            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                     Assigned on Briefs February 8, 2005

               TERRY LEE ROBINSON v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 98-B-1539    Cheryl Blackburn, Judge



                       No. M2004-00555-CCA-R3-PC - Filed May 31, 2005


The petitioner, Terry Lee Robinson, was convicted in the Davidson County Criminal Court of first
degree murder and received a life sentence. Following an unsuccessful appeal of his conviction, the
petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel at trial.
The petitioner now brings this appeal challenging the post-conviction court’s denial of his petition.
After reviewing the record and the parties’ briefs, we affirm the judgment of the post-conviction
court.



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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and J. C.
MCLIN , JJ., joined.

David Martin Hopkins, Nashville, Tennessee, for the appellant, Terry Lee Robinson.

Paul G. Summers, Attorney General and Reporter; and Jennifer L. Bledsoe, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                        I. Factual Background

        This case relates to the death of the petitioner’s wife, Lenora Robinson. At trial, the evidence
revealed that the victim had been ill in the days leading up to her death. On December 23, 1997, the
petitioner found his wife dead in their bed. An autopsy was performed on the victim, and samples
of her blood were collected. Testing on the blood revealed that it contained greater than two
micrograms per milliliter of cyanide. A second blood sample was tested, and cyanide was present
in the amount of one microgram per milliliter. A forensic pathology expert testified for the State that
cyanide is lethal at one to fifteen micrograms per milliliter and that he believed the victim died of
cyanide poisoning. A forensic pathology expert for the defense disagreed, concluding that fat in the
victim’s heart and liver showed she died of Reye’s syndrome. The defense’s expert also testified
that the positive test result for cyanide in the blood was a laboratory error and that either the sample
was contaminated or tested improperly. A second forensic pathology expert for the State disagreed
with the defense expert, concluding that the victim died after inhaling cyanide. Finally, a clinical
toxicology expert for the defense testified that when the victim’s blood was tested a second time, the
blood should have come from the same blood tube as the first sample. However, the laboratory had
used all of the first sample and had to do the retest on blood from a second tube of blood. Several
witnesses testified that the petitioner and the victim had been having marital problems and that the
victim was unhappy in the marriage. The defendant testified that he did not kill his wife. The jury
found the defendant guilty of first degree murder, and this court affirmed the conviction. See State
v. Robinson, 73 S.W.3d 136 (Tenn. Crim. App. 2002).

        The petitioner filed original and amended petitions for post-conviction relief, claiming that
he received the ineffective assistance of counsel because his trial attorney failed to object when the
State used its peremptory challenges to exclude males from the jury and failed to properly raise the
issue on appeal. The petitioner also claimed that he received the ineffective assistance of counsel
because his attorney failed to move to suppress the victim’s blood test results and failed to seek
sanctions against the State for using all of the first blood sample.

         At the evidentiary hearing, the petitioner testified that he was serving a life sentence for first
degree premeditated murder of his wife. He said that at trial, the State introduced evidence regarding
blood samples that were collected from the victim after her death. The petitioner stated that his
attorney requested that the defense also be allowed to test the victim’s blood. However, not enough
of the sample remained for defense testing. The petitioner stated that the defense’s inability to test
the victim’s blood prejudiced him because the blood test results were the only evidence of cyanide
poisoning. Regarding the jury, the petitioner testified that ten of the jurors were female. The
petitioner’s attorney did not object at trial to ten women being on the jury. Although the petitioner’s
trial attorney raised the issue of the gender ratio in the petitioner’s direct appeal of his convictions,
this court concluded the petitioner waived the issue because he failed to object at trial. The
petitioner testified that after the jury was selected, he did not complain to his attorney about ten
women being on the jury. On cross-examination, the petitioner acknowledged that he participated
in jury selection, that he talked with his attorney about jury selection, and that none of the jurors said
they could not be fair.

        The petitioner’s trial attorney testified that he had been practicing law for thirty-two years
and that he represented the petitioner at trial and on direct appeal. He said that during discovery, the
State gave the defense everything it had regarding the victim’s blood tests. He learned that not
enough blood remained for the defense to conduct independent testing. He said that the defense’s
experts told him they did not believe the victim’s blood samples had been preserved properly.
However, they also told him that the results of the victim’s blood tests would have been the same
even if the defense had been able to conduct its own blood tests. The petitioner’s attorney saw no
constitutional or statutory problem regarding the lack of a blood sample for defense testing. The
petitioner’s attorney testified that he excused a number of women from the potential jury and that

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the petitioner participated in jury selection. Nevertheless, ten women ended were on the panel. The
petitioner’s attorney saw no grounds to challenge the jury selection process because jury selection
in Nashville is almost “totally impartial.” On cross-examination, the petitioner’s trial attorney
testified that the only evidence of cyanide poisoning was the victim’s blood test results.

         Regarding the petitioner’s claim that he received the ineffective assistance of counsel during
jury selection, the post-conviction court held that the large number of women on the jury was not the
result of inappropriate jury selection procedures, that the petitioner’s attorney did not render deficient
performance during jury selection, and that the petitioner was not prejudiced by the alleged
deficiency. Regarding his attorney’s failure to file a motion to suppress the blood test results, the
trial court noted that the blood in this case was neither lost nor destroyed by the State. Instead, the
entire blood sample was used during the State’s testing procedures. The post-conviction court also
noted that the defense experts told the petitioner’s attorney that independent testing by the defense
would have resulted in the same test results. Thus, the post-conviction court held that the
petitioner’s attorney had no basis for filing a motion to suppress and that he did not render deficient
performance.

         On appeal, the petitioner claims that he received the ineffective assistance of counsel because
his trial attorney failed to object to the State’s use of its peremptory challenges to exclude males from
the jury and that his attorney failed to raise the issue on appeal properly. He also claims that counsel
failed to file a motion to suppress the blood test results or request that the State be sanctioned by the
court for using all of the victim’s blood during testing. He claims that he was prejudiced because
the blood test results were the only evidence of cyanide being present in the victim. The State argues
that the petitioner has failed to show that he received the ineffective assistance of counsel. We agree
with the State.

                                              II. Analysis

        In a post-conviction proceeding, the petitioner bears the burden of proving the grounds raised
in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
“Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues
regarding the credibility of witnesses, the weight and value to be accorded their testimony, and the
factual questions raised by the evidence adduced at trial are to be resolved by the post-conviction
court as the trier of fact. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford
the post-conviction court’s findings of fact the weight of a jury verdict, with such findings being
conclusive on appeal absent a showing that the evidence in the record preponderates against those
findings. Id. at 578.

        On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and
fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As such, the
post-conviction court’s findings of fact are entitled to a presumption of correctness unless the
evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

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However, a post-conviction court’s conclusions of law, such as whether counsel’s performance was
deficient or whether that deficiency was prejudicial, are subject to a purely de novo review with no
presumption of correctness. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).

               Because a petitioner must establish both prongs of the test, a failure
               to prove either deficiency or prejudice provides a sufficient basis to
               deny relief on the ineffective assistance claim. Indeed, a court need
               not address the components in any particular order or even address
               both if the [petitioner] makes an insufficient showing of one
               component.

Id. at 370.

        To establish constitutionally deficient performance, the petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S.
at 687-88, 104 S. Ct. at 2064; Burns, 6 S.W.3d at 462. Specifically, the petitioner must show that
counsel’s performance was not within “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). On appeal, this court will neither
second guess the tactical and strategic decisions of defense counsel, nor measure the representation
by “20-20 hindsight.” Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). To establish prejudice,
the petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S. Ct. at 2068; see also Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

        As to the petitioner’s claim that his attorney rendered deficient performance during jury
selection, we note that a transcript of the jury selection process was not included in the petitioner’s
direct or post-conviction appellate records. In any event, the petitioner has made no claim that the
ten women on his jury were biased or unfair or that having ten women on the jury affected the
outcome of his trial. Thus, he is not entitled to relief on this issue.

        Regarding the petitioner’s claim that his trial attorney was ineffective for failing to file a
motion to suppress the blood test results, we note that in State v. Ferguson, 2 S.W.3d 912, 915
(Tenn. 1999), our supreme court addressed “what consequences flow from the State’s loss or
destruction of evidence alleged to have been exculpatory.” The supreme court applied due process
principles embodied in Article 1, Section 8 of the Tennessee Constitution and “promulgate[d] . . .
an analysis in which the critical inquiry is: Whether a trial, conducted without the [lost or] destroyed
evidence, would be fundamentally fair?” Id. at 914 (footnote omitted).


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         As noted by the post-conviction court in the present case, the petitioner is not claiming that
the State negligently lost or destroyed evidence. Moreover, the petitioner’s trial attorney testified
that the State gave him all discovery in this case, including access to the results of the victim’s blood
tests. See Tenn. R. Crim. P. 16(a)(1)(D) (providing that upon a defendant’s request, the State must
allow the defendant to inspect and copy the results of scientific tests). The petitioner’s attorney also
testified that according to the defense’s experts, the results of the blood tests would have been the
same as the State’s results and that the defense was more concerned with showing that the
preservation of the blood samples was improper. The petitioner has failed to show that his attorney
rendered deficient performance in failing to file a motion to suppress the blood test results or that
the outcome of his trial would have been any different if the defense has been able to conduct its own
tests.

                                           III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction
court.

                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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