        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs November 14, 2013

        GEORGE ANTHONY BRADDOCK V. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Houston County
                         No. 4352    Robert E. Burch, Judge


                No. M2012-01605-CCA-R3-PC - Filed February 11, 2014


The petitioner, George Anthony Braddock, appeals the denial of his petition for post-
conviction relief. The petitioner was convicted of first degree premeditated murder and
sentenced to life in prison. On appeal, he contends that the denial of his petition was in error
because he was denied his right to the effective assistance of counsel. Specifically, he
contends that trial counsel was ineffective by: (1) failing to investigate the petitioner’s
psychological, mental, and physical health history and to present proof of such at trial in an
attempt to negate the petitioner’s culpable mental state; (2) failing to file a motion to suppress
the petitioner’s statement to law enforcement; and (3) failing to fulfill his duty of loyalty and
to zealously advocate on behalf of the petitioner because of a familial relationship with the
district attorney general. Following review of the record, we conclude that the petition was
properly denied and affirm the judgment of the post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN, J., joined. T HOMAS T. W OODALL not participating.

Mark C. Odle, Dickson, Tennessee, for the appellant, George Anthony Braddock.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Dan M. Alsobrooks, District Attorney General; and Suzanne Lockert Mash, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION




                         Procedural History/Factual Background
       The facts supporting the petitioner’s first degree premeditated murder conviction, as
recited by this court on direct appeal, are as follows:

              [The petitioner] and the victim . . . were husband and wife. In the fall
       of 2004, the couple and their two children were living in Houston County,
       Tennessee in a home owned by the victim’s father. [The victim] was the
       primary wage earner in the family. At that time, she was working at the
       Southern Aire Restaurant in Houston County. [The petitioner] worked off and
       on, performing mostly odd jobs.

              While working at Southern Aire, [the victim] became close friends with
       another employee, Adam Powell. The friendship eventually developed into an
       extramarital affair. [The victim] often stayed late at work at the restaurant,
       spending time with Mr. Powell. Additionally, the two went on several out of
       town trips together.

              After some time, [the petitioner] began to suspect that there was
       something going on between his wife and Mr. Powell. [The petitioner]
       personally witnessed [the victim] and Mr. Powell hanging out at the restaurant
       together after hours and drinking together at Mr. Powell’s residence.

              [The victim] eventually quit her job at the restaurant after [the
       petitioner] told her not to spend any more time with Mr. Powell. [The
       victim’s] mother, Dorothy Hadley, provided money to support the couple after
       [the victim] quit her job. In fact, Mrs. Hadley sold a rifle to Mr. Powell in
       order to provide money to [the victim] and [the petitioner]. [The petitioner]
       was angered when he found out that Mr. Powell brought [sic] the rifle, vowing
       to have his own pistol back into the house by the next weekend.

              [The victim] continued her relationship with Mr. Powell after quitting
       her job. However, [the victim] told Mr. Powell that she wanted to stay in her
       marriage. Mr. Powell “wanted the truth of the matter,” so he went to the
       Braddock residence to discuss the matter with [the petitioner]. The two men
       got into an argument during which Mr. Powell sprayed [the petitioner] with
       pepper spray. Mr. Powell claimed that he sprayed [the petitioner] because he
       was afraid that [the petitioner] was armed.

              The weekend before [the victim] was murdered, her sister Kimberly
       Tolley came to visit from Carroll County. The Saturday before her death, [the
       victim] played cards with her father, sister, brother-in-law, cousin, and

                                             -2-
children at her father’s home. [The victim] and her sister walked to a nearby
store to buy beer. Mr. Powell’s uncle was at the store and purchased a beer for
the victim. [The petitioner] was upset when he learned who bought the victim
the beer. Later that evening, [the petitioner] and the victim rode in their car
with the victim’s sister to a boat dock at a nearby lake. [The petitioner] and
the victim were arguing. [The petitioner] started driving very recklessly as the
two argued. [The petitioner] only stopped when Mrs. Tolley and [the victim]
were upset and crying. When they got back to [the victim’s] father’s house,
[the petitioner] went home, and [the victim] and Ms. Tolley went to visit Mr.
Powell.

        Sunday morning, [the petitioner] called his mother, Edith Braddock, to
tell her that his children wanted to come stay with her at her house. [The
petitioner’s] mother arrived that afternoon and left with the grandchildren after
approximately one hour.

        That afternoon, [the petitioner, the victim,] and the victim’s cousin,
Phillip Stewart, watched a movie together. [The petitioner] repeatedly asked
the victim if she wanted to go for a ride so that they could talk. Mr. Stewart
thought that this was odd behavior, as [the petitioner] rarely left the house.

         Mr. Stewart fell asleep during the movie. [The petitioner] and [the
victim] left the house. [The petitioner] retrieved his pistol from the bedroom
and placed it in the waistband of his pants before they left in the car. [The
petitioner] and [the victim] drove to a boat dock first then drove to a remote
swimming area on a nearby creek. As they sat in the car, [the petitioner] asked
[the victim] about her relationship with Mr. Powell. [The petitioner] claimed
that he was trying to get [the victim] in a “romantic mood,” but continued to
question her about her relationship with Mr. Powell. At some point, [the
petitioner] and [the victim] got out of the car. [The petitioner] took out his
pistol, placed a bullet in the chamber, and put the gun to his head when [the
victim] would not answer his questions about Mr. Powell. [The petitioner]
claimed at trial that [the victim] was about twenty feet away from him at the
time and that it was dark. [The petitioner] stated that he could make out her
figure from that distance. [The petitioner] told [the victim] that he was going
to kill himself. [The victim] started to walk toward him but stopped when she
was about eight or nine feet away. According to [the petitioner’s] testimony
at trial, [the victim] told him to “go ahead, now she and the kids could be with
Adam Powell.” [The petitioner] testified that he merely “reacted” and “fired
the gun in that direction.” While on the stand, [the petitioner] testified that he

                                       -3-
did not know where he shot the victim, did not feel for a pulse, and ran to the
car.

       Immediately after the shooting, [the petitioner] left the area and took
[the victim’s] car to an airport where he left it behind an outbuilding. [The
petitioner] walked home. Mr. Stewart was still at the residence. [The
petitioner] asked Mr. Stewart if he had seen the victim. [The petitioner] told
Mr. Stewart to “tell [the victim] to keep her ass there” if he saw her. [The
petitioner] got a duffel bag that was already packed with clothing. He put a
carton of cigarettes in the bag and loaded the bag and some speakers into the
car before taking off. [The petitioner] drove to his mother’s house in
Covington, Tennessee arriving there sometime in the middle of the night.

       On Monday, October 11, [the petitioner] called the Houston County
Sheriff’s Department. [The petitioner] used a fake name and told Deputy
Jason Laxton that he needed to look for something along the creek bank. The
majority of the telephone call was taped. Deputy Laxton recognized [the
petitioner’s] voice during the conversation. Later during the call, [the
petitioner] admitted that he shot his wife in the head and left her body on the
creek bank.

       [The petitioner] called the sheriff’s department a second time, from a
pay phone in Tipton County. The authorities traced the call, and [the
petitioner] was arrested after a brief pursuit. [The petitioner] later told
authorities that he threw his weapon out of the window of the car during the
pursuit. . . .

       Agent Derek Jones of the Tennessee Bureau of Investigation (“TBI”)
responded to the creek bank. [The victim] was found lying on the creek bank
with a single gunshot wound to the right side of her head. The victim was
holding a pack of cigarettes in her right hand and a single shell casing was
found near the body. Donna McWhorter, a person that lived near the area of
the creek, stated that around 6:00 p.m. she and her husband heard a single
gunshot and had seen a vehicle in the area which matched the description of
the victim’s vehicle.

        Dr. Thomas Deering, the assistant medical examiner, testified at trial.
According to Dr. Deering, the victim had soot and gun powder stipple around
the gunshot wound in her right temple. This indicated that the weapon was
fired from approximately six inches away.

                                      -4-
               At trial, [the petitioner] claimed that he only took the pistol to the creek
       to threaten his own life, not to kill [the victim]. [The petitioner] hid the pistol
       in the waistband of his pants when the two left the house because if [the
       victim] decided that she wanted to be with Mr. Powell, [the petitioner] was
       going to “shoot” himself. He had threatened his own life several times and
       never had any intentions of hurting [the victim]. [The petitioner] also claimed
       that he always kept a bag of clothing packed because he frequently went to his
       mother’s house.

State v. George Anthony Braddock, No. M2008-00647-CCA-R3-CD, 2009 Tenn. Crim. App.
LEXIS 341, *1-9 (Tenn. Crim. App., May 12, 2009). Based upon his actions, the petitioner
was indicted by a Houston County grand jury for one count of premeditated first degree
murder.

        In October 2007, the case proceeded to trial. The theory of defense pursued was one
of a lesser-included offense, specifically manslaughter. The petitioner testified in support
of that theory, despite the fact that his testimony at trial varied significantly from a statement
that he had given to police following his arrest. Trial counsel also introduced evidence
through the petitioner and his mother’s testimony, as well as various other witnesses, that the
petitioner suffered from various mental deficiencies. After all the evidence was presented,
the jury found the petitioner guilty as charged. He was subsequently sentenced to a term of
life imprisonment. Following the denial of his motion for a new trial, the petitioner appealed
to this court for review. The only issue reviewed was sufficiency of the evidence. Id. at *1.
After reviewing the record, this court affirmed the petitioner’s conviction, and the Tennessee
Supreme Court denied permission to appeal.

        On September 17, 2010, the petitioner filed a pro se petition for post-conviction relief
contending that trial counsel was ineffective for: (1) failing to investigate the petitioner’s
mental health issues and previous medical records in order to mitigate the culpable mental
state; (2) failing to call expert witnesses to testify regarding the petitioner’s mental health and
depression issues; (3) failing to stand on the motion for judgment of acquittal; and (4)
cumulative effect of the various errors. Following the appointment of counsel, two amended
petitions for relief were filed that alleged various issues, two of which were: (1) that trial
counsel was ineffective for failing to file a motion to suppress the petitioner’s statement to
law enforcement; and (2) whether the familial relationship, specifically first cousins, between
trial counsel and the district attorney general in the case created a conflict of interest which
precluded trial counsel from zealously advocating for the petitioner. Following various
delays that resulted from problems assembling the record, an evidentiary hearing was held
on May 1, 2012. At the hearing, trial counsel, the petitioner, the petitioner’s mother, and the
petitioner’s sister testified.

                                                -5-
        Trial counsel testified that he is the District Public Defender and that he was appointed
to represent the petitioner in this case shortly after his arrest and continued to do so through
the direct appeal. Trial counsel testified that he was aware that the petitioner suffered from
multiple sclerosis and, because of his physical condition, had an emergency transfer hearing
which resulted in the petitioner being moved to the Charles Bass Correction Complex, where
most of their numerous pre-trial meetings occurred. Trial counsel stated that he was aware
of the fact that the petitioner had a history of mental health issues and threatening to commit
suicide. Trial counsel stated that it was apparent that the petitioner had some intellectual
issues and that he seemed to have issues understanding what was communicated to him. As
a result, trial counsel did speak with the petitioner’s mother and sister about the petitioner’s
condition.

        Trial counsel relayed that the petitioner’s mother was very articulate in conveying the
petitioner’s history and that he spoke with her on several occasions. She informed him about
the petitioner’s habit of threatening suicide, his intelligence issues, and problems in school.
Trial counsel also testified that the petitioner’s mother described the effects of the multiple
sclerosis, which included loss of feeling, and how that disease caused problems with the
petitioner maintaining employment. The petitioner’s mother also relayed an incident from
when the petitioner was a teenager, and she took him to the health department because he
was threatening suicide. Because of the threats of self-harm, the defendant was sent to the
Memphis Mental Health Institution and evaluated. Trial counsel did not obtain the records
from that institution. Eight months after trial counsel began representing the petitioner, the
records were destroyed. He testified that he could only assume that the records might have
been helpful because he actually never saw them.

        Trial counsel related that he did obtain records from the Professional Care Service of
West Tennessee. In the summary of that report, Dr. Jorge Leal noted that the petitioner had
complaints of depression and anxiety, as well as an amphetamine abuse problem. He was
diagnosed with adjustment disorder, depression, drug abuse, and an anti-social personality
disorder. The petitioner sought treatment there on a second occasion and was treated by Dr.
David Knott for complaints of depression, suicidal thoughts, and decreased libido. The
doctor observed that the petitioner’s impulse control and judgment were “fair.” The
petitioner was diagnosed with major depressive disorder and given medication. The records
reflect that the petitioner was seen a third time by Dr. Leal and diagnosed with depression,
substance-induced mood disorder, substance-induced psychotic disorder, and a delusional
disorder. Dr. Leal concluded that the petitioner’s judgment was “poor.” He was prescribed
additional medication.

       Trial counsel acknowledged that parts of these records would be relevant and
beneficial in assessing the petitioner’s defense strategy. However, he felt that some of the

                                               -6-
information was extremely damaging. Particularly, trial counsel felt that the information that
some of the petitioner’s problems were caused by voluntary drug usage would not be well
received by the jury. He noted that they were relevant to consider in the investigation but
that he still felt that the damaging aspects would preclude their use at trial.

        Post-conviction counsel then questioned trial counsel about some of the petitioner’s
mental and physical health records which he did not obtain, including some showing the
diagnosis of multiple sclerosis and seizures. Trial counsel testified that while the records
might have contributed to a diminished capacity defense or possibly even a lesser-included
offense defense, he did not believe it would have been advantageous to allow the State to
have evidence that the petitioner’s conditions included drug-induced psychosis. While these
various records might have been relevant and helped in some aspects, he felt that it was only
true if he were able to “pick and choose” what information in the records to use. As that was
not possible, he could not conclude that the weight of the potentially useful information
outweighed the damaging aspects. Trial counsel did not agree that the records would have
altered the result of the trial. With regard to one set of records, those from Saint Francis
Hospital, trial counsel could not recall if the petitioner ever informed him that he received
treatment there. The records reflected a diagnosis of multiple sclerosis and a history of
seizures. Regardless, trial counsel still did not believe that the records would have made a
difference in the case, especially in light of the fact that the State was not contesting either
diagnosis. Lastly, trial counsel testified that he was aware that the petitioner had applied for
social security disability but could not recall if the petitioner had been approved prior to trial.
Again, trial counsel did not believe such information was important to the petitioner’s case.
He stated that he saw no evidence of any type of a diagnosis of a severe mental disease or
defect in any of the record reviewed at the hearing.

       Trial counsel stated that he did consider the defense of diminished capacity because
of the petitioner’s mental issues. He also considered the mental issues relevant in his
consideration of pursuing a lesser-included manslaughter conviction defense. After
interviewing the petitioner’s mother and sister and obtaining some of the petitioner’s
previous medical records, trial counsel filed an ex parte motion to hire Dr. Bernet, a mental
health expert from Vanderbilt Medical Center. An evaluation was performed. The
preliminary report concluded that the petitioner might have significant brain damage or
dysfunction, had an IQ of 71, a psychotic disorder, substance dependence, and was
intoxicated at the time of the murder. The report also noted a history of family violence and
physical abuse. The report did note that the petitioner might not have had the ability to form
premeditation at the time of the murder. It advised that further testing should be conducted,
including gathering a detailed history of the petitioner and his family.

       Trial counsel acknowledged that he sought no further testing of the petitioner. He

                                                -7-
testified that he did not do so because, while the report did state the above in its preliminary
conclusion, it ultimately opined that the petitioner was untruthful and malingering. Trial
counsel felt that fact could be extremely detrimental to the defense of the petitioner.
Moreover, trial counsel testified that because of statements the petitioner made to him, he
was ethically hampered from pursuing the defense.

        After review and discussion with the petitioner, trial counsel made a specific choice
not to proceed on the basis of diminished capacity in the case. He explained that the decision
was based in part on Dr. Bernet’s report and a review of certain medical records. Trial
counsel also testified that the decision was affected by his own conversations with the
petitioner in which he believed that the petitioner was malingering. For instance, despite
telling Dr. Bernet in preparation for the report that he was intoxicated at the time of the
murder, trial counsel testified that the petitioner told him that he was not. He made the
following statement:

       It was apparent to me, based on the initial report that anything they developed
       further - if we used it would also bring in the information where he was
       malingering and lying. I felt that would be detrimental also based on
       statements made to me by my client - I could not allow an expert to testify in
       regard to [the petitioner’s] saying that he was impaired at the time the shooting
       took place. I could not ethically allow that based on statements [the petitioner]
       made to me nor could I put on proof or argue that he had diminished capacity
       at the time.

        After much discussion with the petitioner, trial counsel made the decision to pursue
a defense seeking a conviction for voluntary manslaughter. He believed that it was a classic
case for such a defense. He planned to suggest that the petitioner was threatening suicide in
order to get the victim to stop seeing her lover. When the victim told him to go ahead and
kill himself so that she could be with Mr. Powell and the children, the petitioner snapped and
killed his wife without thinking. The defense was to negate premeditation. Trial counsel
stated that he believed the defense would have been successful up to the point that the
petitioner testified that he had chambered a round prior to the killing. That particular
statement was never made prior to trial despite extreme preparation for the petitioner’s
testimony. While presenting no documentary proof, trial counsel did seek to make the jury
aware of the petitioner’s physical and mental conditions.

       Trial counsel also testified that the petitioner gave a statement to the TBI, which
included incriminating statements, specifically that the shooting was accidental. The forensic
evidence did not support that statement. Prior to giving the statement to TBI agents, the
petitioner did sign a waiver of rights. Trial counsel agreed that waiver would not be effective

                                              -8-
if it was not given knowingly and voluntarily. However, he saw no basis to file a motion to
suppress. Although the petitioner lied in part of the statement, he was able to give a lengthy
narrative in chronological order of what occurred. Trial counsel testified that if a defendant
can give a narrative, it is considered a voluntary statement. Moreover, trial counsel testified
that the statement contained information which he wanted the jury to hear. Other than the
statement saying the shooting was accidental, which showed the petitioner was lying, he felt
the information was beneficial to the petitioner’s case.

         Trial counsel also testified that he and the district attorney general who handled this
case are first cousins. He indicated that they grew up together and were fairly close.
However, trial counsel stated that, while in the courtroom, his first and foremost duty and
loyalty was to his client. Trial counsel noted that the petitioner was made aware of the
relationship and did express concern. Trial counsel explained to the petitioner that he would
do the job he was appointed to do. He informed the petitioner that he and the district attorney
general had “done battle” many times in court. Trial counsel informed the petitioner that he
had sometimes made the district attorney general extremely angry and alienated her in court
at times. Trial counsel testified that he also had other public defenders speak with the
petitioner about the situation. Afterwards, the petitioner appeared satisfied, and the
representation continued. Trial counsel stated that he did not believe a conflict existed
because he had no divided loyalty whatsoever with respect to the case. He opined that, in
trial, “she is not family.”

       Next, trial counsel was questioned about his failure to object to certain questions at
trial. He testified that he either saw no reasonable basis for objecting or that he saw no
advantage in doing so. He also testified that he purposely chose not to cross-examine Phillip
Stewart because he felt it best “not to touch it any more.” He stated that he had no facts or
any way to attempt to prove that Mr. Stewart was lying in his testimony.

        Trial counsel did move for a judgment of acquittal at the close of the State’s case.
However, he did not stand on the motion, i.e., he presented defense proof instead. He
testified that he felt that he needed to present proof to attempt to repair the damage done by
the State’s proof. He continued and noted that the failure to stand on the motion did not
harm the petitioner because the trial court could still act as the thirteenth juror following the
presentation of all proof.

       Edith Braddock, the petitioner’s mother, testified that the petitioner struggled in
school and had problems comprehending information which was relayed to him. According
to Ms. Braddock, he only completed the eighth grade before dropping out of school. In
addition to his significant academic problems, she also testified that the petitioner had trouble
getting along with people. She stated that the petitioner did not see things like other people

                                               -9-
did and that when communicating with him, it must be done on a very basic level. She
testified that she made trial counsel aware that the petitioner had problems understanding
questions.

       Ms. Braddock related that her husband was an alcoholic and that there was often
violence in the home when the petitioner was growing up. She also testified that the
petitioner was often depressed and threatened to “hurt himself” on occasion. After one such
time, Ms. Braddock took the petitioner to the local health department for help. Upon
learning that the petitioner was threatening harm to himself, he was placed in the Memphis
Mental Health facility for his own safety.

       At some point during his marriage, following his diagnosis with multiple sclerosis,
the petitioner related to his mother that he was experiencing sexual difficulties. Ms.
Braddock testified that the petitioner told her that he could not perform sexually and that the
victim was upset about it. The petitioner asked his mother to speak with the victim, which
she did.

        Ms. Braddock testified that she spoke with trial counsel on multiple occasions. She
testified that she conveyed the information about the petitioner’s various problems and
treatments which had been undertaken to trial counsel. She testified that they did discuss the
petitioner’s defense, and she knew that they were going to attempt to get a manslaughter
conviction. Ms. Braddock was aware of the evaluation done by Dr. Bernet, but trial counsel
told her that they would not be using it at trial. She stated that she was never asked to speak
with Dr. Bernet to provide additional information.

        The petitioner’s sister, Laura Harris, also testified at the hearing. She likewise
testified that the petitioner had problems in school and with understanding things. She
recalled meeting with trial counsel on one occasion, along with her parents. Ms. Harris
testified that they discussed their family life in general. She could not recall specific
instances of the petitioner receiving mental health treatment. Ms. Harris further testified that
she was never contacted to speak with Dr. Bernet or asked to provide additional information
on their family history.

        The final witness to testify was the petitioner himself. He stated that he had applied
for, and was eventually approved for, social security disability on the basis of his multiple
sclerosis, depression, seizures, and mental disease. The petitioner was confused as to when
he was actually approved for disability and “thinks” that he told trial counsel about it. He
testified that he did tell trial counsel about multiple instances of treatment for his various
ailments over the years. The petitioner also testified that he told trial counsel that he was
using illegal drugs at the time of the shooting.

                                              -10-
       The petitioner testified that he made trial counsel aware that he had only completed
a few months of the ninth grade because it was difficult for him. He testified that he had
trouble reading and understanding what was told to him.

       The petitioner was unable to recall if he and trial counsel discussed the petitioner’s
statement to police. He was also unable to recall being taken to Vanderbilt for an evaluation,
although he did not deny that one was done. He testified that he was unaware of the fact that
Dr. Bernet had requested additional information following the preliminary testing. Despite
the fact that the petitioner could not recall the evaluation, he denied that he had lied to Dr.
Bernet during the test.

        The petitioner also acknowledged that he knew prior to trial that trial counsel and the
district attorney general were cousins. He testified that when trial counsel informed him of
this, he did not really like it. He stated that he felt that because trial counsel was a lawyer,
he should have “stepped away.” He also stated that he was concerned about trial counsel’s
loyalty to him. The petitioner testified that he did inform trial counsel of his concerns over
the issue, and it was discussed. Although he never specifically told trial counsel that he
wanted a new attorney, he claims that he was not satisfied. The petitioner stated that he did
not ask for a new attorney because he was not aware that he could do so.

       After hearing the evidence presented, the post-conviction court took the matter under
advisement. Thereafter, the court entered a written order denying relief. The petitioner has
timely appealed that denial.

                                            Analysis

       On appeal, the petitioner asserts that he was denied his right to the effective assistance
of counsel in three ways: (1) trial counsel’s failure to adequately investigate and present
proof of the petitioner’s psychological, mental, and physical health to negate the culpable
mental state; (2) trial counsel’s failure to file a motion to suppress the petitioner’s statements;
and (3) trial counsel’s failure to advocate zealously for the petitioner because of his familial
relationship with the district attorney general. In order to obtain post-conviction relief, a
petitioner must prove that his or her conviction or sentence is void or voidable because of the
abridgement of a right guaranteed by the United States Constitution or the Tennessee
Constitution. T.C.A. § 40-30-103 (2010); Howell v. State, 151 S.W.3d 450, 460 (Tenn.
2004). A post-conviction petitioner must prove allegations of fact by clear and convincing
evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279
S.W.3d 282, 293-94 (Tenn. 2009). “‘Evidence is clear and convincing when there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State,

                                               -11-
983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an appeal of a court’s decision resolving
a petition for post-conviction relief, the court’s findings of fact “will not be disturbed unless
the evidence contained in the record preponderates against them.” Frazier v. State, 303
S.W.3d 674, 679 (Tenn. 2010).

        A criminal defendant has a right to “reasonably effective” assistance of counsel under
both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington, 466
U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of
counsel, a petitioner must prove both deficient performance and prejudice to the defense.
Strickland, 466 U.S. at 687-88. Failure to satisfy either prong results in the denial of relief.
Id. at 697.

        For deficient performance, the petitioner must show that “counsel’s representation fell
below an objective standard of reasonableness” under prevailing professional norms, despite
a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 688-89. “In other words, the services rendered or the advice
given must have been below ‘the range of competence demanded of attorneys in criminal
cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). The petitioner must prove that counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687.
When reviewing trial counsel’s performance for deficiency, this court has held that a
“petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy by his counsel, and cannot criticize 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). The reviewing court “must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). However, “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       [C]ounsel has a duty to make reasonable investigations or to make a reasonable
       decision that makes particular investigations unnecessary.               In any
       ineffectiveness case, a particular decision not to investigation must be directly
       assessed for reasonableness in all the circumstances, applying a heavy measure
       of deference to counsel’s judgments.

Burns, 6 S.W.3d at 462 (quoting Strickland, 466 U.S. at 691). “[W]hen a defendant has

                                              -12-
given counsel reason to believe that pursuing certain investigations would be fruitless or even
harmful, counsel’s failure to pursue those investigations may not later be challenged as
unreasonable.” Strickland, 466 U.S. at 691. “Counsel must conduct appropriate
investigations, both factual and legal, to determine what matters of defense can be
developed.” Baxter, 523 S.W.2d at 432-32.

        Prejudice in turn requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by counsel, even
if professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691. The court clarified that
prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687. “The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.

        A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the
trial court’s factual findings de novo with a presumption of correctness, unless the evidence
preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But
the trial court’s conclusions of law on the claim are reviewed under a purely de novo
standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).

I. Failure to Investigate and Present Evidence of Psychological and Physical Health

       As his first alleged ground for ineffective assistance of counsel, the petitioner
contends that trial counsel failed to adequately investigate and present proof at trial of the
petitioner’s mental and physical health history, including the presentment of expert witness
to negate the petitioner’s culpable mental state and lessen the degree of homicide. In
addressing this issue in its order denying relief, the post-conviction court stated as follows:

               Petitioner has presented only his medical records of his medical
       condition at various times preceding the commission of the crime. Nothing in
       the records relates Petitioner’s lack of capacity to form the requisite culpable
       mental intent necessary to establish the element of premeditation. Petitioner
       failed to present any expert testimony at the evidentiary hearing that he lacked
       the requisite culpable mental state necessary to establish the element of
       premeditation. When the medical reports did not include a finding that a

                                              -13-
       defendant lacked the capacity to form the intent to commit the crime due to
       mental disease or defect, the reports are not admissible for that purpose and are
       inadequate to establish lack of capacity. . . .

              This being the case, Petitioner has failed to produce at the evidentiary
       hearing any evidence of his lack of capacity to form the essential element of
       premeditation.

With regard to trial counsel’s failure to call expert witnesses, the trial court found that the
petitioner had failed to establish prejudice by failing to call such witnesses himself. See
Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990)).

        In his brief, the petitioner is somewhat unclear as to whether he is faulting trial
counsel for failure to investigate this evidence in support of a diminished capacity defense
or in conjunction with the chosen defense of pursuing a lesser-included offense. The standard
of admissibility of diminished capacity type evidence was succinctly coined in State v. Hall,
958 S.W.2d 679, 689 (1997):

               To gain admissibility, expert testimony regarding a defendant’s
       incapacity to form the required mental state must satisfy the general relevancy
       standards as well as the evidentiary rules which specifically govern expert
       testimony. Assuming that those standards are satisfied, psychiatric evidence
       that the defendant lacks the capacity, because of a mental disease or defect, to
       form the requisite culpable mental state to commit the offense charged is
       admissible under Tennessee law.

       The testimony “must demonstrate” that the claimed inability to form the culpable
mental state was “the product of a mental disease or defect, not just a particular emotional
state or mental condition. It is the showing of a lack of capacity to form the requisite
culpable mental intent that is central to evaluating the admissibility of expert mental
testimony on the issue.” Id. at 690. If the expert testimony does not show this fact, it is not
admissible.

        The petitioner in this case has failed to present evidence which establishes the
existence of a mental disease or defect which prohibited him from forming the requisite
intent, absent Dr. Bernet’s report which stated that the petitioner might not be able to form
premeditation. Trial counsel testified that he saw nothing in the medical records presented
which would indicate that a mental disease or defect existed which precluded the petitioner
from forming premeditation. The post-conviction court reached the same conclusion after

                                             -14-
reviewing the record, and we must agree. While it is clear that the petitioner had an
unfortunate health history and a troubled mental background, none of that establishes that he
was incapable of forming premeditation- thus, no causal connection was established.

        Trial counsel made an investigation into the petitioner’s mental and physical health
history. He spoke with the petitioner’s mother and reviewed certain records. He had the
petitioner evaluated by a leading psychologist in the area. However, after that review, he did
not believe that the defense of diminished capacity was supported and chose to pursue a
lesser-included offense defense. In pursuit of that defense, trial counsel did present much
of the information regarding the petitioner’s health before the jury, albeit not the actual
documentation.

        Contrary to the conclusion reached by the post-conviction court that the petitioner had
failed to establish a mental defect or disease precluding the formation of intent, the petitioner
asserts that the records themselves do establish that and that no expert was necessary. We
disagree. He simply failed to establish his claim in post-conviction. The records before us
are simply insufficient to establish a causal link as to how the mental disease or defect
precluded the petitioner from forming the intent to murder his wife on the evening of the
shooting. Because no evidence or expert was presented to establish that link, a finding of
prejudice is foreclosed. See Black, 794 S.W.2d at 757. Thus, the petitioner is entitled to no
relief.

        Although not necessary to the determination of this case because of the above
prejudice finding, we would acknowledge that the question of deficient performance in this
case is much closer based upon trial counsel’s failure to follow-up on the recommendations
in Dr. Bernet’s report with regard to the possibility that the petitioner might not have been
able to form premeditation. However, when reviewing trial counsel’s performance in this
case, we must do so in light of the circumstances as trial counsel perceived them to be at the
time. Hellard, 629 S.W.2d at 9. Our review must be highly deferential with a strong
presumption that counsel’s performance was within the wide range of reasonable
professional assistance. Burns, 6 S.W.3d at 462. “However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate
preparation.” Goad, 938 S.W.2d at 369.

        To succeed on the deficient performance prong, the petitioner would be required to
establish that trial counsel made an unreasonable decision not to pursue or investigate his
mental condition further. On this record, that cannot be established. The proof at trial
reflects that trial counsel made an investigation in this case. He did review some records and
spoke with the petitioner’s family about his various conditions. Trial counsel testified that
he did not pursue the report further because of his own belief that the petitioner had been

                                              -15-
malingering with Dr. Bernet based upon the petitioner’s behavior, as well as ethical
considerations which would not allow trial counsel to advance the defense. Therefore, the
decision was made to pursue a lesser-included offense defense. This appears to be more of
a strategical decision made by trial counsel rather than a lack of competence. From the
evidence presented, it appears that trial counsel reasonably investigated the petitioner’s
mental health history, presented some proof to that effect to negate the mens rea of
premeditation at trial, and ultimately determined against offering certain mental health
evidence because he believed it was unethical to do so.

II. Failure to File a Motion to Suppress

        The petitioner also contends that trial counsel was ineffective by failing to file a
motion to suppress the statement given to law enforcement by the petitioner regarding the
shooting. On appeal, the petitioner argues that, because of his mental deficiencies, he was
incapable of “voluntarily, knowingly and intelligently” waiving his right against self-
incrimination and that the statement should have been suppressed accordingly. In support
of his argument, he relies upon the following facts: (1) that his IQ was 71, which placed him
in the lower end of borderline intellectual functions; (2) medical records which reflect
diagnoses of depression, poor judgment, delusional disorder, seizure disorder, and multiple
sclerosis; and (3) testimony from his mother that the petitioner had difficulty understanding
and comprehending questions and that he dropped out of school in the 9th grade.

        As noted by the post-conviction court, no motion to suppress was contained in the
record because none was filed. Additionally, the court noted that neither the petition for
relief nor its amendments specified upon what grounds trial counsel should have filed the
motion to suppress. In its order, the post-conviction court presumed that the petitioner was
asserting as grounds for the motion that his mental conditions rendered the statement
inadmissible. The court addressed the issue as such. In denying relief upon this ground, the
post-conviction court found:

              In the case sub judice, Petitioner was 27 years of age at the time of his
       confession. He finished the eight grade. His literacy skills were on the low
       side of adequate. He had had no prior experience with the criminal justice
       system. His demeanor was such that he understood the proceedings in which
       he participated and was able to give knowing and intelligent answers to the
       questions posed to him. Although there was some testimony concerning
       malingering, there was no direct evidence of this finding presented at the
       evidentiary hearing. The manner in which Petitioner’s Miranda rights were
       explained to him could have been more thorough given Petitioner’s obvious
       limited literacy skills but was adequate to inform Petitioner of his rights and

                                             -16-
       to ensure that his statement was voluntary. The proof establishes that
       Petitioner was able to drive, hold down a job (at least on a sporadic basis) and
       otherwise function in society on a day-to-day basis.

              Likewise, a low I.Q. does not render a defendant incapable of making
       a voluntary statement to law enforcement.

               In Gwinn v. State, 595 S.W.2d 832 (Tenn. Crim. App. 1979), the Court
       of Criminal Appeals found a confession admissible under facts very similar to
       the present case. In Gwinn, the defendant had an I.Q. of fifty, “comparable to
       that of a third grade child.” Id. at 834. Gwinn could not read or write, other
       than to sign his name. The Court upheld the trial court’s finding that the
       confession was admissible.

              In the unreported case of State v. Roscoe Leonard Perry, the Court of
       Criminal Appeals stated the proper test of the voluntariness of a defendant
       with a low I.Q. (in that case, the defendant’s I.Q. was 30), “Overall, the
       defendant’s statement is clear and reasonably intelligible. Unquestionably, it
       shows that the statement was voluntarily given without any threats, promises,
       or coercion.” State v. Roscoe Leonard Perry, (unreported), Tenn. Crim. App.
       at Knoxville 1987 LEXIS 2560 opinion filed April 14, 1987.

               This being the case, Petitioner’s mental state and low intelligence level
       did not render his statement to law enforcement inadmissible. This Court finds
       that the proof establishes that Petitioner understood his Miranda rights as
       explained to him and made a knowing and voluntary statement to law
       enforcement.

               This issue is without merit.

        Following review of the record, we find nothing which preponderates against the post-
conviction court’s detailed conclusions. Trial counsel testified that he felt there was no basis
for filing such a motion. He noted the petitioner’s ability to give a complete and
chronological accounting of the murder, albeit partially untrue. As found by the post-
conviction court, the petitioner has failed to establish that his intelligence level was such that
his statement would have been rendered inadmissable. Moreover, trial counsel specifically
testified that, as a matter of strategy, he wanted the statement admitted into evidence.
Despite the partial untruth, he felt that the contents of the statement were beneficial to the
theory of defense which was pursued. As previously noted, this court does not second-guess
the strategic decision made by counsel. See Hellard, 629 S.W. 4, 9 (Tenn. 1982). The

                                              -17-
petitioner is entitled to no relief.

III. Familial Relationship/Duty to Zealously Advocate

         Finally, the petitioner contends that he received ineffective assistance of counsel due
to trial counsel’s familial relationship with the district attorney general, which he claims
created a conflict of interest that affected his representation of the petitioner. Specifically,
the petitioner contends that trial counsel’s duty of loyalty and duty to advocate zealously on
behalf of the petitioner were affected. Additionally, he asserts that the existence of the
familiar relationship between the two gave the appearance of impropriety, “especially in light
of the fact that they were opposing counsel in a first degree murder trial.” He contends that
the obvious adverse effect “is evidenced in [trial counsel’s] failure to investigate [the
petitioner’s] psychological and physical health history, and present proof regarding the same
at trial . . .[, as well as his] failure to file a motion to suppress. We disagree.

        An accused has a constitutional right to the effective assistance of counsel at all
critical stages of a criminal prosecution. Tenn. Const. art. I, § 9. This right contemplates that
the services rendered by counsel shall be completely devoted to the interest of the accused.
State v. Knight, 770 S.W.2d 771, 775 (Tenn. Crim. App. 1988). In this respect, it is
unquestioned that “an accused is entitled to zealous representation by an attorney unfettered
by a conflicting interest.” State v. Thompson, 768 S.W.2d 239, 245 (Tenn. 1989).

        Before a petitioner may obtain post-conviction relief on the ground of a conflict of
interest, he must establish by a preponderance of the evidence that: (a) an actual conflict of
interest existed; and (b) the conflicting interest adversely affected the performance of
counsel. Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). Our supreme court has observed
that “an actual conflict of interest included any circumstances in which an attorney cannot
exercise his or her independent professional judgment free of ‘compromising interests and
loyalties.’” State v. White, 114 S.W.3d 469, 476 (Tenn. 2003) (citing State v. Culbreath, 30
S.W.3d 309, 312-13 (Tenn. 2000)). In other words, “[a]n actual conflict of interest is usually
defined in the context of one attorney representing two or more parties with divergent
interests. . . . The term has been described as a situation in which regard for one duty tends
to lead to [the] disregard of another.” State v. Tate, 925 S.W.2d 548, 552-53 (Tenn. Crim.
App. 1995) (internal citations omitted). An actual conflict of interest may exist where an
attorney is “placed in a position of divided loyalties.” Id. at 553. This court has noted that
the conflict “must be actual and significant, not irrelevant or ‘merely hypothetical.’” Charles
C. Dick v. State, No. M2007-00542-CCA-R3-PC, 2008 Tenn. Crim. App. LEXIS 735, *19-
20 (Tenn. Crim. App. Sept. 19, 2008), perm. app. denied, (Tenn. Feb. 17, 2009) (quoting
Terrance B. Smith v. State, No. W2004-02366-CCA-R3-PC, 2005 Tenn. Crim. App. LEXIS
1101, *14 (Tenn. Crim. App. Mar. 27, 2006).

                                              -18-
       If the petitioner demonstrates that counsel “actively represented conflicting interests”
and that an “actual conflict of interest adversely affected his lawyer’s performance,”
prejudice is presumed. Strickland, 466 U.S. at 692 (quoting Cuyler, 446 U.S. at 350). When
a defendant fails to object to the representation at trial, however, he “must demonstrate that
an actual conflict of interest adversely affected his lawyer’s performance,” and the mere
possibility of prejudice will not warrant relief. Cuyler, 446 U.S. at 348. “Thus, a defendant
who shows that a conflict of interest actually affected the adequacy of his representation need
not demonstrate prejudice in order to obtain relief. But until a defendant shows that his
counsel actively represented conflicting interests, he has not established the constitutional
predicate for his claim.” Id. at 349-50 (citations omitted).

        In denying relief on this issue, the post-conviction court noted that it found no
Tennessee case which addressed the possible conflict of interest when counsel on both sides
of a lawsuit are first cousins. The court further noted that the Rules of Professional Conduct,
specifically Rule 1.8(i), were the governing law at the time of the petitioner’s trial. The rule
provided that: “A lawyer related to another lawyer as parent, child, sibling, or spouse shall
not represent a client in a representation directly adverse to a person whom the lawyer knows
is represented by the other lawyer, unless the client consents in writing after consultation
regarding the relationship.” Thus, the court concluded, under prevailing law, the rules did
not prohibit first cousins from representing adverse parties in a trial.1 In it’s findings, the
court specifically stated:

               . . . In the case sub judice, trial counsel testified and Petitioner agreed
       that trial counsel disclosed to Petitioner the relationship between trial counsel
       and the prosecutor in Petitioner’s trial early in trial counsel’s representation of
       Petitioner.

              This Court has reviewed the overall performance of trial counsel in
       Petitioner’s trial and has determined that Petitioner’s trial counsel performed
       over and above the level of competence expected of trial counsel in a criminal
       proceeding. There is absolutely no indication that trial counsel’s performance
       was in any way affected by his relationship to the prosecuting attorney. The
       actions of the prosecutor and Petitioner’s trial counsel during Petitioner’s trial
       could only be described as “adversarial.”

              That being the case, merely advising Petitioner of the family
       relationship was sufficient. A written waiver was not needed.



       1
           The court also analyzed the issue pursuant to the current law and reached the same conclusion.

                                                    -19-
              Even if such a written waiver is required by the Rules of Profession
       Conduct, no prejudice has been shown by Petitioner from the lack thereof. . .
       . As the Court has held hereinabove, Petitioner was adequately and zealously
       represented by his trial counsel. No prejudice has been shown.

        Our review of the record reveals nothing which preponderates against these findings.
Trial counsel testified that early in the representation, the relationship was disclosed to the
petitioner and, further, that it was explained to him. Trial counsel informed the petitioner
that he and the district attorney general had “battled” numerous times in court and that trial
counsel’s loyalty would be to the petitioner. Trial counsel also testified, as did the petitioner,
that new counsel was not requested. Moreover, the record of the trial in no way demonstrates
a division of trial counsel’s loyalties between the petitioner and the district attorney general.

       We agree with the trial court’s assessment of the relevant law that first cousins are not
prohibited from representing opposing parties in each case. The petitioner has failed to
establish in this case that an actual conflict of interest existed in his representation. We
further agree that he failed to establish prejudice. As such, he is entitled to no relief.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                     _________________________________

                                                     JOHN EVERETT WILLIAMS, JUDGE




                                              -20-
