        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 22, 2010


         RAYMOND DOUGLAS MYERS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Putnam County
                        No. 01-0401A David Patterson, Judge



                  No. M2009-02076-CCA-R3-PC - Filed August 23, 2010


Petitioner, Raymond Douglas Myers, was convicted of three counts of first degree murder,
two counts of felony murder, one count of aggravated arson, and one count of conspiracy to
commit murder. See State v. Raymond Douglas Myers, Sr., No. M2003-01099-CCA-R3-CD,
2004 WL 911280, at *1 (Tenn. Crim. App., at Nashville, Apr. 20, 2004), perm. app. denied,
(Tenn. Nov. 8, 2004). The trial court merged the felony murder convictions and the
conspiracy to commit murder conviction with the three convictions for first degree murder.
Id. Petitioner was sentenced to consecutive life sentences without the possibility of parole
for the murder convictions, and a consecutive twenty-four year sentence for the aggravated
arson conviction. On direct appeal, this Court affirmed the judgments of the trial court. Id.
at *7. Petitioner sought post-conviction relief in a lengthy pro se petition. Counsel was
appointed. After a hearing on the petition for relief, the post-conviction court denied the
petition. Petitioner has appealed the denial of post-conviction relief, arguing that the post-
conviction court should have determined that Petitioner received ineffective assistance of
counsel at trial. After a thorough review of the record, we determine that Petitioner has
failed to show that he received ineffective assistance of counsel. Accordingly, the judgment
of the post-conviction court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
J.C. M CL IN, JJ., joined.

Rebecca Brady, Cookeville, Tennessee, for the appellant, Raymond Douglas Myers.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Bill Gibson, District Attorney General, Lisa Zavogiannis and William Locke,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                         OPINION

                               FACTUAL BACKGROUND

        At trial, the following testimony, as summarized by this Court on direct appeal, led
to Petitioner’s convictions:

              On July 30, 1999, the McMinnville Fire Department responded to a
       house fire. Inside the house, firefighters discovered the bodies of Dianne
       Watts, her daughter Jessica Watts, and Chelsea Smith, Jessica Watt’s [sic]
       friend who spent the night with her on July 29. Dianne Watts, her daughter
       Jessica, and Dianne Watt’s [sic] boyfriend, the Defendant, lived together in the
       house that burned. The Defendant had lived there about six years.
       Investigators with the fire department determined that the fire was deliberately
       set with an “ignitable liquid fuel” based upon burn patterns and the presence
       of an accelerant in the bedrooms, in the hallway, on the bed, and on the clothes
       of Chelsea Smith and Jessica Watts. Firemen also recovered a metal baseball
       bat from the hallway and a torque wrench from the area immediately at the
       front door of the house.


               Dr. Bruce Levy, who performed the autopsies on the victims’ bodies,
       testified that he identified five injuries to Chelsea Smith’s head and one to her
       groin. She died as a result of the blunt-force injuries and smoke inhalation.
       Dr. Levy testified that the injuries to Ms. Smith were consistent with
       full-swing blows from the torque wrench. The evidence of smoke inhalation
       indicates that Ms. Smith was alive when the fire was set.

              Dr. Levy also testified that he found two injuries on Jessica Watts’ head
       that he believed to have been caused by blows from the torque wrench. The
       immediate cause for Ms. Watts’ death was smoke inhalation.

              With respect to Dianne Watts, Dr. Levy found two severe injuries to her
       head that he believed were caused by the baseball bat. Raymond DePriest, a
       forensic scientist with the Tennessee Bureau of Investigation, testified that a
       DNA analysis of blood from the baseball bat showed the blood to belong to
       Dianne Watts.



                                              -2-
               Four persons were indicted for the murders, arson, and conspiracy to
       commit the murder of Diane Watts: the Defendant, the Defendant’s friend
       Johnny Lee Lewis, the Defendant’s mother Clementine Myers, and the
       Defendant’s brother Gary Myers. The State’s theory was that the four of them
       conspired to kill Dianne Watts because she had information regarding criminal
       activity in which they engaged. Gary Myers’ house had been burglarized, and
       he and Clementine Myers believed that Ms. Watts was responsible. Gary
       Myers had been investigated for bankruptcy fraud and food stamp fraud, and
       the conspirators thought Ms. Watts had information related to the investigation
       for fraud.

              The State offered the testimony of the Defendant’s estranged wife, who
       heard him and Johnny Lewis talking about how Ms. Watts was “running her
       mouth,” and that Clementine Myers wanted Ms. Watts “shut up.” The day
       before the murder, Mr. Lewis bought approximately five two-gallon jugs of
       gasoline. Shortly after the murders, the Defendant gave Mr. Lewis nine
       hundred dollars that came from Clementine Myers. On the morning following
       the murders, Gary Myers called the Defendant at approximately 6:20 a.m. and
       tape recorded a brief portion of their conversation, which the State
       characterized as an attempt to create an alibi for the Defendant.

               Throughout the trial, the prosecution offered the testimony of witnesses
       who had heard the Defendant, Johnny Lewis, and Clementine Myers make
       incriminating statements and threats regarding Ms. Watts. Several witnesses
       testified to details of the burglary of Gary Myers’ house and the exchange of
       a stolen tractor for methamphetamine by the Defendant and Mr. Lewis.

Id. at *1-2. At the conclusion of the trial, Petitioner was convicted of three counts of first
degree murder, two counts of felony murder, one count of aggravated arson, and one count
of conspiracy to commit murder. Id. at *1. The felony murder convictions and the
conspiracy to commit murder conviction were merged with the three convictions for first
degree murder. Id. Petitioner received consecutive life sentences without the possibility of
parole for the murder convictions, and a consecutive twenty-four year sentence for the
aggravated arson conviction.

        On direct appeal, Petitioner challenged the sufficiency of the evidence. Id. Petitioner
also argued that Tennessee’s first degree murder sentencing statute is unconstitutional, and
that the trial judge improperly instructed the jury regarding the State’s burden of proof. Id.
This Court affirmed the judgment of the trial court.



                                              -3-
        On July 25, 2005, Petitioner filed a pro se post-conviction petition that alleged
numerous instances of ineffective assistance of counsel and prosecutorial misconduct. On
October 15, 2007, Petitioner filed an amendment to the petition. On March 25, 2008,
Petitioner filed another amendment and memorandum of law in support of the petition for
relief. From what we can discern from the over one-hundred page document, Petitioner
complained that: (1) trial counsel failed to adequately prepare and investigate his case; (2)
trial counsel failed to present witnesses; (3) trial counsel failed to present an adequate
defense; and (4) original counsel was incompetent. In other words, various instances of
ineffective assistance of counsel affected Petitioner’s trial. Petitioner complained that the
following instances of prosecutorial misconduct also occurred during his trial: (1) the
prosecutors threatened witnesses; (2) the prosecutors manipulated witness testimony; and (3)
the civil rights of one of the witnesses were violated.

         The post-conviction court eventually held a hearing on the petition for post-conviction
relief. At the hearing, Petitioner presented several witnesses. Dan McInnis testified that he
was not called as a witness at trial. According to Mr. McInnis, his testimony would not have
been helpful for the defense or the prosecution. Mr. McInnis stated that, if called to testify
at trial, he would have informed the jury that on July 30, 1999, he went to work between 7:30
and 8:30 a.m. When he unlocked his shop door, he saw Petitioner coming around the corner.
Mr. McInnis waved at Petitioner, and Petitioner waved back. Petitioner was walking in the
direction of the grocery store in Viola. Mr. McInnis also saw Petitioner driving a little car.
Mr. McInnis testified that Petitioner normally drove a pickup truck that had a loud, distinct
sound. On cross-examination, Mr. McInnis could not say for certain what day he saw
Petitioner.

       Terry Coppinger testified to the post-conviction court that he lived two houses away
from Petitioner’s mother. Mr. Coppinger saw Petitioner’s truck parked in Petitioner’s
mother’s driveway the week of the murders. The truck was sitting in the yard between his
mother’s house and the neighbor’s house and had been sitting there for several days. Mr.
Coppinger confirmed that Petitioner’s truck had a loud, distinct sound. Mr. Coppinger did
not remember hearing the truck that week. Mr. Coppinger typically left for work between
6:00 and 6:15 a.m. On the morning of the murders, Mr. Coppinger took another way to work
and did not see if Petitioner’s truck was in the driveway at Petitioner’s mother’s house.

        Jim Bonner lived directly across the street from Petitioner’s mother’s house. Mr.
Bonner testified that he too saw Petitioner’s truck parked outside the house the week of the
murders. In fact, he heard Petitioner complain that the truck was broken. Mr. Bonner
recalled that the truck stayed at the house from Tuesday to Saturday, the day of the murders.
Mr. Bonner recalled the distinct sound made by Petitioner’s truck and testified that if it were
started in the middle of the night, he would have heard it.

                                              -4-
       Mr. Bonner testified at the post-conviction hearing that he saw Petitioner’s truck on
the morning of the murders. It was parked at Petitioner’s mother’s house. Petitioner’s
mother, Clementine Myers, called Mr. Bonner that morning around 7:45 a.m. to tell him that
“Diane and them [sic] kids got burnt up.” Petitioner’s truck was still parked at the house.
When Mr. Bonner got to Ms. Myers’s house, Petitioner’s brother Gary was there but
Petitioner was not. Mr. Bonner tried to go to the scene of the crime but was stopped by
authorities. When he got back to his house, Gary Myers was gone and Petitioner was at his
mother’s house.

       Mr. Bonner admitted on cross-examination that he had given two statements to
authorities. Mr. Bonner did not mention seeing Petitioner’s truck in either statement.
Further, he admitted that he did not tell anyone that the truck had been there for several days
without being moved. Mr. Bonner insisted that after he signed the statements he called a
police officer and told him about the truck.

         Charles Frost acted as the mitigation specialist on the defense team. When the case
first started, Petitioner was potentially facing the death penalty. Mr. Frost has a degree in
social welfare. Mr. Frost visited with Petitioner several times during his service on the case.
He gathered information about Petitioner’s social history and visited a number of Petitioner’s
family members in preparation for the case.

       Mr. Frost spoke with trial counsel on a number of different occasions. Mr. Frost
expressed concern over the fact that the evidence pointed to a fairly solid alibi defense by
Petitioner. Mr. Frost did not think that trial counsel was able to put together a defense. Mr.
Frost described trial counsel as confused, incoherent, and forgetful.

       In examining the case, Mr. Frost felt that it was important to have a jury that was less
emotional. Mr. Frost did not think that trial counsel appreciated the seriousness of jury
selection. Mr. Frost testified that trial counsel sometimes lost track of himself, both prior to
and during the trial. Mr. Frost did not think that trial counsel was mentally stable enough to
effectively represent Petitioner at trial.

        On cross-examination, Mr. Frost admitted that this was the only capital case he had
ever worked on in his career. He acknowledged that trial counsel was able to put together
a solid defense surrounding an alibi. Further, Mr. Frost admitted that he never expressed any
concern about trial counsel’s ability to the trial court.

      Neca Shepard was next to testify at the post-conviction hearing. Ms. Shepard worked
with Tom Isbell as a private investigator on Petitioner’s case. Ms. Shepard had limited
communication with trial counsel. She recalled two instances that she interacted with trial

                                              -5-
counsel. On one occasion, trial counsel seemed forgetful and easily confused. Ms. Shepard
described trial counsel’s car as full of documents. Ms. Shepard felt that there was a lot of
material that was uncovered during the investigation that should have been used at trial but
was unable to articulate the substance of this material to the post-conviction court. On cross-
examination, Ms. Shepard admitted that Petitioner’s trial was the first capital case she had
ever worked on during her career.

        Thomas Borlund, Jr., an assistant to the one of the investigators in Petitioner’s case,
testified at the hearing. Mr. Borlund was responsible for compiling information on nearly
400 potential witnesses in Petitioner’s case. Mr. Borlund was of the opinion that trial
counsel should have called more witnesses at trial. He agreed that it was ultimately trial
counsel’s decision and admitted that he had never worked on a capital case before.

       Thomas Isbell, a private investigator, worked closely with trial counsel on Petitioner’s
case. He was responsible for interviewing numerous witnesses. Mr. Isbell felt that trial
counsel did not use the majority of the information that he secured prior to trial. Mr. Isbell
recalled a meeting on the day prior to trial during which he gave trial counsel a list of forty
witnesses that were essential to the trial. Trial counsel repeatedly informed Mr. Isbell that
he was relying on an alibi defense. Mr. Isbell expressed concern that trial counsel was
hanging his hat on one defense rather than a total defense.

        Mr. Isbell was under the impression that trial counsel was ineffective due to his
limited attention span, forgetfulness, and due to the fact that he was easily confused. Mr.
Isbell informed trial counsel that Petitioner had a hernia surgery two weeks prior to the
murders. Mr. Isbell interviewed Petitioner’s doctor in preparation for trial and was
disappointed that trial counsel did not use this information. Additionally, Mr. Isbell felt that
trial counsel did a poor job of cross-examining the State’s witnesses.

        Mr. Isbell admitted that this was his first exposure to a capital case. He acknowledged
that trial counsel’s strategy from the beginning of the investigation was to focus on an alibi
defense. Mr. Isbell admitted that he was not qualified to judge trial counsel’s effectiveness
because he is not an attorney. Further, Mr. Isbell did not express his concern about trial
counsel’s effectiveness to the trial court.

       Petitioner took the stand at the hearing. According to Petitioner, trial counsel was not
easy to communicate with about the trial. Petitioner stated that trial counsel would not listen
to him, and Petitioner could not “connect” with trial counsel. Petitioner stated that trial
counsel would not “listen” to what he had to say about the case. Petitioner stated that the
defense was that of an alibi. Petitioner felt that trial counsel was often “confused.”
However, Petitioner stated that trial counsel “done [sic] pretty good starting off at the trial.”

                                               -6-
As the trial progressed, Petitioner stated that trial counsel “wasn’t putting on the proof or
doing nothing [sic].”

       Trial counsel testified at the hearing that he had been licensed to practice law since
March of 1962. Trial counsel had been involved in several capital cases prior to representing
Petitioner. Trial counsel testified that he had experienced significant health problems since
Petitioner’s trial but did not “believe” that he had any health problems during the trial. Trial
counsel described the trial as “complex” and that early on he decided to base his strategy on
the fact that Petitioner had an alibi. Trial counsel felt that the State did not “have enough
proof to convict” Petitioner at trial. Trial counsel recalled meeting with the other attorney
on the case “numerous” times prior to trial. Trial counsel could not give a “specific number”
of times that he met with Petitioner prior to trial.

       Trial counsel testified that he did everything in his power to secure a not guilty
verdict. Trial counsel was surprised by the guilty verdict because he did not think that there
was sufficient evidence to convict Petitioner.

        At the conclusion of the hearing, the post-conviction court determined that the
investigation into Petitioner’s case “was very thorough” and that the record indicated that “all
that the petitioner asked for prior to trial was given to him.” The post-conviction court
commented specifically on the high volume of pro bono work that was done for Petitioner
prior to trial.

        The post-conviction court also determined that trial counsel was not ineffective for
failing to call witnesses because the alibi defense was a “great defense” that “generally stands
on its own.” Further, the post-conviction court found that Petitioner was given a full defense
in that trial counsel presented an alibi defense, argued that the evidence was not sufficient,
and questioned the motive presented by the State for committing the murders. The post-
conviction court did not hear any testimony at the hearing that would have changed the
outcome of the case and did not hear of any additional defenses that could have been
presented.

         The post-conviction court determined that there was no testimony presented about any
constitutional violations dealing with the jury. Further, the post-conviction court determined
that trial counsel was not incompetent at Petitioner’s trial. The post-conviction court
commented that the circumstantial evidence was “very strong” and that “there is nothing .
. . to show that [trial counsel] was anything other than an effective trial counsel at the time
[of trial].”




                                              -7-
      The post-conviction court did not find any “competent” evidence of prosecutorial
misconduct that occurred at trial. Further, the post-conviction court did not find that there
were any “civil rights violations of witnesses.”

       The post-conviction court entered a separate, written order in which it denied the
petition for post-conviction relief. Petitioner filed a timely notice of appeal.

                                                  Analysis

        On appeal, Petitioner challenges the trial court’s denial of post-conviction relief.
Specifically, Petitioner complains that the post-conviction court improperly determined that
he received effective assistance of counsel. Petitioner argues that trial counsel: (1) failed to
adequately prepare and investigate the case; (2) failed to call witnesses that were beneficial
to the case; and (3) was generally incompetent.

                                  Post-Conviction Standard of Review

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Shields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                                   Ineffective Assistance of Counsel1

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,


        1
          Petitioner’s argument on appeal seems to abandon the claims of prosecutorial misconduct and civil rights
violations.

                                                       -8-
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d 572, 580 (Tenn. 1997).

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Petitioner complains that trial counsel failed to adequately prepare and investigate
Petitioner’s case by failing to utilize “the information that his private investigator
uncovered.” The post-conviction court noted that this was a “complex” case but determined
that the “investigation was thorough and complete at the time of trial.” The testimony at the
post-conviction hearing indicated that trial counsel had at least five bankers boxes full of
documents related to the investigation of Petitioner’s case and that the team of investigators
had identified nearly 400 potential witnesses. Petitioner has failed to show that he was
prejudiced by trial counsel’s failure to prepare for the case. Petitioner is not entitled to relief
on this issue.

        Next, Petitioner complains that trial counsel failed to call witnesses to support his alibi
defense. Dan McInnis, Terry Coppinger, and Jimmy Bonner were called to testify at the
hearing in support of Petitioner’s claim. Mr. McInnis testified that he saw Petitioner near a
store on the morning of the crimes driving a little car. However, on cross-examination, Mr.
McInnis was unsure of the date that he saw Petitioner and acknowledged that, at the time he
saw Petitioner, there would have been ample time to commit the crimes. Mr. Coppinger
testified that Petitioner’s truck had been at his mother’s house for several days around the

                                                -9-
time of the murders. On further examination, however, Mr. Coppinger could not definitively
say that Petitioner’s truck was in the neighborhood on the morning of the crimes. Lastly,
Jimmy Bonner testified that he saw Petitioner’s truck at Petitioner’s mother’s house at the
time of the murders. Mr. Bonner admitted that he did not include this information in his two
statements to police but claimed that he had talked to investigators about this at a later time.
The post-conviction court determined that the testimony of Mr. McInnis and Mr. Coppinger,
“if presented at trial, would [not] have caused a different verdict.” Further, the post-
conviction court determined that Mr. Bonner was not credible. Petitioner has failed to show
prejudice by trial counsel’s failure to call these witnesses at trial.

         Lastly, Petitioner insists that trial counsel was incompetent because he was “forgetful
and confused.” The post-conviction court found that trial counsel had no health problems
at the time of Petitioner’s trial. Specifically that “[t]here was no testimony from [Petitioner]
or his witnesses of specific incidents to cause this Court to question [trial counsel’s]
competence in this case.” We agree. The evidence does not preponderate against the
findings of the post-conviction court. Petitioner is not entitled to relief on this issue.

                                         Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




                                              -10-
