        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs at Jackson May 5, 2015

                BRIAN J. DODSON v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Maury County
                      No. 18714    Stella L. Hargrove, Judge



              No. M2014-00693-CCA-R3-PC – Filed December 29, 2015



The Petitioner, Brian J. Dodson, was convicted of first degree murder, attempted first
degree murder, and aggravated assault, and he received an effective sentence of life
imprisonment. Thereafter, he filed a petition for post-conviction relief, alleging that his
trial counsel was ineffective and that the trial court violated his due process rights by
refusing to delay the trial until a hospital records custodian arrived at the courthouse to
authenticate the medical records of a witness. The post-conviction court denied the
petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-
conviction court.

  Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROGER A. PAGE, JJ., joined.

Jacob J. Hubbell (on appeal) and Charles M. Molder (at trial), Columbia, Tennessee, for
the Appellant, Brian J. Dodson.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; T. Michel Bottoms, District Attorney General; and Kyle Dodd, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

      On direct appeal, this court summarized the proof adduced at trial as follows:
       Officer Sarah Howell with the Columbia Police
Department testified that she was on patrol the night of the
offenses and responded to a reported stabbing at Parkview
Manor Apartments around 3:45 a.m. on December 14, 2008.
The dispatch information was that a male and a female had
been stabbed. Officer Howell pulled into the apartment
complex and drove to the last building at the end of the drive
where she saw a woman standing at the bottom of the stairs.
The woman was slouched over and had blood on her shirt,
obviously bleeding from her chest area. . . .

       Officer Howell testified that as she got out of her car
and started walking toward the woman, the woman turned
around and walked toward an apartment. Officer Howell
followed the woman to the apartment and initially stood right
inside the doorway. The woman was in the middle of the
living room on her knees, having trouble breathing and
“seemed kind of like she was in shock.” The woman also
appeared as though she was “[p]ossibly” under the influence
of a narcotic.

       Officer Howell testified that the woman identified
herself as Crystal McKee and said that her cousin, Kim
Malone, was dead. When Officer Howell asked [Ms.] McKee
where [Ms.] Malone was, [Ms.] McKee said that she was in
the kitchen. [Ms.] McKee told Officer Howell that she had
been in the back of the apartment cleaning a bedroom when
she heard [Ms.] Malone (“the victim”) screaming. [Ms.]
McKee said that she walked into the living room and saw a
black male, whom she knew as “Lok,” with his hands around
the victim. At that point, “Lok” left the victim alone and
approached [Ms.] McKee. He then proceeded to stab her
with a long blade. [Ms.] McKee could not recall what “Lok”
was wearing. Officer Howell asked [Ms.] McKee if the
stabbing was related to “a drug deal gone bad,” and [Ms.]
McKee answered, “[N]o. It had something to do with
whiskey,” that “Lok” wanted her whiskey.

       Officer Howell testified that, once backup officers
arrived and cleared the scene, she walked into the apartment
and found the victim lying facedown on the kitchen floor. The
victim‟s head was in a pool of blood and there was a large,
                             -2-
open laceration on the left side of her neck. The victim did
not have a pulse.

       Crystal McKee testified that, . . . [around] 3:00 a.m.
[on December 14, 2008], someone started knocking loudly on
the [victim‟s] apartment door and calling the victim‟s phone. .
. . [Ms.] McKee testified that eight to ten minutes after the
victim went to answer the door, she heard the victim
screaming and went to see what was happening. [Ms.]
McKee looked around the corner and saw a man holding the
victim around the waist, repeatedly stabbing her in the back,
smiling the entire time. [Ms.] McKee exclaimed, “Oh, my
God. She can‟t survive that,” and the man looked directly at
[Ms.] McKee and started “tearing” at the victim‟s throat with
the knife. The man laid the victim down on the floor and
approached [Ms.] McKee. He began stabbing her, so she
grabbed a nearby fan to try to push him away. She attempted
to dial 911, and the man stabbed her in the back. When he
pulled the knife out, she misdialed the emergency number.

        [Ms.] McKee testified that she was able to run to the
bathroom and lock the door. She then called 911. She heard
what sounded like a cabinet door slamming, looked out of the
bathroom, and saw the chain on the front door swinging.
Believing that the man was gone, [Ms.] McKee exited the
bathroom to look for the emergency personnel. [Ms.] McKee
waited outside for what “felt like forever” and then went back
inside to be near the victim.

        [Ms.] McKee testified that, when the police arrived, . .
. [t]he officer asked [Ms.] McKee if she knew who had
stabbed the victim, and [Ms.] McKee said, “Lok” and gave a
description of what “Lok” was wearing. [Ms.] McKee said
that she immediately recognized the attacker and said that she
knew him as “Lok.” She had seen him at the victim‟s
apartment on previous occasions but had never had a
conversation with him or known where he lived. On the night
of the stabbing, he was wearing a white cap on top of a “black
blue bandana” and a blue and black flannel coat. [Ms.]
McKee identified the [Petitioner] in court as the attacker and
the person she knew as “Lok.”

                              -3-
       [Ms.] McKee testified that she was transported to the
trauma unit at Vanderbilt Hospital and was in and out of the
hospital for three months because hematomas kept building
up in the area under her left chest. [Ms.] McKee talked to
Detective Duncan while she was in the trauma unit, about
four or five hours after the stabbing, and told him “Lok” was
the person responsible for the stabbing.

       ....

        Nathan Donovan testified that he worked with the
[Petitioner] at Southern Glass Company in Nashville for four
months and that the [Petitioner] was known as “Lok” . . . .

       ....

        Adrian Walker, who was presently incarcerated in the
Williamson County Jail on a probation violation for a theft
conviction, testified that he was incarcerated with the
[Petitioner] in early 2009 in the Maury County Jail. The two
shared a cell together, during which time the [Petitioner] told
him about a situation where two women who owed him $300
“got cut up . . . reasonably bad” and that it was “messed up.”
Walker said that the [Petitioner] told him that he had been
preparing to go out of town for his birthday and “basically
was going to collect the money,” but the women did not have
it. The [Petitioner] told him that he went to the home of a
woman named Lena after the attack and changed his clothes
at her house. The [Petitioner] also told him that the State did
not have the knife. The [Petitioner] showed him black and
white photographs of the murder scene and the two victims.

        Walker testified that, on another occasion when he and
the [Petitioner] were in the same cell in June 2009, the
[Petitioner] showed him color photographs of the murder
scene and told him that the State “had dropped the ball . . .
because they picked up the dumpster and . . . [it] went into the
trash container instead of . . . driving straight to the
detective‟s office.” When showing Walker the photographs,
the [Petitioner] said that the women “got really messed up.”
The [Petitioner] mentioned to him several times that “it was
just about 300 dollars.” On cross-examination, Walker
                              -4-
testified that he also saw photographs of a dumpster and a lot
of trash but, when presented with the discovery photographs,
he was unable to point to any photograph that showed a
dumpster. . . .

        Officer Andre Martin with the Columbia Police
Department testified that he was instructed to retrieve a
dumpster from Parkview Manor Apartments on December 15,
2008, at 10:00 a.m. because officers believed the [Petitioner]
had placed a bag inside that dumpster. Officer Martin went to
the apartment complex with a garbage truck and a flatbed
truck and instructed the driver of the garbage truck to pick up
the dumpster in front of Building G and place it on the flatbed
truck. . . . Instead of following the instructions, however, the
garbage truck emptied the dumpster into the garbage truck.
Officers had to search through the contents of the garbage
truck for a black plastic bag but did not find the bag they were
looking for.

       ....

       Dr. Amy McMaster, qualified as an expert in the field
of forensic pathology, testified that she performed the autopsy
on the victim. Dr. McMaster noted that the victim suffered
sixteen stab or cut wounds to various areas of her body. Dr.
McMaster surmised that the stab wound to the left side of the
victim‟s chest that injured the left lung and the four stab
wounds to her back that injured her ribs, spine, and spinal
cord would have been fatal.

        Helen Blackman Hannah testified that she knew the
[Petitioner] in December 2008, and he went by the nickname
“Lok.” . . .

       Detective Jeff Duncan with the Columbia Police
Department testified that he was the lead detective in this case
and responded to the scene shortly after 4:00 a.m. on
December 14, 2008. Thereafter, he traveled to Vanderbilt
Hospital to talk to Crystal McKee, who was coherent but
“appeared to be still in shock.” [Ms.] McKee gave him a
description of what had happened and of her attacker.
Detective Duncan learned of a traffic stop that occurred the
                              -5-
night before and watched the videotape of the stop. He also
spoke to Nathan Donovan due to Donovan‟s connection to the
phone number that had made calls to the victim‟s phone. As
a result of the police investigation, the [Petitioner] was
developed as the suspect.          The officers located the
[Petitioner‟s] apartment, and Detective Duncan noted that it
was approximately fifty yards from the victim‟s apartment.
Officers executed a search warrant on the [Petitioner‟s]
residence but did not discover the items they were looking
for. They were eventually able to locate the [Petitioner], and
an examination of him revealed no evidence of cuts or
bleeding. Detective Duncan directed the submission of
numerous items to the lab for testing.

      ....

        Agent Hunter Greene, a forensic scientist with the
Tennessee Bureau of Investigation (“TBI”) Crime
Laboratory, testified that she examined items of evidence
submitted in this case for latent fingerprints, and her
examination failed to reveal the presence of any identifiable
prints.

      ....

       Agent Charles Hardy, a forensic scientist in the Swab
and DNA Unit of the TBI Crime Laboratory, testified that . . .
[t]he [Petitioner‟s] DNA was not found on any blood samples
collected from the victim‟s apartment, nor was the victim‟s or
[Ms.] McKee‟s DNA found on any blood samples collected
from the [Petitioner‟s] apartment. . . .

      ....

        Brook Lee testified that she lived at 320 Roberts Drive
in the Parkview Manor Apartments in December 2008. Lee
and the [Petitioner] were engaged at the time, and he stayed
with her “from time to time.” On December 13, she and the
[Petitioner] left her apartment around 9:00 p.m. to get
something to eat, but they ended up stopping at two different
gas stations. After leaving the second gas station, they were
pulled over by a police officer. Thereafter, sometime around
                             -6-
10:30 or 10:45 p.m., they went to a car wash. They finally
went back to Lee‟s apartment around midnight.

        Lee testified that, at her apartment, she and the
[Petitioner] ate and watched a movie, which ended around
2:00 or 2:15 a.m. At some point, both Lee and the
[Petitioner] fell asleep, but Lee was awakened around 3:00
a.m. when she heard the door open and discovered that the
[Petitioner] was going outside. He told her that he was going
to smoke and let the dog out, then he returned shortly
thereafter. Once the [Petitioner] was back inside the
apartment, Lee fell asleep again but woke up when she heard
someone knocking on the door. Looking through the
peephole, Lee saw that a woman named “Banks” who lived in
the apartment complex was at the door, but Lee did not open
it. The [Petitioner] asked who was at the door, and Lee told
him. A few minutes later, the [Petitioner] walked outside and
was gone about fifteen minutes. It was approximately 3:30
a.m. at the time.

        Lee testified that the [Petitioner] looked the same
when he returned as he had when he left. He was wearing
dark pants, a flannel shirt, and a jacket. She thought he also
had on his toboggan hat and a do-rag. The [Petitioner] was
not out of breath or excited and did not have any blood on
him. Once back in the apartment, the [Petitioner] sat on the
couch for fifteen minutes and then took a shower. Five
minutes later, Lee heard sirens. When the [Petitioner] got out
of the shower, Lee got into bed. The [Petitioner] put on his
work clothes and joined her.           Shortly thereafter, the
[Petitioner] got up to get ready for work and left around 5:00
a.m. Lee noted that, when the [Petitioner] got out of the
shower, he had shaved his head. He explained to her that
growing out his hair was “„just too high maintenance[.]‟” The
[Petitioner] had also shaved his beard and eyebrows. Lee
stated that she did not observe the [Petitioner] talking on the
phone the entire time they were together that evening and
early morning, aside from during the traffic stop.

        Clifford Bowen, an assistant in counsel‟s law office,
testified . . . that he was familiar with all 714 photographs [in
the discovery materials for the Petitioner‟s case] and said
                              -7-
there was no photograph of a dumpster with trash in it or a
photograph of a garbage truck. . . .

       ....

        Antonio Turentine testified that he was at the Parkview
Manor Apartments in December 2008, the night before the
stabbing incident, to attend a cookout for his cousin‟s
birthday. Antonio‟s cousin lived in the apartment above the
[Petitioner] and his girlfriend. The cookout started around
5:00 or 6:00 p.m. and lasted until 2:00 or 2:30 a.m. When
Antonio was leaving the party, he saw the [Petitioner] outside
with a puppy, either rolling up the windows of his car or
making sure his car was locked.

       Randall Turentine testified that he used to “hang out”
at Parkview Manor Apartments and remembered a time he
attended a party there with his cousin, Antonio. Randall
recalled that he saw the [Petitioner] sometime during that
evening when “it was just getting dark” outside.

        The [Petitioner] testified that he lived with his
girlfriend, Brook Lee, at 320 Roberts Drive in December
2008. Early in the evening of December 13, 2008, the
[Petitioner] was alone at the apartment, so he stopped by a
party that was going on in the apartment upstairs and talked to
some people, specifically the “Turentine boys.” Around 7:00
or 8:00 p.m., the [Petitioner] and Lee left the apartment and
“rode around . . . contemplating . . . where [they] wanted to
go.” They eventually decided to go to Nashville but were
pulled over by the police before heading in that direction.
After the traffic stop, they went to a car wash and then
decided to return to Lee‟s apartment because it was around
midnight.

       The [Petitioner] testified that, back at the apartment, he
turned up the heat and took off his flannel jacket and hat. Lee
prepared dinner, and the two sat down to watch a movie
around 12:15 or 12:30 a.m. After they finished watching the
movie, there was a knock on the door. Lee went to the door
and saw that it was Ms. Banks, who also lived in the complex,

                              -8-
at the door. The [Petitioner] explained that Ms. Banks was an
elderly lady who sometimes came over to ask for cigarettes.

       The [Petitioner] testified that, around 3:10 or 3:15
a.m., he left the apartment to take his puppy out and go to his
car to get his cigarettes and have a smoke. He estimated that
he was outside for about five minutes before he went back in.
The [Petitioner] explained that it was not unusual for him to
be outside at that hour because he worked for a company in
Nashville and had to be at work at 6:00 a.m. As such, he
would typically get up around 3:30 or 4:00 a.m. to get ready
for work.

       The [Petitioner] testified that he went back outside five
to ten minutes later, around 3:30 or 3:40 a.m. He let the
puppy out again and went to his car to roll up the windows
and lock the door. When he return[ed] to the apartment, he
sat on the couch and watched television for fifteen to twenty
minutes. After that, he shaved his head, beard, and eyebrows
and took a shower.

        The [Petitioner] testified that, while he was in the
shower, Lee came in and told him that there had been a
stabbing or shooting in the apartment complex.           The
[Petitioner] told her to stay away from the window in case
someone was outside shooting. After his shower, the
[Petitioner] dressed in lounge clothes and got into bed. He
woke up around 5:00 or 5:30 a.m., ate breakfast, and left the
apartment.

       ....

       The [Petitioner] testified that he met the victim in the
summer of 2008 when she was having car trouble, and he
helped start her car. He knew that the victim lived in an
apartment in the building adjacent to his girlfriend‟s building
and talked to her on the phone and visited her apartment
occasionally. He had seen Crystal McKee before but had
never had a conversation with her. The [Petitioner] denied
going to the victim‟s apartment or calling her on the night of
the incident. The [Petitioner] said that he had not received
any discovery photographs in January 2009 – the first time he
                              -9-
               and Adrian Walker were housed together in the Maury
               County Jail.

                       On cross-examination, the [Petitioner] recalled that he
               showed Adrian Walker some black and white photographs of
               the crime scene but said that he did not recall showing Walker
               any color photographs. However, he said that he did not tell
               Walker that the women were stabbed because they owed him
               $300 for drugs. The [Petitioner] admitted that he received a
               copy of his case file from counsel and was aware of the
               situation regarding the contents of the dumpster being lost,
               but he denied mentioning anything about that to Walker.

                       ....

                     After the conclusion of the proof, the jury convicted
               the [Petitioner] of the first degree premeditated murder of
               Kim Malone and the attempted first degree murder and
               aggravated assault of Crystal McKee.

State v. Brian Jermaine Dodson, No. M2011-00523-CCA-R3-CD, 2012 WL 2403624, at
*1-9 (Tenn. Crim. App. at Nashville, June 27, 2012) (footnotes omitted).

       Thereafter, the Petitioner filed a timely petition for post-conviction relief, alleging
in pertinent part that his due process rights were violated when the trial court denied his
request for a brief recess to allow a favorable witness to arrive and that trial counsel was
ineffective by failing to call an expert in eyewitness identification.1

       At the post-conviction hearing, the Petitioner testified that trial counsel
represented him at trial and at the sentencing hearing but that a different attorney
represented him at the motion for new trial hearing. The Petitioner said that he was
incarcerated the entire time he was represented by trial counsel. He met with trial
counsel three or four times; they spoke over the telephone on a few occasions; and they
also communicated through letters. The Petitioner acknowledged that trial counsel
contributed money to a Telecoin card so that the Petitioner could call trial counsel‟s
office. The Petitioner thought trial counsel could have kept him more informed and
better prepared for trial. Nevertheless, he acknowledged that trial counsel talked with
him about the issues and the type of defense they would pursue. Additionally, trial
counsel supplied the Petitioner with discovery materials. The Petitioner later conceded

1
  The Petitioner has abandoned the remainder of his claims on appeal. We will concern our recitation of
the facts mainly to the claims he raises on appeal.
                                                    - 10 -
that “it wasn‟t so much that [trial counsel] didn‟t keep [the Petitioner] informed as much
[as] it was that [the Petitioner] disagreed with [trial counsel‟s] trial strategy.” The
Petitioner opined that trial counsel‟s failure to “stay on course” was due to his “lack of
seasoning or inexperience.”

       The Petitioner conceded that trial counsel informed him of the charges he was
facing and the potential sentences. He alleged, however, that the information was “touch-
and-go” and infrequent.

       The Petitioner said that he and trial counsel decided early in the case that the
Petitioner would need to testify. Trial counsel did not, however, ask the Petitioner any
mock questions to prepare him to testify.

        The Petitioner said that Ms. McKee‟s medical records from Vanderbilt Hospital
reflected that when she was asked who stabbed her, she responded, “The assailants were
unknown.” Trial counsel subpoenaed the hospital‟s records custodian, but she did not
arrive at the courthouse in time to testify at trial. The Petitioner did not understand why
trial counsel did not try to have the records admitted without the records custodian.

        The Petitioner thought that identification was the State‟s weakest issue; however,
trial counsel failed to make it a central issue of the defense. He acknowledged that the
jury heard the 911 call during which Ms. McKee said that she did not know who the
perpetrator was. He opined that Ms. McKee‟s medical records would have provided
another instance where Ms. McKee said that she did not know the identity of the
perpetrator. The Petitioner acknowledged that during closing argument, trial counsel
argued that the jury should not believe Ms. McKee‟s identification of the Petitioner
because she did not identify him as the perpetrator during the 911 call. The Petitioner
also acknowledged that the records custodian‟s failure to be present in court on time was
not trial counsel‟s fault.

        The Petitioner contended that the trial court committed a due process violation by
not granting a twenty to thirty minute recess so that the hospital‟s records custodian could
get to court. He acknowledged that he was not at the hospital during Ms. McKee‟s intake
procedure and that he did not know if the medical staff asked who stabbed her.
Nevertheless, he questioned why the intake report would reflect that Ms. McKee said her
assailants were unknown if the medical staff had not asked about it.

        The Petitioner acknowledged that trial counsel sought the help of Dr. Jeffrey
Neuschatz, an expert in eyewitness identification. The Petitioner wanted Dr. Neuschatz
to testify regarding factors that impact the reliability of eyewitness identification, such as
cross-race identification and stress. The Petitioner told trial counsel that he wanted Dr.
Neuschatz to testify, but trial counsel did not consult with the Petitioner regarding the
                                            - 11 -
decision whether to call Dr. Neuschatz. The Petitioner acknowledged he and trial
counsel might have talked about Dr. Neuschatz‟s testimony having the potential to
strengthen the State‟s case, but he did not recall such a conversation. The Petitioner
contended that the decision not to call Dr. Neuschatz to testify was not a joint decision.

       The Petitioner said that he had never been in the same room with Ms. McKee but
that he might have seen her “in passing,” noting that his girlfriend and Ms. McKee lived
close to each other. Although Ms. McKee said that she had seen the Petitioner at the
victim‟s apartment, the Petitioner did not recall seeing Ms. McKee there. The Petitioner
said that he was a stranger to Ms. McKee, explaining, “I wasn‟t acquainted with her.” He
asserted that “just because she testified that she was familiar with me doesn‟t actually
mean that she was familiar with me.”

       Trial counsel testified that he had practiced law for twelve years and that his
practice was almost exclusively criminal law. He was appointed to represent the
Petitioner in early spring 2009 and was relieved as counsel after the sentencing hearing
but before the motion for new trial hearing.

       During trial counsel‟s representation, he communicated with the Petitioner every
time they were in court, visited the Petitioner in jail, and put money in the Petitioner‟s jail
account so that the Petitioner could call trial counsel‟s office. Trial counsel said that he
and the Petitioner spoke often over the telephone.

       Trial counsel recalled that the Petitioner was active in the case and did a lot of
reading on the issues. The Petitioner frequently asked trial counsel to print cases for him.
Additionally, trial counsel gave the Petitioner copies of the discovery materials. Over the
fourteen to fifteen months trial counsel represented the Petitioner, trial counsel visited the
Petitioner in jail approximately eighteen to twenty times. Trial counsel said that the
Petitioner was heavily involved in every aspect of the case. They talked many times and
had a plan for how to proceed at trial.

        Trial counsel said that Ms. McKee‟s identification of the Petitioner as the
perpetrator was a “major issue” at trial. Ms. McKee did not identify the Petitioner by
name but by a nickname. Ms. McKee said that she had seen the Petitioner selling drugs
to her cousin, the victim.

        Trial counsel said that the State played a recording of Ms. McKee‟s call to 911.
On the tape, Ms. McKee stated that she did not know the identity of the person who
stabbed her and the victim. Trial counsel cross-examined Ms. McKee about her failure to
identify the Petitioner during the 911 call. During closing argument, trial counsel argued
that although the call occurred close in time to the stabbing, Ms. McKee was unable to
identify her assailant at that time.
                                             - 12 -
        Trial counsel obtained funding to hire Dr. Neuschatz, an expert in eyewitness
identification who was employed by the University of Alabama. Dr. Neuschatz would
have testified that various factors could negatively impact the reliability of an
identification, namely when the witness identified a person of a different race, if a
weapon was involved, whether the event was a high-stress situation, and the proximity of
the witness to the person being identified. Trial counsel said that Dr. Neuschatz asked if
Ms. McKee had known the Petitioner prior to the incident. Trial counsel responded that
Ms. McKee had testified at the preliminary hearing that she had “seen [the Petitioner]
around” and that she had known the Petitioner as the victim‟s drug dealer. Dr. Neuschatz
said that Ms. McKee‟s “familiar knowledge” of the Petitioner would strengthen her
identification of the Petitioner, which was the opposite of what the defense wanted.

       Trial counsel said that he advised the Petitioner that Dr. Neuschatz‟s testimony
could hurt the defense and benefit the State and that trial counsel did not think having Dr.
Neuschatz testify would be worth the risk. The Petitioner was disappointed, but trial
counsel thought he agreed with the decision not to call Dr. Neuschatz.

        Trial counsel said that after the decision was made not to call Dr. Neuschatz, he
focused on impeaching Ms. McKee‟s identification of the Petitioner. Trial counsel did
not know what conversation had taken place between Ms. McKee and the medical staff,
but Ms. McKee‟s medical records reflected that during the intake interview, she stated
that her assailant was unknown. On cross-examination, he asked Ms. McKee if she had
told hospital staff that she could not identify her assailant, and she denied telling hospital
staff that she could not identify the assailant.

        Prior to trial, trial counsel issued a subpoena and a subpoena duces tecum for the
records custodian at Vanderbilt Hospital in order to authenticate Ms. McKee‟s medical
records. Trial counsel was required to issue the subpoenas because the State refused to
stipulate to the medical records. Trial counsel knew that the subpoenas were served.
During the presentation of the defense‟s proof, trial counsel learned that the records
custodian had not arrived. He called the hospital and learned that she was still there. She
told trial counsel that she was not aware that she needed to come to court. At that time,
trial counsel had a “heated” conversation with her, during which he told her to come to
court or he would have her put in jail. At that point, she left the hospital and began
driving to the courthouse.

       Trial counsel said that he put on his remaining witnesses, whose testimonies were
very short. At the conclusion of his proof, the records custodian was approximately thirty
minutes away from the courthouse. Trial counsel thought he informed the trial court that
the records custodian had misunderstood the subpoena and that he needed a delay for his

                                            - 13 -
witness to arrive.2 He said, “I forget the exact language, but it was denied.” Following
the denial, trial counsel concluded the defense‟s proof. Trial counsel acknowledged that
the jury had already heard the tape of the 911 call during which Ms. McKee said that she
did not know the identity of her assailant. Nevertheless, trial counsel wanted the jury to
hear that Ms. McKee also told the hospital‟s medical staff that she could not identify her
assailant. He explained that the medical records would have added to the inconsistencies
in her identification.

       Trial counsel said that he could not think of anything else he should have done on
the Petitioner‟s case. He explained that “we just exhausted everything I could think of”
but that “a lot of things didn‟t work out.”

        On cross-examination, trial counsel stated that Ms. McKee was the State‟s key
witness because the main issue in the case was identification. At the preliminary hearing,
Ms. McKee testified that she did not know the Petitioner well and did not know his name
but that she had seen him three to six times and knew his nickname. Trial counsel
contacted Dr. Neuschatz about discrediting Ms. McKee‟s identification due to the high-
stress situation, the use of a weapon, and the cross-racial identification.3 Additionally,
Ms. McKee had used cocaine at some point prior to the incident. However, Dr.
Neuschatz said that Ms. McKee‟s “familiar knowledge” of the Petitioner, such as seeing
him on prior occasions, would have bolstered her identification. Trial counsel
acknowledged that “the discovery was kind of riddled with these familiar knowledge‟s
[(sic)], where she had seen him at the apartment complex.” Trial counsel said Dr.
Neuschatz would have been a good witness if the State had not asked about Ms. McKee‟s
familiarity with the Petitioner, but trial counsel was certain the State would ask about it.
Trial counsel opined that if Dr. Neuschatz had testified that Ms. McKee‟s familiar
knowledge of the Petitioner would have bolstered her identification, the testimony would
have been “catastrophic to the [d]efense.”

       Trial counsel said that he told the Petitioner that it would be “too risky” to call Dr.
Neuschatz as a witness, and the Petitioner did not object “too much.” Because the
Petitioner had been very “vocal” in other areas of the case, trial counsel thought the
Petitioner agreed with the decision not to call Dr. Neuschatz.

      At the conclusion of the hearing, the post-conviction court accredited trial
counsel‟s testimony that he made a strategic decision not to call Dr. Neuschatz because

2
  We note that in his brief, the Petitioner did not provide a citation to the trial transcripts where trial
counsel requested a delay, and our review revealed no such request in the trial transcripts. Nevertheless,
the post-conviction court, which was also the trial court, referenced its refusal to delay the trial in order
for the records custodian to arrive.
3
  See State v. Copeland, 226 S.W.3d 287, 302-04 (Tenn. 2007) (stating that an expert witness may testify
regarding factors that impact the reliability of eyewitness identification).
                                                    - 14 -
he feared the doctor‟s testimony would benefit the State and hurt the Petitioner. The
court further accredited trial counsel‟s assertion that the Petitioner did not have a “strong
objection” to the decision. The post-conviction court further found that the medical
records reflected that Ms. McKee reported that her assailants were unknown, that she was
in pain at the time of the conversation, and that she was “hesitant to discuss the incident.”

       The post-conviction court observed that

              Ms. McKee testified and was cross-examined on the second
              day of trial. The State rested on the third day; the defense
              called three witnesses. On the fourth day, the defense called
              eleven witnesses, including [the Petitioner]. The [trial court]
              refused to allow additional time for the custodian of records
              to arrive, believing that 30 minutes was not an accurate
              assessment of time for her to arrive in Maury County.
              Obviously, this witness could only enable Petitioner to get the
              Vanderbilt records into evidence. Some intake person had
              noted on the records that the assailants were unknown. Ms.
              McKee never, ever denied that she did not know her
              assailant‟s name at the time she was stabbed.

       The post-conviction court found that the Petitioner was not entitled to relief. On
appeal, the Petitioner challenges the post-conviction court‟s ruling.

                                       II. Analysis

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. ' 40-30-110(f). “„Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court‟s findings of fact de novo with a presumption that those findings are correct. See
                                            - 15 -
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,

                      [b]ecause a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice provides
              a sufficient basis to deny relief on the ineffective assistance
              claim. 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, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

        The State argues that the Petitioner is not entitled to post-conviction relief due to
any alleged due process violation by the trial court because he did not present it for
review in his direct appeal. We agree. Under the Post-Conviction Procedure Act, waiver
occurs when the “the petitioner personally or through an attorney fail[s] to present [the
claim] for determination in any proceeding before a court of competent jurisdiction in
which the ground could have been presented.” Tenn. Code Ann. ' 40-30-106(g). Waiver
in a post-conviction context is determined by an objective standard under which a
petitioner is bound by the action or inaction of his attorney. House v. State, 911 S.W.2d
705, 714 (Tenn. 1995). The presumption that a ground not raised has been waived is
rebuttable. Tenn. Code Ann. ' 40-30-106(g). To rebut the presumption, however, the
petition must contain “allegations of fact supporting each claim for relief set forth in the
petition and allegations of fact explaining why each ground for relief was not previously
presented in any earlier proceeding.” Id. § 40-30-104(e). The record leads us to
conclude that the claim of a due process violation was waived by the Petitioner‟s failure
to raise it on direct appeal.

       The Petitioner‟s remaining claim, which is that trial counsel was ineffective by
failing to call Dr. Neuschatz to testify at trial, is equally unavailing. The Petitioner did
                                            - 16 -
not produce Dr. Neuschatz to testify at his post-conviction hearing. Generally, “[w]hen a
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.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We
may not speculate on the potential benefit this witness might have offered to the
Petitioner‟s case. Id. Accordingly, the Petitioner has failed to demonstrate prejudice.
Moreover, trial counsel testified that a tactical decision was made not to call the doctor
because his testimony could potentially bolster Ms. McKee‟s identification of the
Petitioner. On appeal, this court may not second-guess the tactical or strategic choices of
counsel unless those choices are based upon inadequate preparation, nor may we measure
counsel‟s behavior by “20-20 hindsight.” See State v. Hellard, 629 S.W.2d 4, 9 (Tenn.
1982). The post-conviction court found that trial counsel‟s tactical decision was made
after thorough preparation for trial. We agree. We conclude that the Petitioner is not
entitled to post-conviction relief on this basis.

                                     III. Conclusion

       Finding no error, we affirm the judgment of the post-conviction court.


                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE




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