         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  September 10, 2002 Session

         LLOYD E. FERRELL and DEBRA L. FERRELL v. STATE OF
                            TENNESSEE

                   Direct Appeal from the Circuit Court for Hardin County
                          No. PC7447     C. Creed McGinley, Judge



                  No. W2001-01465-CCA-R3-PC - Filed November 22, 2002



The Appellants, Lloyd E. Ferrell and Debra L. Ferrell, appeal the denial of post-conviction relief by
the Hardin County Circuit Court. On appeal, both contend that the post-conviction court erred by
not finding ineffective assistance of counsel. In addition, Debra Ferrell asserts: (1) that she should
be granted a new trial because the State failed to provide Brady/Bagley material: (2) that the post-
conviction court erred by not making written findings of fact on each issue raised in the petition, and
(3) that the cumulative effect of all errors at trial, in addition to counsel’s ineffectiveness, deprived
her of a meaningful defense. After review, we affirm the dismissal of the petitions.


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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOE G.
RILEY, JJ., joined.

Vance W. Dennis, Savannah, Tennessee, for the Appellant, Lloyd E. Ferrell; Julie Bhattacharya
Peak, Nashville, Tennessee, and David W. Willis, Clarksville, Tennessee, for the Appellant, Debra
L. Ferrell.


Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin
Dixon, Jr., Assistant Attorney General; G. Robert Radford, District Attorney General; and John W.
Overton, Assistant District Attorney General, for the Appellee, State of Tennessee.
                                                 OPINION

                                            Procedural History


        The Appellants, husband and wife, were convicted of first degree felony murder for their
involvement in an attempted robbery which led to the death of Hobert Ferrell, the Appellant Lloyd
Ferrell’s uncle. Testimony at trial established that the Appellant Lloyd Ferrell approached Jason
Kimberland1 about “making some easy money” by robbing the elderly Hobert and Mary Ferrell.
Hobert Ferrell was reported to have kept large sums of money at his residence. Kimberland agreed
and, on March 27, 1996, the Appellant Lloyd Ferrell met Kimberland at his apartment and drove him
to the Hobert Ferrell residence. The plan, developed by the Appellant Lloyd Ferrell, required
Kimberland to enter the back of the victim’s residence with a gun, provided by the Appellant Lloyd
Ferrell, tape up Hobert and Mary Ferrell, and rob them of their money. Kimberland was to then call
Lloyd, who would pick him up at a pre-determined location. According to Kimberland, two phone
conversations took place that morning. The first was from the Appellant Lloyd Ferrell to
Kimberland to ensure that he was awake and ready. The second call was between Kimberland and
the Appellant Debra Ferrell. Kimberland called to inform Lloyd that he would not be needing the
ski mask, as he had located his. Kimberland testified that the Appellant Debra Ferrell told him that
Lloyd was already gone and was bringing a gun for him and a ski mask.

         The Appellant Lloyd Ferrell dropped Kimberland off near the victim’s residence as planned;
however, the plan went awry when Mary Ferrell spotted Kimberland outside the residence. When
Kimberland burst through the door, he was met by Hobert Ferrell with a shotgun. Kimberland began
firing the .380 pistol as he retreated out the door. The elder Ferrell was wounded and died from the
injuries.

       Kimberland was apprehended in the area by local police, and eventually confessed,
implicating the Appellants. A recording device placed on the phone of Kimberland’s girlfriend,
Stacye Shands, revealed calls from Debra Ferrell, which implicated Mrs. Ferrell in the robbery.

        The Appellants were convicted by a jury and following their direct appeal, both convictions
were affirmed by a panel of this court. See State v. Lloyd E. Ferrell and Debra L. Ferrell, No.
02C01-9708-CC-00327 (Tenn. Crim. App. at Jackson, Nov. 23, 1998). On May 10, 2001, a petition
for post-conviction relief was filed. The post-conviction court denied the Appellants’ relief and this
appeal followed.




        1
          Kimberland was also charged with felony murder but was tried separately. Kimberland, who was convicted
of felony murd er and sentenc ed to life impriso nment, testified for the State at the A ppe llants’ trial.

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                                               Analysis

         In order to succeed on a post-conviction claim, the Appellants bear the burden of showing,
by clear and convincing evidence, the allegations set forth in their petitions. Tenn. Code Ann. § 40-
30-210(f) (1997 & Supp. 2001).

        To succeed on a challenge of ineffective assistance of counsel, the Appellants 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, the Appellants must establish (1) deficient representation and (2) prejudice resulting
from the deficiency. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). 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 proceeding.
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).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “[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 of
correctness. Fields, 40 S.W.3d at 458. Upon de novo review, accompanied by a presumption that
the post-conviction court’s findings are correct, this court must determine whether the Appellants
received the effective assistance of counsel.

I. Lloyd E. Ferrell

       On appeal, the Appellant Lloyd E. Ferrell, contends that he received ineffective assistance
of counsel. Specifically, he asserts that his trial counsel was ineffective in that he: (1) failed to
adequately investigate and prepare for trial; (2) refused to present a valid alibi defense; and (3) failed
to “adequately research and present to the court” a motion to have his case severed from that of the
Appellant Debra Ferrell.

        A. Failure to investigate and prepare for trial

         The Appellant specifically alleges that trial counsel’s performance was substandard due to
his failure to confer pre-trial with the Appellant about the case and by his failure to interview two
witnesses. At the post-conviction hearing, the Appellant testified that trial counsel only met with
him four times prior to trial to discuss the facts and potential theories of defense. With regard to this


                                                   -3-
assertion, the post-conviction court found that trial counsel “met with the [Appellant] on numerous
occasions prior to the trial of this matter and fully discussed all relevant matters.” Trial counsel
testified to meetings in the McNairy and Decatur County Jails, meetings in the courthouse before
each court appearance, and various telephone conversations with the Appellant. The Appellant
himself acknowledged the meetings which occurred in the jails, as well as those before the various
court appearances. The proof supports the post-conviction court’s finding. This issue is without
merit.

        The Appellant also alleges that trial counsel’s failure to interview potential witnesses, Justin
Thomason and Terry Cromwell, rendered his representation deficient. The Appellant’s assertion
must fail. 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 presented neither
Jason Thomason nor Terry Cromwell, it would be speculative to conclude that their testimony would
have affected the outcome of this case. This issue is without merit.

        B. Failure to present an alibi defense

       The Appellant claims that trial counsel’s failure to call alibi witnesses, the names of which
the Appellant had provided, also constituted ineffective assistance of counsel. Specifically, the
Appellant asserts that his two sons, Jonathan and Christopher Ferrell, and Justin Thomason should
have been called to establish his presence in his home during the critical period in which Jason
Kimberland alleged that the Appellant dropped him off at the crime scene.

        Again, we find no merit to the Appellant’s claim. The proof established that trial counsel did
in fact interview the Appellant’s two sons. From his testimony at the post-conviction hearing, it
appears that what they told him at the time was not helpful in establishing an alibi for their father,
despite the apparent change in their testimony at the post-conviction hearing. With regard to the
alleged alibi witness, Justin Thomason, he was not called to testify at the post-conviction hearing,
so we are unable to make a determination as to whether his testimony would have been favorable.

       We agree with the post-conviction court’s finding that trial counsel’s decision not to call the
witnesses and present an alibi defense under the facts as presented was a tactical decision.
Accordingly, we find this assertion without merit.

        C. Severance

       The Appellant’s final contention is that trial counsel failed to present a written argument in
support of his motion to sever the Appellant’s trial from that of his wife’s. The motion to sever was
based on the admission of tape recorded phone conversations between the Appellant Debra Ferrell
and Stacye Shands, in which Debra Ferrell made statements implicating both herself and her
husband. The trial court denied the motion to sever.



                                                  -4-
        In the direct appeal of this case, this court concluded that “those portions of the taped
conversations implicating [Lloyd Ferrell] in the circumstances of the offense should not have been
introduced. [We] must also conclude the trial court erred by not following one of the three
[severance] procedures in Tenn. R. Crim. P. 14(c)(1).” Lloyd E. Ferrell and Debra L. Ferrell, No.
02C01-9708-CC-00327. However, this court held that even if it was error, it was clearly harmless
error. See Tenn. R. App. P. 36(b).

       Because this court found after consideration of the entire record that the error did not affect
the judgment, no prejudice is shown. This issue is without merit.

II. Debra L. Ferrell

        On appeal, the Appellant Debra L. Ferrell alleges numerous grounds upon which she bases
her claim of ineffectiveness. Specifically, she alleges that deficient performance resulted from: (1)
presenting a “comparative guilt” defense when the State was pursuing criminal responsibility and
conspiracy theories of guilt; (2) failure to disclose the nature and extent of trial counsel’s disciplinary
problems; (3) failure to investigate possible defenses; (4) failure to discover, interview, and present
witnesses; (5) failure to object to inflammatory and prejudicial comments by the prosecutor during
closing arguments; and (6) failure to seek a severance from her husband’s case. The Appellant also
alleges that she is entitled to a new trial because the State failed to disclose crucial Brady/Bagley
evidence regarding a telephone conversation related at trial between the co-defendant Kimberland
and herself. The Appellant further alleges that the trial court erred by failing to make written
findings of fact on each of the Appellant’s post-conviction issues. Lastly, the Appellant asserts that
the cumulative effect of the individual errors, coupled with counsel’s deficient performance,
deprived her of a meaningful defense.

        A. Ineffective assistance of counsel

                    1. “Comparative guilt” defense

        The Appellant asserts that she was denied effective assistance of counsel by trial counsel’s
presentation of a “comparative guilt” theory of defense at trial. She characterizes the defense of
“comparative guilt” as one in which her trial counsel attempted to argue that her guilt was extremely
minimal in comparison to that of her co-defendant husband’s. The Appellant argues that this defense
was essentially no defense, as criminal liability is not measured in degrees or by comparison of guilt,
but rather whether any culpability for the crime exists. After review, we find the Appellant’s
argument that this so-called defense of “comparative guilt” was utilized is simply incorrect.2

        2
            Trial counsel’s defense is illustrated in his closing argument to the jury:

        Debra Ferrell was not invo lved in this. She d idn’t plan. She didn’t participate. She didn’t actively
        pursue it out. She didn’t do anything. She might have heard something. She might have gained
        knowledge. She ma y have got som ething o ff the street or where ever. But she did n’t plan it. She
                                                                                                          (continued...)

                                                             -5-
        We agree that the record supports the trial court’s finding that trial counsel’s strategy was not
“ill-conceived or constitutionally defective.” The strategy employed by trial counsel was developed
after adequate preparation and was reasonable under the facts. We are not to “second-guess” the
strategies and tactical choices made by trial counsel. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
This issue is without merit.

                   2. Trial counsel’s disciplinary problems

        The Appellant contends that trial counsel’s alleged failure to disclose the nature, scope, and
degree of his suspension by the Board of Professional Responsibility adversely affected her decision
to continue with counsel’s representation, as well as adversely affecting his representation, so as to
render it ineffective.

         Prior to the Appellant’s trial, trial counsel’s authority to practice law was temporarily
suspended by the Board of Professional Responsibility for various violations unrelated to this case,
including: (1) neglect, (2) failure to properly remit funds, (3) failure to communicate with clients and
the Board, (4) misrepresentations to the court, clients, and the Board, and (5) misappropriation of
client funds. A hearing was conducted by the trial court for the express purpose of ensuring that the
Appellant had knowledge of the nature of trial counsel’s pending problems with the Board. At the
hearing, trial counsel indicated in his statement to the trial court that he had “spoke[n] about this
matter in depth” and “discussed it in some detail” with the Appellant. The Appellant indicated that
trial counsel had indeed informed her of the problems. Nonetheless, she still wished to continue with
him as counsel.3

         The Appellant now contends that trial counsel misrepresented the magnitude of his
disciplinary problems. She claims that she would have sought new counsel had she been told the
full extent of the problems. The post-conviction court found that “[n]othing in the record remotely
indicate[d] that any personal or disciplinary problems of the [Appellant’s] counsel adversely affected
his trial performance.”

         We agree that the Appellant has failed to establish any causal connection between trial
counsel’s disciplinary problems and/or suspended status and his representation of the Appellant at
trial. The record indicates that the Appellant was informed of trial counsel’s pending problems and
elected to continue with his representation. This issue is without merit.




        2
         (...continued)
        wasn’t involved in it. She has no more to do with this than Stacye Shands [an unind icted S tate’s
        witness]. S he’s not in on it.

        3
            Trial counsel was ultimately suspended from the pra ctice of law for a minimum period of five years.



                                                          -6-
               3. Investigation of the case

        The Appellant alleges that trial counsel made very little effort to contact or communicate
with her prior to trial. The Appellant testified that only five meetings occurred with trial counsel,
and of those, only three were specifically about the trial. The Appellant contends that this was an
insufficient amount of time for trial counsel “to develop a rapport” with the Appellant and to
“investigate, develop, and discover alternative theories of defense,” including a defense of “battered
wife syndrome.” Moreover, the Appellant argues that trial counsel was deficient for failing to
ascertain that she was a “battered wife.”

        At the post-conviction hearing, the Appellant presented evidence, including expert testimony,
that she was a battered wife. The Appellant admitted that she did not inform trial counsel of this
fact; but rather, she contends that he would have discovered it if he had spent more time with her.
However, the record appears to be devoid of any objective criteria that would have alerted trial
counsel to this fact.

        Trial counsel logged numerous hours of investigation in this case, and the issue of spousal
mistreatment never arose. Neither the Appellant, nor any family member, felt compelled to inform
trial counsel of any marital problems or abuse during the pre-trial investigation. Trial counsel
testified that during his investigation and meetings with the Appellant and her husband, they
appeared to be very affectionate towards one another and there was no indication of fear or violence.
Accordingly, we find this issue without merit.

               4. Failure to discover, interview, or present witnesses

        At trial, the State argued that the Appellants traded their car after the murder of the victim
in order to conceal their involvement in the crime. The Appellant contends that trial counsel failed
to present witnesses who would have testified that the reason their car was traded was because they
wanted to buy their son a new truck, which had been planned for some time. The Appellant claims
that her mother, sister, and son, if called at trial, would have rebutted the State’s argument.
However, when the witnesses testified at the post-conviction hearing, they were unclear as to when
the decision was made to buy the son a truck. No witness could recall if the conversations took place
before or after the murder.

        Trial counsel testified to interviewing these witnesses and making a determination that their
testimony would not be beneficial to the case. This decision was obviously a tactical decision. We
cannot in hindsight say that the testimony would have benefitted the Appellant’s cause. This issue
is without merit.




                                                 -7-
                   5. Failure to object during closing argument

        The Appellant next asserts that trial counsel failed to object or seek a curative instruction
regarding improper and inflammatory remarks made by the prosecution during closing arguments.
Specifically, the Appellant alleges that trial counsel should have objected to statements which: (1)
alleged new crimes in the form of jury argument; (2) referred to the Appellant as the “brains behind
the outfit,” when the evidence didn’t support such a statement; and (3) analogized the Appellant to
a “cancer.” Trial counsel testified that he made a tactical decision not to object to these statements
because he felt that it would have been extremely damaging to the Appellant if the objections were
overruled. Assuming for argument’s sake that error occurred, no prejudice is shown, as the error did
not affect the result of the trial on the merits. Tenn. R. Crim. P. 52(a).

                   6. Failure to seek severance

        The Appellant’s final contention with regard to ineffective assistance of counsel is that trial
counsel failed to seek a severance of the Appellant’s trial from that of her husband’s. The Appellant
argues that Tenn. R. Crim. P. 14(c)(2)(i) mandated a severance in this case in order “to promote a
fair determination of the guilt or innocence of one or more defendants.”

        We note initially that trial counsel did in fact orally join in a motion for severance made by
trial counsel for the Appellant Lloyd Ferrell. The Appellant contends that this was insufficient and
did not fulfill trial counsel’s obligation to “vigorously argue for severance.”

        The motion for severance was considered and denied by the trial court. On direct appeal, a
panel of this court was “unable to conclude that a severance was necessary for a fair determination
of [the Appellant’s] guilt or innocence.” Because we find trial counsel’s performance was not
deficient, we find this issue without merit.
.
        B. Brady/Bagley material

         The Appellant argues that the State failed to provide the defense with Bagley material prior
to trial. Specifically, the Appellant alleges that the State withheld a crucial statement made by Jason
Kimberland implicating the Appellant, which was first related during Kimberland’s testimony at the
Appellant’s trial. It is argued that none of the three prior written statements given by Kimberland,
and delivered to the Appellant, made any reference to a phone conversation with the Appellant prior
to the commission of the crimes.4 However, Kimberland testified at trial that he had in fact spoken
with the Appellant early that morning, and she made statements indicating her knowledge of the

         4
           W e are handica ppe d in ou r review of this issue d ue to the Appellant’s failure to include in the record the three
prior statements of Kimberland. As such, we are unable to determine whether in fact his trial testimony was at material
variance with his prior stateme nts. M oreo ver, there is nothing in the record which suggests that the prosecutor or law
enforcement was aware of the substance of the App ellant’s questioned testimony implicating the App ellant prior to its
introduction at trial.

                                                              -8-
crime. Trial counsel, utilizing the three prior statements for impeachment purposes, cross-examined
Kimberland in an attempt to establish the inconsistency in his testimony at trial.

        The Appellant argues that Kimberland’s testimony at trial falls within the scope of
Brady/Bagley and should have been disclosed prior to trial. At the evidentiary hearing, the post-
conviction court found Kimberland’s testimony to be incriminatory and, thus, not controlled by the
trilogy holdings of Brady, Bagley, and Giglio. We agree. To be entitled to relief under Brady, the
Appellant must show: (1) the State suppressed the evidence; (2) the evidence must have been
favorable to the accused; and (3) the evidence must have been material. Brady v. Maryland, 373
U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963). The rule has also been extended to cover impeachment
evidence. U.S. v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985).

        The Appellant’s argument fails because the evidence she claims was withheld was not
favorable evidence to her, nor was it impeachment evidence. The statement made at trial by
Kimberland was clearly incriminatory, rather than exculpatory. Kimberland’s prior statements,
which the Appellant had received pre-trial, would be considered the impeaching evidence and indeed
trial counsel utilized these statements for impeachment purposes during cross-examination.

       C. Cumulative errors and failure to make written findings of fact.

        The Appellant argues that the cumulative effect of all the alleged errors deprived her of a
meaningful defense. It is true that our court has held that cumulative error may in fact deprive a
defendant of a fair and meaningful defense. State v. Taylor, 968 S.W.2d 900, 912 (Tenn. Crim.
App. 1997). In furtherance of this holding, we have reviewed those issues in which error, albeit
harmless error, was identified . After consideration of the entire record, we find that the cumulative
effect of those individual errors did not deprive the Appellant of a meaningful defense. Accordingly,
we find this issue without merit.

        Lastly, the Appellant contends that the post-conviction court erred in failing to enter written
or oral findings of fact with regard to several issues raised at the evidentiary hearing. We find it
unnecessary to address this contention as only issues which implicate federal or state constitutional
rights are cognizable in a post-conviction proceeding. The Appellant’s issue addresses a statutory
right. See Tenn. Code Ann. § 40-30-211 (1997). Moreover, the principal function of this statutory
provision is “to facilitate appellate review of the lower court’s proceedings.” State v. Swanson, 680
S.W.2d 487, 489 (Tenn. Crim. App. 1984). For these reasons, this issue is without merit.

                                          CONCLUSION

        In reviewing an ineffectiveness claim, we are required to consider the totality of the evidence
presented at trial. Strickland, 466 U.S. at 695. Thus, we examine not only what trial counsel failed
to do, but what counsel did do. As such, our focus is upon the adequacy or inadequacy of trial
counsel’s performance from counsel’s perspective at the time, and not from the distorting effects of
hindsight. Id. at 689. Moreover, our review is highly deferential. After review, we find that trial


                                                 -9-
counsel for the Appellants were functioning as “counsel guaranteed” the Appellants by the Sixth
Amendment, and further find that the trial did not produce an unreliable or unjust result.
Accordingly, the judgment of the post-conviction court denying relief to the Appellants, Lloyd E.
Ferrell and Debra L. Ferrell, is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




                                              -10-
