         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs September 20, 2006

                    DENNIS PYLANT v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Cheatham County
                            No. 13469   Robert E. Burch, Judge



                      No. M2005-02721-CCA-R3-PC - Filed June 29, 2007




JAMES CURWOOD WITT , JR., J., dissenting.


                The circumstances of the present case are unusual and demand an unusually

circumspect analysis of the axioms of post-conviction review. The petitioner, who is serving a life

sentence for first degree murder, declined a plea offer of three years as a Range I offender for

reckless homicide based upon counsel’s advice to go to trial and pursue an “all or nothing” strategy.

Although I do not quarrel per se with counsel’s recommendation in this respect, I do point to

counsel’s failure to exploit at trial the indications of Ms. Davis’s sole responsibility for the victim’s

death, and I view the failure as deficient performance of counsel that prejudiced the petitioner.

Therefore, I respectfully dissent from the majority’s holding that the petitioner failed to establish

ineffective assistance of counsel.



                The issue of counsel’s trial preparation and performance vis a vis Ms. Davis is

intertwined with the post-conviction court’s decision to strike certain testimony from the post-
conviction hearing. Thus, I begin with the State’s post-conviction motion to strike.



                  Although the motion to strike was apparently submitted in writing, it does not appear

in the appellate record. The transcript of arguments and the post-conviction court’s ruling indicate

that the motion sought to strike from the post-conviction hearing record any and all post-conviction

testimony about Ms. Davis’s extrajudicial admissions of fault in the victim’s death.1 A review of

the post-conviction record shows that the following witnesses testified about such admissions:



                   Witness                          Extradjucial Statement of Ms. Davis



                  Lyla Defosio                 “I know I beat him but I didn’t aim to kill him;

                                               but I know I did. . . . I know I did kill him.”



                  Trina Jackson                (overheard           telephone conversation,

                                               paraphrasing by Ms. Jackson) Ms. Davis said

                                               she “couldn’t live with herself knowing that

                                               she had killed the [victim].”




         1
           The petitioner fleetingly mentioned that the Tennessee Rule of Evidence 803(a) state of mind exception applied
to the post-conviction witnesses’ testimony regarding the extrajudicial statements made by Ms. Davis. However, the
petitioner cites no other authority, see Tenn. R. App. P. 27(a)(7) (“The brief of the appellant shall contain . . . [a]n
argument . . . with citations to the authorities and appropriate references to the record (which may be quoted verbatim)
relied on . . . .”); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this court.”), and fails to argue why these statements
would be relevant if they were in fact offered to prove Ms. Davis’s state of mind, see Tenn. R. Evid. 401, 402.

                                                           -2-
Sheila Pylant Wilson “[Ms. Davis] said, [I am] going to lie and do

                     and say anything [I have] to, to make sure that

                     [I get my] kid back even if [the petitioner

                     goes] to jail.”



                     “[I]f [the victim] wasn’t around, then [we]

                     would have the perfect family.”



Lloyd Harris         Ms. Davis told Mr. Harris, the petitioner’s

                     bondsman, that the petitioner did not assault

                     the victim.



Donald Pylant        “I’m the one that did this; but I’m going to

                     have to put the blame off on [the petitioner] if

                     I can where I can try to keep my other baby.”



Maya Pylant          Ms. Davis threatened to accuse the petitioner

                     of killing the victim unless the petitioner

                     parted company with Ms. Pylant.




                               -3-
                  Dorothy Mills              Following preliminary hearing, Ms. Davis

                                             stated she was going to “put it off” on the

                                             petitioner.



In the testimony of Ms. Defosio, Mr. Pylant, and Ms. Mills, the witnesses stated that, prior to the

petitioner’s trial, they told the petitioner’s attorney about Ms. Davis’s admissions. Additionally, the

petitioner testified at the evidentiary hearing that he informed trial counsel in writing about the

potential testimony of Mr. Harris, Ms. Jackson, Maya Pylant, and Ms. Mills.2



                  Although initially admitting testimony about Ms. Davis’s extrajudicial admissions,

the post-conviction court ultimately struck “all” evidence of such admissions on the hearsay ground

that the petitioner failed to demonstrate that Ms. Davis was “unavailable for the Post-Conviction

hearing.”



                  “‘Hearsay” is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.

801(c). Generally, “[h]earsay is not admissible.” Id. 802. Certain exceptions to the rule of

exclusion of hearsay, however, are recognized. See id. 803 (enumerating exceptions that apply

regardless of the declarant’s availability at trial), 804 (enumerating exceptions that are applicable


         2
           Although the post-conviction court opined that trial counsel’s evidentiary hearing testimony about informing
the petitioner of the nature and elements of the homicide charge was more credible than the petitioner’s testimony on
that point, the post-conviction court made no findings that the petitioner’s evidence on other claims was unworthy of
belief.



                                                         -4-
when the declarant is unavailable). One exception that applies when the declarant is unavailable

allows a statement which, when made out of court, “so tended to subject the declarant to civil or

criminal liability . . . , that a reasonable person in the declarant’s position would not have made the

statement unless believing it to be true.” Id. 804(b)(3). For purposes of Rule 804, “unavailability”

includes an exemption “by ruling of the court on the grounds of privilege from testifying concerning

the subject matter of the declarant’s statement.” Tenn. R. Evid. 804(a)(1). Accordingly, a trial

court’s ruling on whether a statement is hearsay is a question of law, and the appellate court reviews

the issue de novo without a presumption of correctness. See Shelia Rae Gibbs v. Robin Media

Group, No. M1999-00820-COA-R3-CV, slip op. at 3 (Tenn. Ct. App., Nashville, Aug. 25, 2000);

Russell v. Crutchfield, 988 S.W.2d 168, 170 (Tenn. Ct. App. 1998).



                Here the post-conviction testimony of Ms. Defosio, Ms. Jackson, Mr. Harris, Donald

Pylant, Maya Pylant, and Ms. Mills about Ms. Davis’s admissions was not hearsay. The statements

were not offered for their truth at the post-conviction hearing. Instead, as post-conviction counsel

explained on numerous occasions at the post-conviction hearing, the statements were offered to show

that the petitioner’s trial attorneys were on notice and had knowledge of the various witnesses’

accounts of Ms. Davis’s statements.



               Thus, the evidentiary significance of the statements lies in the indication that trial

counsel knew of potentially exculpatory evidence. See Carl Ross v. State, No. W1999-01455-CCA-

R3-PC, slip op. at 6 (Tenn. Crim. App., Jackson, Oct. 25, 2000) (holding that “the petitioner failed

to establish that counsel knew or should have known of any alibi defenses or alibi witnesses, much


                                                 -5-
less that any person would have served as an alibi witness”). Establishing counsel’s knowledge is

directly relevant to the question whether counsel’s choice of what information to present to the jury

was professionally reasonable. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065

(1984).



               [S]trategic choices made after thorough investigation of law and facts

               relevant to plausible options are virtually unchallengeable; and

               strategic choices made after less than complete investigation are

               reasonable precisely to the extent that reasonable professional

               judgments support the limitations on investigation. In other words,

               counsel has a duty to make reasonable investigations or to make a

               reasonable decision that makes particular investigations unnecessary.



Id. at 690-91, 104 S. Ct. at 2066.



               A court has no basis for analyzing the aptness of hearsay exceptions when the

statement under review is not even hearsay. Accordingly, the unavailability of Ms. Davis for

purposes of the post-conviction hearing was immaterial. The post-conviction court erred in striking

the testimony of post-conviction witnesses Defosio, Jackson, Wilson, Harris, Donald Pylant, Maya

Pylant, and Mills.




                                                -6-
               That these witnesses’ potential trial testimony was admissible in the post-conviction

hearing in an effort to establish ineffective assistance of counsel, however, is distinct from the issue

whether the effort ultimately succeeds. I will now address substantively the petitioner’s claims of

ineffective assistance of counsel before determining what remedy results from the error in excluding

evidence in the post-conviction hearing.



               To fathom the petitioner’s claims of counsel’s inadequate preparations, one considers

how trial counsel could have used the various indications that Ms. Davis admitted guilt in the

victim’s death. Ms. Davis did not testify at trial. Although originally an indicted co-defendant with

the petitioner, she pleaded nolo contendere to a reduced charge of child neglect prior to trial and

received a four-year sentence.



               Trial counsel’s options regarding Ms. Davis and her extrajudicial statements were

fundamentally defined by whether she was available or unavailable at trial. See Tenn. R. Evid.

804(a).



               Unavailability could have been a consequence of fact or law. For instance, Ms. Davis

could have been “factually” unavailable as unable to be located or physically beyond the reach of a

Tennessee court’s subpoena power. See Tenn. R. Evid. 803(a)(4),(5); State v. Cureton, 38 S.W.3d

64, 79 (Tenn. Crim. App. 2000). Had she appeared in court, she, nevertheless, could have still been

unavailable as a “legal” consequence of refusing to answer questions or pleading a privilege in lieu

of testifying. See Tenn. R. Evid. 803(a)(1), (2).


                                                  -7-
                   Had Ms. Davis been unavailable at trial, the defense could have introduced her

hearsay declarations against her penal interests, an exception to the hearsay rule. See Tenn. R. Evid.

804(b)(3) (providing for admission of hearsay declarations against penal interests, provided the

declarant is unavailable to testify). Clearly, many of the statements attributed to Ms. Davis by the

several post-conviction witnesses were contrary to Ms. Davis’s penal interests; they inculpated her

in a homicide. The petitioner showed in the post-conviction hearing that, had Ms. Davis been

unavailable to testify at trial, various witnesses, if believed by the jury, could have established that

she fatally assaulted the victim as an apparent alternative to the petitioner’s guilt.



                   On the other hand, had Ms. Davis been available and taken the stand at trial, counsel

had tactical options, depending upon how Ms. Davis testified. Had she testified consistently with

the alleged extrajudicial statements, her testimony would have served as direct exculpatory evidence

for the petitioner. Alternatively, she might have denied responsibility for the victim’s death. In that

situation, the defense could have impeached her via asking her about her prior inconsistent

statements. See Tenn. R. Evid. 613(b). If she denied making the statements, the defense could have

presented the trial testimony of witnesses such as Mr. Defosio, Ms. Mills, Ms. Wilson, Ms. Jackson,

Mr. Pylant, Mrs. Pylant, and Mr. Harris. In either case, the jury could have heard palpable evidence

that Ms. Davis killed or admitted killing the victim.3




         3
           In this particular case, it is practically insignificant that Rule 613(b) evidence offered to impeach Ms. Davis’s
denial of guilt would have only been apt for credibility or impeachment purposes. The nature of the crime – laceration
of the victim’s mesentery – suggests that one person fatally assaulted the victim. Thus, impeachment of Ms. Davis’s
testimonial denial of guilt could, as a practical matter, tend to exonerate the petitioner. This could be true even if the
jury followed a trial court’s instruction to consider the prior inconsistent statements for purposes of credibility only.

                                                            -8-
                Consequently, given that counsel admitted in the post-conviction hearing that the

defense theory at trial was that Ms. Davis killed the victim, trial counsel’s failure to subpoena and

utilize an available Ms. Davis at trial or, alternatively, to establish that she was unavailable to testify

at trial, strongly suggests that counsel’s performance was not within the range of competence

demanded of attorneys in criminal cases. Of course, the post-conviction court never considered this

question, having pre-empted the testimony of the petitioner’s witnesses at the post-conviction

hearing. Lead trial counsel testified at the post-conviction hearing that he did not call Ms. Davis as

a witness at trial because he was out-voted by co-counsel and the petitioner. I would reject outright

this explanation as a basis for an informed tactical and strategic decision.



                Turning next to the question of prejudice, I must address the court’s holding in Black

v. State, 794 S.W.2d 752 (Tenn. Crim. App. 1990).



                In Black, this court stated, “When a [post-conviction] petitioner contends that trial

counsel failed to discover, interview, or present witnesses in support of his defense, these witnesses

should be presented by the petitioner at the evidentiary hearing.” Id. at 757. Generally, presenting

such witnesses in the post-conviction hearing is the only way a petitioner can establish that “the

failure to discover or interview a witness inured to his prejudice . . . or . . . the failure to have a

known witness present or call the witness to the stand resulted in the denial of critical evidence

which inured to the prejudice of the petitioner.” Id. Accordingly, a petitioner who establishes that

trial counsel deficiently performed in failing to investigate or call witnesses is yet entitled to no relief

“unless he can produce a material witness who (a) could have been found by a reasonable


                                                    -9-
investigation and (b) would have testified favorably in support of his defense if called.” Id. at 757-

58.



                  In the post-conviction hearing, the petitioner presented 11 witnesses, some of whom

testified to Ms. Davis’s admissions against her penal interests. The petitioner, however, did not

present Ms. Davis in the post-conviction hearing. Yet, he argues on appeal that trial counsel was

remiss in failing to call as trial witnesses not only the myriad individuals who appeared in the post-

conviction hearing, but also Ms. Davis herself. Thus, given the dictates of Black, we must

determine, for purposes of Strickland prejudice, the effect of the petitioner’s not calling Ms. Davis

to testify in the post-conviction hearing.4 Entangled in this issue is the question whether the

petitioner had the post-conviction burden of establishing what would have happened had counsel

called Ms. Davis to testify at trial.



                  Based on the particular facts of this case, this court need not know which of the

plausible eventualities resulting from calling Ms. Davis at trial would have unfolded. For that

reason, counsel’s failure to call her as a post-conviction witness does not preclude a finding of

prejudice.



                  Looking first to the possible eventuality that Ms. Davis would have testified at trial

that she fatally assaulted the victim, one initially observes that, had the post-conviction court as the



         4
          The post-conviction court found that Ms. Davis was factually and physically available for testimony in the post-
conviction hearing.

                                                          -10-
trial court of record found, for instance, that developments at trial revealed Ms. Davis’s disposition

to testify in this vein, the finding itself would have obviated the necessity of presenting Ms. Davis

in the post-conviction hearing pursuant to Black. Moreover, I cannot imagine a situation wherein

such a revelation could have unfolded during the trial without, ipso facto, indicating deficient

performance of trial counsel in failing to call Ms. Davis as a defense witness.



                Looking at the second and third plausible eventualities – that Ms. Davis was

unavailable at trial or that she testified in contradiction to her extrajudicial statements – the substance

of Ms. Davis’s possible trial testimony would not have been the point of these alternatives of the

ineffective assistance claim. Even if she had testified and denied her involvement or denied even

confessing her involvement, proof of the prior inconsistent statements would have been the critical

evidence from the petitioner’s standpoint, not Ms. Davis’s testimony per se. Of course, had she been

unavailable for trial, there could have been no testimony to outline via Black in the post-conviction

hearing. Thus, in order to show prejudice relative to the ineffective assistance claim, the petitioner

need not have demonstrated whether Ms. Davis would have testified at trial, and, if so, whether she

would have confessed on the trial witness stand. Essentially, it did not matter whether or how she

might have testified at trial. The testimony the petitioner presented in the post-conviction hearing

could be viewed as showing prejudice, without Ms. Davis’s post-conviction testimony.



                The bottom line is that, given that the theory of defense was that the homicide was

committed by Ms. Davis, the failure to either call her at trial or establish her unavailability is

ineffective assistance of counsel, assuming that the proffered witnesses were credible, and the failure


                                                   -11-
to utilize Ms. Davis at the post-conviction hearing appears to have no bearing on the issue.

Moreover, trial counsel was unable to articulate in the post-conviction proceeding why doing nothing

at trial about Ms. Davis was justified by strategy.



               These determinations should lead us, upon de novo review of the issue of ineffective

assistance of counsel, to vacate the felony murder conviction and order a new trial – but for one

complication. Because the testimony of the “other” witnesses was stricken from the post-conviction

hearing, the post-conviction court made no findings of credibility of the proffered witnesses, or

whether the stricken evidence could have undermined confidence in the effectiveness of trial

counsel’s assistance.



               Under the circumstances, granting post-conviction relief and ordering a new trial at

this point would usurp the role and function of the post-conviction court. That court conducted a

thorough analysis of the post-conviction issues and, in large measure, premised its finding that the

petitioner failed to show prejudice upon its refusal to consider the testimony about Ms. Davis’s

admissions against penal interests. The rejection of this evidence was based upon the court’s

erroneous ruling that such evidence was inadmissible as hearsay evidence in the post-conviction

proceeding. The post-conviction court would be fully capable of reconsidering the merits of the

post-conviction evidence in light of a holding that the targeted testimony was, indeed, admissible.

Thus, respectfully, we should reverse and vacate the order dismissing the post-conviction petition

and remand the case to the post-conviction court to conduct further proceedings or make further

findings in keeping with the views expressed in this dissenting opinion.


                                                -12-
                At bottom, the test for Strickland prejudice is not an evidence sufficiency inquiry; that

is, a petitioner need not demonstrate that absent counsel’s deficient performance sufficient evidence

to convict would not have existed. Moreover, a petitioner “need not show that counsel’s deficient

conduct more likely than not altered the outcome in the case.” Strickland, 466 U.S. at 693, 104 S.

Ct. at 2068. Indeed, “[t]he result of a proceeding can be rendered unreliable, and hence the

proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the

evidence to have determined the outcome.” Id. at 694, 104 S. Ct. at 2068.



                The appropriate test for prejudice, Strickland says, involves “[a]n assessment of the

likelihood of a result more favorable to the defendant.” Id. at 695, 104 S. Ct. at 2068. Strickland

articulated the assessment, “When a defendant challenges a conviction, the question is whether there

is a reasonable probability that, absent [counsel’s unprofessional] errors, the factfinder would have

had a reasonable doubt respecting guilt.” Id., 104 S. Ct. at 2068-69. A “reasonable probability is

a probability sufficient to undermine confidence in the outcome,” id. at 694, 104 S. Ct. at 2068, and

“a court making the prejudice inquiry must ask if the defendant has met the burden of showing that

the decision reached would reasonably likely have been different absent the errors,” id. at 696, 104

S. Ct. at 2069 (emphasis added).



                Before leaving the issue whether counsel ineffectively investigated and prepared the

petitioner’s trial defense, I acknowledge that some of the post-conviction witnesses testified to Ms.

Davis’s ill treating the victim prior to the victim’s sustaining a fatal blow. The post-conviction court

opined that the post-conviction testimony of such prior bad acts provided no basis for conjecturing


                                                  -13-
about a different outcome at trial. I am uncertain about the court’s rationale. If the post-conviction

court was expressing a disinclination to grant post-conviction relief based upon the prior-bad-act

evidence alone, the court should re-evaluate its view of such evidence in light of, and as a

complement to, any subsequent consideration of the evidence of Ms. Davis’s admissions of guilt.




                                                       ___________________________________

                                                       JAMES CURWOOD WITT, JR., JUDGE




                                                -14-
