated robbery conviction, upon the recommendation of the State.
David A. Hunter, 2011 WL 1532086, at *1-6 (footnote excluded).
The petitioner subsequently filed a timely pro se petition for post-conviction relief
arguing ineffective assistance of counsel, asserting a series of perceived deficits in trial
counsel‟s representation that are not before this Court on appeal. After filing an affidavit
of indigency, the post-conviction court appointed counsel for the petitioner, who filed an
amended petition for post-conviction relief, arguing the petitioner‟s trial counsel was
ineffective for failing to confer with the petitioner prior to trial, fully conduct appropriate
investigations of the State‟s evidence before proceeding to trial, and acquire appropriate
expert witnesses. The petitioner subsequently filed a second amendment to his petition
for post-conviction relief, this time arguing trial counsel had a duty to communicate
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formal plea offers from the prosecution and failed to do so. According to the petitioner,
trial counsel failed to spend adequate time with him prior to trial and failed to fully advise
and consort regarding the possible outcomes of trial versus accepting any plea deal
offered by the State before proceeding to full trial.
A. First Post-Conviction Hearing
The post-conviction court first heard the twice-amended petition for post-
conviction relief on September 22, 2014. Trial counsel testified that he was appointed to
represent the petitioner at trial. He had been practicing for twenty-two years,
approximately eighteen of which he spent doing criminal defense work. During that time
period, he had tried approximately 150 civil and criminal matters. Prior to the
petitioner‟s trial, he had participated in approximately fifty criminal trials.
Trial counsel recalled a plea offer of second degree murder with a twenty-year
sentence but was uncertain as to the specifics. Trial counsel testified he would have
discussed the plea offer and its meaning with his client, including the range of potential
outcomes should the petitioner instead chose to proceed to trial. According to trial
counsel, “because there was a handprint of his on the taxi window that he was saying it‟s
his position he‟d never been near, I felt like second degree was a pretty good option for
him.” According to trial counsel, the petitioner did not take the plea offer.
When questioned about the petitioner‟s mother, trial counsel noted the petitioner,
who was a minor at the time, was very reliant on his mother. The petitioner would relay
their conversations to his mother, and trial counsel would then speak with her. With
respect to accepting a plea offer, it was trial counsel‟s impression the petitioner would
follow his mother‟s instructions, and the petitioner‟s mother wanted him to go to trial
because she believed he would be acquitted. Trial counsel testified that the petitioner
was competent and had a clear understanding of the process. According to counsel, the
petitioner deferred to his mother due to his feelings for her, not because he was incapable
of making a decision.
Trial counsel testified at length about the amount of time spent with the petitioner
prior to trial and the documentation of those meetings in his time records. All time
entries for in-jail visits with the petitioner include travel and wait times. Trial counsel‟s
time records include these in-jail meetings with the petitioner: approximately seventy-
three minutes on August 12, 2008; approximately seventy-eight minutes on November
17, 2008; approximately ninety-six minutes on August 24, 2009; and approximately one-
hundred and forty-four minutes on September 3, 2009. Trial counsel typically compares
his time records with his calendar prior to submitting them for payment, but due to a
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secretarial error, these records were never compared with his calendar, and a bill was not
submitted for payment. His time records could, therefore, be incomplete or inaccurate.
Trial counsel testified that it is easier to arrange meetings with juvenile clients at
the courthouse than in jail, so he also met with the petitioner at the courthouse prior to
hearings and trial. Trial counsel‟s time records show he met with the defendant for
approximately thirty-six minutes prior to court on March 9, 2009, and approximately
seventy-five minutes prior to court on June 29, 2009. Trial counsel testified that it is
possible additional client meetings took place at the courthouse but were not documented
in his time records.
Trial counsel testified that he met with the petitioner enough to advise him of the
charges and the proof, discuss potential witnesses, make a decision as to whether to
testify, and prepare for cross-examination. Considering the additional time he spent
meeting with the petitioner in the courthouse and speaking with his mother, trial counsel
stated the time he spent with the petitioner in jail was “absolutely” sufficient.
Trial counsel stated that it is his obligation “[t]o zealously represent [his] client to
the best of [his] ability.” He is responsible for trial strategy, but it is his client‟s decision
as to whether to testify or plead guilty. With respect to plea agreements versus going to
trial, trial counsel testified, “I don‟t ever take the view that it‟s a really good idea to talk
your clients into pleading, and so if you leave it to your clients, a lot of them would like
to see what happens at trial and I end up trying a lot of cases.”
By stipulation, the parties entered the jail visitation log into evidence. The log
documented the following three visits from trial counsel: twenty-nine minutes on August
12, 2008; forty-seven minutes August 24, 2008; and an hour and thirty-four minutes on
September 3, 2009.
The petitioner testified that he was fifteen years old at the time of his arrest and in
the ninth grade. He first had contact with trial counsel after being incarcerated a couple
of months. During their initial meeting, trial counsel introduced himself, and the
petitioner gave him an overview of the case. The meeting lasted about thirty minutes.
He later received a copy of discovery by mail, but trial counsel never went over it with
him. At some point, trial counsel did review various statements with him, including his
confession. Trial counsel then filed a motion to suppress the petitioner‟s statement,
which he understood was meant to prevent the use of his statement at trial.
The petitioner testified that he only saw trial counsel three or four times in jail.
The petitioner would request visits in letters or tell his mother to request a visit for him,
but his lawyer did not visit until the trial date got close. The petitioner confirmed that
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trial counsel would also meet with him prior to court hearings. The conversations would
last a few minutes, and trial counsel would explain what would happen during the
hearing. The petitioner denied having input as to trial strategy.
A couple weeks prior to trial, the petitioner wrote a letter to the judge complaining
that his lawyer was not doing his job. The petitioner testified that he wanted a new
lawyer and wrote the letter in an effort to fire trial counsel. Prior to the suppression
hearing, the trial court questioned the petitioner regarding the letter and indicated he felt
trial counsel was working on the case. The petitioner denied continuing to have a
problem with his attorney and apologized to counsel for sending the letter. The petitioner
did not think pushing the issue would do any good and did not want his lawyer to be
angry during the trial.
According to the petitioner, trial counsel met with him in jail for a second time a
couple months prior to trial. During the meeting, the petitioner requested a plea of
reckless homicide. Trial counsel came back to see him for a third time about a week
prior to trial and said he had spoken to the prosecutor, who laughed and rejected the
requested plea. The petitioner testified that trial counsel told him he thought he could get
the petitioner a sentence of approximately twenty-five years, to be served at eighty-five
percent, in exchange for a plea of second degree murder. The petitioner has never
understood whether that was an official plea offer or a proposal. He did not respond at
the time because he did not think it was a formal offer. When asked his thoughts on the
proposed plea, the petitioner testified:
I was considering it. I was considering taking the offer, because if he came
back to me with the offer, I would have took it. I let my mother know that
same night, I think the same or couple days later . . . [a]nd she told me,
[w]ell, if you innocent, why would you take something like that. She was
saying all this, that what she was saying, but the whole time, I was waiting
for [trial counsel] to come back with the deal so I can go and sign the paper.
I didn‟t want to go to trial.
Following the third jail visit, the petitioner did not see trial counsel again until the
first day of trial. At that time, the petitioner did not ask about the potential plea. Instead,
he “kind of figured it was too late to do anything because this was the start of trial.”
According to the petitioner, trial counsel should have met with him more often and
had more conversations regarding trial strategy. He was young and did not understand
what was happening or how the criminal justice system worked. In his letters to trial
counsel, the petitioner repeatedly stated that he did not know what was going on with his
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case. When they finally met prior to trial, trial counsel acknowledged receipt of his letters
but never gave the petitioner a clear understanding of the case‟s status.
Leslie Michelle Bailey, the petitioner‟s mother, testified that her son frequently
complained trial counsel did not come to jail enough. She was not the client, so she did
not complain to the trial judge about this. According to Ms. Bailey, the petitioner is
easily frustrated with people in authority, which is why he confessed to the murder. She
did not think the petitioner was intimidated by trial counsel, simply frustrated with his
failure to communicate.
Prior to trial, the petitioner contacted her regarding a potential plea of second
degree murder with a twenty-five year sentence and asked her opinion regarding
accepting the offer. Ms. Bailey testified that she told the petitioner to go to trial and not
plead guilty. Ms. Bailey admitted to pressuring her son not to accept the offer. Ms.
Bailey admitted she did not know whether the State formally put the plea offer in writing;
she never saw a formal written document.
Ms. Bailey and trial counsel had “quite a bit of contact” regarding her son‟s case.
She frequently contacted trial counsel and received one return call for every eight or nine
messages. She spoke with him the evening before trial regarding the proposed plea
agreement. Trial counsel stated it would be advantageous for her son to take the plea
deal because he could not appeal a first degree murder conviction. In response, Ms.
Bailey said, “[W]e‟re just going to let the Lord take control, because we‟re all a family of
faith, so we believe that the Lord will take care of it.” According to Ms. Bailey, in
response trial counsel said, “[I]f he‟s convicted for first degree murder, the Lord cannot
take care of that.”
Ms. Bailey testified that the petitioner, who was in the eighth grade at the time of
his arrest, was academically above average and had been nationally recognized for his
academic accomplishments. He understood the plea offer, and it was his decision to
reject it. Neither she nor her son understood the implications of going to trial.
Marla McGee, the petitioner‟s grandmother, also testified at the initial hearing on
his motion for post-conviction relief. Ms. McGee works with psychologist Dr. David
Ross, who does trial consulting work. According to Ms. McGee, Dr. Ross was willing to
assist with the petitioner‟s case, as was Dr. Cresman, a false confession expert
recommended by Dr. Ross. Ms. McGee was willing to pay any expenses associated with
engaging these experts and provided trial counsel with their contact information. To her
knowledge, trial counsel never contacted the recommended experts.
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Following the adverse jury verdict, trial counsel filed a timely direct appeal. After
this Court affirmed the petitioner‟s conviction, his family hired Donna Miller to handle
the application for permission to appeal to the Tennessee Supreme Court. In addition to
the issues raised by trial counsel, Ms. Miller felt certain cell phone records had been
improperly obtained by law enforcement. Trial counsel, however, did not preserve that
issue for appeal, so Ms. Miller could not raise it in her application.
Ms. Miller had extensive contact with the petitioner and his mother, Ms. Bailey.
During the post-conviction hearing, Ms. Miller testified that Ms. Bailey is extremely
intelligent, but she is uneducated on the criminal justice process. According to Ms.
Miller, when she has clients who are juvenile transfers or particularly reliant on their
family members, she tries to spend a lot of time developing a relationship with those
family members. She makes sure family members understand the criminal justice
process and her recommendations with respect to accepting plea offers versus going to
trial so that those family members can assist her in giving client advice.
Ms. Miller found the petitioner to be immature, confused, and frustrated. The
petitioner did not have a general understanding of the criminal justice process. Ms.
Miller had concerns regarding the petitioner‟s lack of understanding and his frustration
over the amount of time trial counsel spent with him prior to trial. The petitioner felt his
meetings with trial counsel were insufficient to provide adequate education on the
criminal justice system. According to Ms. Miller, the petitioner completely lacked
knowledge of the trial process in terms of settlement offers, pleading guilty versus going
to trial, and the possibility of having a bench trial in certain situations. The petitioner
indicated to her that there was supposed to be a plea offer but trial counsel never followed
up on it, and he did not know whether he should have or could have taken it. When Ms.
Miller spoke with the petitioner, he did not understand that certain things had occurred
that could not be undone. Ms. Miller believed that while the petitioner needed a lot of
assistance understanding adult concepts and terms, if explained in the right way, he has
the ability to understand the criminal justice process. In similar situations, she has used a
psychology expert to ensure clients understand recommendations such as the benefits of
accepting a plea offer versus going to trial.
Following the hearing, the post-conviction court entered a written order deciding,
sua sponte, “that the petitioner should have an opportunity to clarify the proof regarding
his allegation that counsel did not spend sufficient time with him before trial or give him
sufficient information to enable him to make an informed choice between the plea offer
and a trial.” The post-conviction court then ordered the hearing be reopened and set a
hearing date.
B. Second Post-Conviction Hearing
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At the subsequent hearing, trial counsel and Ms. Miller testified again. Neal
Pinkston, one of the prosecutors at trial, then testified for the first time. Trial counsel
testified that after reviewing his file and speaking with Mr. Pinkston, he determined the
State never made a formal plea offer. He also testified that the petitioner never
authorized him to make a formal proposal to the State. Furthermore, the petitioner
informed him that he had spoken with his mother, and she told him not to plead guilty to
anything. According to trial counsel, the petitioner was never agreeable to accepting a
plea deal.
On cross-examination, trial counsel admitted that during the first hearing, he
testified that he vaguely remembered speaking with the prosecutor regarding a plea offer
of twenty years. After looking through his file, however, he is now clear that the
prosecutor asked him to find out whether the petitioner would be willing to accept a plea
deal. Trial counsel admitted to testifying incorrectly during the first hearing.
The petitioner recalled Ms. Miller as a witness. Ms. Miller testified that the
petitioner and his family initially wanted to hire her to represent the petitioner in his
direct appeal, but they were unable to do so. At that time, she spoke with trial counsel.
Trial counsel said he was most bothered about a plea offer of twenty-five years made
shortly before trial. According to Ms. Miller, trial counsel told her that he should have
spoken with the petitioner in greater detail about the offer and recommended it to him.
Ms. Miller also testified that she rarely receives written plea offers, as they are
typically made by telephone or in court prior to hearings. She only recalls receiving one
written offer in a homicide case. She specifically asked for it in that matter so her client
could sign off on his rejection of the offer.
Mr. Pinkston, the prosecutor from the petitioner‟s trial, testified that the State
never extended a formal plea offer. Trial counsel, likewise, never proposed a potential
plea, which was “in line of the past ways in dealing with [trial counsel] in regard to
cases.” The State had internal discussions about potentially extending an offer due to the
petitioner‟s age, but based on the proof and the petitioner‟s assertion of innocence, the
State declined to make a settlement offer. While Mr. Pinkston may have had casual
conversations with trial counsel about potential plea offers, it was never a consistent
theme in the process due to the petitioner‟s position that somebody else was responsible
for the crime. Had the State made an offer, because of the magnitude of the case, Mr.
Pinkston would have put it in writing and documented his file.
At the conclusion of the hearing, the post-conviction court reserved ruling pending
a review of the transcripts. The post-conviction court subsequently entered an order
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dismissing the petition for post-conviction relief. In an accompanying memorandum, the
post-conviction court stated:
[I]t is clear that counsel did discuss petitioner‟s options with him,
including a guilty plea to a lesser offense. Furthermore, the petitioner‟s
trial testimony or counsel‟s post-conviction testimony reflects that the
petitioner was aware of the necessity to explain his confession if he did not
plead guilty. It reflects he was aware of other non-physical evidence of
identity, the record of the call from the mobile phone owned by the
petitioner‟s mother and used by the petitioner, an eyewitness‟s
identification, and another eyewitness‟s description of the person following
the first eyewitness as stocky, an accurate description of the petitioner but
not of the other suspect, Mr. Johnson. It reflects that he was aware of the
existence of physical evidence, the fingerprint, corroborating the non-
physical evidence. It reflects that he was aware of the theory of the defense
at trial, identity.
What is lacking, however, is evidence that counsel explored or
corrected the petitioner‟s or the petitioner‟s mother‟s inadequate analyses of
the case that, if he was not guilty, he should not plead guilty, recommend[]
a guilty plea to second-degree murder, or in any way abandon[] neutrality
in his presentation of the petitioner‟s options. This is perhaps the source of
the concern that trial counsel has expressed to appellate counsel on more
than one occasion. Despite the petitioner‟s academic achievements and the
petitioner‟s mother‟s graduate degree, they did not have counsel‟s
professional expertise in law. In view of the strong evidence of identity,
the petitioner‟s age, and the foreseeability of the petitioner‟s reliance on his
mother‟s and his own analyses, they needed more than information; they
needed counsel‟s analysis, advice, and guidance. The Court therefore finds
that counsel‟s performance in this respect was deficient.
Was the deficiency prejudicial? The Court finds that there is a
reasonable probability that, had counsel corrected the petitioner‟s and the
petitioner‟s mother‟s inadequate analyses of the case and recommended a
guilty plea to second-degree murder, the petitioner would have allowed
counsel to signal to the [S]tate‟s the petitioner‟s willingness to consider an
offer and the [S]tate would have made an offer of second-degree murder.
Arguably, the frequency with which prosecutions end with a guilty
plea suggests that there is also a reasonable probability that, had counsel
provided more guidance, the petitioner would have followed counsel‟s
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advice and accepted an offer of second-degree murder. The [P]etitioner,
however, does not persuade the Court that there is a reasonable probability
that he would have done so. His mother‟s testimony was that he rejected
what she thought was an offer of twenty-five years. From his disregard of
the considerable evidence that he was guilty of felony murder, his belief
that he was not guilty of felony murder, and his own unrealistically
favorable offer, reckless homicide, presumably with a sentence of less than
or equal to four years, it appears that, before trial, his goal was to avoid or
minimize incarceration. It is only now, after conviction for felony murder,
that he prioritizes avoidance of a life sentence. The Court therefore finds
that the deficiency in counsel‟s performance in this respect was not
prejudicial.
The post-conviction court did not find trial counsel‟s performance deficient in any other
respects. This timely appeal followed.
On appeal, the petitioner argues trial counsel was ineffective for failing to
communicate a plea offer made by the State and failing to meet with the petitioner
frequently enough to allow him to make a knowing and voluntary decision as to whether
to seek a plea offer. In response, the State argues the post-conviction court properly
found the State did not make a plea offer, and therefore, there was nothing to
communicate to the petitioner. The State also contends the trial court properly found the
petitioner was not prejudiced by any deficits in trial counsel‟s performance. While not
directly raised as an issue by the petitioner, the State also argues the post-conviction court
could, in its discretion, reopen the proof following the initial hearing for post-conviction
relief.1 Following our review of the record and submissions of the parties, we affirm the
judgment of the post-conviction court.
Analysis
To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
1
We agree it was within the post-conviction court‟s discretion to allow additional proof. At the
time the trial court entered its order allowing the additional proof, the proceeding was not closed because
the trial court had not yet ruled on the merits of the petitioner‟s claims. See Donald Terry Moore v. State,
No. M2002-02417-CCA-MR3-PC, 2004 WL 1144015, at *5 (Tenn. Crim. App. May 21, 2004). “It is
well settled that permitting additional proof, after a party has announced that proof is closed, is within the
discretion of the trial court, and unless it appears that its action in that regard has permitted injustice, its
exercise of discretion will not be disturbed on appeal.” Id. (internal citations omitted). Neither party has
shown that the presentation of additional proof in the second hearing changed the outcome of the
proceeding. Based on our review of the record and submissions of the parties, the reopening of the post-
conviction hearing did not cause an injustice.
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right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden
of proving his allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-
30-110(f). “„Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.‟” Lane v. State,
316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216
(Tenn. 2009)).
Appellate courts do not reassess the trial court‟s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State,
245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter
entrusted to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). When an evidentiary hearing is held in the
post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497,
500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997). However, review of a trial court‟s application of the law to the
facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which
presents mixed questions of fact and law, is reviewed de novo, with a presumption of
correctness given only to the post-conviction court‟s findings of fact. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution require that a criminal defendant receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citation omitted).
When a petitioner claims he received ineffective assistance of counsel, he has the burden
to show both that trial counsel‟s performance was deficient and that counsel‟s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466
U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel‟s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel‟s
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errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687.
The deficient performance prong of the test is satisfied by showing that “counsel‟s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
With regard to the standard, our Supreme Court has held:
[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance. It
is a violation of this standard for defense counsel to deprive a criminal
defendant of a substantial defense by his own ineffectiveness or
incompetence . . . Defense counsel must perform at least as well as a lawyer
with ordinary training and skill in the criminal law and must
conscientiously protect his client‟s interest, undeflected by conflicting
considerations.
Finch v. State, 226 S.W.3d 307, 315-16 (Tenn. 2007) (quoting Baxter, 523 S.W.2d at
934-35). When reviewing trial counsel‟s performance, this Court “must make every
effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel‟s conduct, and to evaluate the conduct from the perspective of counsel at that
time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at
689).
To satisfy the prejudice prong of the test, the petitioner “must establish a
reasonable probability that but for counsel‟s errors the result of the proceeding would
have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing
Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). In
order to prevail, the deficient performance must have been of such magnitude that the
petitioner was deprived of a fair trial and that the reliability of the outcome was called
into question. Finch, 226 S.W.3d at 316.
Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
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When a petitioner alleges he rejected a plea offer due to the ineffective assistance
of counsel, he:
has the burden to show by a reasonable probability that, but for counsel‟s
deficient representation, (1) he . . . would have accepted the plea, (2) the
prosecution would not have withdrawn the offer, and (3) the trial court
would have accepted the terms of the offer, such that the penalty under its
terms would have been less severe that the penalty actually imposed.
Nesbit v. State, 452 S.W. 3d 779, 800-01 (citing Lafler v. Cooper, 132 S.Ct. 1376, 1385
(2012)).
The petitioner argues he was deprived effective assistance of counsel due to trial
counsel‟s failure to provide adequate advice regarding the benefits of accepting a plea
offer and failure to convey a plea offer made on the eve of trial. According to petitioner,
he endured prejudice as a result of these alleged deficiencies because he would have
accepted the plea had it been adequately explained and formally offered. We disagree.
The petitioner has not met his burden of showing the allegedly deficient
performance of trial counsel prejudiced the outcome of the proceeding. The post-
conviction court found there was never an official plea offer of twenty or more years for
second-degree murder, and based on our review, the record contains ample evidence to
support this finding. The petitioner admitted he did not think the State made a formal
plea offer. Ms. Bailey, the petitioner‟s mother, testified that she had never seen a formal
written plea offer from the State. After reviewing his notes, trial counsel testified that the
State never made a formal plea offer. Mr. Pinkston then confirmed the State never made
a formal plea offer due to the petitioner‟s assertion of innocence. Without a formal plea
offer, there was nothing for trial counsel to explain to his client and nothing for the
petitioner to accept or reject.
Moreover, the post-conviction court found that if the plea offer had been formally
conveyed to the petitioner, he would have rejected it. In reaching this conclusion, the
post-conviction court noted Ms. Bailey testified that the petitioner rejected what he
thought was a plea offer of twenty-five years. The post-conviction court also pointed to
the fact that the petitioner, despite the considerable evidence of guilt, cared only about
minimizing his sentence or avoiding incarceration altogether. According to the post-
conviction court, the petitioner did not prioritize avoidance of a life sentence until after
his conviction. Implicit in the findings of the post-conviction court is a determination
concerning the petitioner‟s credibility, or lack thereof. Although the petitioner did testify
that he would have accepted the plea offer if it had been formally offered to him, the
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post-conviction court resolved any doubt created by this statement in favor of trial
counsel.
The evidence does not preponderate against the trial court‟s finding that the
petitioner would not have accepted a plea offer. Ms. Bailey testified that she told the
petitioner not to take the offer; if he was innocent, he should go to trial and get an
acquittal. Ms. Bailey further testified that trial counsel discussed an offer of twenty-five
years for second degree murder with her son, and he rejected it. The petitioner confirmed
that his mother told him not to take a plea. The petitioner further testified that he
requested a plea of reckless homicide, a much lesser offense than second degree murder,
and in response the State laughed and rejected the offer. In addition, trial counsel
testified at both hearings that the petitioner made it clear he and his mother decided
against the acceptance of a plea offer. The petitioner simply did not meet his burden of
establishing that trial counsel‟s alleged error in explaining and relaying the plea offer
prejudiced in deciding to go to trial. The petitioner is not entitled to relief on this issue.
Having found the petitioner did not suffer prejudice as a result of the alleged
deficiencies of trial counsel, we need not address the deficiency of trial counsel‟s
representation of the petitioner.
Conclusion
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
____________________________________
J. ROSS DYER, JUDGE
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David Alan Hunter v. State of Tennessee
Combined Opinion