         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs October 25, 2005

                        TIM HOLT v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hancock County
                         No. CR-2491     James E. Beckner, Judge



                    No. E2005-00587-CCA-R3-PC - Filed January 27, 2006


The Appellant, Tim Holt, appeals the judgment of the Hancock County Criminal Court denying post-
conviction relief. Holt was convicted of first degree murder and sentenced to life imprisonment.
On appeal, Holt argues that he was denied his Sixth Amendment right to the effective assistance of
counsel. After review, the judgment of the post-conviction court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

Wayne R. Stambaugh, Morristown, Tennessee, for the Appellant, Tim Holt.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
C. Berkeley Bell, District Attorney General; and Connie Trobaugh, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                                       Procedural History

         The Appellant’s incarceration stems from his jury conviction for the first degree murder of
William Marshall Haas on August 21, 2001, in Hancock County. The proof at trial established that
the Appellant “followed the victim for three miles, pulled beside the victim’s vehicle and shot him.”
State v. Tim Holt, No. E2002-02471-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Nov. 17, 2003).
After shooting the victim at close range with a shotgun, the Appellant returned home and mowed his
yard. Id. The Appellant confessed to a TBI agent that he killed the victim. Id. The Appellant’s wife
testified that her thirty-six-year-old husband had been using methamphetamine for the past year and
believed that the victim was an undercover agent who was spying on their house. Id. However, the
proof established that the victim drove by the Appellant’s residence daily because he delivered
newspapers. Id. After the victim was murdered, it was learned that the victim was also a Hancock
County constable. Id. A mental evaluation established that the Appellant was competent to stand
trial and that an insanity defense could not be supported. Id.

        The Appellant filed a pro se petition for post-conviction relief alleging, among other grounds,
ineffective assistance of counsel. Counsel was appointed, and an amended petition was filed on
November 29, 2004. A post-conviction hearing was held on December 6, 2004, at which the
Appellant, trial counsel, and an investigator in the case testified.

        The Appellant testified that at the time of the homicide, he had a drug problem for which he
had been previously treated and that he believed that certain individuals were brainwashing him and
threatening his family. The Appellant admitted that he met with trial counsel and his investigator
on several occasions prior to trial and discussed possible defenses to the charges against him, as well
as various aspects of the case. The Appellant did not dispute that during their first meeting he told
trial counsel that he had in fact shot the victim and had made a statement to that effect to law
enforcement officers. The Appellant admitted that he refused to plead guilty in the case and that he
chose to testify, although he said the decision was reached because trial counsel told him it would
“work out better in court.” Nonetheless, the Appellant acknowledged that the trial court reviewed
his rights with him prior to his testimony and that he told the judge that his decision to testify was
voluntary. Nonetheless, the Appellant stated that “I feel like there should have been a lot more
investigating went on” in the case.

        Lawrence Smith, an investigator with the public defender’s officer, testified that he met with
the Appellant on numerous occasions and discussed the case. Smith testified that he fully
investigated all claims made by the Appellant, including claims against law enforcement officials
and various drug dealers in the community. However, Smith stated that he found no proof to support
the Appellant’s accusations of threats by any individuals. As a result of their investigation, Smith
and trial counsel received death threats, but Smith stated that the threats did not affect their
investigation in any manner.

         Trial counsel, who was appointed to represent the Appellant, testified that he assembled a
defense team which included his investigator, a neuropsychologist, a jury consultant, and a firearms
expert. Counsel noted that both he and his investigator met with the Appellant several times in order
to ensure face to face communication because of the Appellant’s inability to read and understand.
Trial counsel said that he and his team spent “hundreds of hours” preparing for trial. Counsel stated
that his trial strategy was based upon the Appellant’s actions: “I assumed that [the Appellant] would
testify in the manner he said he was going to testify, and the strategy was to convince the jury that
he did not intend to kill Mr. Haas, that it was basically a mistake.” He further developed a mitigation
strategy to utilize at trial which involved the use of the psychologist, whose tests revealed that the
Appellant was borderline mentally retarded. Counsel further explained that it was the Appellant who
wanted to testify and tell his side of the story to the jury. Counsel also related that the death threats
he and his investigator received had no effect on his handling of the case. At the conclusion of the
hearing, the post-conviction court denied the petition.



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                                               Analysis

        On appeal, the Appellant has raised the single issue of ineffective assistance of counsel,
asserting that trial counsel’s representation was deficient because: (1) trial counsel failed to properly
prepare for trial; (2) trial counsel abandoned a previously filed motion for change of venue due to
pretrial publicity; and (3) trial counsel failed to formally object to the State’s use of a void
indictment. To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the
burden of establishing the allegations set forth in his petition by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2003). The Appellant must demonstrate that counsel’s representation fell
below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984), the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy, 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). This deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        It is unnecessary for a court to address deficiency and prejudice in any particular order, or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish 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.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law, are reviewed under a purely de novo
standard with no presumption that the post-conviction court’s findings are correct. Id.

I. Trial Preparation

        First, the Appellant alleges that trial counsel was ineffective in that he failed to properly
prepare for trial. Specifically, the Appellant argues that trial counsel: (1) failed to interview key
defense witnesses due to threats made against trial counsel and his staff; (2) failed to properly
instruct the Appellant regarding his constitutional right to testify, as well as properly prepare the
Appellant to give testimony at trial; and (3) failed to properly administer and/or conduct ballistic
tests on the alleged weapon used by the Appellant.


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        (a) Failure to Interview Witnesses

        The Appellant alleges that trial counsel failed to interview certain key witnesses regarding
the alleged death threats which were made against the Appellant and his family by methamphetamine
dealers because of death threats against trial counsel and his office staff. Smith testified that despite
the sometimes confrontational events, every single allegation made by the Appellant was
investigated.

        In denying the Appellant’s petition, the post-conviction court found:

                As to whether or not counsel . . . was effective in his representation of the
        petitioner, this Court finds that [trial counsel] and his defense team . . .
        communicated with the petitioner face to face on a regular basis, spending many
        hours discussing every possible strategy, piece of evidence, witness, avenue of
        investigation, motion, plea bargain, and anything else that could possibly or
        conceivably be pursued. No stone was left unturned. No strategy or theory was left
        uninvestigated.

        We find nothing in the record to preponderate against the post-conviction court’s findings.
Moreover, the Appellant’s argument must also fail because the Appellant has failed to present any
proof at the post-conviction hearing, other than his own bare assertions, as to whom trial counsel
failed to interview and what they would have testified to had they been called. When a petitioner
claims that trial counsel failed to interview or present a witness in support of his defense, the
Appellant should present that witness at the evidentiary hearing. Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). Because the Appellant failed to produce the witnesses, or even
produce their names, it would be speculative to conclude that their testimony would have affected
the outcome of the trial. Thus, this allegation falls far short of clear and convincing evidence.

        (b) Right to Testify

         Next, the Appellant asserts that trial counsel failed to instruct him of his constitutional right
to testify or not testify in his own defense. He asserts that he testified because trial counsel wanted
him to do so.

         Trial counsel testified that the Appellant insisted upon going to trial and placing his side of
the story before the jury. Counsel testified that he reviewed and explained the Appellant’s right to
him in great detail, going so far as to prepare a written document, written in a way which was
understandable, which was signed and acknowledged by the Appellant. Trial counsel specifically
testified that the document was read to the Appellant, going “through every one of those words,”
prior to him signing it. In an abundance of caution, trial counsel also requested the trial court voir
dire the Appellant regarding his right to testify, prior to his taking the stand, which the court did.




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        We find nothing in the record to suggest that the Appellant did not personally make the
decision to testify in his case. Included in the record is a signed document which specifically states
that the Appellant knew he could refuse to testify if he so chose. Trial counsel testified that he
reviewed this document with the Appellant, explaining it in great detail, despite the fact that the
Appellant testified he did not recall this occurring. Moreover, the Appellant admitted that the trial
court reviewed his rights with the Appellant prior to his testifying. As such, we find this issue
without merit.

        (c) Ballistic Testing

         The Appellant also asserts that trial counsel was ineffective for failing to properly administer
and/or conduct ballistic tests on the alleged weapon used by the Appellant in the homicide.
Specifically, the Appellant asserts that “[o]ne of the most crucial parts of that investigation was to
properly conduct ballistic tests on the alleged murder weapon through different methods of fragment
identification and whether it was possible that particular weapon could have been fired at the angle
as alleged by the State of Tennessee in it’s theory of prosecution. It was critical for [trial counsel]
to test the actual possibility of the firing of the alleged murder weapon at a certain rate of speed and
angle to determine whether [the Appellant’s] alleged discharge was the one who did end the life of
the victim.”

       In finding that trial counsel was not deficient, the post-conviction court made the following
findings:

               Much has been said about the investigation of and establishment of physical
        evidence having to do with the positions of the vehicles and whether or not they were
        moving and at what position the weapon was fired and under what circumstances.
        The most that anyone had to go on regarding that was the confession of the
        [Appellant].

               As [trial counsel] correctly answered, nothing else imaginable could have
        been done and, in fact, . . . no suggestion has been made as to what could have been
        done that wasn’t done. And there is a good reason for that, because there is nothing.

        We find nothing in the record to preponderate against the post-conviction court’s findings.
As previously noted, trial counsel stated that he employed a firearms expert to investigate the case.
That expert concluded that the weapon recovered was the murder weapon as its shot pattern “fit with
the evidence.” Moreover, the Appellant testified at trial that the shotgun introduced into evidence
“was the one that he used to shoot on August 21st, 2001.”

(2) Withdrawal of Motion for Change of Venue

       Next, the Appellant contends that trial counsel was ineffective by abandoning his pursuit of
a change of venue after filing a “Motion for Extension of Time to file Motion for Change of Venue.”


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The motion was ultimately withdrawn by trial counsel. The Appellant argues that trial counsel
should have pursued the motion because the victim was an elected law enforcement official and was
well known within the community, specifically arguing that even though there was no undue amount
of publicity regarding the case, the mere fact that the alleged victim was a duly elected law
enforcement official would be grounds enough to pursue a motion for a change of venue.

       At the post-conviction hearing, trial counsel testified and explained his reasoning behind
withdrawing the motion:

       We had no real basis to ask for a change of venue. . . . First, a personal preference.
       I really like Hancock County juries. Secondly, there is no major single news media
       coming out of Sneedville that barrages people day to day about cases that . . . tend to
       pollute the juries. And Hancock County is a large county. I felt we could get a fair
       trial.

The post-conviction court, in denying the Appellant’s petition, found:

       Included in those pretrial motions was one for change of venue. This Court has ruled
       that the matter would be taken under advisement to see if a fair jury could be
       obtained in Hancock County, Tennessee, and although that motion was later
       withdrawn by defense counsel, the jury selection process shows beyond any doubt
       that the petitioner was able to obtain a fair jury in Hancock County, Tennessee.

       The Appellant has failed to introduce any proof which would preponderate against the court’s
finding. Clearly, trial counsel was aware of possible venue problems and filed the appropriate
motion. However, after review, trial counsel determined that he had no basis for seeking a change
of venue. Clearly, the post-conviction court found no prejudice as it concluded that the Appellant
obtained a fair and impartial jury. Thus, this issue is without merit.

(3) Lack of Objection to Void Indictment

        Lastly, the Appellant complains that trial counsel was ineffective in that he failed to object
to the State’s use of a void indictment. Specifically, the Appellant asserts that trial counsel should
have filed a motion to dismiss the first degree murder indictment because “it included the word
‘deliberate’ which represented an ‘additional element.’” As the State asserts, this issue is waived due
to the Appellant’s failure to include a copy of the indictment in the record. See Tenn. R. App. P.
24(b). Moreover, the Appellant fails to present any legal argument as to why the indictment is void
because it contains the word “deliberate.” See Tenn. R. Ct. Crim. App. 10(b). Accordingly, this
issue is waived. Notwithstanding waiver, we conclude the issue is without merit.

         The proof at the post-conviction hearing established that the first degree murder indictment
included the word “deliberate.” The post-conviction court entered the following findings relevant
to this issue:


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       It is alleged that the indictment was void for a fatal defect in containing the
       requirement that the act of murder be found to be deliberate. . . .

       ....

       [T]his Court finds that the indictment is not void because it required an extra element
       of acting deliberately. That would inure, in fact, to the petitioner’s benefit if it were
       so charged but it was not charged to the jury. If a motion had been raised to dismiss
       the indictment because of that, the motion would have been denied and no different
       result would have occurred.

         The inclusion of the word “deliberate” in the indictment was mere surplusage and did not
affect the validity of the indictment. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Indeed,
the trial court properly instructed the jury with regard to the requisite elements of premeditated first
degree murder; thus, no prejudice resulted.

                                          CONCLUSION

        For the foregoing reasons, the Hancock County Criminal Court’s dismissal of the Appellant’s
petition for post-conviction relief is affirmed.



                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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