        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 13, 2016

          STEVEN BERNARD SYDNOR v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2006-A-563    Mark J. Fishburn, Judge




               No. M2015-00651-CCA-R3-PC – Filed January 26, 2016
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Petitioner, Steven Bernard Sydnor, appeals the denial of his petition for post-conviction
relief from his Davidson County Criminal Court convictions for second degree murder
and theft of property valued over $1000. Petitioner alleges that he received ineffective
assistance of counsel in that trial counsel failed to discuss trial strategy with him and
failed to present assisted suicide to the jury as a defense theory. Upon our review of the
record, we affirm the decision of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROGER A. PAGE, J., joined.

Richard C. Strong (on appeal) and M. James Pulido (at hearing), Nashville, Tennessee,
for the appellant, Steven Bernard Sydnor.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn Funk, District Attorney General; and Sarah Davis, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION

                                   Factual Background

       In February 2006, the Davidson County Grand Jury indicted Petitioner for one
count of first degree murder for the death of his girlfriend, April Anderson, and one count
of theft of property valued at more than $10,000 for taking her 2004 Honda Accord. At
trial, the victim‟s sisters testified to the tumultuous relationship between the victim and
Petitioner. See State v. Steven Bernard Sydnor, No. M2007-02393-CCA-R3-CD, 2010
WL 366670, at *1 (Tenn. Crim. App. Feb. 2, 2010), perm. app. denied (Tenn. June 17,
2010). The victim eventually moved from California to Tennessee to live with two of her
sisters, but by October 2005, she was living with Petitioner, who had also moved to
Tennessee. Id. The victim was planning on traveling with her family to a memorial
service for her grandparents in Pennsylvania on November 26, 2005. Id. at *2.

       On November 22, 2005, Officer Shane Fairbanks of the Metropolitan Nashville
Police Department saw Petitioner walking down South Seventh Street. Id. Petitioner
approached the officer with his hands in the air as if he were surrendering and told
Officer Fairbanks that he wanted to turn himself in. Id. at *2-3. Petitioner reported that
he and the victim had argued about a day and a half prior, that the victim had “played
like” she wanted to commit suicide, that she retrieved a knife, and that he “put his hands
on the knife and they put the knife to her throat and they cut her throat together.” Id. at
*3. Petitioner stated that after the incident, he drove off in the victim‟s car, that he threw
the knife out of the car on the freeway, and that he parked the car in a nearby alley. Id.
Officer Fairbanks called dispatch and requested that officers proceed to the victim‟s
apartment in Madison. Id.

      Officers that responded to the victim‟s apartment found her body on a blanket in a
back bedroom. Id. at *4.

       Her wrists were bound behind her back with a riveted black leather belt, her
       ankles were bound together with another black leather belt, and a black
       coaxial cable looped between the hand and foot bindings, drawing her
       limbs together behind her back in a “hog-tie” fashion. A shirt was wrapped
       around her face, and a cord from a cellular telephone charger protruded
       from under the shirt.

Id. There was blood on the shirt and on the carpet around the victim. Id.

       Dr. Amy R. McMaster, the medical examiner who performed the autopsy of the
victim, testified that the victim had a “pink or peach shirt . . . wrapped around her upper
neck and lower mouth” and that “[b]eneath the shirt, a black electrical cord was wrapped
around her mouth and neck, securing a white sock which was stuffed in the victim‟s
mouth.” Id. at *5. The victim had a number of cuts to her neck, though they were not
deep enough to damage any of the major blood vessels. Id. Dr. McMaster testified that
the cause of the victim‟s death was asphyxiation, or a lack of oxygen. Id.

       Dr. McMaster opined that the gag in the victim‟s mouth made it difficult
       for her to get air. She explained that the shirt and cable wrapped around her
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        neck impeded her ability to get oxygen and that the bleeding from the cuts
        on her neck contributed to the lack of oxygen.

Id. Dr. McMaster testified that the manner of death was homicide. Id.

       Agent Charles Hardy, a forensic scientist with the Tennessee Bureau of
Investigation, testified as to the DNA evidence found on the various ligatures and pieces
of clothing. Petitioner‟s DNA was found on the belt around the victim‟s ankles and on
the coaxial cable which connected the victim‟s wrists and ankles. Id. at *6. Petitioner
could not be excluded as a minor contributor of the DNA found on the pink shirt. Id.

       On May 24, 2007, the jury convicted Petitioner of the lesser-included offenses of
second degree murder and theft of property valued at more than $1000 but less than
$10,000. Id. The trial court sentenced Petitioner to a total effective sentence of twenty-
five years. Id. at *1. This Court affirmed Petitioner‟s convictions and sentences on
appeal, id. at *25, and the Tennessee Supreme Court denied permission to appeal.

                                       Post-Conviction Hearing

       On November 18, 2010, Petitioner timely filed a pro se petition for post-
conviction relief, alleging that he received ineffective assistance of counsel. Petitioner
asserted that trial counsel (1) did not request jury instructions on the lesser-included
offenses of the attempt to commit each level of homicide, aggravated assault, simple
assault, or assisted suicide; (2) did not discuss trial strategy with him and did not inform
Petitioner that he would be arguing that Petitioner was guilty of reckless homicide; (3)
did not request jury instructions on the defenses of necessity, mistake of fact, or assisted
suicide; (4) did not object to the medical examiner‟s testimony that the manner of death
was homicide; and (5) did not request that the jury be sequestered.1 After the
appointment of counsel, an amended petition was filed on April 7, 2011. A second
amended petition was filed on July 29, 2011.

       At the evidentiary hearing on August 31, 2011, Petitioner testified that he told trial
counsel that, on the day of the incident, he had been smoking cocaine when he got into an
argument with his girlfriend, Ms. Anderson. He told trial counsel that he had tried to stop
Ms. Anderson from cutting her throat and that he tied a pink sweater around her neck to
stop the bleeding. Petitioner denied that he intended to kill Ms. Anderson. Petitioner

        1
           On appeal, Defendant raises only the issues of trial counsel failing to discuss trial strategy with
him and failing to present assisted suicide as an alternative theory of defense. Therefore, the remaining
issues raised in the petition are deemed abandoned. See Ronnie Jackson, Jr. v. State, No. W2008-02280-
CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. 2009), perm. app. denied (Tenn. Apr. 16,
2010). We will confine our discussion of the evidence presented at the post-conviction hearing to that
related to these issues.
                                                   -3-
testified that he never discussed trial strategy with trial counsel and that he was surprised
when trial counsel told the jury that he was guilty of reckless homicide.

      On cross-examination, Petitioner admitted that he was guilty of something, though
he believed it was assisted suicide or aggravated assault rather than second degree
murder. Petitioner explained that he was willing to plead on the morning of trial to
second degree murder in exchange for a sentence of thirty years because he was afraid he
could get life if convicted at trial. Petitioner admitted that trial counsel mentioned
“saying that [Petitioner] was guilty of something other than first degree murder” but
denied that counsel mentioned telling the jury that Petitioner was guilty of reckless
homicide. Petitioner wanted trial counsel to present an assisted suicide defense, but trial
counsel only briefly mentioned suicide in closing arguments. Petitioner admitted that he
met with trial counsel and co-counsel several times and that he told trial counsel that he
was responsible for Ms. Anderson‟s death.

        Trial counsel testified that he had worked for the Metropolitan Public Defender‟s
Office for fifteen years and had tried six or seven first degree murder cases. He and co-
counsel were appointed to represent Petitioner when retained counsel withdrew after the
preliminary hearing. Trial counsel testified that he logged over 160 hours in trial
preparation, investigation, meetings, pre-trial motions, and post-trial sentencing
preparation. Trial counsel testified that his notes reflected that he met with Petitioner at
least twenty-four times.

        As far a trial strategy, trial counsel testified that he did not see any evidence
supporting assisted suicide as a defense theory. His strategy focused on negating
Petitioner‟s mens rea, specifically arguing that Petitioner was guilty of reckless homicide
rather than first degree, premeditated murder. He and co-counsel had numerous meetings
with Petitioner where they discussed trial strategy. Petitioner told trial counsel that he
had been using drugs and was “sort of vague on what happened.” Trial counsel had
Petitioner evaluated by a psychiatrist, but the trial court ruled that the psychiatrist could
not testify without further substantiating his findings. Such substantiation would have
come from Petitioner testifying, and after conducting mock direct examinations,
Petitioner chose not to testify. Trial counsel testified that Petitioner was offered a plea
deal of thirty years for second degree murder, which Petitioner was willing to accept, but
which was no longer “on the table” the morning of trial.

       The technical record indicates that there was a second hearing held on January 11,
2012, at the end of which the post-conviction court orally denied the petition with an
order to be filed at a later date; however, no transcript of this hearing appears in the
record. On February 23, 2012, Petitioner‟s post-conviction counsel filed a motion to
withdraw. No further action was taken on the case until March 10, 2015, when the trial
court filed a memorandum opinion denying the petition. Then, on March 30, 2015, the
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trial court granted post-conviction counsel‟s motion to withdraw and appointed appellate
counsel. On May 1, 2015, this Court granted Petitioner‟s motion to waive timely filing of
the notice of appeal.

                                          Analysis

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel‟s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580. “Indeed, a court need not address the components in any particular
order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

       The test for deficient performance is whether counsel‟s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
                                             -5-
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use
hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to
the tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Even if a petitioner shows that counsel‟s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Burns, 6
S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be
“sufficient to undermine confidence in the outcome.” Id.

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court‟s findings of fact “under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh
or re-evaluate the evidence presented or substitute our own inferences for those drawn by
the trial court. Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the
weight and value to be given to testimony, and the factual issues raised by the evidence
are to be resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing
Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of law
and application of the law to the facts are reviewed under a purely de novo standard, with
no presumption of correctness. Fields, 40 S.W.3d at 458.

       Petitioner contends that he received ineffective assistance of counsel because trial
counsel failed to discuss trial strategy with him and failed to present assisted suicide to
the jury as an alternative theory of defense. The post-conviction court accredited the
testimony of trial counsel as to the amount of time spent on trial preparation and the
numerous discussions regarding trial strategy. The post-conviction court found that
assisted suicide is not a lesser included offense of first degree murder and is not a
statutorily recognized defense. Additionally, the post-conviction court found that any
such attempted suicide theory was not supported by the evidence, including the fact that
the victim was hog-tied. The post-conviction court commented that “[t]he suggestion
that [Petitioner‟s] actions were not intended to cause the death of Ms. Anderson, but were
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intended to help Ms. Anderson cause her own death is illogical and would have been an
insult to the intelligence of the jury.”

        This Court has held that assisted suicide is not a lesser included offense of second
degree murder, State v. Wendi Nicole Garrison, No. E2011-00496-CCA-R3-CD, 2012
WL 3079238, at *8 (Tenn. Crim. App. July 27, 2012) (applying the test laid out in State
v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999)), perm. app. denied (Tenn. Jan. 9, 2013),2
and is not a statutorily listed defense, id. (citing T.C.A. § 39-11-201 et seq., -501 et seq., -
601 et seq.), but may be presented as a theory of defense. However, counsel‟s decision to
present one theory of defense to the exclusion of another is a tactical decision that will
not be second-guessed unless it was based upon inadequate preparation, see Felts v. State,
354 S.W.3d 266, 281 (Tenn. 2011), even if that “particular strategy or tactical decision
failed,” id. at 277 (citing Goad, 938 S.W.2d at 369).

       In this case, it cannot be said that trial counsel made the decision to present
reckless homicide, rather than assisted suicide, as a theory of defense based on
inadequate preparation. Trial counsel spent over 160 hours preparing for trial and met
with Petitioner at least twenty-four times. Trial counsel determined that the evidence did
not support an assisted suicide defense. Petitioner admitted that he tied up Ms. Anderson
and that he was responsible for her death. Trial counsel had Petitioner evaluated by a
psychiatrist and unsuccessfully attempted to have his testimony admitted to negate the
mens rea for first degree murder. Trial counsel pursued a viable theory of defense which
was partially successful in that Petitioner was not convicted of the charged offense of first
degree murder. The post-conviction court accredited trial counsel‟s testimony that he
thoroughly discussed trial strategy with Petitioner and that trial counsel “had the full
consent of [Petitioner] to pursue the chosen strategy.” Petitioner even admitted that trial
counsel told him that they would be pursuing a theory that he was “guilty of something
other than first degree murder” but denied that he knew that trial counsel would be
specifically arguing reckless homicide. Petitioner has not established that trial counsel‟s
performance, either in discussing trial strategy with him or in not presenting an assisted
suicide defense to the jury, was deficient. Therefore, we affirm the decision of the post-
conviction court to deny the petition.




        2
           We note that the supreme court is currently reviewing whether part (b) of the Burns test has
been abrogated by the amendment of Tennessee Code Annotated section 40-18-110. See State v. Glen
Howard, No. E2014-01510-SC-R11-CD (Tenn. Dec. 11, 2015) (order). However, even if part (b) has
been abrogated, the Wendi Nicole Garrison court also held that assisted suicide was not a lesser included
offense of second degree murder under parts (a) and (c) of Burns, see 2012 WL 3079238, at *7, which
were incorporated into Tennessee Code Annotated section 40-18-110(f). By the same logic, assisted
suicide is also not a lesser included offense of first degree murder.
                                                       -7-
                                Conclusion

Based on the foregoing, we affirm the decision of the post-conviction court.


                                          _________________________________
                                          TIMOTHY L. EASTER, JUDGE




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