        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs June 23, 2015 at Knoxville

      CHRISTOPHER ALLEN CUMMINS v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Wayne County
                    No. 15417    Robert L. Holloway, Jr., Judge


                  No. M2014-01197-CCA-R3-PC – Filed July 9, 2015



The petitioner, Christopher Allen Cummins, appeals the denial of his petition for post-
conviction relief. Following our review, we affirm the judgment of the post-conviction
court denying the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR. and TIMOTHY L. EASTER, JJ., joined.

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the Appellant, Christopher Allen
Cummins.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; T.
Michel Bottoms, District Attorney General; and Beverly J. White, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       The petitioner was convicted by a Wayne County Circuit Court jury of the first
degree murder of his wife’s ex-boyfriend and sentenced to life imprisonment. His
conviction was upheld by this court on direct appeal and our supreme court denied his
application for permission to appeal. State v. Chris Cummins, No. M2011-02264-CCA-
R3-CD, 2012 WL 5193393, at *1 (Tenn. Crim. App. Oct. 22, 2012), perm. app. denied
(Tenn. Mar. 5, 2013). The petitioner’s wife was an eyewitness to the murder and
provided key testimony against the petitioner at his trial, as revealed in our direct appeal
opinion:
        The victim, Buddy Griggs, was the ex-boyfriend of the [petitioner’s]
wife, Krystal Cummins. The victim and Ms. Cummins had two young
children together. The victim disappeared from his mother’s home on April
17, 2010, and his remains were found approximately one month later, after
the historic flood of May 2010, in a wooded area. Although both the
[petitioner] and Ms. Cummins initially denied any involvement with the
victim’s death, Ms. Cummins, after giving numerous contradictory
statements to the police, implicated the [petitioner] and led police to the
victim’s remains.

        Ms. Cummins testified at trial that the [petitioner] was jealous of her
relationship with the victim. According to Ms. Cummins, she had decided
to leave the [petitioner] because he manufactured methamphetamine. Ms.
Cummins testified she brought the victim to the house where she and the
[petitioner] lived because she needed to retrieve her diaper bag prior to
leaving the [petitioner]. She unexpectedly found the [petitioner] at home.
Ms. Cummins testified that there was no immediate hostility between the
victim and the [petitioner] and that the three adults spent time playing with
the children. According to Ms. Cummins, the victim had put his two-year-
old daughter on the hood of a van and was engaged in making sure she did
not fall off when the [petitioner] unexpectedly struck him from behind on
the right side of the head with a sleeve cut from a thermal shirt, filled with
rocks, and secured at either end. Ms. Cummins testified that the
[petitioner] then choked the victim with a wire cut from an exercise
machine and fitted with homemade handles which she had noticed in his
pocket earlier. The [petitioner] wrapped the victim in plastic and placed
him in the trunk of the car. The [petitioner] and Ms. Cummins then drove
the car with the children inside to the victim’s mother’s house and left the
children there. Ms. Cummins also testified that they stopped by a gas
station. After driving various places in an attempt to hide the body and
making a few more stops, the [petitioner] rolled the victim down a ridge.
The [petitioner] then burned various items which might have had physical
evidence on them.

       The [petitioner] gave a statement in which he denied any knowledge
of the victim’s death. However, after he was informed that Ms. Cummins,
in one of her statements, had told the police that he and the victim had been
fighting and he killed the victim, the [petitioner] gave a second statement
which blamed Ms. Cummins for the victim’s death. In this statement, he
asserted that Ms. Cummins had told him the victim attempted to rape her
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      and she hit him with a rock and choked him with some wire, then put him
      in the trunk of the car. The [petitioner] stated that Ms. Cummins removed
      the body from the trunk at their home and wanted to burn the body, but he
      would not let her. He stated that she put the victim’s body back in the trunk
      and left briefly and that he thought she had removed the body from the
      trunk. They then took the children to the victim’s mother’s house, went by
      the gas station, and drove various places. He stated that he did not realize
      the victim was still in the car until Ms. Cummins expressed a desire to go
      down a road to dump the body. When they got home, they burned some
      wood, but he would not let her burn the body at their home. He stated that
      he did not know when the body was removed from the trunk and that Ms.
      Cummins had burned several items.

Id.

      On the Friday afternoon before the Monday start of trial, the prosecutor learned
about an inmate, Brian Smith, who testified at trial that the petitioner confessed the
murder to him during their time together at the jail:

      The inmate testified at trial that the [petitioner] had told him and Steven
      Beersdorf--who was also incarcerated and who was trying to silence a
      prisoner who planned to testify against him--that the [petitioner] had killed
      before and was not scared to do it again. The inmate testified that the
      [petitioner] then privately told him that he had killed the victim with a sock
      full of rocks and strangled him with a wire, and that he did it so that the
      victim would not take the kids away because the kids “would get checks”
      until they turned eighteen. The [petitioner] later, according to the inmate,
      showed him the photographs of the victim’s remains and pointed out a
      fracture that he said was caused by hitting the victim with the rocks. On
      cross-examination, the inmate testified that at one point the [petitioner] had
      animosity towards him because the inmate had called a guard to assist
      another prisoner who had a seizure while the [petitioner] and another man
      were “smacking” him for being a child molester. According to the inmate,
      the [petitioner] showed him the pictures of the victim’s remains in order to
      frighten him. Jeremy Holt testified on behalf of the [petitioner] that he had
      been incarcerated with the inmate witness and that the inmate told him that
      someone wanted the inmate to testify against the [petitioner]. Mr. Holt
      testified that the inmate was trying to get information about the case against
      the [petitioner]. The trial court allowed defense counsel to interview Mr.
      Beersdorf, who was allegedly present when the [petitioner] confessed to
      having killed someone. Although the record shows that the [petitioner]
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       called Mr. Beersdorf and that Mr. Beersdorf testified, the record is missing
       the volume in which Mr. Beersdorf’s testimony is recorded.

Id. at *2.

      Defense counsel presented evidence in support of the petitioner’s claim that his
wife was the one who perpetrated the murder:

       The defense put on proof that Ms. Cummins had, in a conversation with an
       inmate who was housed with her in prison, confessed to killing someone
       and that she told the victim’s aunt by telephone that she had killed the
       victim. The defense proof also included evidence that Ms. Cummins had
       choked a woman with whom she was fighting and that she had thrown a
       boiling teapot at the victim’s head.

Id. at *3.

       The sole issue the petitioner raised on direct appeal was whether the trial court
committed reversible error by denying his motion for a continuance on the basis “that he
was only made aware of [the inmate] witness on the morning the trial began[.]” Id. at *1.
We found no abuse of discretion in the trial court’s denial of the motion, noting that the
petitioner had shown “no prejudice, bad faith, or undue advantage on the part of the
State,” that the prosecution provided the petitioner with Mr. Smith’s criminal history to
aid in cross-examination, and that the trial court extended the trial an extra day to allow
the petitioner to call Mr. Beersdorf to testify. Id. at *4 (internal quotations and citations
omitted).

        On September 25, 2013, the petitioner filed a pro se petition for post-conviction
relief in which he raised claims of prosecutorial misconduct, ineffective assistance of
counsel, and various errors by the trial court. With respect to his ineffective assistance of
counsel claim, he alleged that counsel provided ineffective assistance at trial for, among
other things, not objecting to the prosecutor’s statement in opening that the petitioner was
manufacturing methamphetamine. The petitioner alleged that counsel provided
ineffective assistance on appeal “by failing to incorporate significant and obvious issues
in the petitioner’s appellate brief,” which included counsel’s failure to raise the issue of
whether the evidence was sufficient to sustain the verdict. With respect to his “trial court
error” claim, he alleged that the trial court, among other things, erred by “failing to
properly rule on motions.”

      The petitioner’s allegations of trial court error and ineffective assistance of
counsel are slightly different in his brief than in his petition and at the post-conviction
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evidentiary hearing. On appeal, the petitioner alleges that trial counsel was defective,
thereby prejudicing his case, by not objecting to evidence that the petitioner “cooked
meth,” by improperly influencing the petitioner not to testify at trial, and by not calling a
witness to contradict inmate Smith’s testimony that the petitioner showed Mr. Smith a
photograph of the victim’s injuries while in jail. The petitioner alleges that the trial court
committed reversible error by not issuing written rulings on all pretrial motions, by
allowing the introduction of prior bad acts of the petitioner, and by not granting the
petitioner’s motion for a trial continuance. We will, therefore, for the most part confine
our summary of the evidentiary hearing to testimony that is relevant to these issues.

       The petitioner testified at the hearing that he and his appointed counsel did not
learn about Mr. Smith until the morning of the trial, despite the fact that the prosecutor
had learned of his existence the previous Friday. The petitioner believed that, had the
prosecutor informed them of the witness when he first learned of him, trial counsel would
have had time to investigate Mr. Smith’s background and proposed testimony. For
instance, had trial counsel known earlier of Mr. Smith’s claim that the petitioner had
shown him photographs of the victim’s body, counsel could have presented evidence to
show that the petitioner was not provided any photographs of the victim in discovery and
had no photographs in his possession.

       The petitioner complained that trial counsel not only failed to object to the
prosecutor’s statement in opening that the petitioner was “cooking meth,” but also
himself made a similar prejudicial comment in his closing argument. He further
complained about counsel’s having raised only a single issue on direct appeal and not
having ensured that the entire record of the trial was included in the record on appeal.
The petitioner said he believed that all four of the issues counsel raised in the motion for
new trial should have been raised in the direct appeal.

        On cross-examination, the petitioner acknowledged that trial counsel was provided
with Mr. Smith’s criminal history and was given the opportunity to interview Mr. Smith.
He further acknowledged that the jury heard Mr. Beersdorf’s testimony, which
contradicted Mr. Smith’s testimony about the petitioner’s alleged confession to the crime.
On redirect examination, he recalled that trial counsel met with him only three times prior
to trial. According to his testimony, trial counsel promised to meet with him on the
Saturday and Sunday immediately prior to trial to review the case and to prepare him to
testify, but trial counsel “never showed up.”

       On recross examination, the petitioner testified that he wanted to testify at trial
but, because trial counsel never prepared his testimony and told him that counsel’s wife
thought he should not testify, he agreed not to take the stand. The petitioner
acknowledged, however, that he did not allege in his petition that trial counsel had forced
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him not to testify. He further acknowledged that he had thirty-four felony forgery
convictions, which the State could have used to impeach his testimony.

       Trial counsel, called as a witness by the State, testified that the petitioner’s use and
production of methamphetamine was an issue that was “so intertwined” in the facts of the
case that he did not “see any way that that could be taken out.” As for his having raised
only the single issue on appeal, trial counsel explained that he thought the trial judge had
ruled in the defense’s favor on a lot of the issues throughout trial, thus “limiting what
[they] could do on appeal just because those issues weren’t there.” Counsel said he did
not believe, given the evidence, that he could have raised a sufficiency of the evidence
issue with a “straight face.” Counsel stated that his investigator found witnesses who
were able to testify that the petitioner’s wife had confessed to the murder.

       Trial counsel testified that he met with the petitioner “quite a bit, especially . . .
when [they] were getting ready for . . . trial.” He discussed with the petitioner the
possibility of his testifying, including the fact that he had thirty-four felony forgery
convictions and had given two different stories to the police about the crime. Trial
counsel said the petitioner was “[a]ll for not testifying” at the conclusion of their
discussions. At one point during trial, the petitioner mentioned a desire to testify, but he
changed his mind after another discussion with counsel in which counsel again advised
him not to testify. Counsel recalled that he probably discussed the issue with his wife,
who had witnessed a good portion of the trial, and also probably conveyed to the
petitioner his wife’s opinion that the petitioner should not testify. He said, however, that
whether or not to testify was ultimately the petitioner’s decision.

      Trial counsel testified that he objected to the last minute jailhouse witness and
moved for a continuance, which was denied. He said that Mr. Smith was a devastating
witness and that the more he cross-examined him, “the worse it got.” He was given Mr.
Smith’s criminal record and afforded an opportunity to talk to him before trial, but Mr.
Smith declined to speak with him.

       Trial counsel testified that he issued a subpoena for Jamie Staggs, who had,
supposedly, seen the petitioner turn “white as a sheet” when Mr. Staggs asked him about
the victim. Counsel said he had no knowledge of Mr. Staggs having confessed to the
murder, and if he had had that information, he could have put him on the stand and
questioned him about it. Trial counsel testified that he provided discovery to the
petitioner, which would have included copies of the photographs in the case.

       On cross-examination, trial counsel testified that the prosecutor told him during a
telephone conversation on the Sunday before trial that he might have a surprise for him at
trial. He said he told the prosecutor that he hated surprises and asked him to let him
                                              6
know what it was, but the prosecutor chose not to reveal the nature of the surprise, or the
name of the witness, until the morning of trial. He agreed that had he known about the
witness a month before trial, he could have thoroughly investigated his background and
tried to talk to him about his testimony. Trial counsel said he knew he prepared for the
trial over the weekend, but he could not recall if he visited the petitioner in the jail on that
Saturday or Sunday. Finally, trial counsel testified that, in his opinion, arguing against
the sufficiency of the evidence on direct appeal would have been “frivolous” given the
amount of evidence against the petitioner.

       The petitioner testified in rebuttal that the only photograph he ever received was
one of an automobile; he never had any photographs of the victim’s body or remains in
his possession.

        On May 22, 2014, the post-conviction court entered an order denying the petition,
finding that the petitioner’s claim of prosecutorial misconduct based on the late
disclosure of the witness was an issue that had already been litigated on direct appeal and
that the petitioner failed to show either a deficiency in counsel’s performance or a
resulting prejudice to his case. Thereafter, the petitioner filed a timely appeal to this
court.

                                         ANALYSIS

        The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual
issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a 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).

                         I.      Ineffective Assistance of Counsel

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

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

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is
satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.

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

       The petitioner argues on appeal that counsel was ineffective for not objecting to
evidence that the petitioner manufactured methamphetamine, for improperly influencing
the petitioner not to testify, and for not calling a witness from the jail to contradict Brian
Smith’s testimony that the petitioner showed him a photograph of the victim’s body. The
record, however, supports the post-conviction court’s findings that the petitioner failed to
show either a deficiency in counsel’s performance or prejudice to the petitioner’s case.
                                              8
Trial counsel’s testimony, which was accredited by the post-conviction court, established
that counsel had several discussions with the petitioner about testifying and advised him
of the reasons he thought he should not testify, but left the ultimate decision to the
petitioner. Trial counsel also explained that the methamphetamine evidence was so
intertwined with the facts of the case that he saw no way to exclude it from the trial. As
for counsel’s failure to call a witness to contradict Brian Smith’s testimony that the
petitioner showed him a photograph of the victim, counsel was not even made aware of
Mr. Smith’s existence until the morning of trial. Furthermore, since Mr. Smith refused to
talk to counsel, counsel had no way of knowing in any detail what the substance of his
testimony would be. In sum, the petitioner has not met his burden of demonstrating that
he was denied the effective assistance of counsel. Accordingly, we conclude that the
petitioner is not entitled to post-conviction relief on the basis of this claim.

                            II.    Prosecutorial Misconduct

        The petitioner argues that he is entitled to a new trial because the prosecutor
deliberately concealed a material witness until the morning of trial, violating his due
process rights to a fair trial and prejudicing his defense. The post-conviction court made
the following findings of facts and conclusions of law with respect to this claim:

              Petitioner claims the prosecution failed to timely disclose as a
       witness an inmate who had been in jail with Petitioner. This same issue
       was raised on appeal in the context of the Trial Court erring by failing to
       grant a continuance because the witness was not disclosed to Petitioner
       until the morning of the first day of the trial. The Court of Criminal
       Appeals fully addressed the State’s last minute disclosure of the witness,
       the reasons for the State not disclosing the witness earlier, the steps taken
       by the Court to minimize any prejudice to the defense, and whether the
       Court erred in refusing to grant a continuance. The Court of Criminal
       Appeals found no reversible error and affirmed the Trial Court. Petitioner’s
       ground for relief related to prosecutorial misconduct is without merit
       because the matter was previously determined by [the] Court of Criminal
       Appeals.

       We agree with the post-conviction court that the petitioner’s “prosecutorial
misconduct” claim was determined by this court on direct appeal when we addressed
whether the trial court erred by denying the motion for a continuance. Accordingly, we
conclude that the petitioner is not entitled to post-conviction relief on the basis of this
claim.



                                            9
                                III.    Trial Court Error

        Finally, the petitioner argues the trial court committed reversible error by not
issuing written rulings on all pretrial motions, allowing the introduction of prior bad acts
of the petitioner, and not granting the defense a continuance when the prosecutor did not
disclose the material witness until the morning of trial. These issues, however, have
either been previously determined or are waived for failure to raise them before the trial
court. Accordingly, we conclude that the petitioner is not entitled to post-conviction
relief on the basis of these claims.

                                       CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition.


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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