        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   July 26, 2016 Session

              GALE MARLEEN KRIZKA v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Morgan County
                           No. 8930   E. Eugene Eblen, Judge
                        ___________________________________

                 No. E2015-02243-CCA-R3-PC – Filed January 27, 2017
                       ___________________________________

Petitioner,   Gale Marleen Krizka, appeals from the denial of her petition for post-
conviction    relief, in which she alleged that her counsel was ineffective for failing to
obtain an     expert witness, failing to call witnesses, and failing to give an opening
statement.    Following our review, we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.

Cashauna C. Lattimore, Knoxville, Tennessee, for the appellant, Gale Marleen Krizka.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Russell Johnson, District Attorney General; and Tiffany Smith,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

Procedural history

       Petitioner was convicted of second degree murder for the death of her husband.
The facts underlying Petitioner’s conviction were summarized by this court on direct
appeal:

             On May 31, 2002, a body was located on a secluded embankment
        in Scott County. The area was commonly used for illegal dumping. A
        person riding a four-wheeler discovered the body and notified the
        authorities. The body was clothed in blue underwear-like shorts and had
        been wrapped in a shawl or blanket along with a black plastic tarp. The
body appeared to have come partially out of the blanket and black plastic
tarp when it rolled down the approximately fifty-foot embankment.
Both of the items appeared to have been secured around the body by an
old, frayed rope. The tarp and blanket contained blood stains from the
body. Randy Lewallen, a detective from the Scott County Sheriff’s
Department, responded to the call.

     According to Detective Lewallen, the body was in a moderate state
of decomposition. There was maggot activity in the body. The body
was removed by the Scott County Rescue Squad and transported to
Knoxville for an autopsy.

      The autopsy was performed by Sandra K. Elkins, a forensic
pathologist. She described the victim as a five[-]foot six[-]inch tall male
that weighed 316 pounds. The autopsy revealed that the victim had
suffered multiple lacerations to the scalp, multiple skull fractures, and
incisions of the right internal jugular vein, right carotid artery,
esophagus, and cervical vertebrae. Dr. Elkins opined that the cause of
death was blunt force trauma to the head and a stab wound to the neck.
There was no blood left in the body, so Dr. Elkins forwarded a liver
sample to the Tennessee Bureau of Investigation (“TBI”) for completion
of a DNA analysis.

      At the time that the autopsy was performed, police had not yet
identified the victim. In order to assist in their investigation and
identification of the victim, the police contacted the local news media.
Several Knoxville television stations ran a story about the discovery of
the body and a plea was made for public assistance in identification of
the body. Investigators were contacted by a person that identified herself
as Ann Christopher, the daughter of Richard Krizka, the victim.
[Petitioner] is Ms. Christopher’s mother.

      The police went to Ms. Christopher’s place of business in Clinton,
Tennessee, where she was shown pictures from the autopsy. Ms.
Christopher stated that it looked like the victim and that the shawl
located with the body looked like a shawl that belonged to her Aunt
Melissa. Ms. Christopher stated that she had last seen the victim late in
the afternoon on May 26, 2002. He was driving his motor home down
the road by the elementary school. The next day, Memorial Day,
[Petitioner] called Ms. Christopher from Wal-Mart around 5:00 p.m. or
6:00 p.m. to tell her that Mr. Krizka had left her a note in which he stated
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that he was going to Arkansas to buy some property. This was not
uncharacteristic behavior for Mr. Krizka. According to Ms. Christopher,
Mr. Krizka “did things like that” and sometimes took off with someone
he did not know. However, [Petitioner] was upset because she and Mr.
Krizka were supposed to go the next day to start divorce proceedings.

      Ms. Christopher went to visit her mother the next day. [Petitioner]
was “bleaching” the carpets and the furniture was moved over to one
side of the room. Ms. Christopher did not find her mother’s actions
unusual because the victim was a “slob” who did not bathe regularly and
would often track in grease onto the carpet. Additionally, Ms.
Christopher explained that “they did have a dog that lived in the house at
the time and she’d been in heat” making a “big mess.”

      After identifying the victim, the police attempted to find
[Petitioner]. They located her on June 7, 2002, at Darrell Webster’s
residence and accompanied her to her own residence where she
consented to a search of the home. During the search, Detective
Lewallen discovered a boat anchor with an old frayed rope that appeared
to match a rope found near the body. Detective Lewallen also noted that
the carpet looked like it had been recently cleaned. Detective Lewallen
“noted that it abruptly stopped where the carpet goes down the hallway.”
During the initial visit to the home the officers took a computer, a power
cord, some pieces of black plastic, carpet samples, and some branches
from the home.

      A second [sic] search warrant was executed on June 10, 2002.
During the second search the officers were accompanied by members of
the TBI Mobile Crime Team Lab. The search revealed “some blood
splatters on the walls, or red, brownish stains.” The “wooden frame
couch” was also flipped over during the search and revealed
“red/brownish stains that had run down between the cracks that hadn’t
been accessible to being cleaned.” They were described by Detective
Lewallen as “thick, red brownish stains” that were suspected to be blood.
There were also “very large, red/brownish stains underneath the carpet
and in the pad” that were “massive” in size. The couch cushions also
appeared to have been recovered with a different upholstery. During this
search, authorities took a cigarette wrapper from [Petitioner]’s vehicle’s
trunk, a wet vac bucket from the garage, a sample from the couch frame,
a sample from the wall behind the couch, a sample from the carpet
beneath the couch, and a knife. The samples taken from the couch
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frame, the wall, the carpet, and the cigarette wrapper matched the
victim’s DNA that was obtained from the liver sample. No blood was
found on the knife handle. The wet vac test was presumptive for blood,
but it could not be determined if the blood was human. Police also
transported two vehicles to Nashville for inspection.

       [Petitioner] was indicted by the Morgan County Grand Jury for
first degree murder on January 21, 2003.

      At trial, Ms. Christopher testified that approximately one week
prior to [the victim’s] disappearance, [Petitioner] told her that the couple
was having “a little trouble” and “that one way or another they’d be
divorced in a couple of weeks.” Ms. Christopher also testified about a
statement made by [Petitioner] when she and the victim were “fussing”
that she did not consider a “serious threat” on the victim’s life. She
recalled that [Petitioner] told her once that the victim “had a seafood
allergy, and that if there was some way that she could get seafood into
his food or something where he wouldn’t know it, then, you know, he
would have a reaction from that and could possibly die from it.”
Additionally, Ms. Christopher remembered that [Petitioner] had
mentioned a cousin by the name of Charlie Massengill. [Petitioner]
“said something about calling him to have something done to [the
victim]. But not to kill him, but like bodily injury or something like
that.” Several years prior to the victim’s death, he had gallbladder
surgery and a cancer scare. Around this time, [Petitioner] mentioned to
Ms. Christopher that if the victim were to die, [Petitioner] “would be
well taken care of” with the victim’s pension.

      Thomas Hull also testified at trial. Mr. Hull is [Petitioner]’s former
boyfriend and father of Ms. Christopher. Mr. Hull and [Petitioner] were
out of touch for a number of years but reconnected in the year 2000.
During one of their visits, [Petitioner] advised Mr. Hull that the victim
“would not give [Petitioner] a divorce. And if he was to meet a death
she would inherit some money and a retirement.”               Mr. Hull told
[Petitioner] a story about a time while he was in military service in
Vietnam and he had to decapitate a Vietnamese guard to get away from
capture. [Petitioner] responded by saying that “she thought that would
be the coolest thing in the world, to kill somebody, and cut their head
off, and them knowing it was going to happen.” [Petitioner] also told
Mr. Hull that [the victim] was allergic to seafood. [Petitioner] asked Mr.
Hull’s opinion of “cooking seafood, boiling it or something and putting
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        it in some kind of food for the iodine, . . . , cause he was allergic to that.
        And doing away with him like that, I guess.” As a result of those
        conversations, Mr. Hull did not see or speak with [Petitioner] again.

              At the conclusion of the jury trial, the trial court recognized that the
        case was based on circumstantial evidence and dismissed the first degree
        murder charge, determining that “at this point the jury would have to
        speculate to find premeditation.” The trial court felt that with regard to
        the lesser included offenses, there was enough proof for it to be a “jury
        question.”

              The jury ultimately convicted [Petitioner] of second degree murder.
        As a result, the trial court sentenced [Petitioner] to twenty-two years[’]
        incarceration. [Petitioner] filed a timely notice of appeal seeking a
        review of her conviction.

State v. Gale Marleen Krizka, No. E2007-02465-CCA-R3-CD, 2009 WL 856338, at *1
(Tenn. Crim. App. at Knoxville, Mar. 26, 2009), perm. app. denied (Tenn., Aug. 17,
2009) (footnotes omitted).

Post-conviction hearing

        Trial counsel testified that he was appointed to represent Petitioner at trial. He
testified that he did not interview Petitioner, but that someone in his office interviewed
her. He did not know how many times she was interviewed. Counsel testified that an
investigator employed by the Public Defender’s Office, investigated Petitioner’s case.
Trial counsel and the investigator interviewed witnesses in preparation for trial, but trial
counsel did not call any witnesses to testify at trial. Trial counsel testified that he spoke
to Randy Lewallen, a Scott County detective, about using an entomologist to determine
the victim’s time of death. Trial counsel testified that he did not consult with an
independent expert to determine the time of death because the medical examiner had
removed the maggots from the body. Trial counsel testified that the medical examiner
did not prepare any reports from which an entomologist could make an independent
determination.

       Trial counsel estimated that his office handled approximately 100 cases each year,
and there were two or three homicide cases pending at any particular time. He testified
that his co-counsel “concentrated only on these kinds of cases[,]” and co-counsel did
most of the preparation in Petitioner’s case. Trial counsel handled the trial and trial
strategy.

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       On cross-examination, trial counsel testified that he had been an attorney for
almost 31 years. Trial counsel estimated that he had tried “probably a dozen” murder
cases. Trial counsel testified that Petitioner’s trial “went about as well as it possibly
could[.]” He testified that there was nothing he would have done differently in
Petitioner’s case. He testified that the State’s expert witness “wasn’t very good[,]” and
through cross-examination, he was able to undermine the blood spatter analysis.

       Trial counsel did not answer why he did not present defenses that Petitioner
wanted him to present at trial. He testified that it was “a privileged matter.” He testified
that he did not believe any of those defenses would have changed the outcome of the
trial. Trial counsel testified that it was customary in that jurisdiction not to give an
opening statement, and he did not believe his waiver of an opening statement prejudiced
Petitioner. Trial counsel consulted with an expert witness who was the “head of the
crime lab in Albuquerque, New Mexico,” but that person did not want to testify at
Petitioner’s trial.

       In a written order denying relief, the post-conviction court found that Petitioner
failed to prove that trial counsel’s performance was deficient and failed to prove that
Petitioner had suffered any prejudice as a result of counsel’s alleged deficient
performance.

Analysis

       We view the petitioner’s claim with a few well-settled principles in mind. Post-
conviction relief is available only “when the 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.” T.C.A. § 40-30-103. A post-conviction petitioner
bears the burden of proving his or her factual allegations by clear and convincing
evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to the post-
conviction court’s findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim.
App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

       Before a petitioner will be granted post-conviction relief based upon a claim of
ineffective assistance of counsel, the record must affirmatively establish, via facts clearly
and convincingly established by the petitioner, that “the advice given, or the services
rendered by the attorney, are [not] within the range of competence demanded of attorneys
in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and that
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counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       When considering a claim of ineffective assistance of counsel, a reviewing court
“begins with the strong presumption that counsel provided adequate assistance and used
reasonable professional judgment to make all significant decisions,” Kendrick v. State,
454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

        Petitioner contends that trial counsel was ineffective for failing to present an
expert or other witnesses. In her brief, Petitioner asserts that, “[i]t is hard to believe that
with all of the preparation not a single witness could be found to testify favorably for
[Petitioner].” When a petitioner contends that trial counsel failed to discover, interview,
or present witnesses in support of her defense, she must present these witnesses at the
post-conviction hearing; otherwise, she cannot establish that the witness was discoverable
or that counsel’s failure to present the witness prejudiced her in any way. Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Petitioner failed to present the testimony
of an expert or any other witness who would have provided favorable testimony at trial.
In addition, Petitioner has not even provided in her brief any names of witnesses who trial
counsel should have presented at trial. Accordingly, this supports the fact that there are
no witnesses known who could have testified favorably for Petitioner.

                                             -7-
        Petitioner also contends that trial counsel was ineffective for waiving an opening
statement. Trial counsel testified that opening statements were often waived in the
jurisdiction, and that the State also waived opening statement at Petitioner’s trial. Trial
counsel testified that it was his trial strategy to use voir dire to frame the case for the jury.
In determining whether counsel’s performance was deficient, it is not the role of this
court to second-guess reasonably based trial strategy or tactics. See Adkins, 911 S.W.2d
at 347. Petitioner failed to present any evidence at the post-conviction hearing that trial
counsel’s decision not to make an opening statement was deficient or that it affected the
outcome of the trial.

        Finally, Petitioner contends that trial counsel was ineffective for failing to
challenge the State’s alleged failure to preserve evidence and by failing to cross-examine
the State’s witness, Dr. Elkins, regarding insect activity on the victim’s body. Petitioner
failed, however, to raise this issue in her petition for post-conviction relief or at the post-
conviction hearing. “Issues raised for the first time on appeal are considered waived.”
State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996). Moreover, a petitioner
may not present on appeal an issue he failed to include in his post-conviction petition.
Cone v. State, 747 S.W.2d 353, 356 (Tenn. Crim. App. 1987).

                                       CONCLUSION

        We hold that Petitioner has failed to prove by clear and convincing evidence that
trial counsel’s representation was deficient or prejudicial. Petitioner failed to establish
that she was denied the effective assistance of counsel at trial.        Accordingly, the
judgment of the post-conviction court is affirmed.


                                     ____________________________________________
                                     THOMAS T. WOODALL, PRESIDING JUDGE




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