         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 3, 2009

             JERRY DALE TIGNER, JR. v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                        No. 02-08463 James M. Lammey, Jr., Judge



                    No. W2008-01131-CCA-R3-PC - Filed March 25, 2009


The petitioner, Jerry Dale Tigner, Jr., appeals the denial of his petition for post-conviction relief,
arguing that he received ineffective assistance of trial counsel. Following our review, we conclude
that the petitioner has not met his burden of demonstrating either that counsel was deficient or that
any alleged deficiencies in representation prejudiced the outcome of his case. Accordingly, we
affirm the denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
CAMILLE R. MCMULLEN , JJ., joined.

Jerri D. Mauldin, Memphis, Tennessee, for the appellant, Jerry Dale Tigner, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Muriel Malone, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                              FACTS

        The petitioner was convicted of second degree murder and sentenced as a Range I, violent
offender to seventeen years in the Department of Correction. His conviction and sentence were
affirmed by this court on direct appeal, and our supreme court denied his application for permission
to appeal. See State v. Jerry Dale Tigner, Jr., No. W2004-01935-CCA-R3-CD, 2005 WL 2259252,
at *1 (Tenn. Crim. App. Sept. 15, 2005), perm. to appeal denied (Tenn. Jan. 30, 2006).

         The petitioner’s conviction stemmed from his shooting of an acquaintance who was visiting
at his rural Shelby County home in May 2002. Id. The proof at trial established that the petitioner
discovered that the victim had stolen some of his jewelry, became angry, and began threatening the
victim with a handgun. Id. There were four eyewitnesses to the shooting: the petitioner’s brother,
David Tigner; Charles Wood; Robert “Robbie” Rogers; and Adam Whitehead. Id. Rogers,
testifying in the State’s behalf at trial, described the incident as follows:

       At some point after the [petitioner] woke up on May 18th, he discovered a necklace
       was missing from his room. The [petitioner] announced to the group that if the
       necklace was not returned by 3:00 p.m., he was going to shoot someone. Rogers
       suspected the victim had the necklace and confronted him, telling him to return the
       necklace. The [petitioner] and the remainder of the group came from the
       [petitioner]’s bedroom and had the victim sit on the couch. Eventually, the victim
       emptied his pockets, revealing the necklace and other stolen items. Rogers said the
       [petitioner] was very upset. The [petitioner] had an old revolver and was pointing
       it at the victim, saying he would shoot the victim’s kneecap, his leg, and his nose.
       The [petitioner] was pointing the gun, mainly at the victim’s face and head, and
       sometimes waving the gun around. The [petitioner] punched the victim in the head
       repeatedly with the weapon, but it did not fire at that time. The [petitioner] had
       cocked the hammer on the revolver, and several of the witnesses asked him at various
       times to uncock it. Rogers stated that the victim had no weapon and did not threaten
       the [petitioner]. Rogers heard the shot but was not looking at the [petitioner] at the
       time. He said the [petitioner] did not attempt to render any assistance to the victim
       but proposed that the witnesses agree that the victim lunged at the [petitioner] with
       a knife. The [petitioner] was crying and upset at the time. The [petitioner] did call
       911 after ten minutes. David Tigner placed a knife in the victim’s hand, using gloves
       to handle the knife. When Rogers was later questioned by officers, he said he
       attempted to maintain the concocted story but broke down and told the truth.

Id.

        On January 2, 2007, the petitioner filed a pro se petition for post-conviction relief in which
he raised, among other things, a claim of ineffective assistance of trial counsel. Following the
appointment of post-conviction counsel, he filed an amended petition alleging that trial counsel was
deficient in her representation for failing to fully investigate the case, failing to raise a defense of
diminished capacity, failing to request that the jury be charged prior to closing arguments, and
failing to have the jury charged regarding his post-traumatic stress disorder. The petitioner
contended that these various deficiencies prejudiced the outcome of his case, resulting in the denial
of the effective assistance of trial counsel.

        At the March 18, 2008, evidentiary hearing, the petitioner complained that his trial counsel
failed to interview the State’s witness, Robert Rogers, until the first day of trial. He said he also
believed that she should have called more character witnesses to testify during the guilt phase of his
trial about his mental state at the time of the shooting. He thought it would have been particularly
helpful had she called Dr. Barbara Kirsch, the psychologist who testified at the sentencing phase,
whose testimony would have enabled the jury to understand that he could not have formed the
requisite mental intent for the crime. The petitioner explained that his girlfriend had been shot and
killed during a robbery a few months prior to the shooting and that the experience had left him with

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post-traumatic stress disorder, for which he had been prescribed numerous medications, including
Xanax, Valium, Soma, Lortab, Paxil, and Zyprexa. According to the petitioner, he was under the
influence of those medications, as well as some illegal drugs, at the time he shot the victim.

        The petitioner testified that he thought trial counsel should have called his mother to testify
at the guilt stage of his trial because she could have told the jury about his mental issues and the
medications he was taking. In addition, he believed that his case would have been stronger had trial
counsel retained an independent firearms expert. He said the State’s firearms expert testified that
the gun had a light trigger, but he thought this point “would [have] come out . . . more clear” if he
had his own firearms expert. Although he and trial counsel had conversations about trial strategy,
he could not recall if they ever specifically discussed retaining their own firearms expert.

       On cross-examination, the petitioner conceded that he might have told trial counsel that
Rogers was out of town during the months preceding the trial and that he did not know how to reach
him. He said he thought he told counsel that he was having flashbacks of the earlier robbery at the
time he shot the victim, but he could not recall any specifics of the conversation. Finally, he
acknowledged that he told the police that the shooting was an accident, and he agreed that his
defense had been predicated on that theory.

        Trial counsel testified that she was appointed to represent the petitioner after his case was
moved from general sessions to criminal court. She said she had numerous conversations with him
about the case, both in her office and at the courthouse, and she shared with him the open file
discovery she received from the State, which included his pretrial statements to police. The
petitioner maintained in his statements to police and in conversations to her that the shooting was
an accident, and her defense strategy therefore consisted of trying to show that it was either a
reckless or negligent shooting or a voluntary manslaughter. The petitioner told her about the earlier
home invasion/robbery and, on the eve of trial, informed her that the necklace the victim had stolen
belonged not to his current girlfriend, but to a girl who had spent the night with him before the
shooting. She said the petitioner explained that the necklace held sentimental value, which was why
he had become so upset upon learning that the victim had stolen it.

        Trial counsel testified that the petitioner never said anything to her about experiencing
flashbacks from the home invasion and that she saw no basis from her investigation for a diminished
capacity defense. She said that the petitioner’s family “orchestrated” the involvement of Dr. Kirsch,
the psychologist from Dallas, without her knowledge. Her records indicated that she received a
phone message from Dr. Kirsch on January 22, 2004, followed by a faxed report on January 29,
which was just before the start of the trial. On cross-examination, she testified that she knew nothing
about Dr. Kirsch and believed that her report was based on only one phone conversation with the
petitioner. These circumstances, combined with the fact that she did not receive the faxed report
until the last minute and the petitioner had never indicated to her that he was experiencing
flashbacks, influenced her decision not to call Dr. Kirsch as a witness at trial. She did, however, call
her as a witness at the sentencing hearing two months later, with the thought that she would “put her
on and see what happen[ed].”



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         Trial counsel testified that she and the petitioner had several discussions about the fact that
Rogers was out of the jurisdiction in the months preceding the trial. She stated that the petitioner
had no knowledge of Rogers’ whereabouts and no contact information for him. Immediately before
trial, however, the State served an interstate subpoena on Rogers in Atlanta, and she interviewed him
on the Monday morning before trial began and shared those interview notes with the petitioner.
According to counsel, Rogers’ trial testimony was essentially consistent with the pretrial statement
he had given to police, which she had reviewed along with the other discovery materials. Trial
counsel testified that she did not request a separate firearms expert because she believed that the
testimony provided by the Tennessee Bureau of Investigation expert called by the State, to the effect
that the gun had a “light” trigger that did not take much pressure to pull, “sp[oke] volumes” in
support of the petitioner’s contention that the shooting was accidental. Finally, she testified that she
could not recall whether the trial judge instructed the jury before or after closing arguments, but she
did not think there was any “hard and fast rule” regarding when the jury should be charged.

        The post-conviction court denied the petition at the conclusion of the hearing, issuing
detailed oral findings of fact and conclusions of law, followed by a lengthy written order entered on
May 15, 2008. Thereafter, the petitioner filed a timely notice of appeal to this court, challenging the
post-conviction court’s finding that he received effective assistance of trial counsel.

                                             ANALYSIS

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a
presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
same standard for determining ineffective assistance of counsel that is applied in federal cases also
applies in Tennessee). The Strickland standard is a two-prong test:

        First, the defendant must show that counsel’s performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the


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        defense. This requires showing that counsel’s errors were so serious as to deprive
        the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        On appeal, the petitioner contends that trial counsel provided ineffective assistance by failing
to meet with the key witness, Rogers, until just before the trial; failing to call Dr. Kirsch and the
petitioner’s mother, Mrs. Woods, to testify at trial with respect to the petitioner’s post-traumatic
stress disorder and the medications he was taking at the time of the offense; failing to request a jury
instruction on diminished capacity; and failing to request that the jury be charged prior to closing
arguments.

        In denying relief, the post-conviction court found that the petitioner had not met his burden
of demonstrating either a deficiency in representation or resulting prejudice. With respect to the
petitioner’s main allegation that trial counsel should have presented evidence in support of a
diminished capacity defense, the post-conviction court’s ruling states in pertinent part:

                 Second, Petitioner claims that trial counsel failed by not raising a diminished
        capacity defense, based on post-traumatic stress syndrome caused by a previous
        home invasion, and by not calling Dr. Barbara Kirsch and Libby Woods in support
        of this defense. Petitioner claims that this defense would have informed the jury that
        he could not have formed the intent for the charged offense. Petitioner, however,
        stated that he maintained from the beginning that the shooting was an accident. [Trial
        counsel] testified that she . . . made a strategic decision not to call Dr. Kirsch at trial
        for several reasons, including lack of confidence in calling Dr. Kirsch as a witness
        and [trial counsel’s] doubt that Dr. Kirsch’s testimony would support a diminished
        capacity defense. Furthermore, [trial counsel] testified that the defense theory was
        that the act was not intentional. Finally, [trial counsel] testified that Mrs. Woods was
        not called to testify at trial because she was neither present at the scene of the
        shooting nor at the scene of the previous home invasion. [Trial counsel] was not
        ineffective for failing to raise this defense.

        The record fully supports the findings and conclusions of the post-conviction court. Trial
counsel’s testimony established that she met frequently and regularly with the petitioner. During
those meetings, she went over the discovery she had received from the State, which included the
petitioner’s statements to police as well as the statements of the eyewitnesses. She also discussed
defense strategy and the fact that Rogers was out of the jurisdiction. Trial counsel testified that she

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interviewed Rogers on the Monday morning before trial began and that she shared her notes from
that interview with the petitioner. She also said that Rogers’ trial testimony was essentially the same
as the pretrial statement he had given to police. The petitioner has not shown that trial counsel was
deficient for failing to interview Rogers earlier, or how that alleged deficiency in any way prejudiced
his case.

       Trial counsel further testified that the petitioner maintained to police and to her that the
shooting was accidental. The petitioner never said anything about experiencing flashbacks and she
saw nothing in her investigation that would support a diminished capacity defense. Moreover, she
knew nothing about Dr. Kirsch and did not receive her faxed report until the Friday before trial. She
explained her decision not to call Dr. Kirsch as a trial witness:

       It was a strategic decision in that three days before trial I’m getting this report from
       a doctor that I don’t know anything about that the family has hired independently that
       has spoken to my client once over the telephone and she is making these broad brush,
       oh, he’s got this mental disease or defect. Yes, I made a tactical decision given what
       [the petitioner] had told me, given what Mr. David Tigner had told me, given what
       Mr. Adam Whitehead had told me and given what Mr. Charles Wood had told me,
       in my preparation that, no, it would not support that. That his actions were not that
       he was in a drug induced flashback at the time that he’s waving this gun around and
       that was supported by my conversations with [the petitioner].

         The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct.
at 2066, and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982). There is nothing in the record that would suggest that trial counsel was
unprepared for the case, or that her decision not to present a diminished capacity defense was
unreasonable under the circumstances. The petitioner is not, therefore, entitled to relief on the basis
of this claim.

        The petitioner also contends on appeal that trial counsel was ineffective because “the jury
charge was not charged before closing arguments.” However, he makes no argument and cites no
proof with respect to exactly how trial counsel was deficient in this respect, or how the alleged
deficiency prejudiced his case. Accordingly, this claim must also fail.

                                          CONCLUSION

        We conclude that the petitioner has not met his burden of showing that he received
ineffective assistance of counsel. Accordingly, we affirm the denial of his petition for
post-conviction relief.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE


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