         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 16, 2003

                   KENA HODGES v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                        No. 96-A-317    Randall J. Wyatt, Jr., Judge



                   No. M2002-01334-CCA-R3-PC - Filed October 10, 2003


Petitioner, Kena Hodges, appeals from the dismissal of her petition for post-conviction relief. After
a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of
the trial court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E.
GLENN, JJ., joined.

Jeffrey S. Pulley, Nashville, Tennessee, for the appellant, Kena Hodges.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; Bernard McEvoy, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                            OPINION

        Following a jury trial in the Davidson County Criminal Court, Petitioner was convicted of
the felony murder and aggravated child abuse of her two-year-old daughter. Her convictions were
affirmed on appeal. State v. Kena Hodges, 1999 Tenn. Crim. App. LEXIS 866, No. 01C01-9804-
CR-00170 (Tenn. Crim. App. at Nashville, August 11, 1999), perm. app. denied (Tenn. 2000).
Subsequently, she filed a pro se petition for post-conviction relief. She was appointed counsel, and
an amended petition was filed. At the post-conviction hearing, Petitioner and her trial counsel were
the only witnesses who testified.

       Petitioner’s trial counsel had been a licensed attorney for approximately eight years at the
time of Petitioner’s trial. He had previous experience in several criminal trials, including murder
cases. Trial counsel’s practice was over eighty percent criminal cases. He met with Petitioner on
more than twenty occasions prior to the trial while Petitioner was incarcerated in the local jail.
Counsel testified that during several of those meetings, he and Petitioner discussed whether she
would testify at trial. He stated that Petitioner never expressed a desire to testify or not to testify at
trial. Counsel admitted that during opening statements and voir dire, he alluded that Petitioner might
testify. He asserted, however, that he had cautioned Petitioner in pre-trial meetings that his advice
to her about testifying might change depending upon how the trial proceeded. Counsel ultimately
advised Petitioner not to testify, and she followed his advice. Counsel stated that he tells all of his
clients that it is ultimately the client’s decision on whether or not to testify, regardless of his advice
on the issue.

        Counsel testified that his advice to Petitioner not to testify was based upon the fact that most
of the evidence that was favorable to Petitioner was brought out on cross-examination of prosecution
witnesses. Additionally, Counsel had serious concerns about Petitioner’s demeanor during the trial,
especially her appearance of having no remorse concerning the death of her daughter. Petitioner’s
husband was a co-defendant in the cases, but the trials had been severed. Petitioner’s husband was
convicted before Petitioner’s trial began, and his convictions and sentences were affirmed on appeal.
See State v. Hodges, 7 S.W.3d 609 (Tenn. Crim. App. 1998). Counsel used a copy of the transcript
from the co-defendant’s trial in preparation for Petitioner’s trial. Petitioner had given statements to
the police, but Counsel testified that he did not file a motion to suppress the statements because there
was not a “suppressible issue.”

         Counsel acknowledged that he did not call a witness to testify regarding the co-defendant’s
statements to the police. Counsel recalled that the trial court had ruled the statements were hearsay,
following a hearing on the State’s motion in limine. However, Counsel also recalled that during
cross-examination, he was able to elicit testimony regarding the substance of portions of the co-
defendant’s statements which were favorable to Petitioner. Counsel also testified that some parts
of the co-defendant’s statements incriminated Petitioner. Counsel stated that he was able to show
the jury that the co-defendant had been alone with the victim all day on the day of the victim’s death;
that the co-defendant had disciplined the victim; and that the co-defendant had bruises on his foot
to corroborate the assertion that the co-defendant had kicked the child. He also elicited testimony
that the co-defendant’s ring was bent and that it had blood or human tissue on it that was never tested
by the State.

         Counsel testified that he never had problems communicating with Petitioner before or during
the trial. He also called witnesses to testify on behalf of Petitioner. He talked to all potential
character witnesses whose names and phone numbers had been provided to him. Based upon his
experience, these witnesses would not benefit Petitioner’s case or would offer detrimental testimony
if called to testify.

        Counsel testified that he spent several hundred hours preparing for trial. Petitioner rejected
the only negotiated plea offer made by the State, which was a guilty plea to second degree murder
and a forty-five-year sentence. Counsel testified that the theory of defense was that the victim
suffered her injuries while Petitioner was at work, and that the co-defendant was the guilty party.
On cross-examination, Counsel testified that he believed that Petitioner’s statements could not be



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suppressed because Petitioner was not in custody when she gave the statements, and there was
nothing to indicate that the statements were coerced or otherwise involuntary.

         Petitioner’s testimony at the post-conviction hearing was remarkably brief and was confined
to the issue of her wanting to testify at trial. She acknowledged that Counsel spoke with her several
times, both before and during the trial, about whether or not she would testify. She stated that
Counsel told her that he did not want her to testify. Petitioner stated that she told Counsel that she
wanted to testify. She testified that Counsel never told her that she would make the final decision
as to whether or not to testify at her trial. At the post-conviction hearing, Petitioner did not offer
what her testimony would have been had she taken the stand at her trial.

         In its order denying post-conviction relief, the trial court implicitly accredited the testimony
of trial counsel and found that he:

         made sound and reasonable decisions regarding every facet of the trial. The
         Petitioner has failed to introduce evidence that meets her burden of showing
         deficient representation. Further, the Petitioner has not demonstrated to the Court,
         any evidence that the outcome at trial would have been different had [trial
         counsel’s] representation been other than provided.

                                              ANALYSIS

Ineffective Assistance of Counsel

         For a petitioner to successfully overturn a conviction based on ineffective assistance of
Counsel, the petitioner must first establish that the services rendered or the advice given was below
“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an
adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not entitled
to relief. Our supreme court described the standard of review as follows:

         Because 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 defendant 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, 104 S. Ct. at
2069).

       The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess
a reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful,


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tactical decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994); see Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        At the post-conviction hearing, the petitioner bears the burden of proving her allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The findings of fact made
by the post-conviction court are conclusive and will not be disturbed unless the evidence contained
in the record preponderates against them. See Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

        Petitioner asserts on appeal that her trial Counsel rendered ineffective assistance at trial by
promising during his opening statement that the defense would prove numerous facts, which could
be proven only through Petitioner’s testimony, and then not calling Petitioner to testify during the
trial. She also argues that Counsel’s representation was deficient because even though he promised
the jury at least eight times during his opening statement that Petitioner would testify, she was not
called as a witness. Petitioner also argues in her brief on appeal that she could have testified to refute
the State’s proof that she was not remorseful or emotional shortly after her daughter was found dead.
She also argues that Counsel failed to properly advise her on her right to testify, and failed to
adequately prepare her for testimony in the event that she did testify.

       By offering absolutely no proof at the post-conviction hearing as to what her trial testimony
would have been had she testified at trial, Petitioner failed to show how she was prejudiced, even
if Counsel had been ineffective.

        Petitioner also argues that Counsel was ineffective by asking the medical examiner if holding
the victim up by her hair while striking the victim could cause a loss of the victim’s hair on each side
of her scalp. Counsel testified that this was brought up during the trial in order to corroborate other
proof that the co-defendant had held the victim up by her hair.

         Petitioner further argues that Counsel’s performance was deficient because he failed to call
Detective Bruce Pinkerton as a witness to testify that Petitioner was “crying” and “hysterical” when
Petitioner arrived at the crime scene shortly after the victim was found dead. Detective Pinkerton
did not testify at the post-conviction hearing. “When 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); see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a
general rule, this is the only way the petitioner can establish that (1) a material witness existed who
could have been discovered but for counsel’s negligent investigation of the case; (2) a known witness
was not interviewed; (3) the failure to discover or interview the witness caused him prejudice; or (4)
the failure to present a known witness or call the witness to the stand resulted in the denial of critical
evidence which caused the petitioner prejudice. Black, 794 S.W.2d at 757. Neither the trial court
nor this court can speculate on what a witness’ testimony might have been if introduced by counsel.
Id.




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         Petitioner asserts that Counsel was ineffective by not filing a motion to suppress Petitioner’s
statements to the police, or by failing to explain why certain incriminating statements were
purportedly made by Petitioner to Detective E. J. Bernard. However, Detective Bernard did not
testify at the post-conviction hearing, and Petitioner offered no proof whatsoever that the statements
would have been suppressed if a motion had been filed.

        Petitioner also argues that Counsel should have objected to various items of irrelevant
evidence during the trial, and that his failure to do so constituted ineffective assistance of counsel.
Of the examples set forth in Petitioner’s brief, Counsel testified as to his trial strategy of cross-
examination to neutralize unfavorable inferences or to turn seemingly damaging testimony into
evidence favorable to Petitioner. As stated above, the post-conviction court found that Counsel
“made sound and reasonable decisions regarding every facet of the trial.” Upon a de novo review,
we cannot conclude that Petitioner has shown that the evidence preponderates against the conclusion
of the trial court on this issue.

       Petitioner asserts that Counsel was ineffective by not properly asserting that the co-
defendant’s incriminating statements were admissible in Petitioner’s trial. Counsel testified that he
was able to put before the jury the substance of the co-defendant’s statements favorable to Petitioner
during cross-examination of other witnesses. Counsel also stated that some portions of the co-
defendant’s statements were highly incriminating to Petitioner. Petitioner failed to put forth any
proof whatsoever at the post-conviction hearing as to why the co-defendant’s statements would be
admissible, and did not present the co-defendant’s statements to the post-conviction court during the
hearing. She therefore failed to show prejudice, even if Counsel’s representation was deficient.

         Finally, Petitioner asserts that Counsel rendered ineffective assistance of counsel in his cross-
examination of Petitioner’s employer, the operator of a children’s care facility. Counsel asked the
employer if it took a special kind of person to work with special needs children as Petitioner had
done. The trial court ruled, upon the State’s argument, that Counsel had “opened the door” for
testimony by the employer that Petitioner was “rough” with the children whom she cared for at the
facility. Counsel testified that he disagreed with and argued against the court’s ruling, but was able
to minimize the harmful effects of the testimony by showing that the employer was biased against
Petitioner.

         In summary, the evidence does not preponderate against the trial court’s findings that
Petitioner received effective assistance of counsel, and that in any event, Petitioner failed to show
prejudice as a result of any alleged deficiencies in Counsel’s performance. Petitioner is not entitled
to relief on this issue.

Suppression of Petitioner’s Statements

       Petitioner next argues that her statements to the police should have been suppressed because
they were not voluntary and were obtained, in part, absent Miranda warnings. This issue could have
been pursued prior to trial, but it was not. It is therefore waived as to her post-conviction hearing.


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A ground for post-conviction relief is waived “if the petitioner personally or through an attorney
failed to present it for determination in any proceeding before a court of competent jurisdiction in
which the ground could have been presented. . . .” Tenn. Code Ann. § 40-30-206(g) (1997).
Furthermore, as noted above, Petitioner did not present any proof whatsoever at the post-conviction
hearing pertaining to her statements being given involuntarily or in violation of her rights pursuant
to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The issue is also
waived by failure to present proof in support thereof at the post-conviction hearing. See Workman
v. State, 868 S.W.2d 705, 709 (Tenn. Crim. App. 1993).

Denial of Petitioner’s Right to Testify

        Petitioner asserts that she is entitled to post-conviction relief because she was
unconstitutionally denied her right to testify at her trial, and waiver of her right to testify cannot be
presumed from a silent record. Petitioner admits in her brief, as she did in her testimony at the post-
conviction hearing, that she “went along” with Counsel’s recommendation not to testify. She argues,
however, that Counsel never told her that she had a right to testify, contrary to his advice. The trial
court implicitly accredited Counsel’s testimony, which was that Petitioner was told she could testify
even if Counsel advised against it, and that Petitioner expressed no desire to testify at her trial.

        The post-conviction court stated in the order dismissing the petition:

         All of the testimony given at the Post Conviction Hearing served to strengthen the
         Court’s belief that [trial counsel] is a thorough, prepared, and competent lawyer
         who has represented all of his clients, including the Petitioner, to the best of his
         ability. . . .

                 ...

         Upon consideration of all the claims advanced by the Petitioner and the testimony
         offered at this hearing, the Court finds no basis for granting post-conviction relief.
         The specific facts the Petitioner alleges as a basis for her ineffective assistance of
         counsel claim are inadequate for a number of reasons. Some of the facts the
         Petitioner alleges are not supported by the evidence and are contradicted by the
         testimony at the hearing.

       In Momon v. State, 18 S.W.3d 152 (Tenn. 1999), our supreme court held that since a
defendant’s right to testify is a fundamental right, it must be personally waived by the defendant.
The Court stated that in future trials the trial court should ensure that defense counsel conducts a
hearing on the record to verify that a defendant has made a knowing, intelligent, and voluntary
waiver of the right to testify. Id. at 162. Petitioner’s trial was conducted in 1997, prior to the
Court’s decision in Momon. The procedural safeguards of Momon are not retroactive. Id. at 162-
163.



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         However, if Petitioner was actually denied her right to testify by her attorney, there would
still be constitutional error. Id. at 163. This, however, is not clearly demonstrated in the record. The
evidence does not preponderate against the trial court’s findings that Petitioner failed to prove by
clear and convincing evidence that she is entitled to post-conviction relief on this or any of the other
issues presented by Petitioner.

                                          CONCLUSION

        The judgment of the post-conviction court is affirmed.




                                               ___________________________________
                                               THOMAS T. WOODALL, JUDGE




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