            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                          January 29, 2013 Session

    EDWARD THOMAS KENDRICK, III v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Hamilton County
                            No. 220622 Don W. Poole, Judge


                     No. E2011-02367-CCA-R3-PC - Filed June 27, 2013


Edward Thomas Kendrick, III (“the Petitioner”)1 was convicted by a jury of first degree
premeditated murder. This Court affirmed the Petitioner’s conviction on direct appeal. The
Petitioner filed for post-conviction relief, alleging ineffective assistance of counsel. After
a hearing, the post-conviction court denied relief, and this appeal followed. Upon our
thorough review of the record and the applicable law, we are constrained to conclude that the
Petitioner established that he received the ineffective assistance of counsel at trial, because
it is reasonably likely that a jury would have convicted him of a lesser degree of homicide
absent the deficiencies in his trial counsel’s performance. Accordingly, we must reverse the
Petitioner’s conviction and remand this matter for further proceedings.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Ann C. Short (on appeal), Knoxville, Tennessee; Jeffrey Schaarschmidt and Jason Demastus
(at post-conviction hearing), Chattanooga, Tennessee, for the Appellant, Edward Thomas
Kendrick, III.

Robert E. Cooper, Jr., Attorney General & Reporter; Lacy Wilbur, Assistant Attorney
General; Bill Cox, District Attorney General; and Lance Pope, Assistant District Attorney
General, for the appellee, State of Tennessee.


        1
          The Petitioner identifies himself as “Edward Thomas Kendrick, III” in his petition for post-
conviction relief filed on April 15, 1998. We note that this Court’s opinion addressing the Petitioner’s direct
appeal from his conviction identifies the Petitioner as “Edward Thomas Kendricks, III, alias Edward Thomas
Kendrick, III.”
                                           OPINION

                           Factual and Procedural Background

                                              Trial

        On March 6, 1994, the Petitioner shot and killed his wife. A jury subsequently
convicted the Petitioner of first degree premeditated murder, and the Petitioner was
sentenced to life imprisonment. This Court affirmed the Petitioner’s conviction on direct
appeal. See State v. Kendricks, 947 S.W.2d 875, 886 (Tenn. Crim. App. 1996). To assist
in the resolution of this proceeding, we repeat here the summary of the facts set forth in this
Court’s opinion resolving the Petitioner’s direct appeal:

              On March 6, 1994, at approximately 10:00 p.m., the [Petitioner] drove
       to the gas station at which Lisa Kendrick, his wife and the victim, worked.
       With him in the car were their four-year-old daughter and three-year-old son.
       These children were sitting in car seats in the back seat of the station wagon
       the [Petitioner] was driving. Also in the car, on the front passenger floorboard,
       was the [Petitioner’s] loaded 30.06 hunting rifle.

              The [Petitioner] pulled into the station, parked, and went into the
       market portion of the station where his wife worked as a cashier. He asked her
       to come outside, which she did. She and the [Petitioner] went to the car where
       she spoke briefly to the children. The [Petitioner] retrieved the rifle from the
       front passenger floorboard and carried it to the back of the car. At that point,
       the weapon fired once, the bullet striking the victim in her chest and killing her
       almost instantly.

               After the victim fell to the parking lot, the [Petitioner] briefly bent over
       her body, put the gun back in the car, and drove toward the airport a short
       distance away. On the way, he threw the rifle out of the car. Once he arrived
       at the airport, he called 911 and reported that he had shot his wife. Before the
       [Petitioner] left the gas station, he took no action to assist the victim in any
       way.

               Timothy Shurd Benton, a customer, was in the market when the
       [Petitioner] entered. He testified that the [Petitioner] had asked the cashier “to
       step outside, he had something to show her.” Benton left the market, got in his
       car and started to leave the parking lot. He testified that, as he had begun to
       leave, he heard an “explosion.” He looked over his shoulder out the window


                                               -2-
of his car and saw the [Petitioner] holding a rifle “pointed straight up in the
air.” He also saw the victim lying on her back on the parking lot. After
deciding that another person in the market was aware of the situation and
would call for help, Benton followed the [Petitioner] to the airport, where he
contacted an airport police officer.

        Lennell Shepheard was also in the market at the time the [Petitioner]
entered. He testified that he had seen the [Petitioner] and his wife leave the
store, that the [Petitioner] had not appeared angry or hostile, and that the
victim had shown no signs of fear when she went outside at the [Petitioner’s]
request. Shepheard remained in the store until he heard the rifle shot. At that
point, he opened the market door and looked outside to see what had
happened. He testified that he had seen the [Petitioner] shut the back
passenger door and then lean over the victim’s body and state, “I told you so”
approximately six times.

        Endia Kendrick, the [Petitioner’s] four-year-old daughter, testified on
direct examination that she had seen her father shoot her mother and that her
mother had had her arms up at the time. However, on cross-examination,
Endia admitted that she hadn’t actually seen the shooting.

        Dr. Frank King, the Hamilton County Medical Examiner, testified that
the victim had died of a single gunshot wound to the chest that entered her
body in the left chest at forty-nine inches above the heel and exited her body
at the left back at forty-nine and one-half inches above the heel.

        The [Petitioner] testified that he had been moving the rifle from the
front of the car to the back at the request of the victim and that it had
discharged accidentally. He testified that he had been shifting it from one
hand to the other when it went off. He testified that he had not pulled the
trigger. He steadfastly denied that he had intended to shoot the victim, and
claimed that he had been carrying the rifle in the car because he sometimes
cleaned apartments near an area where he felt a gun was necessary for personal
protection. He also denied making any statements as he bent over the victim,
and testified that he had taken no action to assist her because he knew she was
dead. The [Petitioner] also testified that he and the victim had agreed on an
irreconcilable differences divorce, that an attempted reconciliation had recently
failed, and that he suspected that she had had or was having an affair. He
denied that he was upset or angry at his wife about the status of their relationship.



                                         -3-
               In support of his contention that the rifle fired accidentally, the
       [Petitioner] relied on the testimony of Officer Steve W. Miller. Officer Miller
       testified that he had shot himself in the foot with the rifle when he was
       removing it from the trunk of his car after recovering it from where the
       [Petitioner] had thrown it. Officer Miller testified that he had shot himself
       accidentally. He further testified that he could not recall whether or not his
       finger had been on the trigger of the gun when it fired.

               Kelly Fite, a firearms examiner, testified that he had examined and
       tested the rifle and that, in his opinion, “[t]he only way that you can fire this
       rifle without breaking it is by pulling the trigger.”

               After the defense closed its proof, the State called Martha Kay Maston
       as a “rebuttal” witness. Maston testified that she had been working as a public
       safety officer for the Chattanooga Metropolitan Airport Police on the night of
       the shooting. On finding the [Petitioner] at the airport, she saw the two
       children in the back seat of the car. She testified that she had gotten the
       children out and that they were both “very upset and hysterical.” She further
       testified that “when I got [the little girl] out of the car, she just put her arms
       around me and she stated that she had told daddy not to shoot mommy but he
       did and she fell.” Maston testified that the [Petitioner’s] daughter had not
       made any other statements and that his son had not said anything.

Kendricks, 947 S.W.2d at 878-79.

                                         Post-Conviction

       After the direct appeal, the Petitioner, pro se, timely filed a petition for post-
conviction relief in April 1998.2 The post-conviction court summarily dismissed the petition
on the basis that the issues raised were either waived or previously determined. See
Kendricks v. State, 13 S.W.3d 401, 403 (Tenn. Crim. App. 1999). On appeal, this Court
held that “the post-conviction court erred in holding that the petitioner’s ineffective
assistance of counsel claims were barred for failure to raise them on direct appeal.” Id. at
405. Accordingly, this Court reversed the post-conviction court in part and remanded the
case for further proceedings, noting specifically that the Petitioner should be allowed the
opportunity to amend his petition. Id. On March 16, 2000, the Petitioner filed an amended
petition with the assistance of counsel. The Petitioner also filed multiple amended petitions


       2
         The Tennessee Supreme Court denied the Petitioner’s application for permission to appeal from
this Court’s decision on May 5, 1997.

                                                 -4-
with and without the assistance of counsel. The hearing on the Petitioner’s post-conviction
petitions and amended petitions ultimately occurred on multiple days in February and March
20113 during which the following proof was adduced:4

        Henry Jackson Belk, Jr., a gunsmith, testified that, earlier that morning in the clerk’s
office, he examined the gun, a Remington Model 7400 30.06 autoloading rifle, that shot and
killed the victim. He stated that he was familiar with the trigger mechanism inside the rifle,
describing it as “a common trigger mechanism that is contained within a wide variety of
firearms, shotguns, rim fires and center fire rifles.” He added, “Generally speaking, all
pumps and automatics manufactured after 1948 by Remington contain this trigger
mechanism.” Belk testified that the trigger mechanism is referred to as the “Remington
Common Fire Control” (“the Common Fire Control”).

       Belk stated that the Common Fire Control was first used in the automatic shotgun in
1948, then in the pump shotgun in 1950, and then in the automatic rifle in 1951. The
Common Fire Control is currently used in 23 million firearms. Because the Common Fire
Control is used in different firearms, any “issue” with the trigger mechanism would not be
limited to one specific type of firearm. According to Belk, the Common Fire Control is a
“defective mechanism.”

        As to the rifle in this case, Belk stated that it had “the normal dirt, dried oil and
residue common to a gun that has not been cleaned.” After removing the trigger mechanism
while he was on the witness stand, Belk examined the rifle and stated that “the action spring
is sticky.” He explained that the “action spring . . . supplie[d] the energy for the bolt to return
back forward.” Because the action spring was “sticky,” the bolt was “not going forward as
freely as it should.” Belk explained that the action spring’s condition was consistent with a
firearm that had not been cleaned.

      Turning his attention to the trigger mechanism, Belk testified about how it could
malfunction:

               The general description here is this is a swing hammer mechanism; in
        other words, it fires by a hammer going forward and hitting a firing pin that’s
        contained in the bolt inside the housing. The sear is the part that retains the
        hammer. The sear is what holds the hammer back, does not fire. On this

        3
         It is unclear from the record why over ten years elapsed between this Court’s prior opinion and the
hearing on the Petitioner’s amended petitions.
        4
          Although there was a great deal of testimony adduced at the post-conviction hearing, we have
limited our recitation of the evidence to that which is necessary for our resolution of this case.

                                                    -5-
       particular mechanism, on all these Remington mechanisms, that sear is an
       independent part, is right here. That is an independent part, not on the end of
       the trigger like a Browning design is.

               For that reason, and the fact that the safety only blocks the trigger, it
       does not block the action of the sear or the hammer, it only blocks the trigger,
       any debris that is captured between the sear and the slot that it is housed in,
       which is the housing, any debris that is caught between the bottom or the tail
       of the sear and the stock surface inside the housing, any debris that gathers
       there, any debris that gathers between the trigger yoke and the rear pivot pin
       and the trigger pusher arm and the bottom of the sear, any debris in any of
       those places, alone or in concert, can cause an insecure engagement between
       the hammer and the sear itself.

             So even with a gun on safe, which it is now, it can still fire, which it just
       did. Without pulling the trigger, on safe.

Responding to questions by the court, Belk clarified: “I can pull the trigger and make it fire,
just like that (indicating), or I can put it on safe without the trigger being pulled and fire it
just by manipulation of the sear.”

       Belk continued:

                The notch in the hammer determines how much debris it takes to make
       it fail. The notch in the hammer is about 18,000 of an inch deep, about the
       thickness of a matchbook cover. . . . [A]nything that totals that amount of
       distance can make a gun fail.

       ....

       Any of those other locations, it takes about 18,000ths in order to interfere with
       the secure engagement of the hammer and the sear.

Belk clarified that there were five locations in the trigger mechanism that made the
mechanism “weak” and that could collect the requisite amount of debris to cause a misfire.
Moreover, of the five “weak spots,” “the clearance between the sear and the housing itself
is usually about 4,000ths, so it would take less debris captured between those places to retard
the proper motion of the sear and would also cause it to fail. So it wouldn’t necessarily take
as much as 18,000ths.”



                                               -6-
       Belk also testified that “[t]he Remington Common Fire Control has a history of firing
under outside influences other than a manual pull of the trigger. Vibration is one way that
can happen. Impact. Even in one case the simple act of grabbing the gun by [the forward
part of the stock] caused it to fire.” Belk reiterated that the Common Fire Control “fires
without the control of the trigger. It can fire out of the control of the shooter. It can
discharge without any hand being on the stock.”

       Belk stated that, if debris caused the gun to fire unintentionally, the debris could be
dislodged during the discharge. He added,

              On this semi-automatic, each time the gun is fired, the hammer goes
       forward, and then under great pressure and speed, the hammer is forced back
       again into position. So there’s a lot of cycling going on.

            There’s also the disconnector here, there’s a lot of movement in the
       mechanism itself during firing and during manipulation after firing. And that
       movement, many times, dislodges the debris that actually was the causation.

Belk acknowledged that debris also can be dislodged through a gun being dropped or
“banged around.” He acknowledged that a drop test “many times[] destroys any evidence
that was there.” He explained that the standardized tests of dropping a firearm “on a hundred
durometer rubber pad from a certain distance in certain orientations . . . does nothing
whatsoever to analyze the mechanism and how it can fail. So the . . . drop test in itself can
be destructive [by dislodging debris] without actually showing anything.” He added, “[T]his
particular mechanism has what is called a recapture angle. So, impact, as in dropping it on
the floor, will actually recapture the sear engagement rather than dislodge it. So the . . . drop
test on this particular gun is pretty much useless.”

        Belk opined that the rifle which shot and killed the victim “is capable of firing without
a pull of the trigger, whether the safety is on or off.”

        Belk testified that he was first hired to work on a case involving the Common Fire
Control in 1994, and he agreed that, “if someone had done some research, they would have
potentially been able to find [him].” He also testified that problems with Remington firearms
could be reported to the manufacturer, which maintained “some” records of complaints.
According to Belk, people were complaining prior to his initial involvement. He testified
that he “first identified the problem with the Remington Common Fire Control in 1970.”
When a “co-shooter” on a skeet-range complained of trigger problems, Belk disassembled
the trigger mechanism and “found a section of lead shot debris stuck in the sear notch of the
hammer.” He added, “That was the first identification that [he] had of a bad mechanism, that


                                               -7-
it could fire without a trigger being pulled.” Since then, he had consulted with “many, many
attorneys.” One case involved a Remington 7400 that fired while it was being cleaned with
an air hose. The safety on that gun had been engaged. Another gun fired while being wiped
with a rag. Another gun fired when the butt-end of the stock was placed on the floor.

        On cross-examination, Belk admitted that, while the trigger assembly was in the
Petitioner’s rifle, the rifle had not misfired during Belk’s handling of it. He also admitted
that he could not opine about the cleanliness of the gun in March 1994. He stated that he
testified in a case involving a Remington 7400 in 1997 or 1998.

       On redirect examination, Belk testified that he was familiar with a case in which a
Remington shotgun containing the Common Fire Control fired while it was in a locked case
and with the safety engaged. The gun was strapped to the handlebars of an ATV that had
been left idling. The vibrations caused the gun to fire. Belk stated that he had been
consulted on “probably two dozen” cases involving the Common Fire Control in which the
gun discharged and injured someone.

       On re-cross examination, Belk maintained that he had previously been able to induce
a misfire by “artificially introducing” debris in “any” of the previously identified “weak
spots.” He clarified that he induced these misfires in “cutaway” guns.

       Sergeant Steve Miller of the Chattanooga Police Department (“CPD”) testified that,
on the night the victim was killed, he was assigned to the case as a crime scene investigator.
He testified that the firearm was not located at the scene of the shooting. When a “[c]all
came across the police radio that a gun had been located down Airport Road,” Sgt. Miller
went to locate the firearm. He located the rifle on the side of Airport Road and noted that
there was no clip in it. He photographed the rifle and collected it for evidence, placing it in
the trunk of his patrol car. Sgt. Miller transported the rifle back to the police service center
on Amnicola Highway.

        Sgt. Miller agreed that he was handling the rifle carefully in order to preserve
fingerprints. He also acknowledged that he testified at trial that he had a jacket in his left
hand and that he “grabbed” the rifle from the trunk of his patrol car with his right hand and
“pointed it in a downward motion” towards the pavement. When Sgt. Miller pointed it in the
downward motion, the rifle discharged, injuring his left foot. Sgt. Miller testified that he
“can’t say with a hundred percent accuracy” whether his fingers were anywhere near the
trigger but stated that “[t]hey shouldn’t have been.”

       Sgt. Miller acknowledged his signature on the bottom of a report prepared by Michael
Taylor on March 7, 1994 (“the Taylor report”). The Taylor report, admitted into evidence,


                                              -8-
reflected that James Gann was the first officer to respond to Sgt. Miller’s injury, and Sgt.
Miller’s recollection at the post-conviction hearing was consistent: that Officer James Gann
came out of the service building to see what had happened after Sgt. Miller shot himself.
Sgt. Miller also acknowledged that the Taylor report indicated that he told the “initial officer
that he had both hands on the rifle and did not have his finger near the trigger.” Sgt. Miller
testified that he suffered “a massive foot injury” that was “extremely painful.” Sgt. Miller
agreed that the wound also was stressful.

        On cross-examination, Sgt. Miller agreed that he was called by the State as a witness
at the Petitioner’s trial. He agreed that defense counsel questioned him at the trial and asked
questions about where his fingers were with respect to the trigger when he shot himself. He
also remembered that defense counsel’s cross-examination was “tough.”

       On redirect examination, Sgt. Miller testified that defense counsel did not interview
him prior to the trial.

       Glenn Sims, retired from the CPD, acknowledged that he prepared a police report in
connection with Sgt. Miller’s incident, but he did not recall speaking with Sgt. Miller. He
acknowledged that, according to his report, Sgt. Miller “was taking the firearm . . . that he
had collected into evidence, out of the truck of the vehicle [and] it discharged[.]” The report
further reflected that “the rifle swung down, [Sgt. Miller] wasn’t sure if it hit his foot or the
ground, but it went off, hitting Miller in the left inside foot.” Sims agreed that the report
reflected that the rifle “just went off.”

        James A. Gann testified that he was employed by the CPD in 1994 and that he was
one of the officers who investigated Sgt. Miller’s incident. He stated that he was in the office
when he heard “a loud recoil of a gun.” Gann went outside to investigate and saw that Sgt.
Miller was shot in the foot. Gann radioed for an ambulance and alerted the appropriate
people who “had to be advised on a shooting.” Gann stated that Sgt. Miller was “in a lot of
pain, bleeding, and starting to go into shock.” Gann could not recall whether he spoke to Sgt.
Miller about what had happened, explaining that he “was more concerned with his foot, he
was bleeding.” Referring to a police report that Sgt. Glenn Sims had prepared, Gann
acknowledged that Sgt. Miller had told Gann that, while Sgt. Miller was taking the rifle out
of the trunk, the gun “just went off.” Gann also testified that he was not contacted by anyone
from the public defender’s office before the Petitioner’s trial.

        Officer Michael Holbrook of the CPD testified that he was dispatched to Erlanger
Hospital to respond to an accident involving Sgt. Miller. Officer Holbrook spoke to Sgt.
Miller at the hospital and prepared a report regarding their conversation. Officer Holbrook
testified that Sgt. Miller told him that “as he was taking the rifle out of the trunk of his patrol


                                                -9-
car, the rifle went off and shot him in the foot.” Sgt. Miller also told Officer Holbrook that
his hands were not on the rifle’s trigger. Officer Holbrook’s report was consistent with his
testimony and contained the following narrative: “As he was lifting out the rifle, the weapon
went off and struck him in the left foot. [Sgt.] Miller states that he picked it up with both
hands and his finger was not near the trigger.” Officer Holbrook’s report, dated March 7,
1994, was admitted as an exhibit.

       The Petitioner’s trial lawyer (“Trial Counsel”) testified that he worked for the public
defender’s office in 1994 and represented the Petitioner at trial. He stated that two
investigators assisted him in investigating the case. Trial Counsel agreed that the Petitioner’s
appointed counsel in general sessions waived the preliminary hearing in exchange for “an
open file policy.”

        Trial Counsel testified that, from the beginning, the Petitioner maintained that the rifle
accidentally discharged. He also testified that Sgt. Miller had made statements indicating
that “he was not holding the gun anywhere near the trigger housing and it discharged,
shooting him in the foot.” Trial Counsel stated that he never looked for an expert witness
to support the Petitioner’s accidental discharge claim. He testified that the public defender’s
office informally consulted with a gunsmith who was a former Red Bank police officer, but
he did not remember whether he spoke to him about this case. Trial Counsel also agreed that
he performed no research regarding the trigger mechanism in the Remington 7400 rifle. He
added, “[a]s a matter of fact, when I heard on NPR, a year or so ago, that the Remington
trigger mechanism was faulty and [there had] been several apparent accidental deaths as a
result of it, you’re the first person I contacted, because I thought, I remembered it was a
Remington and I thought it was something very important.” Trial Counsel generally recalled
that the State’s expert, Kelly Fite, performed a “drop test” on the rifle. He agreed that Fite’s
report did not indicate that Fite inspected the trigger mechanism.

       Asked whether it would have been beneficial for an expert to testify on the
Petitioner’s behalf about the trigger mechanism, Trial Counsel answered, “In hindsight,
especially with the knowledge now that there have been so many problems with the
Remington trigger mechanism, yeah.” Asked about his knowledge of any discussions in the
industry regarding the trigger mechanism misfiring, Trial Counsel responded:

               I wasn’t aware of any. And I will point out, at the time, I was the only
       public defender in Division II, and in that period of time in little over four
       years, I probably tried, literally, 40 first degree murder cases, settled another
       40 to 50, and I will concede I didn’t put nearly as much time in on his case or
       any other cases that I tried as I do now in my private practice, because I’ve got
       a lot more time. My average caseload every Thursday for settlement day was


                                              -10-
       between 20 and 30 defendants. My average month included at least 2 if not 3
       trials. So I wasn’t aware of the issue with the trigger pull.

Trial counsel also added that, although he had “a fundamental knowledge of firearms, [he]
was not aware of it and . . . [he] didn’t know it and [he] didn’t get an expert.” He also
explained,

               I thought [Sgt.] Miller would testify consistently with what I knew to
       be his statements, and I thought that would come in and I thought that when
       that did come in, I could use that very effectively to say, okay, if [the
       Petitioner] can’t accidentally have that gun [go] off, neither can [Sgt.] Miller,
       so, therefore, you got to presume that [Sgt.] Miller shot himself in the foot on
       purpose. That was my whole line of reasoning in this case.

        Trial Counsel testified that he “was not prepared for [Sgt.] Miller to say he couldn’t
remember, because there was not any doubt in [Trial Counsel’s] mind, at least, when [they]
started trying this case, that he was going to stick to his prior statements.” Accordingly, Trial
Counsel had no “backup plan” to call other officers to testify about what Sgt. Miller had told
them after he shot himself. Trial counsel felt “sandbagged” by Sgt. Miller’s trial testimony.
He recalled the trial court refusing to allow him to introduce one of the reports generated
about Sgt. Miller’s injury in which Sgt. Miller reported that his hands had not been near the
rifle’s trigger when it misfired. He did not request to make an offer of proof. He also did
not attempt to introduce Sgt. Miller’s statements as excited utterances, explaining, “[i]n the
heat of the trial, I didn’t see that.”

       Trial Counsel agreed that both Lennell Shepheard and Sgt. Miller’s testimony at trial
differed from their statements that the State provided the defense during discovery. Trial
Counsel stated that the first time he heard Shepheard claim the Petitioner stated “I told you
so” was during Shepheard’s testimony. Trial Counsel agreed that he was never provided
notice by the State prior to these two witnesses testifying that the substance of their pretrial
statements had changed materially. Trial counsel also stated that, although he was not the
Petitioner’s counsel at the preliminary hearing stage, he would expect “in exchange for the
waiver of a preliminary hearing, especially in a first degree murder case, that there would be
some extra benefit to come to the defendant through the discovery process.” He added, “if
[Sgt.] Miller was going to change his story, we should have been made aware of that, if Mr.
Shepheard was going to add to his story, we should have been made aware of that.”

       On cross-examination, Trial Counsel stated that he began practicing law in Tennessee
in April 1978 and had been in continuous practice since that time. At the time of the
Petitioner’s trial, Trial Counsel had been practicing law for sixteen years, primarily in


                                              -11-
criminal defense. Trial Counsel also stated that he was employed at the public defender’s
office at the time of the Petitioner’s trial and had worked in that capacity for approximately
five years. Trial Counsel had tried at least sixty to seventy cases by 1994, including murder
cases, less-serious cases, and death penalty cases. He stated that he tried in excess of forty
murder cases prior to this case. Trial Counsel testified that he was assigned this case at
arraignment.

         Before meeting with the Petitioner, Trial Counsel stated that the Petitioner completed
an “intake sheet” wherein he wrote out his “side of the story.” Trial Counsel testified that
the Petitioner was on bond when he was assigned to the Petitioner’s case and that he
remained on bond throughout his representation of him. The offense occurred in March
1994, and the Petitioner’s trial was in November 1994. Trial Counsel agreed that this was
a “little quick.” Trial Counsel could not recall whether the Petitioner had desired that the
case proceed to trial quickly.

        Trial Counsel acknowledged that he and the Petitioner discussed the strategy in the
case. He stated, again, that the Petitioner maintained from the beginning that the rifle
accidentally discharged and that there was “no real animosity” between him and the victim.
Trial Counsel also stated that, in his preparation for the trial, he reviewed documents
provided to the defense by the State. Trial Counsel testified that he typically would meet at
the district attorney’s office to review documents the State provided him in a case. He could
not recall particularly whether he had a meeting in the district attorney’s office in this case
but stated that was his “standard operating procedure.” He added, “I’m sure we met on it
several times, not just one time.” Trial Counsel stated that he was “confident” that the
standard discovery motions were filed in this case although he could not specifically recall
filing them. He stated that he filed the “standard motions” with every appointment he
received. Pursuant to those discovery motions, Trial Counsel stated that he received
documents from the State in this case and that he reviewed them to prepare for the trial. He
also stated that the documents included the names of witnesses, and he agreed that the
documents also included witness statements “in theory.”

       Trial Counsel recalled discussing the Petitioner’s testimony with him prior to trial.
He was “pretty confident” that he and the Petitioner “went through sit-downs where [Trial
Counsel] cross-examined” the Petitioner. He added that, for every trial in which the
defendant was going to testify, he would “sit down and grill them” so that they could
anticipate what cross-examination would be like.

       Trial Counsel did not recall specifically “familiarizing [him]self with the schematic
of the [rifle]” prior to the trial, but stated that he was “relatively familiar with guns.”
Although Trial Counsel could not recall specifically looking at the rifle before the trial, he


                                             -12-
stated, “I’m sure I did. . . . I’m sure I looked at it in your office too.” Trial Counsel also
could not recall specifically his cross-examination of Sgt. Miller. However, he stated, “I try
to be vigorous [in cross-examination] especially when I think somebody’s not telling the
truth, and I thought that he wasn’t telling the truth.” He also recalled calling Sgt. Miller to
testify during the defense’s proof. He acknowledged that he recalled Sgt. Miller with the
purpose of trying to impeach him with prior inconsistent statements.

        Richard Mabee testified that, as of the time of the post-conviction hearing, he had
been an assistant public defender for approximately nineteen years. He represented the
Petitioner at the Petitioner’s preliminary hearing. Mabee testified regarding the “one-time
sheet” for the Petitioner’s case, which was admitted as an exhibit at the hearing. According
to Mabee, a one-time sheet lists basic information about the defendant, identifies the judge
and the charges, and the disposition of the case at the general sessions level. According to
Mabee, the disposition on the Petitioner’s one-time sheet provided, “waived to grand jury,
$50,000 bond. DA agreed to show everything.” Mabee testified that this latter notation
indicated that he had talked to the district attorney assigned to the case, and the district
attorney had said, “[I]f you’ll waive preliminary hearing, we’ll show you everything in our
file.” Mabee stated that he then would have presented this information to the Petitioner and
that it would have been up to the Petitioner to decide whether to waive the preliminary
hearing.

        On cross-examination, Mabee agreed that the notations on the Petitioner’s one-time
sheet appeared to be his handwriting. Mabee explained that, when public defenders get
appointed in general sessions, they “open up a one-time sheet” which means that the public
defender represented that defendant one time at the preliminary hearing. Mabee also
clarified that the judge previously would have signed the order of appointment at the bottom
of the one-time sheet prior to the public defender’s notations regarding the disposition of the
case.

       On re-direct examination, Mabee stated that he made the notation, “[W]e’ll show you
everything in our file,” because “that’s exactly the words the [district attorney] said to [him].”
Mabee added that, after his representation of someone, he would take the one-time sheet
back to the public defender’s office where it was placed in a “big drawer of one-time sheets.”
He stated, “[A]fter someone [was] appointed in a higher court, they may or may not get that
one-time sheet.”

       The Petitioner testified that the first time Trial Counsel met with him was at the
county jail. During this initial meeting, the Petitioner completed an “intake sheet” and told
Trial Counsel that the rifle had “accidentally discharged.” Trial Counsel informed the



                                               -13-
Petitioner that Sgt. Miller had shot himself with the Petitioner’s rifle and told the Petitioner
that Sgt. Miller’s incident supported the Petitioner’s account of what had occurred.

        The Petitioner recalled only two meetings with Trial Counsel after he was released on
bond: one meeting occurred on or around June 1, 1994, and the second meeting occurred
two or three months before trial. The Petitioner agreed that they discussed “trial strategy”
during these meetings and their defense that the rifle accidentally discharged. During one
of their meetings, Trial Counsel asked the Petitioner what had happened on the day of the
incident, and the Petitioner informed him what he did that day. The Petitioner denied that
Trial Counsel ever told him “that any evidence in this case would be damning to [him],”
including the fact that he threw the rifle out of his car window. He also did not recall that
Trial Counsel “went through a cross-examination of [him].”

       The Petitioner stated that he got the rifle at least ten years before the killing and that
he had shot it numerous times. The Petitioner testified that, although he wiped down the
outside of the rifle, he never did “any maintenance in regards to the inside” of it because he
did not know he was supposed to. He agreed that he testified at trial that he had never had
a problem with the rifle accidentally discharging during the time he owned it.

       The State asked the Petitioner whether it was Trial Counsel’s “idea to use accidental
discharge as the theory of the case[.]” The Petitioner responded, “I mean he’s the lawyer,
I mean he makes the ultimate decision, so I guess I have to say so, yes, based upon . . . his
investigation and everything, yeah, I’d say it was.”

       After considering the proof, the post-conviction court denied relief, and this appeal
followed. Initially, the Petitioner contends that the post-conviction court utilized an incorrect
analysis in concluding that the Petitioner failed to demonstrate that he received the
ineffective assistance of counsel at trial. The Petitioner also contends that he received the
ineffective assistance of counsel at trial in the following particulars: (1) Trial Counsel failed
to adduce expert testimony about the rifle’s defective trigger mechanism which causes
accidental shootings; and (2) Trial Counsel performed deficiently vis-a-vis Sgt. Miller. The
Petitioner also raises several other issues which, given our disposition of this matter, we
decline to address.

                                     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. § 40-30-203 (1997). To prevail on a post-conviction


                                              -14-
claim of a constitutional violation, the petitioner must prove his or her “allegations of fact
by clear and convincing evidence.” Tenn. Code Ann. § 40-30-210(f) (1997). 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.

                                             Analysis

                                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.5 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. § 40-30-203;
Pylant, 263 S.W.3d at 868.

        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,


       5
         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).

                                                -15-
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
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.

                                    Alleged Deficiencies

      In assessing the Petitioner’s claims, we turn first to whether he established that Trial
Counsel was deficient in representing him at trial. To make this determination, we consider


                                             -16-
both the trial record and the post-conviction record in light of the Petitioner’s defense at trial:
that the rifle fired accidentally. In seeking to establish this defense, the Petitioner had
available three types of proof. First, the Petitioner had his own testimony. To be effective,
however, the Petitioner’s testimony had to be perceived as credible by the jury. Second, Sgt.
Miller had made pretrial statements indicating that the rifle fired while he was handling it
without his finger on the trigger. This proof was crucial to bolster both the substance of the
Petitioner’s defense and the Petitioner’s own credibility. Third, expert testimony was
available to prove that the trigger mechanism in the rifle was defective and could have
caused the rifle to fire without the trigger being pulled. This proof was also crucial to the
substance of the Petitioner’s defense, as well as to both bolstering the Petitioner’s credibility
and challenging the State’s expert proof.

        The Petitioner contends that Trial Counsel was deficient in failing to adduce expert
proof about the trigger mechanism in the rifle. We agree. There is no question in this case
that the Petitioner shot and killed his wife with the rifle admitted into evidence. The key
question was whether the Petitioner deliberately pulled the trigger or whether the gun
discharged accidentally. In our view, the expert testimony adduced at the post-conviction
hearing on this issue was absolutely crucial to this inquiry. The fact that the post-conviction
court described this evidence as “favorable to the defense” implies that Belk was a credible
witness. Belk testified that he was hired in 1994 to work on another case involving the
Common Fire Control and that, if Trial Counsel had done the research, Trial Counsel could
have found him. Belk also testified that problems with the Common Fire Control had been
reported prior to his initial involvement in the 1994 case. Indeed, Belk first discovered the
problem with the Remington trigger mechanism in 1970. Trial Counsel testified that he did
not investigate whether there was expert proof available about the gun misfiring.6
Accordingly, while the post-conviction court did not make a specific finding about whether
Trial Counsel’s performance in this regard was deficient, we hold that Trial Counsel was
deficient in failing to adduce this proof at trial.

       The Petitioner also contends that Trial Counsel was deficient in failing to adduce, as
substantive evidence, Sgt. Miller’s pretrial statements that the rifle had fired while he was
handling it and while his hands were not near the trigger. Again, we must agree that Trial
Counsel’s performance was deficient in this respect. The Petitioner established at the post-
conviction hearing that, immediately after being shot by the rifle while he was handling it,


        6
           We note that, according to a “Chattanooga Police Supplement Report” prepared by Sgt. Rawlston,
Sgt. Rawlston “contacted Special Agent Jack Scott of the U. S. Treasury Bureau of Alcohol Tobacco and
Firearms” on March 8, 1994, and that Sp. Agent Scott would “conduct research into the history of the
Remington Model 7400 Rifle which was utilized in this incident.” The State did not call Sp. Agent Scott to
testify at the Petitioner’s trial.

                                                  -17-
Sgt. Miller told Gann that he “did not have his finger near the trigger” of the gun at the time
the gun fired. A short time later, while Sgt. Miller was in the hospital, Sgt. Miller told
Holbrook that, at the time the rifle fired and struck him in the foot, Sgt. Miller’s “finger was
not near the trigger.” Again, this proof was crucial to the Petitioner’s defense. As Trial
Counsel acknowledged during the post-conviction hearing, proof of Sgt. Miller’s statements
at the time he was shot, both in the parking lot and at the hospital, were “excited utterances”
and, as such, were admissible as exceptions to the hearsay rule. See Tenn. R. Evid. 803(2)
(“A statement relating to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.”); see also State v. Banks, 271
S.W.3d 90, 116-18 (Tenn. 2008) (holding that statement made approximately six hours after
declarant was shot was admissible as an excited utterance); State v. Stout, 46 S.W.3d 689,
700 (Tenn. 2001) (holding that declarant’s statements made twelve hours after the event were
admissible as excited utterances); Rickey Williams v. State, No. W2006-00605-CCA-R3-PC,
2007 WL 2120174, at *7 (Tenn. Crim. App. July 24, 2007) (recognizing that “the length of
time between a startling event and the statement does not automatically preclude the
statement’s being admissible as an excited utterance”).

       Accordingly, when Sgt. Miller’s memory proved unreliable at the trial, Trial Counsel
should have called the persons to whom Sgt. Miller had made the statements and adduced
the necessary proof in that manner. Although Trial Counsel testified at the post-conviction
hearing that, in the “heat” of the trial, this approach did not occur to him, we hold that Trial
Counsel should have anticipated a forgetful witness and been prepared to adduce the proof,
of which he was aware, in another manner. Trial Counsel’s performance was deficient in this
regard. See, e.g., Timothy Flood v. State, No. E2009-00294-CCA-R3-PC, 2010 WL
1068184, at *9 (Tenn. Crim. App. Mar. 24, 2010) (holding in post-conviction case that
“counsel was deficient for failing to comply with the Tennessee Rules of Evidence”), perm.
app. denied (Tenn. Aug. 25, 2010); People v. Cortez, 296 A.D.2d 465, 466 (N.Y. App. Div.
2002) (holding that counsel was deficient due, in part, to her “lack of familiarity with the
rules of evidence”).

       The Petitioner contends that both Trial Counsel and appellate counsel performed
deficiently in other respects. However, given our disposition of this case on the basis of the
above-identified deficiencies, we deem it unnecessary to address these remaining claims of
deficient performance. Accordingly, we turn now to the question of whether Trial Counsel’s
deficient performance was prejudicial to the Petitioner.

                                           Prejudice

       Initially, the Petitioner contends that the post-conviction court utilized an erroneous
legal analysis in determining that he failed to establish that he received ineffective assistance


                                              -18-
of counsel at trial. We agree. Of particular concern is the post-conviction court’s analysis
of Trial Counsel’s failure to adduce expert proof about the possibility that the Petitioner’s
rifle discharged without his pulling the trigger:

               The [P]etitioner alleges that counsel was ineffective in not consulting
       or calling a firearms expert to rebut the state’s theory and Mr. Fite’s testimony
       that the rifle did not accidentally discharge. In support of the allegation, he
       submits expert evidence that trigger mechanisms like the one in the gun in
       issue present a risk of accidental discharge and, contrary to Mr. Fite’s apparent
       belief, the existence of the risk is not subject to proof or disproof by means of
       drop tests.

               The Court agrees with the [P]etitioner that this new evidence is
       favorable to the defense. The [P]etitioner, however, must prove more than
       this; he must prove by clear and convincing evidence that the new evidence is
       so favorable that counsel’s failure to present it at trial had an effect on the
       verdict. This, the Court finds, he does not do. Even if one disregards Mr.
       Fite’s trial testimony suggesting that accidental discharge was impossible and
       accepts Mr. Belk’s testimony indicating that, because of the trigger mechanism
       in the gun, accidental discharge was possible, significant weaknesses in the
       theory of the defense, specifically, unfavorable eyewitness evidence and the
       [P]etitioner’s own ambiguous actions in leaving the scene and discarding the
       gun, still remain. The Court therefore finds no prejudice in counsel’s
       performance in this respect.

The post-conviction court’s use of an incorrect analytical framework is further demonstrated
in the “Conclusion” section of its memorandum denying relief:

              The standard for post-conviction relief is high: clear and convincing
       evidence. On appeal, there was sufficient evidence to support the conviction.
       Now, after the post-conviction hearing, the Court cannot say that there is clear
       and convincing evidence that the victim’s death was an accident or even that
       it was only knowing, not premeditated.

        As set forth above, a post-conviction petitioner’s burden of proof in a claim that he
is entitled to a new trial due to the ineffective assistance of counsel at trial is to establish, by
clear and convincing evidence, allegations of fact supporting his claim that trial counsel’s
assistance at trial was ineffective. Allegations of fact include the actions that trial counsel
did and did not take in preparing for and conducting the petitioner’s defense at trial. If those
allegations of fact are supported by clear and convincing evidence, and if the clear and


                                               -19-
convincing evidence establishes that trial counsel performed deficiently – a conclusion of
law – then the petitioner has satisfied the first prong of his ineffective assistance of counsel
claim.

       As our supreme court has explained, this first prong includes both proof and then a
legal analysis of the significance of that proof:

              Tennessee Code Annotated section 40-30-110(f) (2006) provides that
       the “petitioner shall have the burden of proving the allegations of fact by clear
       and convincing evidence.” (emphasis added). This inquiry does not implicate
       the Strickland inquiry. Pursuant to section 40-30-110(f), the petitioner is
       required to prove the fact of counsel’s alleged error by clear and convincing
       evidence. If that burden of proof is met, the court then must assess under
       Strickland whether that error “fell below an objective standard of
       reasonableness,” Strickland, 466 U.S. at 687-88, and whether the error raised
       “a reasonable probability . . . that the result of the proceedings would have
       been different,” id. at 694.

Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009) (citations omitted).

        Once the post-conviction court assesses the proof and draws the legal conclusion that
trial counsel’s performance was deficient, the post-conviction court must turn to the second
prong: prejudice. As to this second prong, the relevant inquiry is “whether counsel’s
deficient performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhard v. Fretwell, 506 U.S. 364, 372 (1993) (citing Strickland,
466 U.S. at 687). As our supreme court has recognized, “‘a court making the prejudice
inquiry must ask if the [petitioner] has met the burden of showing that the decision reached
[by the jury] would reasonably likely have been different absent the errors.’” Pylant, 263
S.W.3d at 874 (quoting Strickland, 466 U.S. at 696) (emphasis added in Pylant).
Significantly, it is not the petitioner’s burden to establish by clear and convincing evidence
that his lawyer’s deficient performance actually had an effect on the verdict. See id. at 875
n.30. Nor, contrary to the post-conviction court’s approach in this case, should the post-
conviction court analyze this prejudice prong through an inquiry into the sufficiency of the
evidence adduced at trial. Id. at 875. Rather, as our supreme court has recognized, “‘[t]he
result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair,
even if the errors of counsel cannot be shown by a preponderance of the evidence to have
determined the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). Accordingly, we hold
that the post-conviction court failed to apply the correct analysis to the Petitioner’s claims.




                                              -20-
        We also hold that, under the proper Strickland analysis, Trial Counsel’s deficient
performance in failing to adduce expert proof about the faulty trigger mechanism in the rifle
was prejudicial to the defense in a number of ways. First, Belk’s testimony would have
corroborated the Petitioner’s explanation of the shooting. At trial, the jury had no definitive
account other than the Petitioner’s that the gun fired accidentally. While Trial Counsel
assumed that he would be able to prove an accidental discharge through Sgt. Miller, Trial
Counsel’s assumption was wrong. Moreover, Trial Counsel did not make a strategic decision
to rely solely on Sgt. Miller’s testimony after investigating the possibility of expert testimony.
Rather, Trial Counsel simply did not investigate the possibility of expert testimony in support
of the defense. Given the other evidence in the case that circumstantially was very damaging
to the Petitioner’s account, Belk’s corroborative testimony was critical to bolstering the
Petitioner’s credibility. Indeed, the post-conviction court noted that the Petitioner’s
testimony at trial “was critical to the defense, it being the only direct evidence supporting the
theory of accident.” (Emphasis added). Belk’s testimony would have been additional direct
evidence that the rifle fired accidentally.

      Second, Belk’s testimony would have provided an alternative expert opinion to Fite’s.
Moreover, Belk testified that Fite’s opinion was suspect because the drop tests that Fite
performed were, according to Belk, essentially useless in evaluating whether the trigger
mechanism in the rifle had caused it to misfire.7 Without Belk, the jury had no scientific or
mechanical explanation sufficient to discredit Fite’s expert opinion.

       Finally, Belk’s testimony would have provided the jury with an additional reason to
suspect Shepheard’s testimony about the Petitioner’s declarations of “I told you so” after the
victim was shot.8 Thus, Belk’s testimony would have assisted the Petitioner’s defense on
multiple levels.

      Certainly, had the jury heard and rejected Belk’s testimony, the proof would have
supported its decision that the Petitioner shot and killed his wife deliberately and with
premeditation. But the jury was deprived of this critical choice by Trial Counsel’s deficient


        7
           Fite testified at trial that the rifle was “not broken,” that it was “in good operating condition,” and
that the trigger safety functioned. To determine if the rifle would fire accidentally, he dropped the rifle with
the hammer cocked several times. He also checked the rifle to determine if it would “slam fire,” which
involved a malfunction of the bolt. He testified that the rifle did not “slam fire.” He also tested the trigger
safety which he described as blocking the trigger when engaged. He concluded that the “only way [he] can
get this rifle to fire was by pulling the trigger.” Fite did not testify that he removed and evaluated the trigger
mechanism.
        8
          Trial Counsel established at trial that Shepheard had not reported the Petitioner’s alleged
declarations in Shepheard’s statement to the police shortly after the shooting.

                                                      -21-
performance. The jury also was deprived by Trial Counsel’s deficient performance of
substantive evidence concerning Sgt. Miller’s initial explanations of how he came to be shot
by the rifle, i.e., without his having touched the trigger. Again, this proof was critical to the
theory of the defense.9

       The prejudicial effect of these deficiencies is clear when considered in light of the trial
court’s comments at the conclusion of the motion for new trial:

        It was a remarkable case. I’ve never had another case quite like it where the
        evidence – I’ve commented on this before – where the evidence seesawed back
        and forth. For example, the evidence about the weapon where the State proved
        that the gun would not go off accidentally and then the property officer shot
        himself in the foot with it; and where the [Petitioner] proved good character
        which is, as we used to say, good character is a witness[.]

        ....

               It was an awfully close question on the facts. During the trial I found
        myself going back and forth. After the trial I kept thinking was I satisfied with
        the verdict of the jury or I guess more to the point did I under the law. . . . I
        found that to be an extremely close question, difficult question.

        We hold that, had Trial Counsel put on expert proof about the Common Fire Control,
and had Trial Counsel elicited admissible substantive evidence about Sgt. Miller’s initial
explanations of how he came to be shot by the rifle, it is reasonably likely that the jury would
have accredited the Petitioner’s version of events and convicted him of a lesser degree of
homicide. Thus, we hold that these deficiencies in Trial Counsel’s performance cast the
jury’s verdict into sufficient doubt as to render it unreliable. Accordingly, we conclude that
the Petitioner established both that Trial Counsel performed deficiently and that Trial
Counsel’s deficient performance rendered the jury’s verdict unreliable. Therefore, we are
constrained to conclude that the Petitioner is entitled to post-conviction relief in the form of
a new trial.




        9
         We acknowledge that, in the direct appeal of this matter, this Court concluded that the trial court’s
erroneous exclusion of Officer Sims’ testimony about Sgt. Miller’s prior inconsistent statement was harmless
error. Kendricks, 947 S.W.2d at 882. However, this Court was considering this testimony as impeachment
evidence relevant to demonstrate to the jury that Sgt. Miller’s memory was faulty, and not as substantive
evidence that the gun had misfired. We consider the distinction to be significant.

                                                    -22-
       As set forth above, the Petitioner contends that Trial Counsel was ineffective in
numerous other ways, as well. Given our holdings with respect to Trial Counsel’s failure to
adduce expert proof about the Common Fire Control and his failure to adduce Sgt. Miller’s
excited utterances, we decline to address these remaining assertions. We also decline to
address the Petitioner’s claim of ineffective assistance of counsel on direct appeal.

                                          Conclusion

      The Petitioner established that he received the ineffective assistance of counsel at trial.
Accordingly, the Petitioner is entitled to a new trial. We reverse the judgment of the post-
conviction court, vacate the Petitioner’s conviction, and remand this matter for further
proceedings consistent with this opinion.




                                            _______________________________________
                                            JEFFREY S. BIVINS, JUDGE




                                              -23-
