                                                                                        06/03/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs December 17, 2019

       HOWARD BRACKSON CARRIER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Sullivan County
                      No. C65278 William K. Rogers, Judge
                     ___________________________________

                            No. E2019-01004-CCA-R3-PC
                       ___________________________________

The Petitioner, Howard Brackson Carrier, appeals the Sullivan County Criminal Court’s
denial of his petition for post-conviction relief, asserting that he received ineffective
assistance of counsel and that he is entitled to cumulative error relief. After thorough
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 JAMES CURWOOD WITT,
JR., and NORMA MCGEE OGLE, JJ., joined.

Kyle D. Vaughan, Kingsport, Tennessee, for the appellant, Howard Brackson Carrier.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Joseph Eugene Perrin,
Deputy District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                        FACTS

       On January 28, 2011, the Petitioner was convicted of first-degree premeditated
murder, felony murder, attempted first degree murder, and aggravated robbery and was
sentenced to a life sentence for the merged murder convictions, 15 years for the attempted
murder conviction, and three years for the aggravated burglary conviction. See State v.
Howard Brackson Carrier, No. E2013-00247-CCA-R3-CD, 2014 WL 1645389, at *1
(Tenn. Crim. App. Apr. 23, 2014), perm. app. denied (Tenn. Oct. 20, 2014). This court
recited the facts of the case on direct appeal as follows:
        Brenda Carrier testified that she was married to [the Petitioner] and
that they had two children born of the marriage. One of their sons was an
adult and lived in his own house, while the younger son remained in the
family home with [the Petitioner]. In October 2007, Ms. Carrier left the
marital home and told [the Petitioner] that she “was leaving and [she] wasn't
coming back.” In March 2008, she moved into a second-floor garage
apartment owned and furnished by her employer. In October 2008, Ms.
Carrier emphasized to [the Petitioner] that “it was over, and [she] couldn’t
do it anymore.” When he questioned her about whether her decision involved
another man, she explained “that it wasn’t because of a man, it was because
[she] was done. [She] was done with him never being there.”

       Shortly thereafter, Ms. Carrier met Jeffrey Washburn. In November,
she advised [the Petitioner] that she had been talking with another man. On
the night of December 9, 2008, Ms. Carrier spoke with [the Petitioner]
around 5:00 p.m. to ensure that [the Petitioner] would be at home with their
younger son. He responded that he would be at home. Subsequently, Mr.
Washburn drove Ms. Carrier to his home, where they spent the night. When
Ms. Carrier left her apartment, she locked the door and turned on the porch
light.

       Ms. Carrier returned to her home around 5:30 a.m. on December 10.
When she arrived, she first noticed that her porch light was off. Mr.
Washburn and Ms. Carrier ascended the stairs, and when they reached the
landing, they observed that the glass in the door was broken. Ms. Carrier
suggested that they retreat and call the police, but as they turned to leave,
[the Petitioner] emerged from Ms. Carrier’s apartment and addressed Mr.
Washburn, asking, “‘Are you the man that’s f* * * * * * my wife?’” Mr.
Washburn responded, “‘We don’t need to do this. I need to go to work.’”
Mr. Washburn then raised his hands and asked [the Petitioner], “‘What’s that
in your hand?’” Ms. Carrier began to scream. She tried several times to call
9-1-1 from her cellular telephone, but she did not think the call ever
connected. Mr. Washburn and [the Petitioner] began wrestling on the porch.
Mr. Washburn was on top of [the Petitioner], and [the Petitioner] was
stabbing Mr. Washburn in the back. Ms. Carrier knew that [the Petitioner]
was a hunter and owned several knives. Ms. Carrier ran over to the tussle
and removed the knife from Mr. Washburn’s back. She threw the knife,
which she described as “pretty big,” off the porch. [The Petitioner] then
stood up and pushed Mr. Washburn onto the floor of the porch.



                                    -2-
        [The Petitioner] next threatened Ms. Carrier, saying that he was going
to kill her. He took Ms. Carrier into her apartment, where he displayed a
pocket knife. He forced her to the ground and stabbed her in the breast, in
the chest, and in the face. Ms. Carrier believed she was going to die. Patsy
Kendrick, Ms. Carrier’s neighbor, then entered the apartment and told [the
Petitioner] to stop. She assisted Ms. Carrier to her home. An ambulance
arrived and escorted Ms. Carrier to the hospital, where she remained for six
days.

        In the early morning hours of December 10, 2008, Patsy Kendrick
heard Ms. Carrier screaming out, “Howard!” She ran toward Ms. Carrier’s
garage apartment as she called out for someone in her home to dial 9-1-1.
Upon arriving, Ms. Kendrick saw that the glass in the door was broken, and
she saw [the Petitioner] standing over Ms. Carrier with a knife. Ms. Carrier
was lying on the floor, and her mouth was full of blood. [The Petitioner]
appeared calm and emotionless. After Ms. Kendrick instructed [the
Petitioner] to leave the apartment, he stabbed himself. Ms. Kendrick grabbed
Ms. Carrier’s hand, pulled her through the door, and assisted her down the
stairs. They proceeded to Ms. Kendrick’s home, and as she looked back, Ms.
Kendrick noticed [the Petitioner] calmly walking down the stairs. Ms.
Kendrick attempted to render aid while they waited for emergency medical
personnel to arrive.

       While Ms. Carrier’s personal items were being removed from the
apartment, a knife sheath and a knife sharpener were found in the apartment,
but they did not belong to her. She had never seen the items during the time
she lived in the apartment.

        Cordell Carrier, the older son of Ms. Carrier and [the Petitioner],
testified that [the Petitioner] suspected Ms. Carrier of seeing another man
while they were separated. [The Petitioner] told him that “if he caught her
with another man[,] he would kill him.” In late November 2008, Cordell was
eating lunch with [the Petitioner] in [the Petitioner]’s truck. He noticed a
large hunting knife lodged in the seat of the truck and asked [the Petitioner]
why he had it. [The Petitioner] answered, “[I]n case [I] needed to kill
someone.”

       [The Petitioner] went to Cordell’s home sometime after midnight on
December 10, 2008, and wanted to borrow a pipe with which he could smoke
crack cocaine. [The Petitioner] left then returned between 2:00 and 3:00 a.m.
He again left Cordell’s home. [The Petitioner] telephoned Cordell around
                                    -3-
5:45 or 5:50 a.m. and informed Cordell that he had killed Ms. Carrier and the
man she had been seeing and that he had stabbed himself. Cordell knew [the
Petitioner] to be a hunter and to possess hunting knives, sheaths, and knife
sharpeners. At trial, he identified a knife sheath and a knife sharpener that
were found in Ms. Carrier’s apartment as belonging to [the Petitioner].

       Ms. Carrier’s sister, Joyce Ann Hall, accompanied Ms. Carrier and
others to the apartment to collect her personal belongings approximately one
week after she was released from the hospital. As they were packing, Ms.
Hall found a knife sharpener and a sheath and removed them from the
apartment so as not to upset Ms. Carrier. Approximately three months later,
Cordell asked Ms. Hall for the items, and he subsequently turned them in to
a detective.

        [The Petitioner] testified that in early 2008, Ms. Carrier began to stay
at the garage apartment on Tuesday nights only because she worked late and
received several telephone calls late into the night on those occasions. In
October 2008, Ms. Carrier began staying at the apartment every night.

       [The Petitioner] “sensed a change” in Ms. Carrier and attempted to
take her out to dinner and buy her flowers more frequently. Ms. Carrier
“started disappearing” and would be unreachable on her cellular telephone.
When he questioned her whereabouts, she would respond that “it was none
of [his] business.” [The Petitioner] asked Ms. Carrier if she was seeing
someone else, and she denied that she was.

       [The Petitioner] telephoned Ms. Carrier at 12:22 a.m. on December
10, 2008, but she did not answer. He again called her at 4:56 a.m., and she
indicated that she was at her home. [The Petitioner] purchased breakfast at
a drive-thru restaurant and drove to Ms. Carrier’s home. After knocking
several times and receiving no response, he became concerned that
something was wrong, so he kicked in the door. He entered the apartment
and looked around to ensure that she was not in distress. At that time, he had
in his possession a pocketknife, which he always carried, and his uncle’s
knife, which he regularly carried “as a memento to [his] uncle” who had
passed away. He denied that the knife sharpener found in Ms. Carrier’s
apartment belonged to him.

      Upon completing his search, he started to exit the apartment but
encountered Ms. Carrier and Mr. Washburn at the door. He asked what was
going on, and Mr. Washburn responded that he did not have time for an
                                     -4-
       encounter because he had to go to work. [The Petitioner] asked, “‘Have you
       been f* * * * * * my wife?’” Mr. Washburn responded, “‘Every chance
       [I][get].’” The two men then began fighting. [The Petitioner] said that he
       “blacked out” and did not recall stabbing Mr. Washburn. The next thing he
       remembered was Ms. Carrier’s neighbor shouting for him to leave the
       apartment. At some point, he stabbed himself in the chest four times, but he
       did not recall whether he did so in Ms. Carrier’s apartment or after he left.
       When he arrived home, he cut both of his wrists and attempted to cut his
       jugular vein by stabbing himself in the neck. Subsequently, the SWAT team
       entered [the Petitioner]’s home, and an ambulance transported him to the
       hospital, where he was released one to two days later and placed in custody.

Id. at *1-3 (footnote omitted).

        On July 20, 2015, the Petitioner filed a timely pro se petition for post-conviction
relief, in which he raised claims of ineffective assistance of trial counsel, specifically for
failure to obtain a mental evaluation and failure to make a motion for judgment of acquittal,
and cumulative error. Following the appointment of post-conviction counsel, the Petitioner
filed an amended petition on May 12, 2017, and the post-conviction court held an
evidentiary hearing on the petition on February 25, 2019.

        At the evidentiary hearing, the Petitioner testified that he met with trial counsel and
his case investigator “[a]t length . . . a couple of times[.]” He elaborated that he met with
them “about seven times total” during his three-year incarceration period. The Petitioner
testified that trial counsel opined that it “would be best” for him to waive his preliminary
hearing, which the Petitioner ultimately did.

         The Petitioner testified that during his fourth meeting with trial counsel, he asked
trial counsel “when and if they were going to do a mental evaluation[,]” though “no mental
expert was ever sought[.]” On cross-examination, the Petitioner asserted, as he had at trial,
that he “blacked out after [he] started fighting with [the victim], and [he] didn’t remember
anything after that.” Further, he agreed, as he did at trial, that he told officers that he
“stabbed himself and hit [his] heart four times, cut [his] neck and [his] wrist because [he]
thought he killed them both. [He] took care of [his] problem [that] morning.” The
Petitioner testified that he wanted a mental health expert to testify to his “state of mind at
the time that this occurred,” and he conceded that he had testified to his own state of mind
at trial, specifically that he “blacked out.” He agreed that his “whole defense” at trial was
that he “was so upset over everything, [he] wasn’t guilty of anything other than voluntary
manslaughter.” The Petitioner conceded that he was “not aware” that “an expert can’t
come in and give an opinion” regarding whether he was guilty of premeditated first degree
murder because “[t]hat’s an issue for the jury . . . to decide.”
                                             -5-
       The Petitioner also testified regarding his assertion that trial counsel should have
moved for a judgment of acquittal at trial. He stated that he was “prejudiced” because trial
counsel “failed to . . . do [his] rights to legal counsel.” He elaborated that “On the judgment
of acquittal, I believe [the prejudice] was based on the fact that – of the felony murder, that
– there was no basis for that because there was . . . nothing to show that [he] was there with
the intent to cause harm to anyone.” He agreed that the jury rejected this assertion of
prejudice at trial.

        Trial counsel testified that he had been a criminal defense attorney for 42 years, 29
of which were spent as a public defender. He defended clients in “at least” 20 murder cases
in that time. He explained that he met with the Petitioner “13 or 14 times in the jail.” He
agreed that he went over “all the discovery” with the Petitioner and that he “did not recall”
the Petitioner’s ever having difficulty recalling the incident or indicating that he had
“blacked out” during the incident. Trial counsel further explained that the Petitioner “was
very upset over his wife having a boyfriend, and that he was uncertain about it. But . . . he
acted on . . . what he felt and killed the man.” He further agreed that the Petitioner felt
“justified” in killing the victim. Trial counsel testified that he and the Petitioner agreed
that “the defense would be that [the Petitioner] was in a state of passion, and seek the jury
to come back with a lesser verdict[.]”

       Regarding a mental evaluation, trial counsel testified that he and the Petitioner “may
have discussed the topic,” but trial counsel “didn’t hear enough evidence of stuff where
that might be an appropriate thing to do.” He explained that he wasn’t “shy at all about
getting doctors . . . if . . . that’s necessary,” but there “wasn’t any need for it as far as [he]
could tell.” Trial counsel stated that he was “not aware of any evidence in [the Petitioner’s]
history that would make [trial counsel] look into that.” While trial counsel “frequently
hire[d] expert witnesses of some sort in cases[,]” he only did so when there was some
“relevance to the case.”

        Regarding the judgment of acquittal, trial counsel testified that he filed “a motion
for a new trial or judgment of acquittal” on June 8, 2011. He explained that he did not move
for a judgment of acquittal following the close of the State’s case-in-chief because he
“didn’t think it was warranted. Didn’t think it would be any benefit to [the Petitioner].”

       On April 25, 2019, the post-conviction court entered a written order dismissing the
petition. The court found that the Petitioner had not “made a prima facie showing that the
failure to request a mental evaluation prejudiced [the] Petitioner to the extent there is a
reasonable probability that, but for counsel[’]s unprofessional errors, the result of the
proceeding would have been different.” The court further explained that the Petitioner “did
not provide any proof for which a defense of diminished capacity could be raised. There
                                              -6-
is no proof that a mental health expert would have been allowed to testify.” The trial court
further found “no credence to support [the Petitioner’s] theory” that “‘defense counsel had
a duty to move for judgment of acquittal at the close of the [S]tate’s proof[.]’” The court
stated that it was “most unlikely that a motion for judgment of acquittal would have been
granted,” noting that this court previously found that the State’s proof “was
overwhelming[.]” Taking all of its previous analysis of the Petitioner’s claims into
account, the trial court denied the Petitioner’s claim of cumulative error.

                                        ANALYSIS

      The Petitioner argues on appeal that he received ineffective assistance of counsel
because of trial counsel’s failure to request a mental evaluation, failure to move for
judgment of acquittal, and cumulative error.

        Post-conviction relief “shall be granted 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.” Tenn. Code Ann. § 40-30-103. The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 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 Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction 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 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 the 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
                                            -7-
       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.

        In denying relief, the post-conviction court found that the Petitioner “failed to
establish by clear and convincing evidence that he is entitled to post-conviction relief.” As
stated above, the court further found that the Petitioner had not “made a prima facie
showing that the failure to request a mental evaluation prejudiced [the] Petitioner to the
extent there is a reasonable probability that, but for counsel[’]s unprofessional errors, the
result of the proceeding would have been different.” Trial counsel testified that he was an
experienced defense attorney and did not believe that a mental evaluation was necessary
or justified. Further, as noted by the State, the Petitioner did not present witness testimony
at the evidentiary hearing regarding his mental state to rebut trial counsel’s opinion, and
thus “cannot show that he was prejudiced by counsel’s failure to request a mental
evaluation.” This court is unable to guess what such testimony regarding the Petitioner’s
mental state would have been. Trial counsel also explained that he did not move for a
judgment of acquittal because he did not believe it was warranted. The post-conviction
court also noted that the evidence was “overwhelming,” and it was “unlikely” that a motion
for judgment of acquittal would have been granted.” In sum, the Petitioner has failed to
meet his burden of demonstrating that he was denied the effective assistance of trial
counsel.

        Finally, the Petitioner contends the cumulative effect of the errors alleged above
entitles him to a new trial. “To warrant assessment under the cumulative error doctrine,
there must have been more than one actual error committed in the trial proceedings.” State
v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010). Because the Petitioner has not established any
error, he is not entitled to relief under the cumulative error doctrine.

                                      CONCLUSION
                                             -8-
       Based on the foregoing authorities and reasoning, we affirm the dismissal of the
petition.




                                               CGS, /22-1,-___
                                           ____________________________________
                                           ALAN E. GLENN, JUDGE




                                         -9-
