        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 27, 2016

             RUSSELL DEAN LONG v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Washington County
                         No. 39795   Lisa D. Rice, Judge


                No. E2015-01903-CCA-R3-PC-FILED-MAY 26, 2016


The Petitioner, Russell Dean Long, appeals as of right from the Washington County
Criminal Court‟s denial of his petition for post-conviction relief. The Petitioner contends
that he received ineffective assistance from his trial counsel (1) because a recording of a
911 call was not entered into evidence during the trial; and (2) because lead counsel told
the jury during the opening statement that they would hear the recording. Discerning no
error, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Casey A. Sears II, Johnson City, Tennessee, for the appellant, Russell Dean Long.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Anthony Wade Clark, District Attorney General; and Erin D. McArdle, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

       The Petitioner was convicted of “first degree felony murder committed during the
perpetration of aggravated child abuse and first degree felony murder committed during
the perpetration of aggravated child neglect.” State v. Russell Dean Long and Jessica
Renee Adkins, No. E2012-01166-CCA-R3-CD, 2013 WL 5436529, at *1 (Tenn. Crim.
App. Sept. 27, 2013), perm. app. denied (Tenn. Mar. 5, 2014). The trial court merged the
Petitioner‟s convictions, and he was sentenced to imprisonment for life. Id. This court
affirmed the Petitioner‟s convictions on direct appeal, and our supreme court declined to
review this court‟s decision. Id.

       The evidence at trial established that the Petitioner‟s two-month old daughter died
“as a result of blunt force trauma.” Long, 2013 WL 5436529, at *1. The Petitioner “was
the sole caregiver” to the victim while the victim‟s mother, the Petitioner‟s co-defendant,
was at work. Id. at *22. In the days leading up to the victim‟s death, neighbors heard
“loud music and the victim‟s crying” coming from the apartment. Id. The victim
“sustained multiple injuries in various stages of healing,” including “multiple fractures of
her occipital bone, fractured ribs, and subdural hemorrhages,” all of which were
inconsistent with accidental trauma and likely “not the result of one incident.” Id.

        Initially, the Petitioner “denied any knowledge of the cause of the victim‟s
injuries.” Long, 2013 WL 5436529, at *22. The Petitioner later told the police that the
victim had fallen off of a couch and, later still, that he had also dropped the victim during
a bath, causing her to hit her head on the bath tub. Id. Numerous interviews and
statements from the Petitioner and the co-defendant were introduced into evidence at
trial. Id. at *2-3, *8-14, *17-18.

       The evidence also established that the victim began vomiting the Friday before her
death. Long, 2013 WL 5436529, at *23. The victim was unable to hold any formula
down during that weekend. The co-defendant called the victim‟s pediatrician‟s office
that Sunday. The Petitioner answered the return phone call and told the on-call physician
that the victim was vomiting without mentioning “the victim‟s fall from the couch or her
hitting her head on the bath tub.” Id. Based on that incomplete information, the
physician instructed the Petitioner to attempt to hydrate the victim with Pedialyte. The
Petitioner‟s neighbor described the victim as looking “lifeless” that day. Id.

        The victim was still unable to consume any formula on Monday. Long, 2013 WL
5436529, at *23. That day, the Petitioner and the co-defendant took the victim along
with them to a pediatrician‟s appointment for their older daughter. During that
appointment, the Petitioner “remained silent about both the victim‟s symptoms and any
falls sustained by the victim.” Id. The next day, the victim slept for approximately ten
hours. Id. At some point during that week, the Petitioner and the co-defendant observed
the victim‟s making “„jerking‟ movements.” Id. The Petitioner‟s neighbors urged him to
seek medical treatment for the victim, but he claimed that he could not because “he did
not have the victim‟s birth certificate or [her] TennCare card.” Id. at *22. The victim
died on Friday, March 6, 2009, almost a week after she began vomiting. Id. at *1.

       The Petitioner filed a timely pro se petition for post-conviction relief raising
numerous claims of ineffective assistance of his trial counsel. An attorney was appointed
to represent the Petitioner, and an amended petition was filed alleging that trial counsel
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was ineffective for failing “to play the recording of [the Petitioner‟s] calling 911 for help
after discovering that his child had died.”

       At the outset of the post-conviction hearing, the Petitioner‟s attorney conceded all
the issues raised in the original pro se petition and the post-conviction court denied post-
conviction relief with respect to those issues. The Petitioner‟s attorney then announced
that they would present evidence solely on the issue of the 911 recording. The
Petitioner‟s attorney also stated that, while not raised in either petition, they alleged that
the Petitioner‟s lead trial counsel was ineffective for telling the jury during his opening
statement that they would hear a recording of the 911 call.

       The Petitioner testified that he had asked his lead trial counsel to play the 911
recording at trial but that lead counsel replied, “[I]t wouldn‟t make any difference by
now.” The Petitioner further testified that he believed “that if the jury would have been
able to hear [the 911 recording,] then maybe . . . at least one of them might have thought
different.” The Petitioner explained that he thought that the recording would have shown
the jury his “character” and would have proven that he did not intend to hurt the victim
because “if you intend . . . to hurt somebody . . . you‟re not going to call 911[,] . . . you‟re
not going to try to perform CPR.”

        The Petitioner‟s lead trial counsel was unable to testify at the post-conviction
hearing due to a medical condition. Co-counsel testified that he was an Assistant District
Public Defender and that he assisted lead counsel, the District Public Defender, with the
Petitioner‟s trial. Co-counsel testified that he listened to the recording of the 911 call
“many, many times” and listened to it with the Petitioner. Co-counsel further testified
that the decision of whether or not to play the 911 recording “was not an easy decision to
make.”

       According to co-counsel, there were numerous discussions between himself, lead
counsel, and the Petitioner about whether to play the 911 recording. Co-counsel testified
that these discussions continued “during the trial” and that they “had put a lot of thought
into” the decision. Co-counsel further testified that “it was ultimately decided [that] it
was not in the [Petitioner‟s] best interest to have that call played.” Co-counsel claimed
that “everybody was in agreement” as to the decision. Co-counsel explained that the co-
defendant could be heard on the recording “being hysterical” while the Petitioner
sounded “calm.”

       Co-counsel testified that had the Petitioner wanted the 911 recording played, they
“probably would have played it” but that “the three of [them] . . . did not feel that it was
in [the Petitioner‟s] best interest to play that tape.” Co-counsel admitted that during the
opening statement, lead counsel said the following: “[The co-defendant] says „Call 911.‟
You‟ll hear the entirety of that 911 call. [The Petitioner] begins CPR on the baby for a
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long period of time, but tragically it‟s too late, the baby dies.” Co-counsel could not
recall their discussing the fact that lead counsel had told the jury that they would hear the
911 call during trial, but he thought it could have been “one of the things that made it a
difficult decision.”

       At the end of co-counsel‟s testimony, the post-conviction court asked him if the
jury asked the trial court about the 911 call during their deliberations, and he testified that
he did not recall the jury‟s asking any questions about the 911 call. The post-conviction
court denied the petition. The post-conviction court found that trial counsel was not
ineffective for failing to admit the 911 recording, concluding that it was a tactical
decision based upon adequate preparation. The post-conviction court also concluded that
there was no evidence that the Petitioner had been prejudiced by trial counsel‟s failure to
use the 911 recording at trial. With respect to lead counsel‟s comment during his opening
statement, the post-conviction court concluded that the Petitioner was not prejudiced by
the comment. The post-conviction court pointed to the fact that the jury did not ask any
questions about the 911 recording during their deliberations to conclude that either “they
did not consider the absence of that tape critical in their determination” or they did not
notice the inconsistency.

                                        ANALYSIS

        The Petitioner contends that the post-conviction court erred in denying his petition
for post-conviction relief. The Petitioner argues, as he did in his amended petition, that
trial counsel was ineffective for failing to introduce the 911 recording at trial. The
Petitioner also argues that lead counsel, specifically, was ineffective for telling the jury
during his opening statement that they would hear the 911 recording during the trial. The
State responds that the post-conviction court did not err in denying the Petitioner post-
conviction relief.

       Post-conviction relief is available when a “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.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel‟s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

      Deficient performance requires a showing that “counsel‟s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
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“must indulge a strong presumption that counsel‟s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel‟s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “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.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.1
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we
are bound by the post-conviction court‟s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of witnesses,
the weight and value to be given their testimony, and the factual issues raised by the
evidence are to be resolved” by the post-conviction court. Id. Because they relate to
mixed questions of law and fact, we review the post-conviction court‟s conclusions as to
whether counsel‟s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.

       In determining whether trial counsel‟s performance was deficient, this court has
held that a “petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy by his counsel, and cannot criticize a sound, but
unsuccessful, tactical decision made during the court of the proceedings.” Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). “[D]eference 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).

       Contrary to the Petitioner‟s testimony, co-counsel testified that he listened to the
911 recording “many, many times,” that he listened to the recording with the Petitioner,
and that he, lead counsel, and the Petitioner had numerous discussions about whether to
play the 911 recording at trial. Co-counsel testified that these discussions continued on
into the actual trial and that, ultimately, they all decided it was in the Petitioner‟s “best
interest” not to play the recording given how emotional the co-defendant was and how
seemingly unemotional the Petitioner sounded. Co-counsel explicitly testified that the

1
  In its order, the trial court mistakenly stated that a post-conviction petitioner must prove by clear and
convincing evidence trial counsel‟s deficiency and the resulting prejudice. However, a petitioner‟s
burden to prove his allegations of fact by clear and convincing evidence and the Strickland analysis are
two separate inquires. Dellinger, 279 S.W.3d at 293.
                                                   -5-
Petitioner was involved in and agreed with this decision. Accordingly, we conclude that
the decision not to play the 911 recording was an informed tactical decision based upon
adequate preparation.

       With respect to lead counsel‟s comment during his opening statement that the jury
would hear the 911 recording during the trial, “defense attorneys should strive to present
a consistent theory of defense at trial.” King v. State, 989 S.W.2d 319, 331 (Tenn. 1999).
This court has previously cautioned that a “„trial attorney should only inform the jury of
the evidence that he is sure he can prove . . . . His failure to keep [a] promise [to the jury]
impairs his personal credibility. The jury may view unsupported claims as an outright
attempt at misrepresentation.‟” State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim.
App. 1991) (quoting McCloskey, Criminal Law Desk Book, § 1506(3)(O) (Matthew
Bender, 1990)). To that end, a trial counsel‟s departure from a promise made in his
opening statement without a reasonable basis for doing so can amount to deficient
performance. King, 989 S.W.2d at 330-32.

       Here, co-counsel testified that the discussions regarding whether or not to play the
911 recording continued during the trial, but he could not recall if lead counsel‟s
comment during his opening statement factored into the decision not to play it. Instead,
co-counsel explained that the major factor was how the Petitioner sounded in comparison
to the co-defendant. As such, we cannot determine from the record before us whether
lead counsel had a reasonable basis for departing from his promise to play the 911
recording for the jury or if his comment was a misstatement.

       However, the Petitioner has failed to show that he was prejudiced by lead
counsel‟s comment. The post-conviction court noted that the jury did not ask about the
911 recording during their deliberations and concluded that they either did not notice the
inconsistency or that it was not a major factor in their decision. More importantly, the
fact that the Petitioner called 911 and attempted CPR on the victim was presented to the
jury numerous times through the Petitioner and the co-defendant‟s statements. Long,
2013 WL 5436529, at *2, *10, *12, *13. Additionally, the 911 recording likely would
not have had a positive impact on the jury. In the recording, the co-defendant can be
heard screaming, crying, and begging for the victim‟s life. Meanwhile, the Petitioner
speaks calmly and with a flat affect to the 911 operator about his attempts to perform
CPR on the victim. At one point, the Petitioner tells the co-defendant to “calm down.”
Accordingly, we conclude that the post-conviction court did not err in denying the
petition.

                                      CONCLUSION



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



                                               _________________________________
                                               D. KELLY THOMAS, JR., JUDGE




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