        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 21, 2010

              WILLIAM A. HAWKINS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Sullivan County
                         No. C52,695     R. Jerry Beck, Judge


                 No. E2010-00795-CCA-R3-PC - Filed January 4, 2011


The petitioner, William A. Hawkins, aggrieved by his Sullivan County jury conviction of
premeditated first degree murder for which he received a sentence of life imprisonment, filed
a petition for post-conviction relief alleging that his conviction was the product of ineffective
assistance of counsel and other constitutional deprivations. Following the appointment of
counsel, amendment of the petition, and an evidentiary hearing, the trial court denied relief.
On appeal, the petitioner argues that the trial court erred in denying him relief. Discerning
no error, we affirm the order of the trial court.

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

J AMES C URWOOD W ITT , J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and D. K ELLY T HOMAS, J R., J., joined.

Katherine L. Tranum, Kingsport, Tennessee, for the appellant, William A. Hawkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                A Sullivan County jury convicted the petitioner of the April 2002 premeditated
first degree murder of Roy Vittatoe. The petitioner received a sentence of life imprisonment.
This court affirmed the conviction and sentence on direct appeal. See State v. William A.
Hawkins, No. E2004-01761-CCA-R3-CD (Tenn. Crim. App., Knoxville, Nov. 4, 2005). The
petitioner timely filed a pro se petition for post-conviction relief. Following the appointment
of counsel, amendment of the petition, and a full evidentiary hearing, the trial court found
that the petitioner had failed to present clear and convincing evidence to establish his claims
for relief. Accordingly, the trial court denied post-conviction relief, and this timely appeal
followed.

               The facts of the offense are detailed in this court’s direct appeal opinion. See
Hawkins, slip op. at 1-11. In summary, the evidence at trial showed that the victim and the
petitioner were friends who had recently had an altercation concerning the petitioner’s
girlfriend. On April 20, 2002, the petitioner asked Chastity Lee Gentry and Mark Gentry to
drive him to the victim’s home. He instructed the couple to wait for him at a nearby church.

              After approximately five minutes, the [petitioner] . . . returned
              to the Gentrys’ van. Mrs. Gentry noticed that the [petitioner]
              had blood on his face, and, when she asked him about it, he told
              her that he and the victim had gotten into a fight. The
              [petitioner] also told her that he had left the victim for dead. He
              described the scene as “gruesome as hell,” and he said that he
              was glad she and Mr. Gentry did not see it. . . . The [petitioner]
              told the Gentrys that the victim and his brother “had done
              something to [the petitioner’s girlfriend] in front of her
              children.”

Id. at 2. The couple and the petitioner stopped at a nearby gas station where Mrs. Gentry
reported seeing the petitioner “throw something in a dumpster and noticed he was no longer
wearing socks or shoes.” Id. Mrs. Gentry also recalled that the petitioner “had blood on his
arm and all over his shorts.” Id. The Gentrys drove the petitioner to the home of his sister,
Judy Garrett. Judy Garrett found the defendant’s bloody shorts and, after hearing news of
the victim’s death, placed the shorts in a duffel bag. Ultimately, she delivered the bloody
shorts to investigators after the petitioner’s arrest for the victim’s murder. Following a
waiver of his Miranda rights, the petitioner confessed to killing the victim but claimed it
occurred in self-defense after the victim “began calling him derogatory names” and hit him
while “armed with a gun.” The petitioner claimed that he picked up a stick and beat the
victim in the head “when the victim swung the gun” at him. At trial, the petitioner testified
consistently with his statement alleging self-defense. He admitted telling his sister that “he
had killed the victim because he was bored,” but he maintained that he had said that
sarcastically. Id. at 11.

               The petitioner testified at the post-conviction evidentiary hearing that trial
counsel performed deficiently by failing to locate and present certain witnesses, by failing
to seek suppression of his statement to police based upon his alleged intoxication at the time
of his statement, by failing to seek suppression of the bloody shorts based upon an alleged
illegal search of his cellular telephone, by failing to impeach the Gentrys regarding certain

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inconsistent statements made by Mr. Gentry, and by failing to present the expert testimony
of Doctor Charlton Stanley concerning the petitioner’s ability to form the mens rea to rebut
evidence of premeditation presented by the State. As we will discuss further, much of the
petitioner’s testimony was notably conclusory and offered no evidence of prejudice stemming
from these alleged deficiencies.

               The petitioner also presented the testimony of Captain Joseph Strickler of the
Sullivan County Sheriff’s Office (SCSO) in support of his allegation that trial counsel failed
to seek suppression of his statement to police or to cross-examine effectively at trial the law
enforcement witnesses. Captain Strickler testified that the petitioner told the police that he
had consumed half a case of beer and 20 Lortabs on the day of his statement. He testified,
however, that the petitioner was not intoxicated when he waived his rights and gave his
statement. Captain Strickler also explained that he took detailed notes of the petitioner’s
demeanor and actions during the statement, rather than the substance of the statement, and
explained that any differences in his notes and the defendant’s statements were the result of
the different purpose underlying his note-taking. He reiterated that the petitioner showed no
indicia of intoxication and was able to respond to all questions appropriately during his
interview.

                Edward Lynn Cardwell testified that he knew the victim and the petitioner from
jail. He recalled witnessing an altercation between the victim and the petitioner after which
the victim offered anyone “five packs of tobacco” to “put [the petitioner] down.” He recalled
that he had spoken with trial counsel and conveyed this information to him prior to the
petitioner’s trial, but he had not been subpoenaed to testify. Mr. Cardwell also conceded that
he had never seen the victim act violently.

              Doctor Charlton Stanley, a forensic psychologist, testified that he performed
a forensic evaluation of the petitioner and determined that the petitioner “probably acted on
impulse rather than premeditation” when he killed the victim. He admitted that he was
unaware of the animosity between the petitioner and the victim or of the petitioner’s disposal
of items following the murder. Doctor Stanley also testified that the petitioner reported that
he had consumed between 16 and 20 Xanax on the day of the murder. Doctor Stanley,
however, did not believe that the petitioner had actually taken that much Xanax. Doctor
Stanley said that he was prepared to testify at trial but was never asked to do so by trial
counsel.

               The State presented the testimony of SCSO Major Reece Christian who took
the petitioner’s statement at his arrest on April 24. Major Christian said that the petitioner
reported drinking half a case of beer and taking about 20 Lortabs that day but that he did not
appear intoxicated. Major Christian also noted the differences between the petitioner’s

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statement and Captain Strickler’s notes. He explained that Captain Strickler’s notes naturally
contained different information because they were taken to record the petitioner’s demeanor
during the interview.

                Penny Tester, the health administrator with the SCSO, reviewed the petitioner’s
medical records from his arrest which noted the petitioner’s report of consuming beer and
Lortabs. The records also noted, however, that the petitioner did not appear to be intoxicated
and did not require any detoxification treatment while at the jail. The petitioner’s health
records also revealed that the petitioner was taking one Valium, three times daily, at the time
of trial to treat symptoms of anxiety.

               Trial counsel testified that he and his office’s investigator went to the crime
scene and interviewed all relevant witnesses. Trial counsel said that the petitioner never
asked him to interview Mike Johnson in an effort to establish the petitioner’s drug-impaired
condition on the day of the murder. He testified that the petitioner did not ask him to call the
Gentrys or any other witnesses at the preliminary hearing. He explained that he generally
would not call witnesses at a preliminary hearing because the nature of a preliminary hearing
is only to determine probable cause that the offense was committed by a defendant.
Regarding the petitioner’s allegation that trial counsel failed to interview the Gentrys, trial
counsel testified that he made several attempts to talk to the Gentrys but that they refused to
speak with him. Regarding other nonspecific witnesses that the petitioner claimed trial
counsel refused to call as witnesses, trial counsel testified that he would never call witnesses
“unless [he had] some idea that they’re going to help [his] client.” Trial counsel specifically
recalled that he “had no reason to believe . . . that Mr. Gentry would be any help” to the case.

               Trial counsel acknowledged that he did not file a motion to suppress the
petitioner’s statement, because, he explained, he wanted to keep the statement in evidence
as a manner of presenting the petitioner’s version of the events to the jury. He also
determined that there was no basis to suppress the statement. He did recall, however, cross-
examining Major Christian regarding the petitioner’s alleged intoxication at the time of his
statement. He indicated that he spoke to the petitioner’s sisters several times. He specifically
discussed with the sisters the manner in which the police received the bloody shorts and
determined that there was no basis to seek suppression of the shorts.

              Trial counsel stated that he did not initially intend to call the petitioner to
testify. When the trial court excluded the recordings of jail telephone conversations in which
the victim indicated some animosity toward the petitioner, however, trial counsel had no
choice but to call the petitioner to testify. Trial counsel recalled that he and the petitioner
discussed his testimony over a weekend during the trial and that the petitioner testified on a
Monday morning. Trial counsel said that, although the jail recordings were excluded, several

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witnesses testified concerning the victim’s animosity toward the defendant.

               Trial counsel testified that there was no basis to seek an independent
pathologist because the petitioner had admitted to the offense, the evidence was very clear
that the victim suffered a brutal attack, and the petitioner had little or no injuries from the
encounter with the victim. Trial counsel also stated that he decided not to call Doctor Stanley
because any evidence showing that the petitioner was unable to form the requisite mens rea
would have been inconsistent with the defense theory of self-defense. Trial counsel
remarked that there “wasn’t much doubt that [the petitioner] had killed” the victim and that
the main obstacle to their self-defense theory was whether the petitioner’s response exceeded
that necessary to defend himself.

                In a detailed and thorough order, the trial court found that there was no basis
to suppress the petitioner’s statement to police and that trial counsel did not perform
deficiently by not filing a motion to suppress. The trial court found that any issue regarding
the State’s preservation of the victim’s camper was previously determined on direct appeal.
The trial court also found that the petitioner had failed to present any “credible proof” that
the police searched his cell phone or that any alleged search led to the discovery of any
evidence. The trial court found that any issue regarding the admission of the jail recordings
was previously determined on direct appeal and that there was no proof of deficient
performance which arose from that issue. Regarding the allegation that trial counsel failed
to call witnesses at the preliminary hearing, the trial court found that trial counsel had
effectively examined witnesses at the preliminary hearing and that the petitioner had failed
to establish any prejudice from trial counsel’s failure to call witnesses on the petitioner’s
behalf. Regarding the remaining myriad issues concerning trial counsel’s locating and
presenting witnesses, presenting experts, cross-examining the State’s witnesses, and filing
pretrial motions, the trial court accredited the testimony of trial counsel and found that the
petitioner had failed to establish his claims by clear and convincing evidence. Accordingly,
the trial court denied post-conviction relief.

               On appeal, the petitioner raises four specific claims attacking his conviction
for first degree murder: (1) that trial counsel committed ineffective assistance, (2) that his
statement to police was obtained in violation of his Fifth Amendment rights, (3) that the State
withheld exculpatory information from him by not informing counsel of the existence of the
victim’s camper, and (4) that his bloody shorts were obtained through an unconstitutional
search of his cellular telephone. The State responds that the petitioner failed to establish his
claim of ineffective assistance of counsel and that the trial court properly denied relief.
Initially, we note that the petitioner’s substantive constitutional claims concerning his
statement, the camper, and his shorts have all either been previously determined or are
waived. See T.C.A. § 40-30-106(g), (h) (2006). Therefore, we shall address these claims,

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as did the State, to the extent that each may be applicable to the petitioner’s remaining
ineffective assistance of counsel claim.

               The post-conviction petitioner bears the burden of proving his allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court
accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these
findings are conclusive on appeal unless the evidence preponderates against them. Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975), and second that his counsel’s deficient performance “actually had an adverse
effect on the defense,” Strickland v. Washington, 466 U.S. 668 , 693 (1984). In other words,
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.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               Claims of ineffective assistance of counsel are mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given
no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).



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               The record supports the post-conviction court’s findings of fact. Inasmuch as
the petitioner attempted to raise constitutional issues concerning his statement, the camper,
and his bloody shorts, these issues were all previously determined on direct appeal adversely
to the petitioner. See Hawkins, slip op. at 14-21. Accordingly, he failed to establish any
prejudice to support his allegations of ineffective assistance of counsel concerning these
specific issues. Furthermore, we agree with the trial court’s findings concerning the
remaining allegations of ineffective assistance of counsel. As noted previously, much of the
petitioner’s testimony consisted only of bare conclusory allegations. Specifically concerning
trial counsel’s failure to interview or call witnesses, the petitioner failed to present any
testimony from these alleged witnesses at the evidentiary hearing in order to establish his
claims. A post-conviction petitioner generally fails to establish his claim that counsel did not
properly investigate or call a witness if he does not present the witness to the post-conviction
court; a post-conviction court may not speculate “on the question of . . . what a witness’s
testimony might have been if introduced” at trial. Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990). Thus, the petitioner failed to establish his allegation of ineffective
assistance of counsel. Accordingly, the order of the post-conviction court is affirmed.




                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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