        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                February 23, 2012 Session

               CLAUDE F. GARRETT v. STATE OF TENNESSEE

                   Appeal from the Davidson County Criminal Court
                          No. 92B96    Seth Norman, Judge




               No. M2011- 00333-CCA-R3-PC - Filed September 5, 2012


The Petitioner appeals the denial of his petition for post-conviction relief from his conviction
for first degree felony murder. While the Petitioner raised a multitude of issues below, on
appeal, his sole issue is whether he received ineffective assistance of counsel at trial.
Specifically, the Petitioner makes the following arguments on appeal: (1) that trial counsel
failed to present evidence that in the ten years between the first and second trials, the
methods by which the State’s expert witness reached his conclusion of arson had been
discredited by the scientific community; (2) that trial counsel failed to advance the defense
theory of an accidental fire by not calling as a witness the physician who treated both the
Petitioner and the victim to testify regarding the burn patterns on their bodies; and (3) that
trial counsel failed to move for a mistrial when the State and the State’s witnesses referenced
the Petitioner’s prior trial. After a thorough review of the record, we affirm the judgment of
the post-conviction court denying relief.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

James O. Martin, III, Nashville, Tennessee, for the appellant, Claude F. Garrett.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel and Aaron
Winter, Assistant Attorneys General; Victor S. Johnson, III, District Attorney General; Jon
Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                              Background Facts and Procedure

        Claude F. Garrett (“the Petitioner” or “the Defendant”) appeals the denial of his
petition for post-conviction relief, asserting that he received ineffective assistance of counsel
at trial. The Petitioner’s conviction for first degree murder arose from a charge that on
February 24, 1992, he set fire to the Davidson County home that he shared with the victim,
Lori Lance. The victim, who was the Petitioner’s girlfriend, was found by firefighters behind
a closed door inside a utility room in the rear of the house. She died from smoke and gas
inhalation. The State’s evidence showed that the utility room door was latched from the
outside and that an accelerant was used to start the fire.

        The Petitioner originally was convicted by a jury in 1993 of first degree felony murder
and sentenced to life imprisonment. The Petitioner’s conviction was affirmed on direct
appeal. See State v. Claude Francis Garrett, No. 01C01-9403-CR-00081, 1996 WL 38105
(Tenn. Crim. App. Feb. 1, 1996). He subsequently filed for post-conviction relief, alleging
that the State had withheld exculpatory evidence. On appeal from the trial court’s denial of
post-conviction relief, this Court determined that the State, in fact, had withheld exculpatory
evidence, and we vacated the Petitioner’s conviction and sentence and ordered a new trial.
See Claude Francis Garrett v. State, No. M1999-00786-CCA-R3-PC, 2001 WL 280145
(Tenn. Crim. App. March 22, 2001). At his second trial, in 2003, a jury again convicted the
Petitioner of first degree felony murder, and he was sentenced to life imprisonment. This
Court affirmed the conviction on direct appeal. See State v. Claude Francis Garrett, No.
M2004-02089-CCA-R3-CD, 2005 WL 3262933 (Tenn. Crim. App. Dec. 1, 2005), perm. app.
denied (Tenn. May 1, 2006).

       On April 17, 2007, the Petitioner filed a pro se petition for post-conviction relief,
which was amended by appointed counsel on April 6, 2010. The amended petition, which
incorporated the pro se petition by reference, set forth three principal grounds for post-
conviction relief: (1) that new scientific evidence established that the Petitioner was innocent
of the offense for which he was convicted; (2) that the Petitioner received ineffective
assistance of counsel at his second trial; and (3) that the trial court abused its discretion in
allowing the State’s expert witness, James Cooper, to testify.

       After an evidentiary hearing held August 30, and October 13, 2010, the post-
conviction court denied the petition, and the Petitioner now appeals. On appeal, the
Petitioner’s sole argument is that he received ineffective assistance of counsel at his second
trial. From our review of the Petitioner’s appellate brief, we discern three facets to his
ineffective assistance of counsel claim: (1) that trial counsel failed to present evidence that

                                               -2-
in the ten years between the first and second trials, the methods by which the State’s expert
witness Cooper reached his conclusion of arson had been discredited by the scientific
community; (2) that trial counsel failed to advance the defense theory of an accidental fire
by not calling the treating physician, Dr. Robert Roth, as a witness regarding the burn
patterns on the bodies of the Petitioner and the victim; and (3) that trial counsel failed to
move for a mistrial when the State and the State’s witnesses referenced the Petitioner’s prior
trial.

       A more thorough summary of the facts adduced at trial can be found in this Court’s
opinion on direct appeal. See Claude Francis Garrett, 2005 WL 3262933, at *1-9. In the
interest of clarity and conciseness, we will limit our recitation of the facts below to those
relevant to the issues the Petitioner raises on appeal.

                                       Daubert Hearing

       Prior to the second trial, the Petitioner challenged the qualifications of the State’s
expert witness, Federal Bureau of Alcohol, Tobacco, and Firearms (“ATF”) Agent James
Cooper. The trial court subsequently held a Daubert hearing to test Cooper’s qualifications.
While testifying as an expert at the first trial, Cooper had opined that the fire’s area of origin
was in the living room in the front of the house. In part, he based his conclusion of arson on
the existence of a “pour pattern” on the living room floor, which Cooper maintained was
indicative of the use of an accelerant by the arsonist. At the Daubert hearing, trial counsel
declared that he wished to voir dire Cooper “both on his qualifications and his ability to
render a scientific opinion that there was a pour pattern” in the house.

        Cooper noted at the hearing that he had been qualified to testify as an expert in the
field of arson investigation at the first trial in 1993. Cooper discussed his educational and
professional qualifications, which included current certification as a fire investigator by the
International Association of Arson Investigators. Cooper went into management for the ATF
in 1994, at which point he participated in fire investigations in a supervisory role only. At
the time of the Daubert hearing, Cooper had retired from the ATF and no longer performed
fire investigations. Cooper said that he had received instruction in fire science, which he
defined as “the study of fire behavior,” but he did not consider himself an expert in the field.
Cooper stated that when trying to determine the cause of a fire he would analyze the fire
scene and conduct interviews with witnesses.

        Trial counsel then began to ask questions related to Cooper’s investigation of the fire
in the present case. The State objected that trial counsel was attempting to conduct discovery
rather than challenge Cooper’s expertise. Trial counsel responded that he was attempting to
show that Cooper was unable to render an opinion regarding a pour pattern in the house. The

                                               -3-
trial court allowed him to question Cooper further. Trial counsel then questioned Cooper
extensively regarding his methodology investigating this particular fire. Cooper responded
that, in determining the cause of the fire, he looked at several factors and did not exclusively
focus on the pour pattern. The most important factor to Cooper was whether the utility room
door where the victim had been found was indeed locked. He also cited the presence of a
bedspread soaked in kerosene as a key factor in his determination. He stated that the pour
pattern on the floor was “not the only thing that was significant in my determination” and that
he could “[p]robably not” make a determination of arson based solely on the pour pattern.

       Trial counsel asked Cooper whether he was familiar with the United States Fire
Administration Fire Burn Pattern Tests, and Cooper replied that he was not. Trial counsel
continued:

        Q: . . . Now, floor patterns produced by the ignition of an ignitable liquid were
        not always visible after a fire which produced flash over conditions. Would
        you agree with that?

        A: It all depends on what type of liquid it was . . . .

        Q: It was observed that flash over also produced patterns on the floor as a
        result of the pyrolysis or ignition of the floor surface?

        A: Again, all depends on those variables and the condition of that room.

        Shortly after this exchange, the trial court ended the hearing after determining that
Cooper’s testimony was “based on sound information and belief.” Cooper was thus allowed
to testify as an expert at trial.1




        1
          Although the State questioned Cooper extensively regarding his qualifications as an expert witness,
it does not appear from the trial transcript that the State actually proffered him before the jury as an expert.
However, we note that on appeal the Petitioner raised as an issue the admission of Cooper’s expert testimony,
and this Court determined that the trial court did not err in allowing Cooper to testify as an expert. See
Claude Francis Garrett, 2005 WL 3262933, at *15-17. Thus, we do not discern any contention regarding the
fact that Cooper testified as an expert witness at trial.

                                                      -4-
                               Evidence at Trial

In our prior opinion, we summarized Cooper’s trial testimony:

        James Cooper testified that he had retired as an agent of the United
States Department of Treasury Bureau of Alcohol, Tobacco and Firearms
(ATF). As an ATF agent, he had been a certified fire investigator and a
fire-cause and origin specialist. Because local authorities had requested that
he assist in investigating the fire that killed the victim, he inspected the house
on the evening of February 24, after the fire department had washed the
flooring with a booster hose. He opined that the washing did not obstruct or
hamper his observation of the burn pattern. He concluded that the fire began
in the front room. He found no evidence of an electrical or other accidental
cause of the fire. A kerosene heater found in the bedroom was not the cause
of the fire. He discovered a saturation of kerosene in the kitchen. The utility
room door was closed during the fire. Mr. Cooper testified that [Metro Fire
Department Captain] Otis Jenkins told him that he had “had to use two hands
to slide the bolt on the latch to the other side to open the door.”

        Mr. Cooper testified that he collected material from beneath the
baseboard in the front room because liquid spilled in the floor would typically
run under a baseboard and because the flooring beneath the baseboard was free
of foot traffic occurring during and after the firefight. Also, he found a “V”
pattern on the baseboard, which to him was “like a red flag waving at you,”
indicating an accelerated fire. Mr. Cooper presented a number of pictures and
slides of the fire scene. He opined, “[T]his was a deliberately set fire, arson.
Somebody went into the house, and their design, their intent, was to spread the
fire from the front room to the back where the victim was.”

        Defense counsel engaged Mr. Cooper in a rigorous cross-examination,
during which the witness testified that the kitchen floor contained “[q]uite a
bit of water,” that a portion of the liquid on the bedspread was water, and that
he relied upon Detective Miller’s report of his interviews of the firefighters
and did not interview them personally other than to talk with Otis Jenkins. Mr.
Cooper did not see the house before the booster-hose cleansing and did not see
the front-room furniture in its pre-fire position. He insisted, however, that the
flooring in the front room evinced a “pour pattern,” indicating that a liquid
accelerant had been poured in the floor. He admitted that polyester from
furniture could melt onto the floor and simulate a pour pattern but maintained
that he could distinguish a pour pattern from a polyester meltdown. He

                                       -5-
       admitted that one photograph showed that the latch bar was dark, as if it was
       coated in carbon, which might indicate that the bar was not inserted into the
       latch housing during the fire.

Claude Francis Garrett, 2005 WL 3262933, at *6-7.

       For purposes of this opinion, we supplement our prior summary of Cooper’s testimony
with the following relevant facts. During cross examination, trial counsel asked Cooper to
describe “flashover.” Cooper explained that flashover occurs when “everything in [a] room
reaches its combustible ignition.” As a fire in a room grows, superheated gases rise until they
become trapped by the ceiling and begin to bank down towards the floor. Eventually, the
“whole room will be in fire, from the ceiling down to the floor. That is a flashover.” Cooper
acknowledged that the living room in this case appeared to have been fully involved in fire.
Cooper also acknowledged that flashover can occur with or without the use of an accelerant
and that the radiant heat caused by flashover can create burn patterns on the floor because
the heat ignites the floor.

       Trial counsel asked Cooper whether he could distinguish burn patterns on a floor
caused by radiant heat from those created after pouring and igniting an accelerant on the
floor. Cooper answered:

       [R]adiant heat normally, normally, will burn, coming from the ceiling down,
       uniformly, even. A pour pattern will be irregular and into the floor[,] into the
       wooden material. But the radiant heat can, also, indicate a pour pattern if the
       air movement changes. As an investigator you have to realize that. And that’s
       why you have to be careful not to jump the gun. I am satisfied in front of that
       door, inside the front door, is radiant heat. I am satisfied in the center of the
       living room, near that window, there is a pour pattern.

       Trial counsel asked Cooper on what scientific basis he formed his opinion that a pour
pattern existed on the living room floor. Cooper replied that he used his experience and
training in determining the presence of a pour pattern. Cooper elaborated:

       I have set fires . . . pouring things. I have spilt [sic] things, to see the
       difference in an accidental spill and a deliberate pour. I have talked to other
       investigators, where they call radiant heat arson. They call it a pour pattern.
       Through my training, I can make that distinction from pour pattern versus
       radiant heat. Now radiant heat can be irregular. It all depends on what is
       going on inside the interior of that building at the time.



                                              -6-
        When asked about the possibility of error in his analysis, Cooper responded:

        I don’t know. I mean, all I can testify to is, I’ve done pours. I’ve done
        accidental spills. I have been on another fire fatality where another
        investigator called radiant heat a pour pattern, and I actually said, it is radiant
        heat. Just through my training and experience.

        . . . [I]f I’m proven wrong I will admit I am wrong. But on this one, no sir. I
        was there. I saw it with my eyes. And, I know the difference in radiant heat
        and a pour pattern, sir.

        Trial counsel then asked Cooper whether he performed his fire investigations using
the scientific method, which trial counsel defined as “defining a problem, collecting relevant
data, and then analyzing that data and applying it to the problem.” Cooper replied that he did
so in this case. Cooper explained that when forming his hypothesis certain things stood out:

        [A]ll these abnormal things come together[.] [N]ot one thing stands by itself.
        The pour pattern in the living room does not stand by itself. You have to have
        the bedspread. You have to have the kerosene can. You have got to have that
        latch on the door. You have got to have the smoke alarm.2 And you have got
        to have where [the victim] was found, and what was on top of [the victim].
        That is the hypothesis. The hypothesis is the cause of the fire, which was
        arson. . . .

       In addition to the burn patterns on the floor, the burn patterns on the bodies of the
victim and the Petitioner were a contested issue at trial. The State’s evidence showed that
the victim most likely received her burns in the utility room. As set out in our previous
opinion,

                The forensic pathologist[, Dr. Gretel Harlan,] who performed an
        autopsy on the victim testified that the victim died from inhaling smoke and
        noxious gases, probably succumbing within 10 to 30 minutes after she began
        to breathe smoke. The victim’s blood alcohol level was .06 percent. The
        physician testified that the victim had burns on her head and left arm and that
        the burns probably resulted from heat build-up in the utility room where the
        victim was found. Other than the burns, the victim’s body had suffered no
        other trauma. The physician opined that fire victims will frequently retreat to


        2
          The evidence at trial showed that firefighters found a smoke detector without batteries or a cover
lying on either the washer or dryer in the utility room. Claude Francis Garrett, 2005 WL 3262933, at *5.

                                                    -7-
        a room away from the fire and have been known to burrow under objects to
        protect themselves.

Claude Francis Garrett, 2005 WL 3262933, at *3.

        The defense’s theory at trial was that the fire was accidental. As part of this strategy,
the defense sought to prove that the burn patterns on the living room floor were caused by
radiant heat during flashover. The defense also sought to prove that the burn patterns on the
bodies of the victim and the Petitioner were similar. The defense proposed that the similarity
of their burns proved that they had been exposed to the fire at the same time, thus negating
the possibility that the Petitioner locked the victim in the utility room and started the fire. In
this Court’s prior opinion, we summarized the testimony of the defense’s expert witness,
Stuart Bayne:

                Stewart3 Bayne testified for the defendant as an expert in fire
        investigation and fire science. He acknowledged that he did not visit the scene
        of the fire until after the house had been restored but maintained that he has
        testified in other cases despite being unable to personally inspect the fire scene.
        In the present case, he studied the records from the first trial, interviewed the
        firefighters, and examined the pictures.

Id. at *8.

        Testifying at trial, Bayne summarized the defense’s theory as follows:

        This fire was a Class A fueled with paper and plastic fabrics, accidental
        naturally growing, meaning unaccelerated by any petroleum compound type
        fire. Secondly, analysis of the burn patterns on Ms. Lance and Mr. Garrett
        prove that Ms. Lance and Mr. Garrett were exposed to that fire at the same
        point in time with the fire as the fire growth. Furthermore, their burn patterns
        indicate a directional quality to the fire, and a height in the room to the fire.
        My findings included that this fire was not fueled by kerosene, the point of
        origin was not on the floor, rather it was in the love seat. And the ignition
        source was the carelessly dropped cigarette from an intoxicated, wasted as it
        were, person.

        As we stated in our prior opinion:


        3
         It appears that Mr. Bayne’s first name was misspelled in the trial transcript, and, consequently, in
our opinion on direct appeal.

                                                    -8-
              Mr. Bayne elaborated that based upon the medical reports, the victim
       and the defendant sustained burns on their faces and left arms as a result of
       being exposed to the flames in the living room at the same time. He opined
       that because the burns were on the upper portions of the victim and the
       defendant, the fire did not originate in the floor. He believed that the burns on
       the couple were consistent with them trying to reach the front door and with
       the defendant’s statement to him that, after a night of drinking, the couple
       returned home and smoked cigarettes, with the victim falling asleep on the
       love seat and the defendant falling asleep on the couch.

              Mr. Bayne opined that the fuel load in the front room, including the
       furniture and the wood paneling covering the sheetrock walls, explained the
       fire growth. He opined that the defendant did not receive his burns from
       igniting kerosene and that it was “impossible” for the victim to have received
       her burns from inside the utility room. He dismissed the burn pattern on the
       front room floor as resulting from radiant heat or “flash over.”

               Mr. Bayne testified that the utility room door edge had scuff marks
       which indicated that the door stuck in the door frame. He testified that the
       defendant confirmed to him that the door tended to stick. Mr. Bayne opined
       that the latch bar was “very carbonized.”

               On cross-examination, Mr. Bayne testified that in reaching his
       conclusions, he ignored Otis Jenkins’ claim that the utility room door had been
       latched. He declined to say how much time elapsed between the deposit of a
       lit cigarette in the love seat and the onset of a blaze, although he suggested that
       the process could take minutes or hours. He opined that the presence of the
       plastic container of kerosene in the kitchen was irrelevant to the cause of the
       fire. He conjectured that because the container had three holes in the top, the
       firefighters or investigators could have sloshed some of the kerosene onto the
       bedspread.

Id. at *8-9.

       In addition to these facts, we note that Bayne testified that the alleged area of origin
had “a very uniform floor burn pattern indicative of radiant heat and flash over.” Regarding
the burn injuries to the bodies of the victim and the Petitioner, Bayne disagreed with Dr.
Harlan’s conclusions. Bayne explained that burn patterns on bodies can tell an investigator
about the relative intensity of a fire, the direction of the heat source relative to a person’s

                                               -9-
body, and a fire’s developmental timeline. Bayne reviewed the medical records and autopsy
in this case, and he compared and analyzed the burn patterns on the victim and the Petitioner.
Bayne asserted that the body burns were consistent with the version of events that the
Petitioner had relayed to him. He testified that the Petitioner had told him that the Petitioner
had awoken to a fire, grabbed the victim’s hand, and headed to the front door, exposing their
left sides to the fire. At that point, as the Petitioner was attempting to open the front door,
the victim retreated into the house. Bayne said that it was “impossible” for the victim to have
received her burns in the utility room because the utility room never reached a temperature
adequate to deliver the particular types of burns that the victim sustained. Bayne also
explained that kerosene is not volatile or flammable like gasoline and will not explode upon
ignition. Thus, the Petitioner could not have received his burns by igniting kerosene. After
comparing the burn patterns for the jury, Bayne opined that “those two human bodies were
standing in the same place at the same time in the relative intensity of the fire, from the
growth of the fire.”

       After hearing this and other evidence, the jury found the Petitioner guilty of first
degree felony murder. He was sentenced to life imprisonment. His conviction was affirmed
on appeal, and he filed the instant petition for post-conviction relief alleging ineffective
assistance of counsel.

                            Evidence at Post-Conviction Hearing

       A post-conviction hearing was held over two days, August 30, and October 13, 2010.
At the hearing, the post-conviction court heard the testimony of John Joseph Lentini, trial
counsel, Bayne, the Petitioner, and Dr. Robert Roth.

        Lentini testified as an expert in the field of fire analysis and fire science. Lentini
stated that he had personally investigated over 2,000 fires but that he primarily reviews the
fire investigations of others. Lentini is certified by the National Association of Fire
Investigators and the International Association of Arson Investigators (“IAAI”), and he
discussed in detail his education, qualifications, and peer-reviewed publications.

       Lentini claimed to be familiar with the history and development of fire science and
investigation. He defined “fire science” as “the application of the laws of chemistry and
physics to the investigation of fires.” Lentini said that he is a member of the National Fire
and Protection Association (“NFPA”) Technical Committee, which is responsible for the
maintenance of NFPA 921, Guide for Fire and Explosion Investigations. Lentini stated that
NFPA 921 presently represents the standard of care in fire investigations. In 1985, the NFPA
Standards Council “became concerned about the quality of work that they saw in fire
investigations” and produced NFPA 921 as a guide for fire investigators. NFPA 921 was

                                              -10-
first published in 1992 and gained gradual acceptance over the following years. According
to Lentini, in 2000, the United States Department of Justice embraced NFPA 921 as a
benchmark and the IAAI called it the de facto standard of care. Lentini stated that it was the
embrace of the scientific method that led to the acceptance of NFPA 921 as the standard of
care in the field. On cross-examination, Lentini acknowledged that NFPA 921 had
undergone revisions since its original publication in 1992. Lentini believed that such
revisions represented a feature of NFPA 921 as it is “constantly reviewed by the fire
investigation community, commented on, and maintained as a standard.”

        Lentini discussed certain “mythologies” of arson investigation, which he claimed
many arson investigators previously embraced but have since been discredited by the
scientific community. Lentini read from a National Academy Report on the State of Forensic
Science issued in February, 2009.4 Specifically, the concluding paragraph of the report’s
discussion on fire and arson investigation, stated as follows:

                 By contrast, much more research is needed on the natural variability of
          burn patterns and damage characteristics and how they are affected by the
          presence of various accelerants. Despite the paucity of research, some arson
          investigators continue to make determinations about whether or not a
          particular fire was set.

                  However, according to testimony presented to the committee,5 many of
          the rules of thumb that are typically assumed to indicate that an accelerant was
          used (e.g., alligatoring of wood, specific char patterns) have been shown not
          to be true. Experiments should be designed to put arson investigations on a
          more solid scientific footing.

       Lentini testified that he had reviewed portions of the record in this case, including
Cooper’s trial testimony,6 Cooper’s investigation report, and photographs of the fire scene.
Lentini stated that from reviewing the photographs, “it was pretty clear that the fire
originated in the living room, [and] it was pretty clear that it went to flashover.” Lentini
explained further that,



          4
               The report itself was not entered into evidence.
          5
         Lentini indicated at the post-conviction hearing that he was the person who offered this testimony
to the committee.
          6
               Notably, on cross-examination, Lentini stated that he had only read Cooper’s testimony from the
first trial.

                                                        -11-
       When fires achieve flashover, they light the floor on fire. A lot of time – in
       fact, early in my career that was considered to be a suspicious thing because
       fires burn up and the floor shouldn’t burn, but it is now pretty well accepted
       that when a room becomes fully involved one of the things that is going to
       burn is the floor and you, typically, get irregular burns on the floor.

      When asked whether he had identified any “mythology” in this case, Lentini
responded:

              The only mythology is the belief on the part of the investigator that he
       can, by looking at the floor, determine the difference between charring done
       by radiation and charring caused by a flammable liquid.

               Then he goes one step further and believes that he can tell the
       difference between flammable liquid charring caused by a spill, an accidental
       spill, or flammable liquid charring caused by an intentional pour, and that is
       just beyond the scope in terms of what is valid or what is generally accepted
       as valid in fire investigation.

        Trial counsel also testified at the post-conviction hearing. At the time of the hearing,
trial counsel had practiced criminal defense law for fifteen years. Trial counsel represented
the Petitioner in his prior successful post-conviction proceedings and continued to represent
the Petitioner during the second trial. Trial counsel recalled hiring Bayne as an expert in
arson investigation to assist the defense in proving that the fire had not been intentionally set.
Trial counsel relied on Bayne to assist him in preparing for and examining the State’s expert
witnesses. He stated that he had “lots of meetings” with Bayne in preparation for trial.

        Bayne, who qualified as an expert at the second trial, was also qualified as an expert
in fire analysis at the post-conviction hearing. He stated that he first became involved in the
case in the fall of 2001. He explained that his role on the defense was to “render an
independent origin and cause determination” as to the fire and to offer his analysis at trial.
In order to do so, he communicated with trial counsel and the Petitioner, reviewed the case
file, and interviewed firefighters who responded to the scene. He explained that all of his
efforts were “toward rendering a technically defensible opinion.”

       Trial counsel planned to use Bayne’s expertise to show that flashover had occurred
and that the radiant heat caused by flashover had caused the burn patterns on the floor. Trial
counsel also intended to use Bayne’s testimony regarding the burn patterns on the bodies of
the victim and the Petitioner to advance the defense’s theory that the two had been in close
proximity to one another at some point during the fire.

                                               -12-
        The Daubert motion in this case was the first one that trial counsel had ever filed, and,
in order to prepare it, he consulted with other attorneys. Trial counsel stated that the purpose
of the hearing was to demonstrate to the trial court that “Cooper’s testimony was not
scientifically based.” In trial counsel’s opinion, Cooper’s testimony “was a lot of guess work
and it was not based on science.” He explained, “It was my belief that [Cooper’s]
conclusions were not scientifically based, and they weren’t something that could be
supported through other scientific evidence known to people who investigate arsons.”

       A series of March 4, 2003 emails between trial counsel and Bayne sent in preparation
for the Daubert hearing showed the defense’s plan to attack Cooper’s testimony. In one
email, Bayne told trial counsel:

       Today, I re-read Cooper’s testimony and have several things to say about
       Cooper’s determination that he saw “pour patterns.”

       ....

       Cooper failed to conduct an adequate fire scene examination according to
       today’s accepted scientific methodology (NFPA 921, 2.1, especially figure 2.3
       and specific methodologies mentioned in various chapters and sections)[.]

       ....

       Cooper’s conclusion that pour patterns existed on the living room floor is a
       conclusion drawn out of context and absent any analysis of: the furniture (what
       it was made of and what it added to the fuel load; he has no clue what furniture
       was present, nor how much); what interior surfaces existed (paint, wallpaper,
       curtains, blinds, fabrics hanging down, ceiling fan, plastic light fixtures in the
       middle of or around the living room); whether or not the floor was carpeted;
       what was on the ceiling or walls that could have dropped down; how the
       concrete wall of the front of the house radiated heat from this fire into spaces
       where no furniture existed right down to floor level (so the patterns away from
       the front door area would understandably look irregular).

       ....

       My literature sources are “NFPA 921”, “Kirk’s fire investigation (4th edition)”
       and “Chemical Analysis for the Arson Investigator and Attorney”.

       ....

                                              -13-
       NFPA 921 is the one and only document that represents the consensus of the
       fire investigation community.

        In a second email, Bayne wrote that he understood trial counsel wanted him to, inter
alia, “provide rebuttal testimony about pour pattern recognition,” “provide specific questions
to ask Cooper at the pretrial hearing,” and “provide input on attacking the science used by
Cooper.” In a third email, Bayne wrote, “much new evidence has come to light from testing
(since 1992) to show that one cannot distinguish pour patterns from other solid-fuel induced
patterns by the patterns themselves without incorporating the space, the structure, and the
furnishings within the space in question.” In the same email, Bayne told trial counsel that
the evidence Cooper intended to offer was not generally accepted in the scientific
community, “especially since 1992.” Bayne wrote that in order to rebut Cooper’s testimony
regarding the pour pattern, “I will use the most commonly accepted publications in the
industry and the best consensus document in the field (NFPA 921).” However, Bayne also
cautioned trial counsel that he would “lose this [Daubert] challenge because [Cooper]
possesses the credentials on paper.”

        In a May 16, 2003 document, Bayne recommended that trial counsel ask Cooper
“technical questions” related to flashover conditions and effects. Bayne also recommended
trial counsel ask Cooper what the “current fire technology journals, books, and other treatises
say about the damages inflicted upon wood and carpeted floors at flashover- and during post-
flashover-condition fires.” However, Bayne warned trial counsel that “[t]he problem with
this line of questioning is that [Cooper] will be responding as one who has learned much in
the 11 years since the fire, when he probably could not have answered these questions
adequately in 1993.”

        In his testimony at the post-conviction hearing, the Petitioner remembered the Daubert
hearing being “cut off” with a “hasty ruling” and that all of the questions the defense had
planned to ask were not entered into the record. During the hearing, trial counsel did not
question Cooper specifically about NFPA 921 or about scientific advances in fire science
since the first trial. Trial counsel admitted at the post-conviction hearing that he “was kind
of beating around the bush a little bit. I was approaching it a little bit from afar, but I was
trying to get to a point where I could convince [the trial court] that, as the gatekeeper of the
evidence, he should keep this evidence out.” Trial counsel acknowledged that after the trial
court’s ruling, he did not file an interlocutory appeal, although he could not recall the reason.

       In preparation for trial, Bayne sent several emails to trial counsel discussing his
findings regarding the cause of the fire and various strategies for effectively communicating
his conclusions at trial. At the post-conviction hearing, Bayne identified an email to trial
counsel in which Bayne relayed his belief that flashover occurred. Bayne also identified a

                                              -14-
document that he prepared titled “Bayne Direct Testimony,” which contained proposed
questions for his direct examination. Bayne gave several examples of questions on the list
that trial counsel did not ask him. Notably, the proposed list of questions for Bayne’s direct
examination does not contain questions related to NFPA 921 or changes in the understanding
of fire science related to pour patterns in the years between the two trials.

       Bayne also discussed several excerpts from the 2001 edition of the NFPA 921, which
he claimed that he intended to discuss at trial but was not questioned about by trial counsel.
Bayne said that one of the excerpts illustrated “graphically how a fire grows and what
happens with the influence of radiant heat in pre-flashover conditions, flashover conditions,
and post-flashover or full room involvement.” Another excerpt showed the “approximate
radiant heat flux” required to cause certain burn injuries to human skin.

        Bayne also identified an email exchange with trial counsel in which the two discussed
what testimony should be elicited through which witnesses. Bayne explained that this email
contained information that he did not believe he could testify to at trial because he lacked
first-hand knowledge. Bayne intimated that introducing this testimony through other
witnesses would connect it to his own testimony. In one email, Bayne instructed trial counsel
to ask Cooper about “his uncertainty about the floor burn patterns in the living room,” as well
as “his respect for NFPA 921.”

        Bayne stated that he was not present in the courtroom when Cooper testified at trial
and that trial counsel did not review Cooper’s testimony with him before he testified.
Consequently, Bayne could not address particular discrepancies that he had with Cooper’s
testimony. Trial counsel stated that he may not have asked the trial court to allow Bayne to
stay in the courtroom because he “may not have been aware” that experts could be allowed
to remain in the courtroom. Bayne, having reviewed Cooper’s trial testimony before the
post-conviction hearing, said that trial counsel did not adhere to the questions he had advised
trial counsel to ask Cooper. Said Bayne: “[Trial counsel] did not follow my lead, the
questions were disjointed, and they didn’t connect with the path or the line of reasoning that
I provided him.” Trial counsel, for his part, believed that he had been able to communicate
the defense’s theory through Bayne’s testimony.

         The Petitioner also claimed in his petition that trial counsel performed ineffectively
by failing to call his treating physician, Dr. Robert Roth, as a witness at trial. At the post-
conviction hearing, trial counsel acknowledged that Bayne was “consistent and persistent”
in his argument that the patterns of the burn injuries on the bodies of the victim and the
Petitioner “were an important piece of evidence.” Trial counsel explained that Bayne’s
investigation supported the theory that the Petitioner and the victim had been “at some point
in the fire in close proximity with one another because they both had similar burns on them.”

                                             -15-
Trial counsel identified his own handwritten note, written in preparation for the trial, in
which he stated that “Mr. Bayne can testify with 99% certainty that the defendant and the
victim received the same damaging exposure to heat from the same fire, at the same time,
same direction.” In a subsequent email, Bayne told trial counsel that the victim could not
have received such burns in the utility room because the burns resulted from “fire/radiant
heat generated by fire.” In another email to trial counsel, Bayne wrote:

       I really think that the burn patterns that were observed, described, and pictured
       on [the Petitioner and the victim] are very important because they match
       almost to the “T”. I mean, really important. One cannot produce the same
       relative patterns and intensity on two people’s bodies unless those two people
       were in the same relative location and exposed to the same heat flux at the
       same point in time.

       In Bayne’s view, Dr. Roth, who treated both the Petitioner and the victim at the
hospital, was an important defense witness because he could corroborate Bayne’s opinion
regarding the body burns. In an email, Bayne wrote to trial counsel, “Dr. R.M. Roth: treated
defendant at the hospital; is an important witness for us. He can reinforce what I want to
opine, namely that the two sets of burn patterns on the defendant and the victim came from
the same direction, intensity, and moment in time.”

        Trial counsel identified a subpoena that was issued and served upon Dr. Roth. Trial
counsel could not remember why he did not call Dr. Roth. He indicated that the reason may
have been that the same evidence had been introduced through the testimony of the State’s
medical examiner, Dr. Harlan. When asked whether Dr. Harlan’s testimony that the victim
could have received her burns while in the utility room advanced the defense’s theory, trial
counsel acknowledged that it did not. On cross-examination, trial counsel stated that he did
not recall why he did not call Dr. Roth but that he “made some kind of decision at the time
that I didn’t feel he was necessary.”

       The Petitioner testified that he understood Dr. Roth’s testimony was intended to
support Bayne’s opinion about the burns on the Petitioner’s and the victim’s bodies. The
Petitioner testified that trial counsel did not tell him why he did not call Dr. Roth. On
redirect, trial counsel was asked, “If Mr. Bayne had told you that Dr. Roth was a necessary
witness, would you have followed him based on his expertise and called him?” Trial counsel
replied that he did not remember Bayne’s telling him that, “but if he did, I probably should
have heeded his words.”

       Bayne testified that his understanding of the importance of Dr. Roth’s testimony was
to “offset Dr. Harlan.” Bayne believed that Dr. Harlan “was going to testify . . . that [the

                                             -16-
victim] received her burns while she was in the utility room,” which Bayne asserted was not
possible. Bayne said that he expected Dr. Roth to testify at trial that the burns the doctor
observed on both the victim and the Petitioner were “approximately equal in intensity, depth
of char, and body location between the two different bodies.” Bayne believed that the
similarity of the burn patterns caused the “State’s case to fail.” Bayne said that he had
expressed the critical importance of this evidence to trial counsel for eighteen months prior
to trial. Bayne was surprised when he learned that trial counsel had released Dr. Roth
without calling him to testify. Bayne could not remember whether trial counsel explained
to him his decision to release Dr. Roth. Bayne guessed that trial counsel had told him that
he already had introduced the evidence he needed, and therefore, he did not need Dr. Roth’s
testimony.

       Dr. Roth testified at the post-conviction hearing. He stated that he was the emergency
room physician who treated both the victim and the Petitioner on the night of the fire. Dr.
Roth indicated that the victim had burns on her face, abdomen, hands, arms, and neck. He
could not recall whether she had burns on her legs. Dr. Roth testified that the Petitioner had
singed hair, eyebrows, and hands, as well as second degree burns on his left biceps and the
dorsum of his left hand. Dr. Roth acknowledged that the locations of the burns on the victim
and the Petitioner were “similar in pattern.” He also acknowledged that the burns were
consistent with “exposure to a very intense heat source” and said that “they were both
exposed to similar amounts of heat causing types of destruction.” Dr. Roth could not testify
whether the burns were consistent with the victim and the Petitioner moving at the time of
exposure or with their exposure to the same heat source at the same time.

        Dr. Roth vaguely recalled being subpoenaed to testify in this case and stated that he
had been available to testify. On cross-examination, he stated that, had he been called to
testify at the trial in 2003, his testimony would have been the same as it had been at the post-
conviction hearing.

                             Post-Conviction Court’s Findings

        After hearing this testimony, the post-conviction court denied the Petitioner’s claim
for post-conviction relief by written order entered December 17, 2010. In its order denying
relief, the post-conviction court addressed a myriad of issues raised by the Petitioner and
made several relevant findings.

       First, the post-conviction court analyzed the Petitioner’s claim that new scientific
evidence established his innocence. In doing so, the post-conviction court reviewed the
testimony of Lentini and the scientific conclusions that “much more research is needed on
the natural variability of burn patterns and damage characteristics and how they are affected

                                              -17-
by the presence of various accelerants” and that many of the “generally accepted methods of
analysis indicating the use of an accelerant have been proven to be unreliable.”

       The post-conviction court found Lentini’s testimony to be unavailing, stating that:

       Mr. Lentini only testified about his record and accomplishments but nothing
       relevant to the case under examination. He simply stated that the fire in
       question was not started by the use of an accelerant but provided no basis upon
       which this conclusion was founded. Mr. Lentini basically just testified as to
       his opinion of the science and its evolution.

       The post-conviction court also found that Cooper’s trial testimony accounted for the
possibility that radiant heat damage could sometimes be mistaken for a pour pattern:

       Agent Cooper testified as to various “V-patterns” discovered in the house
       which he explained would indicate the use of an accelerant in the spread of a
       fire. With regard to such a pattern discovered underneath some baseboard
       removed from the living room, he stated that radiant heat damage can
       sometimes be mistaken for a pour pattern by less experienced investigators but
       that he possessed extensive experience that provided him with the ability to
       differentiate between the two. Agent Cooper apparently believed that the
       evidence pointed to the existence of an accelerant on the baseboard due to the
       fact that an accelerant would normally run underneath baseboards in this
       fashion. He also admitted that polyester meltdown from furniture could appear
       as a pour pattern[,] but he adamantly averred that he could discern between the
       two based upon his experience as a fire investigator.

       The post-conviction court ultimately concluded that the Petitioner had “failed to
submit sufficient proof at the evidentiary hearing to show that the fire analysis and
investigation in this case was erroneous based upon obsolete techniques that have since been
debunked.”

       The post-conviction court then reviewed the Petitioner’s claim of ineffective
assistance of counsel. Of relevance here, the court analyzed the Petitioner’s claim that trial
counsel performed ineffectively by failing to utilize Bayne’s expertise and failing to call Dr.
Roth as a witness.

        First, the court concluded that trial counsel, in fact, had elicited the testimony from
Bayne that the Petitioner complained was lacking. The court noted that Bayne testified at
trial that the fire was accidental and not caused by the use of an accelerant. Further, Bayne

                                             -18-
testified at trial that the burn pattern on the living room floor was a result of flashover. The
post-conviction court concluded that the jury convicted the Petitioner despite this testimony.

        The post-conviction court also concluded that the Petitioner had not been prejudiced
by trial counsel’s decision not to call Dr. Roth as a witness. Specifically, the post-conviction
court reasoned that trial counsel had “elicited detailed testimony from Mr. Bayne explaining
the patterns, locations and types of burns” on both the Petitioner and the victim and that Dr.
Harlan also had testified as to the burn patterns on their bodies. The post-conviction court
concluded that Dr. Roth’s testimony would not have been helpful and that the Petitioner was
not prejudiced by trial counsel’s decision not to call Dr. Roth as a witness.

       Finally, the post-conviction court addressed the Petitioner’s argument that trial
counsel had performed deficiently by failing to challenge on appeal the factual basis
underlying Cooper’s testimony. Citing this Court’s opinion on direct appeal, the post-
conviction court concluded that trial counsel, in fact, had attempted to disqualify Cooper as
an expert at the Daubert hearing and had raised the issue on appeal. The post-conviction
court quoted this Court’s prior opinion, stating:

       [T]here was a sufficient indicia of reliability to support the trial court’s
       decision to allow Mr. Cooper’s expert testimony and that defense counsel’s
       artful cross-examination of Mr. Cooper coupled with the defendant’s
       presentation of a competing version of the fire’s cause through the testimony
       of his own expert witness gave the jury ample opportunity to reject Mr.
       Cooper’s testimony.

State v. Claude Francis Garrett, No. M2004-02089-CCA-R3-CD, 2005 WL 3262933, at *17
(Tenn. Crim. App. Dec. 1, 2005).

       In sum, the post-conviction court concluded that:

       Although [trial] counsel was not able to render a favorable outcome for the
       [P]etitioner in this matter, it does not appear as though his representation fell
       below the standard demanded of criminal defense attorneys in such situations.
       [Trial counsel] was faced with the difficult task of developing and presenting
       a plausible defense to the charges with which the [P]etitioner was faced. [Trial
       counsel] fought zealously and wisely in his representation of the [P]etitioner,
       as evidenced by the rigorous cross-examination of the State’s witnesses and
       the skillful questioning of the defense witnesses.




                                              -19-
       The Petitioner now appeals the post-conviction court’s denial of his petition. On
appeal, he alleges that he received ineffective assistance of counsel at trial.


                                              Analysis

                                       Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                                Ineffective Assistance of Counsel

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.7 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.



       7
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                -20-
        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our Supreme Court has explained
that:
        [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.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “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).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“That is, the petitioner must establish that his counsel’s deficient performance was of such

                                              -21-
a degree that it deprived him of a fair trial and called into question the reliability of the
outcome.” Pylant, 263 S.W.3d at 869 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies the
second prong of Strickland.” Id.

               Failure to Present Evidence of the Advancements in Fire Science

       The Petitioner first argues that he received ineffective assistance of counsel when trial
counsel failed to present evidence that in the ten years between the first and second trials, the
methods by which the State’s expert witness reached his conclusion of arson had been
discredited by the scientific community.

        We note that this issue was not squarely addressed in the post-conviction court’s
written order denying relief. Rather, the post-conviction court’s order addresses related
issues raised by the Petitioner, including: (1) whether new scientific evidence in forensic
analysis of fire investigations exists to prove the Petitioner’s innocence; (2) whether trial
counsel ineffectively utilized Bayne’s expertise at trial; and (3) whether trial counsel failed
to challenge on direct appeal the factual basis underlying the evidence presented by Cooper.
Each of these issues is related to the issue that the Petitioner now raises on appeal; however,
none of them fully encompass that issue.

        From our review of the record, it is apparent that the post-conviction court’s order
addresses ad seriatim the issues raised in the Petitioner’s amended petition for
post-conviction relief. Thus, the issue that the Petitioner raises on appeal was not addressed
in the post-conviction court’s order denying relief because the issue was not stated as such
in his amended petition. Under certain circumstances, we may be inclined to conclude that
the Petitioner waived this issue by raising it for the first time on appeal. See State v. Turner,
919 S.W.2d 346, 356-57 (Tenn. Crim. App. 1995) (“A party may not raise an issue for the
first time in the appellate court.”). However, delving further into the record, it is apparent
that the Petitioner, in fact, did raise the same issue previously in his original pro se petition,
which was incorporated by reference in his amended petition.8 Moreover, the issue clearly
was litigated at the post-conviction hearing. Thus, we conclude that the issue was raised
fairly below and will address it on appeal.

       Although we have the post-conviction court’s thorough findings on related issues, we
lack findings of fact and conclusions of law on this particular issue. Following a
post-conviction hearing, a post-conviction court is required to enter written findings of fact


        8
         We conclude that the issue was raised in the pro se petition under ineffective assistance of counsel
ground twenty-two.

                                                    -22-
and conclusions of law addressing all grounds for relief, see Tenn. Code Ann. § 40-30-111(b)
(2003); Tenn. R. S. Ct. 28, § 9(A), but, as this Court has noted, the lack of such findings
“does not always mandate a reversal of the trial court’s judgment.” State v. Swanson, 680
S.W.2d 487, 489 (Tenn. Crim. App. 1984). Because the purpose of written findings of fact
and conclusions of law as to each issue is to facilitate appellate review, we need not reverse
where the record is adequate for review. Id.; see also Rickman v. State, 972 S.W.2d 687, 692
(Tenn. Crim. App. 1997). In this case, the trial record and the evidence adduced at the
post-conviction hearing adequately provide the substance of the Petitioner’s claim.
Additionally, the post-conviction court’s findings on the related issues stated above, as well
as its general denial of the petition, provide a basis from which we can discern the
post-conviction court’s conclusions. Thus, we conclude that an adequate foundation for
appellate review exists and, therefore, will review the substance of the Petitioner’s claim.

       The defense’s theory at trial was that the fire was the product of an accident, not
arson. Toward this end, trial counsel hired Bayne as an expert in arson investigation to
construct a credible defense and to assist trial counsel in preparing for and examining the
State’s expert witnesses. Bayne understood his role as providing a “technically defensible
opinion” that the origin and cause of the fire was accidental in nature and offering that
analysis at trial.

        After considerable research and study, Bayne concluded that flashover had occurred
during the fire leaving burn patterns on the floor. Bayne believed that Cooper mistakenly
interpreted these burn patterns as indicative of the use of an accelerant, which also can leave
similar burn patterns. Bayne believed that Cooper’s fire scene examination did not satisfy
the currently accepted scientific methodology, leading Cooper to mistakenly conclude that
the fire was intentionally set. Bayne based his conclusions, in part, on NFPA 921, which he
described to trial counsel as “the one and only document that represents the consensus of the
fire investigation community.”

         At the post-conviction hearing, Lentini testified that NFPA 921 is the standard of care
in fire investigations. Lentini testified that NFPA 921 was first published in 1992 as a guide
for fire investigators. Lentini noted that, prior to the publication and acceptance of NFPA
921 as the standard in the field, arson investigators adhered to certain “mythologies” that had
since been discredited by the scientific community. In describing one such mythology,
Lentini quoted from a National Academy Report on the State of Forensic Science which
concluded that:

       [M]uch more research is needed on the natural variability of burn patterns and
       damage characteristics and how they are affected by the presence of various



                                              -23-
       accelerants. Despite the paucity of research, some arson investigators continue
       to make determinations about whether or not a particular fire was set.

       However, according to testimony presented to the committee, many of the
       rules of thumb that are typically assumed to indicate that an accelerant was
       used (e.g., alligatoring of wood, specific char patterns) have been shown not
       to be true. Experiments should be designed to put arson investigations on a
       more solid scientific footing.

       Lentini explained that from reviewing the photographs in this case, he could determine
that the fire went to flashover. This fact indicated to him that the floor lit on fire, which
could have produced the evident burn patterns. Lentini was highly skeptical that Cooper
could tell the difference, simply by visually inspecting the floor, between burn patterns
caused by flashover and burn patterns caused by the use of an accelerant. Further, Lentini
believed that Cooper’s conclusion that he could tell the difference between the intentional
and accidental use of an accelerant from visual inspection of the burn patterns was “beyond
the scope . . . of what is valid or is generally accepted as valid in fire investigation.”

        Bayne raised these same concerns with trial counsel prior to trial. In emails, he told
trial counsel that “much new evidence has come to light from testing since 1992 to show that
one cannot distinguish pour patterns from other solid-fuel induced patterns by the patterns
themselves . . .” and that the evidence Cooper intended to offer “was not generally accepted
in the scientific community, especially since 1992.” Bayne informed trial counsel that he
intended to use NFPA 921 to rebut Cooper’s testimony. He also recommended that trial
counsel ask Cooper technical questions related to flashover conditions and effects. In one
email, Bayne advised trial counsel to ask Cooper about “his uncertainty about the floor burn
patterns” as well as “his respect for NFPA 921.” Bayne also warned trial counsel, however,
that Cooper would be testifying “as one who has learned much in the 11 years since the fire.”

        At trial, Cooper testified that the fire began in the front room and was deliberately set.
He maintained that he had approached his investigation in a scientific manner. Cooper based
his conclusions on several observations, including the exclusion of electrical or accidental
causes, the burn patterns on the living room floor, the saturation of kerosene in the kitchen,
the latched utility room door, and the disabled smoke alarm. Trial counsel asked Cooper to
explain flashover, and, after doing so, Cooper admitted that the living room in this case
appeared to have been fully involved in fire. He also acknowledged that flashover can occur
with or without the use of an accelerant and that radiant heat from flashover can leave burn
patterns on the floor. When asked whether he could distinguish between burn patterns
caused by radiant heat and those caused through the use of an accelerant, Cooper
acknowledged that it can be difficult and that less experienced investigators sometimes

                                              -24-
mistake the two. However, Cooper maintained that he could tell the difference. Cooper also
maintained that he did not base his decision solely on the presence of a pour pattern, but
rather took that evidence and combined it with other indicia of arson, such as the kerosene
soaked bedspread, the latched door, and the disabled smoke alarm. Cooper was not asked
about NFPA 921 or advancements in the scientific community’s understanding of fire
science in the years between the first and second trials.

       Testifying at the post-conviction hearing, Bayne believed that trial counsel did not
question Cooper in the manner that Bayne had advised. Bayne stated, “[Trial counsel] did
not follow my lead, the questions were disjointed, and they didn’t connect with the path or
the line of reasoning that I provided him.” Bayne also believed that, had he been in the
courtroom during Cooper’s testimony, he would have been able to address particular
discrepancies between the two experts’ opinions.

        In his own testimony at trial, Bayne stated that the fire had not been set on the floor
using an accelerant but rather had started accidentally in the love seat. Bayne also testified
that the floor burn pattern was “indicative of radiant heat and flash over.” Bayne was not
questioned specifically about NFPA 921, the evolving standards in fire investigation
techniques, or about particular methodological errors in Cooper’s investigation.

        At the post-conviction hearing, Bayne identified a document that he prepared before
trial containing potential questions for his direct examination. Bayne discussed several
questions from this list that trial counsel did not ask him at trial. None of the proposed
questions related to NFPA 921 or advancements in the understanding of fire science related
to pour pattern recognition. Importantly, trial counsel believed that Bayne successfully
communicated the defense’s theory of the case at trial. Trial counsel was not asked at the
post-conviction hearing why he had not questioned either Cooper or Bayne regarding
scientific advancements between trials.

       The Petitioner argues on appeal that the current scientific understanding does not
support Cooper’s testimony and that, through trial counsel’s failure to point this out at trial,
the jury was left with the impression that the two experts’ opinions were equally weighted.
After due consideration, we ultimately cannot agree with the Petitioner’s position.

       First, the evidence that the Petitioner submitted at the post-conviction hearing
regarding the current scientific understanding of floor burn patterns is not as decisive as he
contends. In this regard, we note that the Petitioner did not admit any portion of NFPA 921,
which he purports represents the standard of care in the field. Thus, while the Petitioner
complains that Cooper failed to abide by the industry standard, we can only speculate as to
exactly what that standard requires. Moreover, Cooper was not presented as a witness at the

                                              -25-
post-conviction hearing, so we also must speculate as to his familiarity and conformance with
NFPA 921. We also note that the post-conviction court found that Lentini’s testimony was
not relevant specifically to the case at hand. This conclusion diminishes substantially the
weight that we afford Lentini’s testimony.

        Further, the scientific developments that the Petitioner cites do not necessarily exclude
the possibility that Cooper could have reached the conclusion of arson using the methods that
he did. Lentini, quoting from the concluding paragraph of a scientific report, stated only that
“much more research is needed on the natural variability of burn patterns and damage
characteristics and how they are affected by the presence of various accelerants.” (Emphasis
added). The report continued that while “many of the rules of thumb” associated with the
use of an accelerant “have been shown not to be true,” “[e]xperiments should be designed
to put arson investigations on a more solid scientific footing.” (Emphasis added).

        From this testimony, we conclude only that the scientific understanding of burn
patterns is evolving and unsettled. More importantly, from the testimony at trial as well as
the post-conviction hearing, it is apparent that burn patterns may be left on a floor during a
fire either through the use of an accelerant or through radiant heat during flashover (or
presumably, both). Critically, neither Bayne’s nor Lentini’s testimony at the post-conviction
hearing negated the possibility that a burn pattern could be left from the ignition of an
accelerant.

        At trial, Cooper repeatedly stated that a burn pattern can be caused by either the
ignition of an accelerant or radiant heat. Cooper believed that the burn patterns in this case
were indicative of accelerant use while Bayne believed they were caused by radiant heat.
Thus, the two possible interpretations of the burn patterns were presented to the jury even if
the fact that the scientific understanding of burn patterns had changed was not. It is true that
Cooper maintained that his experience allowed him to tell the difference between a burn
pattern caused by an accelerant versus one caused by radiant heat. Perhaps trial counsel
could have countered Cooper more effectively on this point. We do agree with the Petitioner
that evidence of the changing standards in fire investigation methodology, to the extent that
they differed from Cooper’s methodology, could have helped the Petitioner’s case. We,
however, do not believe that trial counsel was deficient for failing to elicit such testimony,
nor do we believe that a reasonable probability exists that such testimony would have
changed the outcome of the trial.

       Trial counsel was not asked at the post-conviction hearing why he chose not to ask
Cooper or Bayne about advancements in fire science. However, there are plausible strategic
explanations for trial counsel’s decision. In an email sent in preparation for the Daubert
hearing, Bayne cautioned trial counsel that in questioning Cooper on his current

                                              -26-
understanding of fire science, Cooper would be “responding as one who has learned much
in the 11 years since the fire.” Bayne’s concern appears to be borne out in the trial transcript.
Cooper readily acknowledged that flashover can create burn patterns and that it appeared to
him that the living room underwent flashover. That is, Cooper was aware of the alleged flaw
in his methodology. Cooper maintained that, from his experience, and taking all factors into
account, he believed that the burn patterns had not been created through flashover. Cooper’s
apparent knowledge of the subject matter could have led trial counsel to conclude that further
examination would not have been helpful to the defense. In light of these possible strategic
choices in this case, we again are mindful that “[j]udicial scrutiny of [an attorney’s]
performance is highly deferential,” Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. 2000)
(emphasis added), and a petitioner alleging deficient performance bears a heavy burden of
proving that his or her lawyer’s performance was not within the realm of competent trial
strategy.     See Strickland, 466 U.S. at 689; Tracy F. Leonard v. State, No.
M2006-00654-CCA-R3-PC, 2007 WL 1946662, at *20 (Tenn. Crim. App. July 5, 2007).

        Moreover, trial counsel already had subjected Cooper to a thorough, multi-faceted
cross-examination of his investigative methodology. This cross-examination highlighted
many of the alleged flaws in Cooper’s investigation even if the scientific standard from
which his investigation deviated was not specifically examined. As this Court has previously
stated, “cross-examination is a strategic and tactical decision of trial counsel, which is not
to be measured by hindsight.” State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App.
1991). In this Court’s opinion on direct appeal, we stated that trial counsel subjected Cooper
to a “rigorous” and “artful” cross-examination and that the jury was adequately provided with
the defense’s theory and given “ample opportunity to reject Mr. Cooper’s testimony.” State
v. Claude Francis Garrett, No. M2004-02089-CCA-R3-CD, 2005 WL 3262933, at *17
(Tenn. Crim. App. Dec. 1, 2005). We continue to agree with this assessment and decline to
find that trial counsel’s cross-examination of Cooper was constitutionally deficient.

       We likewise conclude that trial counsel did not perform deficiently in his direct
examination of Bayne. As noted by the post-conviction court, Bayne communicated to the
jury the defense’s theory of the case, including his interpretation of the floor burn patterns.
Trial counsel hired Bayne to help present a credible, technical defense, and he did so. The
fact that trial counsel did not ask particular questions that Bayne requested of him is of
limited consequence because, taken as a whole, trial counsel presented the defense’s theory.

       The Petitioner cites the Tennessee Supreme Court’s decision in State v. Honeycutt,
54 S.W.3d 762 (Tenn. 2001), to argue that he is entitled to relief because trial counsel failed
to advance a theory of defense readily available. In Honeycutt, the defendant was convicted
of aggravated child abuse and raised an ineffective assistance of counsel claim on direct
appeal, arguing that his defense attorney failed to present evidence implicating the child’s

                                              -27-
mother as the perpetrator. Id. at 765. The defense attorney knew prior to trial that the mother
had access to the child in the hours preceding the injury, admitted that she had previously
shaken the child, and admitted that she could harm the child because the child “got on her
nerves.” Id. at 768. Yet, the defense attorney failed to question the mother regarding this
incriminating evidence and admitted that his failure to do so was not strategically based. Id.
The supreme court reversed the defendant’s conviction, holding that the defense attorney had
performed deficiently by failing to develop an alternate theory of defense and that the failure
to elicit testimony implicating the mother as the perpetrator prejudiced the outcome of the
case. Id. at 769.

        Upon our review of Honeycutt, we conclude that it is distinguishable from the case
at hand. Honeycutt involved the complete abandonment of a defense theory supported by
credible evidence that a different person had committed the crime. Here, trial counsel
developed his theory of defense, i.e., that the fire was accidental. Additionally, trial counsel
did not testify that his failure to ask all of the questions prepared by Bayne was not part of
a strategic decision. Our review of the record indicates that trial counsel was never asked
such a question. The Petitioner essentially complains that trial counsel did not use every bit
of evidence at his disposal to discredit the State’s theory. We do not read Honeycutt to
impose such a standard.

        We also conclude that the Petitioner did not establish prejudice to his case. Here
again, we note that in both his cross-examination of Cooper and in his examination of Bayne,
trial counsel communicated the defense’s theory of the case. The jury was made aware that
burn patterns can be caused by either the use of an accelerant or radiant heat during
flashover. It then became the jury’s prerogative to believe one expert’s testimony over the
other. Most importantly, Cooper repeatedly testified that the burn pattern on the floor was
not the only evidence pointing to arson, but that the closed utility room door, the kerosene
soaked blanket, and the disabled smoke alarm were also indicative of arson. In light of these
facts, we conclude that the lack of further scientific questioning of either Bayne or Cooper
does not warrant a finding that trial counsel’s performance called into question the reliability
of the outcome of the trial. See Pylant, 263 S.W.3d at 869. Thus, we conclude that the
Petitioner is not entitled to relief on this issue.

                            Failure to Call Dr. Roth as a Witness

       The Petitioner also contends that trial counsel performed ineffectively by failing to
call Dr. Roth as a witness at trial. The Petitioner argues that Dr. Roth’s testimony would
have provided independent corroboration of the defense’s theory that the victim and the
Petitioner were situated similarly during the fire based on the similarity of their burn injuries.
The State argues that evidence regarding the similarity of the burn injuries was presented

                                              -28-
through Bayne and that trial counsel’s decision to present this testimony through Bayne
rather than Dr. Roth was a strategic decision.

        The post-conviction court determined that the Petitioner was not prejudiced by trial
counsel’s failure to call Dr. Roth because testimony about the similarity of the burn patterns
already had been elicited from Bayne and Dr. Harlan. We agree. Trial counsel presented
evidence to the jury regarding the similarity of the burn injuries and the importance of the
injuries to the defense’s theory through the testimony of Bayne. While testimony from Dr.
Roth regarding the burn injuries would have corroborated Bayne’s testimony, the failure to
adduce such additional testimony did not prejudice the Petitioner because the testimony
would have been merely cumulative. Moreover, at the post-conviction hearing, Dr. Roth
testified only that the burn patterns were similar and indicative of exposure to a very intense
heat source. He could not opine whether the burns were consistent with the victim and the
Petitioner’s exposure to the same heat source at the same time. Thus, Dr. Roth’s testimony
was of limited corroborative value and would not have affected the outcome of the trial.
Accordingly, we agree with the post-conviction court’s determination that the Petitioner
failed to show he was prejudiced by trial counsel’s failure to call Dr. Roth as a witness at
trial.

            Failure to Move for a Mistrial After Previous Trial was Mentioned

        Finally, the Petitioner argues that trial counsel was ineffective for failing to move for
a mistrial on any of the three occasions when the Petitioner’s first trial was referenced by the
State or the State’s witnesses. The State argues that the Petitioner has waived the issue by
failing to present it in his post-conviction petition or at the evidentiary hearing.

       Prior to the start of the second trial, both parties addressed the trial court and agreed
that the parties and witnesses should abstain from referring to the first trial so as not to
inform the jury that a prior trial had taken place. Accordingly, the parties agreed to refer to
the prior trial as a “prior proceeding.” However, during the trial, two of the State’s
witnesses, as well as the prosecutor in closing arguments, nevertheless, referred to the prior
trial.

       The first reference occurred when the prosecutor asked Captain Jenkins whether he
had previously seen certain photographs of the fire scene. Captain Jenkins replied that he
had been “shown photographs at the previous trial.” Trial counsel approached the bench and
asked the trial court to “quietly suggest to this witness that he should not refer to the prior
proceeding as a trial.” The trial court agreed to do so, and the witness complied.




                                              -29-
       The second reference came when trial counsel asked Cooper on cross-examination
whether he recalled his previous testimony on a particular question. As part of his answer,
Cooper replied, “If that question was asked during the other trial – other proceeding – [.]”
Trial counsel then interrupted Cooper’s response by reading the prior question from the trial
transcript. Trial counsel did not object or request a curative instruction.

       The third reference came during closing arguments when the prosecutor told the jury,
“I think smoke snuffed out the life of Lori Lance back in ‘92, and I think smoke created by
Claude Garrett took her from us long before her time. I think smoke created by Claude
Garrett filled that whole house on Broadway and brought us to this courtroom back in 1992.”
Again, trial counsel did not object or request a curative instruction.

        Trial counsel did not move for a mistrial following any of these references to the prior
trial. Additionally, while counsel attempted to raise the issue on appeal, he failed to include
the issue in a motion for new trial. Consequently, in our prior opinion on direct appeal, this
Court deemed the issue to have been waived. See Claude Francis Garrett, 2005 WL 326933,
at *28.

        Testifying at the post-conviction hearing, trial counsel recalled entering an agreement
with the prosecutor to refrain from mentioning the previous trial. He recalled only one of the
State’s witnesses referring to the prior trial but allowed that others may have also done so.
Trial counsel remembered objecting to this reference, but could not recall whether he raised
the issue in the motion for new trial or on appeal.

        Contrary to the State’s position on appeal, while the Petitioner’s amended petition
seeking post-conviction relief did not raise the issue, his original pro se petition, in fact, did
raise this issue.9 Likewise, the Petitioner adduced some limited proof on this issue at the
evidentiary hearing. Thus, we cannot agree with the State that the issue has been waived.

       However, the post-conviction court’s written order denying post-conviction relief does
not contain findings of fact or conclusions of law on this particular issue. As noted above,
a post-conviction court is required to enter written findings of fact and conclusions of law
addressing all grounds for relief following a post-conviction hearing. See Tenn. Code Ann.
§ 40-30-111(b) (2003); Tenn. R. S. Ct. 28, § 9(A). However, because written findings are
intended to facilitate appellate review, when the record is adequate, we nevertheless may
review the case even without such findings. See State v. Swanson, 680 S.W.2d 487, 489
(Tenn. Crim. App. 1984). In this case, we are provided with the trial transcript, which
contains the factual basis for the Petitioner’s claims, as well as the post-conviction court’s

       9
           The issue was raised in the pro se petition under ineffective assistance of counsel ground four.

                                                    -30-
conclusion that the Petitioner failed to show deficient performance and prejudice to his case.
Thus, we conclude that the record is sufficient for appellate review and deem it unnecessary
to reverse the post-conviction court in order for that court to make findings of fact and
conclusions of law with respect to this issue.

       The purpose of a mistrial is to correct the damage done to the judicial process when
some event has occurred which would preclude an impartial verdict. Arnold v. State, 563
S.W.2d 792, 794 (Tenn. Crim. App. 1977). A mistrial is appropriate “when the trial cannot
continue, or, if the trial does continue, a miscarriage of justice will occur.” State v.
McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). “Generally a mistrial will be
declared in a criminal case only when there is a ‘manifest necessity’ requiring such action
by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)
(quoting Arnold, 563 S.W.2d at 794). The decision whether to grant a mistrial is within the
sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.
Id.

        In our view, the record does not demonstrate any material prejudice to the Petitioner’s
case. After Captain Jenkins referred to the prior trial, trial counsel asked the court to instruct
the witness to refrain from referring to it as such. When Cooper referred to the prior trial,
he immediately corrected himself by saying, “prior proceeding.” The prosecutor’s remarks
during closing arguments, while unnecessary, were somewhat vague. Although it would
have been appropriate for trial counsel to have sought a curative instruction following any
of these references, it is highly unlikely that a mistrial would have been granted. Moreover,
trial counsel could well have believed it to be a better trial strategy to let these references,
slight as they were, pass by without further attention. The references by the State and the
State’s witnesses simply did not give rise to a “manifest necessity” to stop the trial.
Consequently, the Petitioner is not entitled to relief on this issue.

                                          Conclusion

      For the foregoing reasons, we affirm the judgment of the post-conviction court
denying relief.

                                                     _________________________
                                                     JEFFREY S. BIVINS, JUDGE




                                              -31-
