                                                                                        04/25/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 11, 2017

                   JAMES BRITT v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                      No. 08-05557    W. Mark Ward, Judge


                            No. W2016-00928-CCA-R3-PC



The Petitioner, James Britt, appeals the denial of his petition for post-conviction relief
from his premeditated first degree murder conviction, alleging he received ineffective
assistance of counsel. After review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which TIMOTHY L. EASTER and
J. ROSS DYER, JJ., joined.

Eric Mogy, Memphis, Tennessee, for the appellant, James Britt.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and D. Gregory Gilbert,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS
       The Petitioner was convicted of the premeditated first degree murder of his wife
and sentenced to life imprisonment. This court affirmed the trial court’s judgment on
direct appeal, and the Tennessee Supreme Court denied the Petitioner’s application for
permission to appeal. State v. James Britt, No. W2010-02090-CCA-R3-CD, 2012 WL
2022692, at *1 (Tenn. Crim. App. June 5, 2012), perm. app. denied (Tenn. Sept. 18,
2012).

        The facts giving rise to the Petitioner’s conviction were recited by this court on
direct appeal as follows:
       Kelly Czekalski spoke to her sister, Jennifer Britt (the victim), on
February 24, 2008, sometime between 7:30 and 9:00 p.m. in a phone
conversation. The victim was very upset and sounded as though she had
been drinking or using drugs. Ms. Czekalski testified that she spoke with
the victim for thirty to forty-five minutes and calmed her down. She said
that the victim wanted to know the whereabouts of her daughter, who had
been staying with the victim’s aunt in Wisconsin. Ms. Czekalski’s
grandmother later called her around 2:00 a.m. and said that the victim had
been killed.

        Kristi Tackett, the victim’s neighbor, testified that during the day on
February 24, 2008, she and her children were looking out a back window
and saw the victim and [Petitioner] fist fighting in their front yard. The two
then went inside the house and came back out around dark and continued
fighting. Ms. Tackett explained that the victim and [Petitioner’s] house did
not have any electricity, and the couple used the street light between the
two houses for light. Ms. Tackett saw the victim hit [Petitioner] in the face
“with something or her hand.” She testified that the victim and [Petitioner]
then went back inside the house and continued fighting, and she then heard
two gunshots approximately twenty minutes later. Ms. Tackett testified
that some other neighbors called police, and she saw “the big guy” who
lived with [Petitioner] and the victim run outside, and he was “running in
circles saying he shot her.” When police arrived on the scene, Ms. Tackett
told an officer what she had heard. Ms. Tackett testified that [Petitioner]
and the victim “would fight all the time.”

       Renee LaMondue, a communications supervisor for the Memphis
Police Department, testified concerning the 911 call of the shooting. She
said that a female neighbor called the police department for a “male
neighbor, stating that the male can’t speak with us, stating that he has
accidently shot his wife in the head.”

        Officer Joseph Johnson of the Memphis Police Department was the
first officer on the scene. There were a “handful” of people in the front
yard of the residence, and he spoke to [Petitioner] who said that he had
accidently shot his wife. Officer Johnson went inside the residence, which
was dimly lit, and saw the victim lying on a bed located to the left side of
the door in the living room. He saw that the victim had a gunshot wound to
her head, and he immediately “backed out” of the house and secured the
scene. Officer Johnson testified that the house was messy and “extremely
dirty.”
                                      -2-
       Daryl McConnell, a firefighter paramedic for the Memphis Fire
Department, responded to the scene of the shooting. He walked inside the
residence and saw the twenty-five-year-old victim lying on her right side in
the bed with a gunshot wound to her head. “She had no pulse, was not
breathing, was not moving. Her lips were purple, had the beginning stages
of lividity, which is basically purpleness around the chest area, which is
indicative of no circulation in the body.” Mr. McConnell testified that he
placed a heart monitor on the victim, and it showed no electrical activity in
her heart. There was a .357 Magnum revolver lying on the bed.

        Crime scene investigator Marlon Wright secured the evidence and
photographed the scene. He found the victim lying in the bed fully clothed
with a gunshot wound to the back of her head, and the pistol was lying next
to her. Officer Wright testified that the house did not have electricity, and
he and other officers used several flashlights to light the area. He examined
the gun and found blood and human tissue on the barrel and cylinder.
Officer Wright looked inside the cylinder and noted that two of the six
rounds had been fired. He said that one of the fired bullets was at the
twelve o’clock position and the other was at the six o’clock position.
Officer Wright also noted that if a gun had been fired twice in rapid
succession, the bullets would have fired in order. Gunshot residue tests
were obtained from [Petitioner] and Timothy Britt and sent to the
Tennessee Bureau of Investigation (TBI) for analysis. Officer Wright
testified that the house was disorganized and cluttered with a small
walkway from the front door to the bed.

      Crime scene investigator Thomas Ellis was called to the scene and
recovered two .357 spent shell casings from the residence. He could not
determine when the casings were fired.

       At the scene, Officer Robert Tutt of the Felony Response Unit spoke
with [Petitioner’s] brother, Timothy Britt, who lived with [Petitioner] and
the victim. He described Mr. Britt as having “a very limited mental
capacity,” and he was only able to tell Officer Tutt that he was in the house
and heard a gunshot. Mr. Britt was later driven to the police department
where he gave a statement.

       Detective William Merritt of the Homicide Squad was asked to help
interview [Petitioner] on February 25, 2008. At the time of the interview,
he said that [Petitioner] had some cuts and abrasions to his face. One eye
                                     -3-
was blackened and swollen, and he had scratches and abrasions on his nose.
[Petitioner] signed a waiver of rights and agreed to talk to officers.
[Petitioner] told Detective Merritt that he and the victim had been married a
little more than a month and had lived at 1542 Tennyson Road “[a]bout two
weeks before [they] got married at the most.” He said that his brother,
Timothy Wilson Britt, also lived in the residence. [Petitioner] said that he
accidentally shot the victim one time while she was lying on the bed with
his “.357 Magnum, 2-inch sub-nose Rossi stainless steel.” He thought that
he had owned the gun approximately a week before the shooting or
“[m]aybe longer.” The victim owned a .380 caliber pistol that was
purchased approximately three days before [Petitioner] bought his gun.
[Petitioner] said that he and the victim usually kept their guns and
ammunition under the pillow. He told Detective Merritt that he last fired
his .357 Magnum the day before or a couple of days before the shooting
because he had fired only “twice before that.” He also said that he fully
reloaded the gun after shooting it. [Petitioner] testified that the victim also
fired her weapon the day before or a couple of days before the shooting
both inside and outside of the house.

       Concerning the circumstances of the shooting, [Petitioner] gave the
following statement:

               We come in and she was getting ready to prepare
       dinner. We was lying on the bed. We started having sex but
       we didn’t finish because she said, quote, I seen a shadow, end
       quote. That’s when I got up, got my gun, went outside. I
       seen a figure go down between the house and a truck so I
       went after the figure for a little bit but he took off running.
       He went through the backyard and through the fence and
       disappeared. By that time maybe 45 seconds to a minute
       went by and I come back in. She asked me who it was – or
       who was it and I said I don’t know. And I was coming
       around the kerosene heater, tripped over a flashlight or a bowl
       and that’s when I fell down over the bed close to her. When
       my head hit, the gun went off ‘cause I lost my balance. Then
       I shook her arm just a little bit to see but I couldn’t get no
       response. I could tell she was breathing just a little a little
       [sic] so I looked for the cell phone and couldn’t find it. It was
       too dark. So I woke my brother up. I thought he was in the
       bed but apparently he was in the bathroom. I told him to stay
       in the living room ‘cause I was running across the street to
                                      -4-
       use a telephone but he followed me out on the porch. While I
       was using the telephone, the neighbors were calling 911. The
       police pulled up maybe a minute and a half later. I didn’t get
       to make it back in the house.

       [Petitioner] said that he was “[m]aybe a foot or foot and a half” from
the victim when the gun discharged, and he was not leaning over or
touching her at the time. He said that the injuries to his face occurred when
he “tripped and slammed face first into the gun and it went off.”

       [Petitioner] told Detective Merritt that he and the victim had not
been arguing before the shooting and that the victim was upset because “her
Aunt Kay would not let her talk to her daughter for 10 days.” He also said
that the victim had never struck or attacked him. [Petitioner] noted that he
might “be wrong on the two shots ‘cause I don’t remember shooting but
one.” [Petitioner] did not mention that he or the victim had been drinking.
Because of some inconsistencies in [Petitioner’s] statement, Detective
Merritt asked him to draw a sketch of the scene. Detective Merritt noted
that although [Petitioner] said that he and the victim began having sex
before the shooting, she was fully clothed and wearing “army-type boots”
and a coat. [Petitioner] also said that he did not have a cell phone and
indicated that 1542 Tennyson was an abandoned house with no electricity.

       Dr. Marco Ross, Deputy Chief Medical Examiner, performed an
autopsy on the victim. He determined that she died from a “contact
gunshot wound with a contact entrance wound behind the left ear.”
Because there was “soot deposition in and on the edges of the wound” and
lacerations to the skin around the wound, Dr. Ross concluded that the
muzzle of the weapon was in contact with the victim’s skin. He testified
that the “bullet tract had perforated and fractured the skull as well as
perforated the brain.” Dr. Ross opined that the victim died immediately or
within a few seconds of being shot. Concerning the victim’s other injuries,
Dr. Ross noted:

              She had several contusions or bruises, including one
       on the left side of the neck, one on her left upper back, one on
       the inner front part of the right thigh, one on the inner front
       part of the right knee, several contusions on front of the lower
       legs as well.



                                     -5-
       The victim’s right shin had bruises from her knee to her ankle, and
there was also a bruise on the back of her left arm. There was some alcohol
present in the victim’s blood at a level of 82 milligrams per deciliter, which
corresponded to approximately .08 on the Breathalyzer scale. Sergeant
Paula Harris of the Memphis Police Department picked up a bullet pack, a
gunshot residue kit performed on the victim, and the victim’s clothing from
the morgue. She explained that a bullet pack contains either “a fragment or
an entire projectile or a jacket, some piece of a bullet that the medical
examiner takes.”

      Agent Steve Scott, of the TBI Firearms Identification Unit,
examined the ballistics evidence in this case. Concerning [Petitioner’s]
gun, Agent Scott testified:

                The .357 Magnum is the caliber of the revolver. It is a
       double-action revolver, meaning there are two ways this gun
       can be fired once it’s loaded. Cartridges are loaded into the
       cylinder. It is then rotated up and closed. The first way to
       fire that would be to thumb back or pull back the hammer and
       then pull the trigger. That motion is called single-action
       firing because when you pull the trigger, the gun does one
       action, allowing the hammer to fall. The other way to fire
       this particular revolver is simply just to load it, close the
       cylinder and pull the trigger. That is the double-action mode
       of firing. And double-action mode actually rotates a cartridge
       into the firing position, cocks the hammer and also allows it
       to fall.

       Agent Scott noted that the “double-action trigger pull” takes
“approximately 15 pounds of pressure pulling with the finger in order to
cause the weapon to discharge.” He further said, “It would be my opinion
that the 15 pounds would have to be applied with some intention.” Agent
Scott testified that single-action firing would require approximately 3 and
3/4 pounds of pressure on the trigger after the hammer was cocked to fire
the weapon. Concerning accidental firing in a single-action pull, Agent
Scott said:

             I wouldn’t think it would be accidental to cock the gun
       and actually pull the hammer back into that cocked position.
       However, I can somewhat see with the finger on the trigger

                                     -6-
      and a struggle or something of that nature, any squeezing of
      the hand could cause the gun to discharge.

        Agent Scott testified that the revolver had a six-chambered cylinder
that contained two fired cartridges and four unfired cartridges, one of which
had a “very small indentation on the primer surface that could be a partial
firing pin impression.” He explained that a “partial firing pin impression is
just simply where the firing pin of the gun just barely has an impact on that
primer, not enough to cause a detonation of the primer.” He said that there
was a possibility that the partial impression was caused by some “play” on
the hammer of the gun. Agent Scott testified that one of the fired bullets in
the revolver was in the twelve o’clock position and the other was in the six
o’clock position. Concerning the firing sequence, he said:

              Well it’s not the normal firing sequence to have fired
      two shots in succession. [sic] As you can see, here is one
      fired cartridge case and here is the other fired cartridge case.
      They’re opposite each other. Normally if two shots are fired
      one right after another, say one cartridge case would be here,
      the next would be here. This particular cylinder and the style
      of gun, when the cylinder rotates to bring the next cartridge in
      line, it rotates counter-clockwise so from right to left the top
      of this moves. So this cartridge – if this one was the first one
      fired, then this one would be the second one to be fired. And
      if that were the case, then this cartridge case is out of place.
      It should be here rather than down here in the five [sic]
      o’clock position.

       Agent Scott surmised that the unusual location of the fired bullets
could be due to the cylinder being rotated between shots being fired, or by
the cylinder being emptied and the bullets and spent shells being replaced.

        Agent Scott examined the bullet recovered from the victim and a
bullet fragment. He determined that the bullet was fired from [Petitioner’s]
weapon. He was unable to determine whether the fragment was fired from
[Petitioner’s] weapon “because of its size and the lack of a very prominent
rifling on it.”

      Agent Scott testified that he reviewed the gunshot residue kits from
the victim, Timothy Britt, and [Petitioner]. He explained that the
examination of the kits were performed by other TBI scientists. On
                                     -7-
       [Petitioner’s] kit, the results indicated that “no controlled swabs were
       submitted, therefore no analysis was performed,” and the results from
       Timothy Britt were inconclusive.

Id. at *1-5.

       The Petitioner filed a pro se petition for post-conviction relief, as well as several
amended petitions through appointed counsel. Among other things raised in his petitions,
the Petitioner raised the allegations of ineffective assistance of counsel pursued on
appeal: trial counsel was ineffective in his cross-examination of Kristi Tackett, the
victim and the Petitioner’s neighbor, and for not retaining ballistics and blood spatter
experts for trial.

         The post-conviction court conducted an evidentiary hearing, at which the
Petitioner testified that he thought that trial counsel “could have done better.” The
Petitioner elaborated that Ms. Tackett claimed to have seen him and the victim fighting,
but she “had trouble seeing” and could not identify him in the courtroom. Therefore, he
thought trial counsel could have done a better job cross-examining her. The Petitioner
claimed there was no fight between him and his wife, contrary to Ms. Tackett’s testimony
at trial. However, he acknowledged that his wife’s body had visible bruising and injuries,
and that his own face had signs of injury. The Petitioner claimed that his injury occurred
when the gun hit his face as it discharged, but he admitted that this explanation differed
from his telling the police that he got hurt when he tripped going back into his house after
looking for an intruder.

        The Petitioner also claimed that his friend, Jack Pope, could have verified there
was no fight between him and the victim because Mr. Pope was with them until thirty
minutes to an hour before the shooting. The Petitioner told trial counsel about Mr. Pope,
but trial counsel did not call Mr. Pope as a witness at trial. The Petitioner did not bring
Mr. Pope to the post-conviction hearing because he heard that Mr. Pope had passed away.

       The Petitioner admitted that he shot his wife but maintained that it was an accident
and that his defense at trial was probably that the shooting was an accident. Although the
shooting was accidental, the Petitioner said that he lied to the police about what happened
because he was afraid of going to jail. He wanted trial counsel to suppress his false
statement to police, elaborating that he told the police that he had his gun because he
heard an intruder, but that was not true. The Petitioner explained what really happened
was that he took his gun out of his truck and went inside to put it away when he saw his
wife trying to place a picture on the wall and jumped onto the bed to help her. He said
that the bed started shaking, and as they grabbed each other, “the gun went off.” The
Petitioner admitted that he had not told anyone that version of the incident prior to the
                                            -8-
post-conviction hearing. The Petitioner claimed that only one bullet was fired, even
though his brother, who was in the house at the time, told the police he heard two or three
shots. The Petitioner claimed his brother was mentally challenged.

        The Petitioner stated that he had wanted trial counsel to call ballistics and blood
spatter experts to prove that he and his wife were standing when his gun discharged,
refuting the State’s evidence that his wife was lying down when she was shot. However,
the Petitioner admitted that he had not talked to any such experts and did not bring an
expert to testify at the hearing. The Petitioner acknowledged that the State’s expert
testified that the gun was touching his wife’s head when it was fired, and he did not have
any proof to rebut that testimony.

        The Petitioner stated that he wished he had testified at trial, but he acknowledged
that it was his decision not to testify and that the trial court questioned him regarding his
decision. The Petitioner admitted that, had he testified at trial, there were witnesses who
could have been called to testify about other fights he had with his wife. The Petitioner
believed the outcome of the case would have been different had trial counsel “done a
better job.”

       Trial counsel was not called to testify at the post-conviction hearing.

      Following the conclusion of the hearing, the post-conviction court entered an order
denying the petition. The Petitioner appealed.

                                       ANALYSIS

       The Petitioner argues that he received ineffective assistance of counsel because
trial counsel did not thoroughly cross-examine his and the victim’s neighbor, Kristi
Tackett, or present testimony from ballistics or blood spatter experts.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
                                             -9-
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       The Petitioner argues that trial counsel was ineffective for failing to cross-examine
Ms. Tackett “more rigorously” regarding her ability to see the fight between him and the
victim. He asserts that, “[i]f the jury did not believe that the fight ever occurred, then
they may not have returned a verdict of not [sic] guilty.” As to this allegation, the post-
conviction court noted that the Petitioner did not call Ms. Tackett as a witness at the post-
                                            -10-
conviction evidentiary hearing and “offered no specifics as to how ‘better’ cross
examination would have helped his case.” The post-conviction court ruled that “[a]s a
result, this court is left to speculate as to what ‘better’ cross-examination would have
revealed” and, therefore, that the Petitioner failed to prove deficient performance or
prejudice.

        The record supports the post-conviction court’s determination. The record is clear
that trial counsel cross-examined Ms. Tackett. The record is also clear that Ms. Tackett
was unable to identify the Petitioner at trial, and the jury witnessed her inability to do so.
The Petitioner’s testimony at the post-conviction hearing indicated that trial counsel
believed that Ms. Tackett’s failure to identify the Petitioner spoke volumes to the jury.
Moreover, the Petitioner did not present Ms. Tackett’s testimony at the post-conviction
hearing to show how she would have responded had trial counsel asked about her
inability to see the fight. Absent such testimony, any assumption about what she would
have said at trial is speculative at best. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990). The Petitioner has failed to prove that trial counsel rendered deficient
performance or that there is any reasonable probability of another outcome had trial
counsel cross-examined Ms. Tackett differently.

        The Petitioner also argues that trial counsel was ineffective for failing to hire a
ballistics and/or blood spatter expert. He asserts that such experts could have established
that he shot his wife while they were standing up, not when she was lying down.
However, he admitted that he had not talked to any expert who could rebut the finding
that the muzzle of his gun was pressed against his wife’s head when it was fired, and he
admitted that he may not have ever told trial counsel the version of his story that he and
his wife were both standing up as opposed to lying down.

       With regard to this assertion of trial counsel’s ineffectiveness, the post-conviction
court found that the Petitioner failed to show deficient performance or prejudice because
he did not present the testimony of a ballistics or blood spatter expert at the post-
conviction hearing, admitted he had not consulted such experts and “was merely
speculating as to whether they would have helped his case.” We agree with the finding
of the post-conviction court. In order to succeed on a claim that counsel did not properly
investigate or call favorable witnesses at trial, a petitioner must generally elicit favorable
testimony from those witnesses at the evidentiary hearing, as a post-conviction court may
not speculate “on the question of . . . what a witness’s testimony might have been if
introduced” at trial. Black, 794 S.W.2d at 757. The Petitioner has failed to prove this
claim.




                                            -11-
                                  CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the
petition.


                                               _________________________________
                                               ALAN E. GLENN, JUDGE




                                        -12-
