         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 9, 2003

            EDDIE HOWARD PITTMAN v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Madison County
                            No. C02-131     Roger A. Page, Judge



                     No. W2002-02892-CCA-R3-PC - Filed March 18, 2004


JOE G. RILEY , J., dissenting.

       Although I agree with many of the conclusions set forth in the majority opinion, I respectfully
disagree with its primary conclusion that the petitioner did not establish ineffective assistance of
counsel. In my view, he established deficiency and prejudice. See Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

        I conclude counsel was deficient to the prejudice of the petitioner in the following respects:

        (1) Failing to call Evelyn Donita Shaw to testify about the numerous calls she
            received from Ms. Luster. Although the content of the conversations may
            have been hearsay, the fact that numerous calls were made would not be
            hearsay.

        (2) Failing to call Eugenia Pharmer to testify that the victim stated after the
            preliminary hearing that he could not at that point “back out” of the
            prosecution because they would get him for “false something.” Ms.
            Pharmer could also corroborate that the petitioner and Ms. Luster were
            seeing each other.

        (3) Failing to call Officer Smith to testify that he searched the defendant fifteen
            minutes before the alleged assault and the petitioner did not have a weapon.
            The jury might also infer from such testimony that it would be unlikely for
            the defendant to have entered the nearby residence and committed an armed
            assault after he was searched by a policeman fifteen minutes earlier.

        (4) Failure to discover and introduce evidence relating to the victim’s
            numerous convictions for crimes involving dishonesty.
The state has advanced no evidence or argument indicating these failures related to tactical decisions.
See generally, Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

        This is indeed a close case. More significantly, it was a close case at trial. Trial counsel
stated it was one of the closest cases in his career with the jury deliberating several hours over a
period of two days. Although any one of the above listed deficiencies might not be enough to
establish prejudice, I believe the combination of the deficiencies, along with the other bizarre facts
and circumstances, establish prejudice.

       Accordingly, I would reverse the judgment of the post-conviction court.



                                                       ______________________________________
                                                       JOE G. RILEY, JUDGE




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