           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    Assigned on Briefs May 21, 2003

                  TOMMY JOE WALKER v. STATE OF TENNESSEE

                       Direct Appeal from the Criminal Court for Knox County
                            No. 69441 Richard R. Baumgartner, Judge



                                        No. E2002-02431-CCA-R3-PC
                                                July 29, 2003

Convicted in 1990 of first-degree felony murder, aggravated robbery, and conspiracy to commit
aggravated robbery, the petitioner, Tommy Joe Walker, appeals the Knox County Criminal Court’s
dismissal of his petition for post-conviction relief, through which he claimed that ineffective
assistance of trial counsel fouled his convictions. Because the record supports the denial of post-
conviction relief, we affirm.


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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOE G. RILEY, and
THOMAS T. WOODA LL, JJ., joined.

Joseph Liddell Kirk, Knoxville, Tennessee, for the Appellant, Tommy Joe Walker.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Roger D. Moore, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                      OPINION

                Although our supreme court on direct appeal reversed the petitioner’s sentence of
death on the felony murder conviction, the high court affirmed his convictions. See State v. Walker,
910 S.W.2d 381 (Tenn. 1995).1 The petitioner was originally indicted along with his brother, E.J.
Walker, and his nephew, Danny Branam, for the crimes against the victim, Gladys Houston. Id. at
383. The charges against the individual defendants were severed for trial. Id. The supreme court’s
opinion contains a helpful recitation of the facts of the petitioner’s conviction offenses:




       1
           Apparently, on remand, the trial court imposed a life se ntence in lieu of the vacated death sentence .
The evidence heard by the jury, including [petitioner’s] own
admissions to various of the witnesses who testified, was sufficient
to establish that he entered into a conspiracy, in combination with his
brother and his nephew, to rob Gladys Houston, within the definition
of the term conspiracy contained in T.C.A. § 39-1-601, et seq.,
repealed by Chapter 591 of the Public Acts of 1989. This statute
provided in pertinent part that "the crime of conspiracy may be
committed by any two (2) or more persons conspiring: (1) To
commit any indictable offense.

...

[D]uring the early morning hours of 23 July 1987, Gladys Houston
was shot to death when she arrived at her home on Potomac Drive in
Knox County after working until about midnight at her family's
livestock business in Sweetwater, Tennessee. Around 1:15 a.m.
neighbors were awakened by the sound of gunshots and a honking
horn. One neighbor looked out her window and saw a car driving
away from the direction of the Houston house toward the Alcoa
Highway. Summoned by a neighbor, sheriff's officers arrived at the
scene to find Mrs. Houston inside her automobile, barely alive and
slumped over the steering wheel. The driver's door, the glove box
and car trunk were open. The evidence is conflicting as to whether
the front passenger door was also open when the first officer arrived.
The driver's side of the rear window of the vehicle had been shot
through three (3) times, one bullet passing completely through the
driver's headrest. Expended rounds were found inside the car in the
front windshield on the driver's side, between the front seats, and in
the passenger door. Spent 9MM cartridge casings were on the ground
behind the vehicle. Officers discovered Mrs. Houston's purse outside
the car on the passenger side. An unfired .25 caliber automatic
weapon belonging to Mrs. Houston was lying on the floorboard on
the driver's side. The keys to the automobile were missing. Mrs.
Houston died later at a local hospital. She had bled to death from her
wounds. She had been shot several times, once in the left hand, once
through the right side of the chest, and once in the back of the neck,
the bullet exiting through her nose. There was an additional, minor
wound to her scalp. Around 8:30 a.m., later in the morning of the
shooting, a neighbor taking a walk found a six-pack of beer, a paper
bag containing tomatoes and an empty money bag scattered along the
side of Potomac Drive leading from the Houston residence to the
Alcoa Highway. Paper wrappers designed to hold stacks of quarters
were strewn on the pavement near the money bag. Mrs. Houston's


                                 -2-
husband identified the money bag as the one used by her to carry
change from the vending machine at the stockyard. It had contained
approximately $6.50 in quarters when she left work. A customer had
also given her a sack of tomatoes the day before she was killed. A
brown carrying case containing Mrs. Houston's jewelry, some cash
and bank bags holding several hundred dollars in receipts from the
restaurant and flea market at the stockyard were found in the car trunk
when police conducted an inventory of the vehicle.

Other evidence established that about 6:45 p.m. on Wednesday, 22
July, three (3) unidentified men entered a bar called "Sam's Place"
located near the Houston Stockyard in Sweetwater. The men left
about 7:00 p.m. in a Cadillac and drove away in the direction of the
stockyard. Around midnight that same evening a customer delivering
cattle to the stockyard saw the same car sitting "in an unusual place"
on the road at the stockyard. One person was in the car; another was
standing outside on the passenger side. Neither of these men were
identified. The same night between eleven and twelve o'clock two (2)
stockyard employees were standing next to the Cadillac, which was
parked at the stockyard. A man resembling Danny Branam, who both
women knew, got out of the back of the car and, turning his face away
from the two women, went inside the stockyard building. When he
opened the car door the interior light came on and the two women
saw two other people sitting on the front seat. The driver, a man
resembling the [petitioner], had dark, curly hair and wore glasses.
The person in the passenger seat had straight brown hair. After five
or ten minutes the person resembling Branam returned to the car.
Again he turned his face away from the witnesses. The car and its
occupants drove away 20 to 30 minutes before Gladys Houston left
the stockyard. The car seen by the several witnesses belonged to Ray
"Speck" Elliott, the [petitioner’s] brother-in-law. Police later found
spent 9MM shells at Elliott's farm in Union County. These shells had
been fired from the same gun as the bullets and shell casings found
at the site of the Houston killing.

Elliott and his wife, Naomi, the [petitioner’s] sister, testified that
Ernest Walker, had asked to borrow Elliott's cadillac. At the time he
was accompanied by [petitioner] and Danny Branam. The men said
they wanted to borrow the car to "go try to make some money" in
Sweetwater. They indicated that they were going to talk about "some
business" with a man named Otis Bivens.




                                 -3-
When the three men returned the car (a couple of days later according
to Ray Elliott, early the following morning according to his wife),
they had Elliott's 9MM gun. The [petitioner] informed Elliott that he
had "borrowed" the gun and that Elliott would have to get rid of it
because [the petitioner] had used it to kill a woman. [The petitioner]
claimed he had been forced to kill the woman because she had a gun.
Before leaving, he warned the Elliotts, "if this goes outside this room
about what I have said about what happened, you will get the same
thing the bitch got."

Three other persons testified [the petitioner] had confessed his
participation in the homicide. The first of these was Terry Boling, a
convicted felon and an acquaintance of both the [petitioner] and Ray
Elliott. Boling testified that in the early morning hours of 23 July
1987 [the petitioner] came to his house and asked for cocaine and
$20. [The petitioner] was high at the time and was driving Elliott's
cadillac. When Boling stated that he had no cocaine and no money,
[the petitioner] told Boling that he had just seen "this whore get her
head blew off" and that "they had just got ... $6.50 in change and a
bag of tomatoes." [The petitioner], who appeared unfazed by what
had happened, explained he had gone "there" to make some money.

Jackie Lynn Dawson, Danny Branam's brother, testified that about 18
months after the Houston murder [the petitioner] had gotten drunk
and told Dawson that he was involved in a murder in South
Knoxville. [The petitioner] said he had gone to a house in the Martha
Washington subdivision to rob a woman and that the robbery had
been set up by Otis or Greg Bivens, who had told him that the woman
would be carrying "a lot of money." According to Dawson's testimony
[the petitioner] recounted how he had hidden behind a tree on the left
side of the driveway, rushed out and yanked open the car door as the
victim started to open it. When the victim pulled a gun from her
pocketbook, he shot her. While he was checking around the car, the
victim began to thrash about and [the petitioner] shot her several
more times.

Peter Talarico, an inmate at the State Penitentiary in Pikeville
testified that while he was helping [the petitioner] with legal research
[the petitioner] told him that he, his brother and his nephew "went to
rob this lady" and "he had to shoot her because she got on the horn."
[The petitioner] said he got $6.00 in the robbery and that he [had]
taken the keys from the car and opened the trunk to see if there was
any money there.


                                  -4-
Id. at 384, 386-88.

                 We now review issues raised in the petitioner’s direct appeal to our supreme court
that have some bearing upon the issues raised in the post-conviction proceeding now before this
court. On direct appeal, the petitioner challenged the admissibility of the following out-of-court
statements: Danny Branam’s statement made to the petitioner's sister, Naomi Elliott; the petitioner’s
statements made to his sister and brother-in-law three or four days after the homicide; and the
statements made by E.J. Walker to his sister, Naomi Elliott. Id. at 384. All of the statements
challenged in the appeal were offered by the state through the testimony of Naomi Elliott. Id. at 385.
The supreme court determined that all of the statements given by Branam and E.J. Walker to Naomi
Elliott were inadmissible as hearsay because they were neither made during the course of the
conspiracy to rob Ms. Houston nor to conceal the crimes of robbery and murder. Id. at 386.
However, the high court held that the challenges to the admissibility of Branam’s and E.J. Walker’s
statements had been waived due to the petitioner’s failure to object to their introduction and to raise
the issues in the motion for new trial, and moreover, the court held that the use of the statements was
harmless error in light of the strong case against the petitioner, which included his own, multiple
admissions to the crimes. Id. at 386-88.

               The supreme court also considered, inter alia, an issue of prosecutorial misconduct
in which the petitioner alleged

                  that a transcript [of Branam’s statement] was materially altered
                  mid-trial to include []the damning phrase,[] [“]they were there,[”]
                  when the phrase had not appeared in three (3) previous transcripts,
                  two of which had been prepared by the State [and] that the altered
                  transcript was supplied mid-trial to defense counsel knowing defense
                  counsel would only have a few minutes to review it.

Id. at 389-90.

                The high court described the tape recording and the transcript authenticated by Naomi
Elliott as follows:2

                  The recording was deplorably poor in audibility. It was also peppered
                  with profanity and vulgarities on the part of both Ms. Elliott and her
                  nephew. The questioned statement was made by Mr. Branam. In the
                  transcript produced by defense counsel it appears that he said, "I don't
                  think--to tell you the truth, I don't think Jay and Joe would say
                  nothing. (Inaudible)--They both know, (inaudible)--burn their


         2
           The supreme court held that the transcript offered by the state was adm issible because Naom i Elliott, a party
to the record ed co nversa tion, authenticated it as accurately reflecting the con versation. Walker, 910 S.W .2d at 395 .

                                                           -5-
               goddamn ass. I believe that somebody on down the (inaudible)--" In
               the final version submitted by the State this statement became, "I
               don't think--to tell you the truth, I don't think Jay and Joe would say
               nothing cause they were there and they both know, that's gonna--burn
               their goddamn ass. I believe its somebody on the outside or
               something."

Id. at 390. The court then ruled:

               We are in accord with the conclusion of the trial judge [in ruling on
               the motion for new trial] that there was significant evidence, not only
               in the tape recording of the conversation between Naomi Elliott and
               Danny Branam, but in the testimony of other witnesses, that would
               have allowed any rational trier of fact to find guilt beyond a
               reasonable doubt.

Id. at 391.

                The court’s majority opinion, authored by Special Justice O’Brien, was hardly
unanimous on the issues surrounding the out-of-court statements. Then Chief Justice Anderson
concurred in affirming the petitioner’s convictions, although he concluded that the petitioner’s
“tactical” decision not to object to the introduction of the statements waived any appellate review
of the statements’ admissibility. Id. at 399 (Anderson, C.J., concurring). He wrote,

               In this case, the defendant failed to interpose an objection to the
               admission of the statements even though the trial judge specifically
               inquired if the defense objected before admitting the evidence now
               challenged as error. Thus, the trial judge had no opportunity to rule
               on the evidence that the defendant now claims was admitted in error.
               ...
                       Defense counsel was objecting to the State's use of one certain
               version of the transcript of the tape. Counsel never objected to
               admission of the tape itself, which was the evidence, as the trial court
               repeatedly instructed the jury.

Id. Chief Justice Anderson concluded that the plain error rule would not apply because, based upon
trial counsel’s statements during the hearing on the motion for new trial, counsel’s failure to object
to the introduction of the tape was the result of tactical choice. Id. at 400. Chief Justice Anderson
noted that the trial judge had agreed that the decision to let the tape in was “well thought out.” Id.




                                                 -6-
               Justices Drowota and Birch joined in Chief Justice Anderson’s concurring opinion.
Justice Reid dissented from the majority’s conclusion and opined that admission of the co-
conspirators’ statements was reversible error. Id. at 400-01 (Reid, J., concurring and dissenting).

                On appeal in the present case, the petitioner claims that his trial counsel was
ineffective in two respects: (1) his failure to object on hearsay grounds to the admission of Naomi
Elliott’s accounts of Danny Branam’s and E.J. Walker’s statements, and (2) his failure to discern and
object to the inculpatory nature of the introduced transcript of Naomi Elliott’s tape-recorded
conversation with Danny Branam.

                At the post-conviction evidentiary hearing, the petitioner’s lead trial attorney testified
that about two weeks before trial, he heard an audiotape of a conversation between Naomi Elliott
and Danny Branam. The tape itself was mostly unintelligible, but the Tennessee Bureau of
Investigation (TBI) made a transcript, as did a court reporter engaged by defense counsel. Counsel
testified that no statements made by Branam on the tape placed the petitioner at the crime scene.
Counsel testified that his copy of the taped conversation and his privately-prepared transcript differed
from the state’s tape and transcript. Defense counsel and the prosecutor discussed the variances but
reached no agreement about an admissible version prior to the commencement of the trial.

                In an in-chambers conference before trial, counsel objected to the use of Naomi
Elliott’s tape, and at the post-conviction hearing, he testified that the trial court had ruled it
admissible on the basis of being a recording of a conversation that was in furtherance of a
conspiracy. However, no objection to the tape was ever put on the record. Counsel testified that he
had no one who could authenticate his own version of the tape because Naomi Elliott authenticated
the state’s version and the only other participant to the taped conversation, Danny Branam, had
invoked the Fifth Amendment as a bar to answering questions about the tape.

                 On the morning of the fourth day of trial, the prosecutor presented defense counsel
with a new version of a transcript that the prosecutor wanted to introduce into evidence. Counsel
testified that neither he nor his co-counsel had an opportunity to review the transcript before the state
called Naomi Elliott to testify, but defense counsel did not ask the court for more time to review the
transcript. The state’s new transcript contained statements that placed the petitioner at the scene of
the crime. Counsel testified that he was not aware of these changes to the transcript until after it was
presented to the jury through witness Naomi Elliott. Counsel testified that in the subsequent
separate trial of E.J. Walker, the trial court deleted from the transcript a reference to the petitioner
and others being present at the crime scene because the court ruled that that statement was not
uttered on the audiotape.

                Counsel testified that he was unaware that the statement “they were there” was
included in the state’s transcript until the prosecutor mentioned it five times during closing rebuttal
argument. Counsel testified that no tactical reason could have supported allowing this statement into
evidence and denied that he declined to pursue exclusion for tactical reasons.



                                                   -7-
                The post-conviction court found that trial counsel did object to the introduction of the
Branam tape “in chambers which was not on the record” and that “[i]t is unfortunate that the
proceedings held in chambers [were] not later memorialized on the record.” The post-conviction
court found that defense counsel was unaware of the “they were there” statement in the new
transcript until it was relied upon by the prosecutor during his final argument. The court further
noted that the prosecutor “apparently had an epiphany and was miraculously able to hear an
incriminating statement made by Mr. Branam that no one else before or since has been able to hear.”
Nevertheless, the court held that, although “it would have been preferable to have a
contemporaneous objection to the introduction of the statement,” the petitioner had not established
that trial counsel had rendered ineffective assistance “during a contentious trial when the objection
had already been overruled.” The court stressed that counsel’s performance must be viewed “in the
atmosphere of a contentious and fluid trial setting,” not “in the quiet and calmness of hindsight.”
Although the post-conviction court opined that the trial prosecutor should have provided adequate
notice of the changes in the transcript and that he should not have saved his arguments about the new
transcript revisions until his closing argument, see Tenn. R. Crim. P. 29.1(b), possible misconduct
on the part of the prosecutor does not “equate to ineffective assistance of [defense] counsel.”

               We begin our assessment of the case by recalling familiar and settled rules of law.
The post-conviction petitioner bears the burden of proving his or her allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the appellate court
accords to the trial court's findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d
572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

                When a post-conviction court denies a petitioner’s claim of ineffective assistance of
counsel, this court, on appeal, must determine whether the evidence preponderates against a
post-conviction court's findings (1) that counsel's performance was within the range of competence
demanded of attorneys in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and/or
(2) that any deficient performance did not prejudice the petitioner, Strickland v. Washington, 466
U.S. 668, 687-79, 104 S. Ct. 2052, 2064-2069 (1984). See also Powers v. State, 942 S.W.2d 551,
557 (Tenn. Crim. App. 1996). Courts need not address these components in any particular order or
even address both if the petitioner fails to meet his burden with respect to one. Henley, 960 S.W.2d
at 580.

                In evaluating counsel's performance, this court should not examine every allegedly
deficient act or omission in isolation, but rather we view the performance in the context of the case
as a whole. State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary concern
of the court should be the fundamental fairness of the proceeding of which the result is being
challenged. Id. Therefore, this court should not second-guess tactical and strategic decisions by
defense counsel. Henley, 960 S.W.2d at 579. Instead, this court must reconstruct the circumstances
of counsel's challenged conduct and evaluate the conduct from counsel's perspective at the time. Id.;
see also Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998).



                                                  -8-
               Even if the petitioner establishes that counsel's performance was not within the
requisite range of competence, he must also demonstrate a reasonable probability that the result of
the proceeding would have been different but for the defective performance of counsel. Henley, 960
S.W.2d at 580. A court must

                "consider the totality of the evidence before the judge or jury. Some
                of the factual findings will have been unaffected by the errors, and
                factual findings that were affected will have been affected in different
                ways. Some errors will have had a pervasive effect on the inferences
                to be drawn from the evidence, altering the entire evidentiary picture,
                and some will have had an isolated, trivial effect. . .."

Henley, 960 S.W.2d at 580 (quoting Strickland, 466 U.S. at 696-97, 104 S. Ct. at 2069).

                Although the petitioner in his brief presents a forceful argument that he was
prejudiced by trial counsel’s deficient performance, we conclude that the record supports the lower
court’s denial of post-conviction relief.

                 We arrive at this conclusion, however, on different grounds than those primarily used
by the lower court. In our view, trial counsel performed deficiently in both the activities cited by the
petitioner in his brief. Relative to the failure to object to the extra-judicial statements as hearsay, the
post-conviction court found, based upon trial counsel’s testimony, that counsel did, in fact, object,
albeit he did so in chambers and failed to memorialize the objection and ruling on the record. Thus,
the lower court held that trial counsel made the objection and, accordingly, performed sufficiently.
This view, however, fails to account for trial counsel’s duty to take actions before and during trials
that will afford his client the opportunity to adjudicate adverse trial court rulings on appeal. See, e.g.,
Tenn. R. Crim. P. 12(b); Tenn. R. App. P. 3(e), 36(a). The failure to secure a record of his motion
and of the court’s denial of same precluded the appellate courts from reviewing the hearsay issue on
the merits on direct appeal. We believe this lapse on counsel’s part constituted deficient
performance.

               Similarly, the failure to request a recess before the state’s continuation of the direct
examination of Naomi Elliott so that defense counsel could have an opportunity to review the
proffered transcript equates to deficient performance of counsel.

                That said, we remain unpersuaded that the petitioner has demonstrated by clear and
convincing evidence that he was prejudiced by counsel’s rather narrow lapses. Although various
state witnesses were arguably handicapped by credibility demerits, the state nevertheless presented
evidence from at least four of these witnesses other than Naomi Elliott that the petitioner admitted
that he killed Ms. Houston. Moreover, the thrust of the petitioner’s defense was that Speck Elliott,
whose physical appearance resembled that of the petitioner and who is Naomi Elliott’s husband and
the petitioner’s brother-in-law, committed the crimes. In the context of the totality of the evidence,
the triers of fact were necessarily aware that Noami Elliott’s accounts of her conversations with


                                                   -9-
Danny Branam and E.J. Walker were assailable on the grounds that she was trying to exonerate her
husband by assigning blame to the petitioner. In other words, the efficacy of Branam’s and E.J.
Walker’s pretrial statements was hinged to the challenged credibility of Naomi Elliott. Furthermore,
concerning the failure to object to the use of the transcript, we note that at trial the transcript was
authenticated by the witness, Naomi Elliott. Ms. Elliott was apparently willing to authenticate the
transcript, including the reference to the petitioner being at the scene of the crime, as being an
accurate reflection of her conversation with Danny Branam. Accordingly, we conclude that, had
defense counsel timely objected to the use of the transcript, the trial court in the petitioner’s case
might well have overruled the objection.

               Thus, in the context of the entire evidence, we are unconvinced that the result of the
trial would have been different had the hearsay statements been excluded. Accordingly, the denial
of post-conviction relief is affirmed.



                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                 -10-
