         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 28, 2005

                  ALAN E. MONDAY v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Knox County
                       No. 77421    Richard R. Baumgartner, Judge



                   No. E2005-00614-CCA-R3-PC - Filed November 4, 2005



The petitioner, Alan E. Monday, appeals from the Knox County Criminal Court’s dismissal of his
petition for post-conviction relief from his conviction for reckless homicide, a Class D felony. He
contends that he received the ineffective assistance of counsel because his attorney advised him not
to testify and failed to call a favorable witness. We affirm the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN , JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Alan E. Monday.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        This case arises from the petitioner’s conviction for shooting the victim, Beverly
Reichenbach, in the petitioner’s brother’s apartment. A Knox County grand jury indicted the
petitioner for one count of reckless homicide and a Knox County Criminal Court jury convicted him
as charged. The petitioner appealed and this court affirmed his conviction. See State v. Alan E.
Monday, No. E2001-01426-CCA-R3-CD, Knox County (Tenn. Crim. App. Feb. 12, 2003).

        The evidence produced at the trial showed that on September 29, 1996, at approximately 6:30
p.m., the victim telephoned Jack Monday, the petitioner’s brother, and asked him to “come and get
her.” The victim was the petitioner’s ex-girlfriend. Jack Monday refused to pick up the victim
because he had been drinking and knew the victim was “doing drugs.” Later that night, the victim
again called Jack Monday, crying and threatening to commit suicide. Jack Monday said he would
pay for a cab to bring her to his apartment. The victim arrived around 8:00 p.m., but left soon after
to pick up medicine from her mother. She returned to the apartment and went into the bathroom and
injected herself with cocaine. Jack Monday denied that the victim had ever been his girlfriend but
admitted having sex with her that night because the victim was depressed and he thought it would
make her feel better. He said the victim seemed to feel better for about an hour and then became
upset again. Jack Monday tried to console the victim. He continued drinking beer and took a muscle
relaxer given to him by the victim. He passed out on the couch around midnight.

        At approximately 3:00 a.m. on September 30, 1996, the petitioner knocked on the door of
Leonard Parrot, a neighbor of Jack Monday’s, and asked him to call 9-1-1. The petitioner appeared
in a panic and scared, and the victim was lying face down in the hallway.

        Sheila Miller, who also lived in the building, was awakened by gunshots and glass shattering
in the parking lot and noticed a van that “just took off -- just flew.” She then heard someone say,
“Goddam [sic] . . . you didn’t have to kill her, man.” She heard someone banging on a door and her
neighbor, Leonard Parrot, say “I can’t help you man.” A short time later, Ms. Miller came out of her
apartment and saw the victim lying in the hallway and the petitioner standing over her. He was
wearing boots, jeans, and a belt, but no shirt. He had blood on his chest and hands.

        Knoxville Police Department Officer Larry Murrell was the first police officer to arrive at
the scene. He found the victim lying face down in a pool of blood in the fourth floor hallway. The
victim was not moving and did not respond. A trail of blood extended from the victim to Jack
Monday’s apartment. Officer Murrell secured the scene and waited for other officers to arrive.

        Knoxville Police Department Officer Kathy Pappas arrived at the scene. She and Officer
Murrell knocked on the door of Jack Monday’s apartment, and he opened the door and allowed them
inside. The officers noticed that the apartment was in disarray, that there was a bullet and a .38
caliber shell on the floor, and that there was a pool of blood by the front door.

        Knoxville Police Department Sergeant Dick Evans arrived at the scene while the victim’s
body was still in the hallway. While standing in the hallway, the petitioner approached Sergeant
Evans, wearing jeans and boots and carrying a coke. The petitioner told Sergeant Evans that he was
looking for his girlfriend, that he lived in the building, and that his name was Alan. The petitioner
said, “She shot herself. She is a dope head, f---ing everybody. She is mad at me, because she caught
me with another woman.”

        Knoxville Police Department Captain Gordon Catlett, Jr., walked out of the apartment,
approached the petitioner, and questioned him about what had happened. The petitioner responded,
“Well, she shot herself.” He told Captain Catlett the gun could be found in the victim’s hand, then
said it was in her boot, and then said it was under the victim. The petitioner was handcuffed and
placed in the back of a patrol car. Captain Catlett noticed fresh claw marks on the petitioner’s back
and a bloodstain on the back of his right hand. The petitioner was “ranting on about the victim, and
his brother, and him” and said, “My brother didn’t have anything to do with it.”


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        While searching for the gun, Captain Catlett noticed an open window in the apartment. The
window overlooked the apartment’s parking lot. Captain Catlett went to the parking lot and found
a .38 caliber handgun. Jack Monday testified that the gun used to kill the victim had been stored in
the bedroom of his apartment but that it belonged to the victim. He said the petitioner knew where
the gun was stored.

       Sergeant Evans transported the petitioner to the third floor of the police department.
Knoxville Police Department Criminal Investigator Michael Pressley interviewed the petitioner and
advised him of his Miranda rights and had him sign a waiver. During the interview, the petitioner
gave eight different versions of the events. The petitioner stated that

               he committed the homicide; that the victim committed suicide; that
               he was in the laundry room and not even present when the shooting
               occurred; that the victim was involved in a “drug rip-off and some
               black men” shot her; that he was innocent and so was his brother; that
               the victim was involved with crack cocaine dealers; that the victim
               shot herself; and that the victim had been killed by a “Mexican
               whore.”

The petitioner maintained he loved the victim and would not have done anything to hurt her. The
petitioner smelled of alcohol and talked about using drugs. However, he was released several hours
after being taken into custody.

        While being interrogated by Investigator Pressley, the petitioner stated he needed to use the
restroom. Sergeant Evans escorted him to the restroom, and as they entered, the petitioner pushed
passed Sergeant Evans and attempted to wash his hands. Sergeant Evans would not allow him to
wash his hands. Later, he stated his stomach was upset and needed to go to the restroom. He again
tried to wash his hands. The petitioner also attempted to get to the water fountain. Officer
Crenshaw, the evidence technician, did “atomic absorption” testing on the petitioner’s and Jack
Monday’s hands. However, the tests were not sent for analysis, because both had washed their
hands, making the results unreliable. Officer Crenshaw did not perform an atomic absorption test
on the victim. The petitioner voluntarily returned to talk with Investigator Pressley on several
occasions and consented to the blood testing and gunshot residue testing.

        Two days after the shooting, Ms. Miller was in the lobby of the apartment building and she
saw the petitioner talking with two people. She heard him say, “Yeah, I did them a damn favor. .
. . Just another whore off the damn street.” She did not initially tell police officers about this
conversation for fear she would be evicted from the building.

        On October 3, 1996, Knoxville Police Department Officer Gary Anders interviewed the
petitioner. The petitioner told him the victim had been sitting on the couch when he noticed she had
a gun in her purse or between two of the cushions on the couch. He said he reached for the gun, but



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the victim grabbed the weapon. He said they struggled over the gun and his finger must have pulled
the trigger, causing the gun to discharge and strike the victim.

        Dr. Paul Googe performed the autopsy on the victim. Dr. Googe testified that the victim died
from a large caliber gunshot wound to the head. The victim had some bruising, broken fingernails,
and evidence of recent intravenous drug use. He did not find stippling, burns, or cuts near the
wound, indicating the gun was fired some distance from the face. The direction of the bullet was
“straight in from the place that it was located until it hit the back of the skull.” Toxicology reports
indicated the victim had alcohol, cocaine, promethazine, and meprobamate in her system. Dr. Googe
stated he believed it was “very unlikely” the victim committed suicide. He said, “[I]t seems to be
a distant wound, and that is the main finding that would seem unusual for suicide.” Dr. Googe
admitted that he reached his conclusion partly on the belief that women rarely commit suicide with
firearms.

               [DEFENSE]               Okay. So it is just your opinion that it is
                                       unlikely that this is a suicide attempt; because,
                                       in your opinion, women don’t generally use
                                       firearms.

               [DR. GOOGE]             That was one of the reasons, yes. . . . I think
                                       that the wound is the main finding that would
                                       suggest that this was not a suicide.

He also admitted he could not comment on whether the victim was shot during a struggle over the
gun.

               [DEFENSE]               You have been asked about whether this
                                       appears to be, I guess, a self-inflicted injury.
                                       Do you have any opinion of whether this
                                       injury would be consistent with a situation
                                       where there was a struggle over a weapon, and
                                       the weapon discharges as someone is trying to
                                       take a weapon away?

               [DR. GOOGE]             I don’t believe I can comment on that much
                                       one way or the other.

               [DEFENSE]               So you just can’t say either way if that is
                                       possible or not?

               [DR. GOOGE]             It’s -- it’s possible.




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        On June 2, 2003, the petitioner filed a petition for post-conviction relief, claiming that he
received the ineffective assistance of counsel. He alleged his trial attorney improperly advised him
not to testify at trial, failed to call a favorable witness, and failed to admit the victim’s suicidal
statements into evidence.

         The petitioner was unable to attend the post-conviction hearing in this matter because he was
in federal custody, but his post-conviction counsel entered his affidavit as an exhibit at the hearing.
The petitioner stated in his affidavit that his brother invited him, his girlfriend, and a few other
people to his apartment to eat and to watch a football game. He stated his brother told him the
victim had called, crying and threatening to kill herself. He stated the victim came to the apartment
but left and returned several times. The petitioner stated, “She was constantly making [reference]
to killing herself and that her children hated her and she was sick of life.” He stated the victim
continued talking about killing herself, which made everyone leave except the petitioner’s girlfriend,
who did not leave until she and the victim had an argument.

        The petitioner stated that the victim was sitting on the couch next to Jack Monday, who was
passed out, and that she was crying and talking about killing herself. He stated she went to the
bedroom and returned to the couch. He stated he was standing at the stove when he noticed a bullet
roll across the floor and turned and saw the victim holding the gun toward her mouth or face. He
stated that he ran to the victim to stop her, that a struggle ensued, and that the gun discharged. He
stated he thought his brother had been shot because he did not move. He stated he picked up the gun
and threw it out the window because he did not want the victim to have it. He stated he yelled at the
victim “if she wanted it to go get it and go somewhere else” and then returned to the victim and saw
the blood. He stated that he tried to call 9-1-1 but that the telephone was not working.

        The petitioner stated that he tried to take the victim to Jack Monday’s car to drive her to the
hospital but that he could only carry her to the hallway where he fell in front of Mr. Parrot’s door.
He stated that he banged on the door and asked Mr. Parrot to help him take the victim to the hospital
but that Mr. Parrot said he would only call 9-1-1. He stated that he started CPR and ran down to the
payphone in the lobby but that it was out of order.

        The petitioner stated that he returned to the fourth floor where the victim was lying and told
a police officer that he had the neighbor call 9-1-1. He stated he could not remember what happened
after that until he was asked “to give a gun powder test on [his] hands.” He stated he was “scared,
in shock, crying and exhausted” while being questioned by Detective Pressley. He stated that he
took a polygraph test and gave a DNA sample at the request of Detective Pressley.

        Jack Monday, the petitioner’s brother, testified at the post-conviction hearing that he talked
to the victim on the night she was killed. He said that he talked to her on the telephone, that she
sounded very depressed, and that she wanted to kill herself. He said the victim was very upset when
she arrived at his apartment. He said she had recently been released from jail where she had been
on suicide watch. He said he testified at the trial but was told by his brother’s trial attorney and the



                                                  -5-
trial court not to repeat the victim’s exact words. He admitted he testified about several
conversations he had with the victim that night about her wanting to commit suicide.

         William Monday, the petitioner’s brother, testified at the post-conviction hearing that he was
the victim’s ex-boyfriend. He said he talked with her on the telephone the night she was killed. He
said he was at the trial but did not testify. He said that the victim had been released from jail three
days earlier and that he picked her up and drove her to a “dope house.” He said she was there for
three days before calling and asking for someone to pick her up. He said that he told the victim he
would not pick her up. He said the victim told him that she failed to report to her probation officer
and that she was not going to go back to jail. He said the victim told him that she was going to kill
herself if someone did not pick her up from the “dope house.” He said he saw the victim when she
arrived at his brother’s apartment but left when she arrived. He testified he met with the petitioner’s
trial attorney and told him all of this information. He admitted he had been convicted of attempted
burglary and burglary.

         The petitioner’s trial attorney testified at the post-conviction hearing that he had been
practicing criminal defense for almost fifteen years. He said that part of the petitioner’s defense at
trial was that the victim was suicidal and that the shooting was connected to an attempted suicide.
He said the trial court instructed Jack Monday not to repeat the victim’s exact words. However, he
said this did not prevent the defense from communicating its theory of suicide to the jury. He said
“we were able to do everything but get the actual words of her suicide threat in.” He said that he met
with William Monday before trial but that the meetings did not develop anything which he could use
at the trial. He said he could not remember why he decided not to call William Monday as a witness.
He said the prosecutor made reference to the suicide threats and referred to the victim as “this
suicidal lady” in one question. He said the jury had the victim’s psychological records because he
introduced them as an exhibit at the trial. He said that he was able to develop fully the theory of
suicide and that the jury understood the victim was suicidal. He said he also argued the theory of
suicide to the jury in the opening and closing statements.

        The trial attorney testified that he always told clients the decision to testify is one of the two
areas over which the client has absolute control. He said he advised clients to testify if he believed
it was in their best interest but maintained the client had control over the decision. He said he spoke
to the petitioner on a number of occasions about the possibility of him testifying. He said they were
never successful in developing a strategy on how to deal with the eight different versions of the
events the petitioner gave to police. He said the petitioner wanted to tell the jury how much he cared
for the victim but “as we worked through that, it became clear to me that if he were to testify it
would hurt his case, not help his case, and I told him that.” The trial attorney said the petitioner
understood that he had a right to testify and that it was his decision. He said he would not change
his advice not to testify if given the opportunity.

      After reading the petitioner’s affidavit, listening to the testimony, and considering the
arguments of counsel, the trial court dismissed the petition for post-conviction relief. It found that



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the petitioner’s claim that he received the ineffective assistance of counsel because he was advised
not to testify was without merit. The trial court stated that the petitioner’s trial attorney advised him

                not to testify because in reviewing the prior statements given by Mr.
                Monday there was, candidly, no way to reconcile the many versions
                of the story that he had previously told the police and that
                [petitioner’s trial attorney] felt that this would be counterproductive
                for Mr. Monday to testify to the jury, and that Mr. Monday agreed
                with that analysis and chose not to testify.

The trial court also found the exact words of the victim were hearsay and did not fit under the
hearsay exception as listed in Rule 803(3) of the Tennessee Rules of Evidence. It stated that even
if the victim’s exact words were admissible under a hearsay exception, the refusal to allow them into
evidence was harmless because the petitioner fully raised the issue of suicide and it was properly
before the jury.

         The petitioner contends the trial court erred in denying his petition for post-conviction relief.
He claims he received the ineffective assistance of counsel when his trial attorney advised him not
to testify and failed to call William Monday as a witness. The state contends the petitioner did not
receive the ineffective assistance of counsel. It asserts the trial attorney’s advice not to testify was
a logical strategy. Regarding the hearsay evidence, the state claims that the petitioner has failed to
prove prejudice because William Monday’s testimony was cumulative to other testimony presented
at the trial and that the issue of suicide was properly before the jury.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). In other
words, a showing that counsel’s performance falls below a reasonable standard is not enough; rather,
the petitioner must also show that but for the substandard performance, “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Strickland standard
has been applied to the right to counsel under article I, section 9 of the Tennessee Constitution. State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).




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        A petitioner will only prevail on a claim of ineffective assistance of counsel after satisfying
both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). The
performance prong requires a petitioner raising a claim of ineffectiveness to show that the counsel’s
representation fell below an objective standard of reasonableness or “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The prejudice
prong requires a petitioner to demonstrate that “there is a reasonable probability that, but for
counsel’s professional errors, the result of the proceeding would have been different.” Id. at 694, 104
S. Ct at 2068. “A reasonable probability means a probability sufficient to undermine confidence in
the outcome.” Id. Failure to satisfy either prong results in the denial of relief. Id.

         In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. See DeCoster, 487
F.2d at 1201; Hellard, 629 S.W.2d at 9.

                                I. DECISION NOT TO TESTIFY

         The petitioner contends that he received the ineffective assistance of counsel because his trial
attorney advised him not to testify. He asserts his defense provided no direct evidence that the
victim actually shot herself and that evidence was only available from his testimony. He claims that
although his trial attorney advised him not to testify because of the multiple inconsistent statements
he gave police, the inconsistent statements came into evidence anyway. He claims he should have
testified in an attempt to explain those inconsistencies. The state contends the petitioner’s trial
attorney represented the petitioner “zealously and professionally.” It asserts that his advice was
founded in common sense and reason and that the decision not to testify was a reasonable strategy
adopted by the petitioner and his trial attorney and therefore does not constitute the ineffective
assistance of counsel. We agree with the state.

        At the post-conviction hearing, the petitioner’s trial attorney testified that he advised the
petitioner not to testify because he had given eight different versions of the events. He also said he
believed it would be counterproductive for the petitioner to testify. We note that at the trial the
petitioner elected not to testify and stated he did not want to testify in open court when questioned
by the trial court. We conclude that based upon the petitioner’s inconsistent versions of the event,



                                                  -8-
the petitioner’s trial attorney’s advice not to testify was a well-informed trial strategy and does not
constitute the ineffective assistance of counsel. The petitioner is not entitled to relief.

                     II. FAILURE TO CALL A FAVORABLE WITNESS

        The petitioner contends he received the ineffective assistance of counsel because his trial
attorney failed to call William Monday as a witness to corroborate the testimony of Jack Monday.
He asserts that he was prejudiced by not presenting evidence that would have corroborated testimony
about the intent of the victim to commit suicide and the theory that the victim did commit suicide.
The state contends the petitioner failed to show that decisions by his trial attorney were error or that
any prejudice resulted. The state asserts the testimony of William Monday would have been
inadmissible hearsay and cumulative to the testimony of Jack Monday.

         Hearsay is defined as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). A statement is “(1) an oral or written assertion or (2) nonverbal conduct of a person if it is
intended by the person as an assertion.” Tenn. R. Evid. 801(a). Hearsay is not admissible except
as provided by the rules of evidence or otherwise by law. Tenn. R. Evid. 802. One exception to the
hearsay rule is Tennessee Rule of Evidence 803(3), which allows the admission of “[a] statement
of the declarant’s then existing state of mind, emotion, sensation, or physical condition, (such as
intent, plan, motive, design, mental feeling, pain, and bodily health). . . .” The Advisory
Commission Comments to this section note that declarations to prove mental state at issue or
subsequent conduct are admissible. See United States v. Veltmann, 6 F.3d 1483, 1494 (11th Cir.
1993) (holding that a threat of suicide was admissible over a hearsay objection under Federal Rule
of Evidence 803(3)). We conclude the victim’s statements concerning her intent to commit suicide
on the night of her death should have been allowed under Rule 803(3). However, the defense’s
evidence at trial showed that on the night of her death, the victim was very upset and threatening to
commit suicide. Additionally, the defense entered the victim’s medical records as an exhibit,
showing the victim’s long history of severe depression and recent depression.

        The evidence at trial showed that when Jack Monday passed out on the couch, the victim,
the petitioner, and the petitioner’s girlfriend were the only people left in the apartment where the
shooting occurred. After the shooting, the petitioner dragged the body of the victim out of the
apartment and shut the door. The petitioner knocked on his neighbor’s door and asked for help with
the victim. When officers arrived, the petitioner was not in the area, but officers followed the trail
of blood to Jack Monday’s apartment. The apartment was in disarray, and the officers found blood,
a bullet, a .38 caliber shell case, and a pool of blood inside the apartment by the front door,
indicating the victim was left lying there. The petitioner was arrested at the scene and taken down
to the police department where he gave eight different versions of the events. One statement he gave
was “I did it.” Two days after the shooting, a neighbor heard the petitioner say, “Yeah I did them
a damn favor. . . . Just another whore off the damn street.” Additionally, Dr. Googe performed the
autopsy and found no stippling around the wound, indicating the gun was fired from a distance.



                                                  -9-
        We conclude that the petitioner failed to prove by clear and convincing evidence that his trial
attorney’s failure to call William Monday as a witness likely affected the outcome of the trial. The
petitioner presented the theory of suicide during trial and in his opening and closing arguments,
placing the theory of suicide before the jury, which obviously chose to reject it. The petitioner is not
entitled to relief on this issue.

                                          CONCLUSION

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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