        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 20, 2014

           BRADLEY WAYNE ADAMS v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for McMinn County
                       No. 12CR103 Carroll L. Ross, Judge


                  No. E2013-01928-CCA-R3-PC - Filed June 30, 2014


Bradley Wayne Adams (“the Petitioner”) pleaded guilty to one count each of second degree
murder and aggravated assault. The Petitioner subsequently filed for post-conviction relief,
alleging ineffective assistance of counsel. Following a hearing, the post-conviction court
denied relief. The Petitioner now appeals. Upon our thorough review of the record and
applicable law, we affirm the judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
D. K ELLY T HOMAS, J R., JJ., joined.

Richard Hughes, Cleveland, Tennessee, for the appellant, Bradley Wayne Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Steven Bebb, District Attorney General; and Steve Morgan, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                          Factual and Procedural Background

       A McMinn County Grand Jury indicted the Petitioner on one count of first degree
murder and one count of attempted first degree murder. The Petitioner pleaded guilty on
April 11, 2011, to one count of second degree murder and one count of aggravated assault.
We summarize the factual basis for the plea set forth by the State at the plea submission
hearing as follows:
        On June 23, 2009, officers with the Athens Police Department (“APD”) responded
to a report of gunshots fired in a residence located at 625 Virginia Avenue (“the residence”).
Upon arrival, the officers went inside the residence and discovered the victim, Michael
Hewitt, unresponsive with a gunshot wound to the back right portion of his head. Hewitt was
transported to the hospital and eventually died. A subsequent autopsy revealed that Hewitt
died from a single gunshot wound to his head.

        James Arwood, who was present at the scene during the shooting, made a statement
to police. According to Arwood, he was with Hewitt and Chase Bevis at the residence when
the Petitioner arrived with Scotty Miller. At the time that he arrived, the Petitioner’s hand
was wounded, apparently from a gunshot. The Petitioner stated that he had been shot in the
hand and that he was looking for the shooter. Arwood was with Bevis in the living room
when they heard a gunshot. After the gunshot, they heard the Petitioner ask, “Who else
wants some?” At that point, Bevis attempted to subdue the Petitioner and take the gun away
from him. During the struggle, a second shot struck Bevis in the abdomen. At that time, the
Petitioner and Miller both fled the residence.

        In his statement to police, Miller claimed that he had driven with the Petitioner to the
residence. The Petitioner already had the gunshot wound on his hand at the time Miller
picked him up. According to Miller, the Petitioner recently had been involved in a physical
altercation with unknown individuals. Miller believed that the Petitioner’s reason for going
to the residence was to confront those who he believed had been involved in the previous
altercation. Miller witnessed the Petitioner shoot Hewitt.

       Bevis also made a statement to police. According to Bevis, he was inside the
residence in question when the Petitioner and Miller arrived. Bevis recalled hearing the
Petitioner ask, “Who done this to me?” while holding up his wounded hand. Hewitt led the
Petitioner to the bathroom, apparently in an attempt to help the Petitioner tend to his wound.
After they returned from the bathroom, Bevis witnessed the Petitioner pull out a handgun and
shoot Hewitt in the head. Bevis lunged towards the Petitioner in an attempt to subdue him
and gain control of the gun. During that struggle, Bevis was shot in the abdomen. After the
Petitioner fled, Bevis drove himself to the hospital.

       The Petitioner was taken into custody and made a statement to police. According to
the Petitioner, there was a “shootout” at the residence, during which he fired his gun and was
also shot in the hand.

       An investigation of the scene uncovered a Colt .380 handgun and two spent .380
caliber shells.




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       Pursuant to the plea agreement, the trial court sentenced the Petitioner to twenty five
years’ incarceration on his conviction for second degree murder and three years’
incarceration on his conviction for aggravated assault. The trial court ordered that the two
sentences run consecutively for a total effective sentence of twenty eight years’ incarceration.
The Petitioner subsequently filed for post-conviction relief, alleging that his counsel at trial
(“Trial Counsel”) was ineffective. An evidentiary hearing was held on the Petitioner’s claim
for post-conviction relief, and the following evidence was adduced:

        Vickie Adams, the Petitioner’s mother, testified that she hired Trial Counsel to
represent the Petitioner. At the time Adams hired Trial Counsel, she explained to him that
the Petitioner had a “history of the mental problems from early on.” There were times during
the Petitioner’s childhood when he was hospitalized “[b]ecause of his behavior.” Adams
testified that she became aware that the Petitioner had a substance abuse problem when he
was sixteen years old.

        Dr. John Harrison, a forensic toxicologist with the Tennessee Bureau of Investigation
(“TBI”), identified a report showing the results of a blood analysis performed on a sample
of the Petitioner’s blood taken approximately two hours after the shooting. The analysis
concluded that the Petitioner’s blood alcohol content was .07 at the time it was drawn.
Therefore, Dr. Harrison deduced that the Petitioner’s blood alcohol content could have been
“a .09 to a .11, with an average of a .10 back to the time of the incident.” Dr. Harrison also
identified a report of a toxicology analysis performed on the same sample. That report
concluded that the Petitioner’s blood tested positive for the presence of alprazolam and
methadone. He testified that the amount of methadone present in the Petitioner’s blood
“would be less than a therapeutic range.” However, the amount of alprazolam present was
in the “high range,” which, combined with the alcohol, would have caused “pronounced”
impairment. He could not recall having spoken with Trial Counsel about the instant case.

       Trial Counsel testified that, prior to being retained for the instant case, he previously
had represented the Petitioner on an unrelated criminal matter. He was “very much” aware
of the Petitioner’s history of substance abuse and mental illness. A mental evaluation had
been performed on the Petitioner subsequent to his arrest, and that report concluded that the
Petitioner was mentally competent to stand trial. When Trial Counsel began meeting with
the Petitioner regarding the instant case, he had “numerous concerns” about the Petitioner’s
“mental health in general, particularly, as it related to defending his case, and avenues that
we might approach for a defense strategy.” However, he did not have concerns about the
Petitioner’s competency.

       Trial Counsel testified that the Petitioner informed him of certain voice mails,
allegedly containing threats, that were left on the Petitioner’s cell phone by Hewitt. He
recalled having multiple conversations with the Petitioner regarding the voice mails;

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however, he personally had not listened to them. The Petitioner also asked him to investigate
the crime scene. Specifically, the Petitioner claimed that Hewitt kept several guns hidden
in the residence. However, Trial Counsel did not investigate the crime scene prior to the
Petitioner’s plea.

       Trial Counsel testified that he ordered an independent mental evaluation of the
Petitioner, which was performed by Dr. Kimberly Brown. Trial Counsel considered utilizing
an expert to assert that the Petitioner’s mental state at the time of the shooting did not rise to
a level of premeditation. However, in her report following that evaluation, which was
entered into evidence at the hearing, Dr. Brown concluded that “the available evidence [did]
not support a mental defense.” Furthermore, due to the Petitioner’s behavior on the day of
the shootings, Dr. Brown could not conclude that the Petitioner was too impaired to be able
to form the requisite mental state.

       Trial Counsel never spoke with Dr. Harrison about the results of the toxicology
analysis. However, Trial Counsel testified that, had the case proceeded further in the process
towards trial, he had plans to hire an independent toxicologist.

          On cross-examination, Trial Counsel agreed that the potential effect of the allegedly
threatening voice mails could be a “double-edged sword.” He stated, “[I]t could be shown
to support a self-defense theory in, in some respects, and then of course, it can also be shown
that . . . [the Petitioner’s] motivation for going over there was to specifically cause trouble.”
Trial Counsel also noted that the statement the Petitioner gave to police did not support a
theory of self-defense. Trial Counsel testified that, had the case proceeded further towards
trial, he would have listened to the voice mail recordings.

       Trial Counsel testified that extensive negotiations involving multiple offers and
counter-offers led to the plea agreement that ultimately was entered. He thoroughly
discussed each offer with the Petitioner, and the Petitioner was satisfied with the final
agreement.

       On re-direct examination, Trial Counsel stated that he had discussed with the
Petitioner the potential effect that the alcohol and drugs in his system at the time of the
shooting could have on establishing the requisite mental state. However, Trial Counsel
admitted that he did not know the precise content of alcohol or other substances in the
Petitioner’s blood. Trial Counsel also confirmed that he had discussed the voice mails “at
length” with both the Petitioner and the Petitioner’s family.

       The Petitioner testified that he understood “for the most part” the rights that he waived
by choosing to plead guilty. He confirmed that he had a history of mental health issues and
substance abuse, and he had discussed those issues with Trial Counsel. Trial Counsel

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provided him a copy of “the majority” of the discovery in the instant case. The Petitioner
also testified that he was aware of each of the offers and counter-offers that were made
during plea negotiations. He informed Trial Counsel that he wanted a plea agreement for
twenty years, reasoning, “[T]here was a loss of life and . . . I should . . . do some time for it,
but I didn’t feel that the circumstances and, of the situation that it deemed anything more than
that.” Trial Counsel also discussed with him that his prior felony conviction for reckless
endangerment could negatively impact the sentence to which the State was willing to agree.

       The Petitioner stated that he and Trial Counsel discussed how the presence of drugs
and alcohol in his system at the time of the shooting “could be relevant to premeditation.”
He understood that his voluntary intoxication and the fact that he was able to operate a
vehicle on the night of the shooting could have been relevant had this case gone to trial.
However, “there wasn’t a whole lot of talk [with Trial Counsel] about going to trial,” and he
did not believe that Trial Counsel “had ever planned on actually having a trial.”

        Regarding the voice mails in question, the Petitioner testified, “I don’t remember
exactly what was on there, but I do know it was on the lines of, ‘Come on over here, we’ve
got some guns,’ and, ‘We’ll kill you and kill your family.’” The Petitioner testified that, prior
to the shooting, he had been in a physical altercation with Nick Huskey, a friend of Hewitt’s.
The Petitioner could not remember if the voice mails in question were from Hewitt or
Huskey.

       The Petitioner testified that he wanted Trial Counsel to go “into more depth about, you
know, how intoxicated I was, and how maybe I could have perceived the threat under those
conditions.” He did not feel that Trial Counsel advised him fully of the facts and
circumstances of the case or of the evidence against him. He believed that, had this case
gone to trial, he could have received a lesser sentence than he received pursuant to the plea
agreement.

       On cross-examination, the Petitioner identified a waiver of trial by jury form, a waiver
of appeal form, and the plea agreement. He admitted that he signed all three of those
documents and confirmed that Trial Counsel had gone over each form with him prior to his
signing them. He confirmed that, any time he had asked for a missing piece of discovery,
Trial Counsel would make an effort to get him a copy. Trial Counsel informed him that,
were he to go to trial, he faced the possibility of being convicted of first degree murder and
receiving a sentence of life without the possibility of parole. He confirmed that he did not
“know for sure” whether it was Hewitt or Huskey who left the voice mails. The Petitioner
believed that guns were hidden throughout the residence, and he wanted Trial Counsel to
investigate that possibility. The Petitioner agreed that, although Trial Counsel advised him
to accept the plea agreement, the ultimate decision to plead guilty was his alone.


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        Following the hearing, the post-conviction court issued an order denying post-
conviction relief. The Petitioner timely appealed, arguing that Trial Counsel was ineffective
in failing to properly instruct the Petitioner as to a theory of self-defense, failing to properly
investigate the scene of the crime, and failing to investigate the allegedly threatening voice
mails left on his phone.

                                       Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006); see Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                                             Analysis

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.1 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.




       1
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

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        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688). Our supreme court has explained
that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “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).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “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) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). In the context of a guilty plea, our
analysis of this prong



                                              -7-
       focuses on whether counsel’s constitutionally ineffective performance affected
       the outcome of the plea process. In other words, in order to satisfy the
       “prejudice” requirement, the [petitioner] must show that there is a reasonable
       probability that, but for counsel’s errors, he would not have pleaded guilty and
       would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Calvert v. State, 342 S.W.3d 477, 486
(Tenn. 2011).

        The Petitioner first argues that Trial Counsel was ineffective in “failing to develop and
fully advise” him on a theory of self-defense. Specifically, he asserts that his “belief that a
real danger existed at the time he shot decedent would have been impacted by his mental
health, his degree of intoxication and his level of stress at the time of the shooting.” He also
asserts that he “was unaware of this possible defense.”

       Both the testimony of Trial Counsel and the Petitioner show that there was a
significant amount of discussion between the two regarding both the Petitioner’s history of
substance abuse as well as his history of mental illness. Two mental evaluations of the
Petitioner were performed prior to the Petitioner’s pleading guilty, and the reports of both
evaluations are contained in the record. The mental evaluation ordered by the State
concluded both that the Petitioner was competent to stand trial and that the Petitioner “was
able to appreciate the nature or wrongfulness” of his acts at the time of the shooting.
Likewise, the independent mental evaluation performed by Dr. Brown concluded that “the
available evidence does not support a mental defense.” Furthermore, the Petitioner testified
that he and Trial Counsel discussed how the presence of drugs and alcohol in his system at
the time of the shooting “could be relevant to premeditation.”

        Nothing in the record suggests that Trial Counsel’s representation was deficient in this
regard. On the contrary, the record shows that Trial Counsel and the Petitioner discussed the
potential impact that his mental illness and intoxication had on his mental state at the time
of the shooting and that Trial Counsel in fact consulted an independent expert with the aim
to develop that potential defense. Therefore, the Petitioner failed to demonstrate that Trial
Counsel’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn, 202 S.W.3d at 116 (quoting
Strickland, 466 U.S. at 688). Accordingly, the Petitioner is entitled to no relief on this basis.
Having found that the Petitioner has failed to establish Trial Counsel’s deficient
performance, we need not consider the prejudice prong. Goad, 938 S.W.2d at 370.

       The Petitioner next contends that Trial Counsel was ineffective in failing to
investigate allegedly threatening voice mails left on the Petitioner’s phone and by failing to
investigate the crime scene. The Petitioner testified that the voice mails in question


                                               -8-
contained threats and that Hewitt kept guns hidden at the residence which were not
uncovered by police. However, the Petitioner did not present the voice mails at the post-
conviction hearing. In fact, the Petitioner testified that he could not be certain that the voice
mails were even left by Hewitt. Furthermore, the Petitioner did not present any evidence at
the post-conviction hearing, aside from his own speculation, that any exculpatory evidence
would have been uncovered upon Trial Counsel’s inspection of the crime scene.

        In the context of a post-conviction petition, this Court has said that “[i]t is elementary
that neither a trial judge nor an appellate court can speculate or guess on the question of . . .
what a witness’s testimony might have been if introduced by defense counsel.” Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Therefore, “[w]hen a petitioner
contends that trial counsel failed to discover, interview, or present witnesses in support of
his defense, these witnesses should be presented by the petitioner at the evidentiary hearing.”
Id. “As a general rule, this is the only way the petitioner can establish that . . . the failure to
[adduce the evidence] resulted in the denial of critical evidence which inured to the prejudice
of the petitioner.” Id. By analogy, we cannot speculate or guess on the question of what the
voice mails might have contained had they been introduced in the post-conviction hearing
nor can we speculate as to what a search of the crime scene might have uncovered. See
Russell Lenox Hamblin v. State, No. M2012-01649-CCA-R3-PC, 2013 WL 5371230, at *7
(Tenn. Crim. App. Sep. 26, 2013). Furthermore, we cannot speculate as to the impact this
information might have had on Trial Counsel’s representation of the Petitioner or on the
Petitioner’s decision to plead guilty. See Wade v. State, 914 S.W.2d 97, 102 (Tenn. Crim.
App. 1995).

        Based on the record before us, the Petitioner has not established a reasonable
probability that, had Trial Counsel listened to the voice mails or investigated the crime scene,
the result of the proceeding would have been different. Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). That is, the Petitioner has failed to show that either inquiry by
Trial Counsel would have resulted in his decision not to plead guilty and an insistence on
proceeding to trial. See Lockhart, 474 U.S. at 59; Calvert, 342 S.W.3d at 486. Therefore,
the Petitioner has failed to establish that he was prejudiced by Trial Counsel’s failure to listen
to the voice mails or investigate the crime scene. Accordingly, the Petitioner is entitled to
no relief on this basis. Because we have determined that the prejudice prong has not been
satisfied, we need not address whether Trial Counsel’s representation in this regard was
deficient. See Goad, 938 S.W.2d at 370.




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                              CONCLUSION

For the reasons set forth above, we affirm the judgment of the post-conviction court.




                                            ______________________________
                                            JEFFREY S. BIVINS, JUDGE




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