         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 11, 2001

                  DANNY RAY LACY v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Madison County
                            No. C99-144    Joe C. Morris, Judge



                      No. W2000-01898-CCA-R3-PC - Filed June 7, 2001


The petitioner appeals the post-conviction court’s denial of his petition for post-conviction relief.
After review, we hold that the record supports the post-conviction court’s finding that trial counsel
was not ineffective in failing to obtain the 911 tape; was not ineffective in preparing a defense; was
not ineffective for failing to introduce fingernail samples taken from the petitioner; and was not
ineffective for failing to adequately develop the victim’s mother as a suspect.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT
W. WEDEMEYER , JJ., joined.

Mark A. Mesler, Memphis, Tennessee, for the appellant, Danny Ray Lacy.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION


       The petitioner, Danny Ray Lacy, was convicted by a Madison County jury of first degree
felony murder in the perpetration of aggravated child abuse, resulting in the death of David
Hammond, Jr. (hereafter “D.J.”), his girlfriend’s five-year-old son. A jury sentenced him to life
without the possibility of parole. That judgment was affirmed on direct appeal. State v. Lacy, 983
S.W.2d 686 (Tenn. Crim. App. 1997), perm. appeal denied, (Tenn. Sept. 21, 1998).

      The petitioner filed a timely petition for post-conviction relief, was appointed counsel, and
had an evidentiary hearing. In his petition, he asserted that trial counsel was constitutionally
ineffective for numerous reasons. After the evidentiary hearing, the post-conviction court dismissed
his petition. He now appeals that dismissal and asserts that he received ineffective assistance of
counsel because trial counsel failed to obtain a 911 tape from the incident, inadequately prepared for
trial, and failed to present potentially exculpatory evidence.

                                               Facts

       For purposes of evaluating the petitioner’s claim, below we provide a summary of the facts
as adduced by this court on direct appeal.

       Evangeline Anderson, D.J.’s mother, began dating the defendant in April of 1991
       while living in Jackson, Tennessee. A short time later, she visited her brother in Salt
       Lake City, Utah, and decided to move there. The defendant joined Anderson and
       D.J. in Salt Lake City about a month later. At the defendant’s trial, Anderson
       testified that the defendant and D.J. had laughed and talked and that they had played
       together. The defendant was not D.J.’s natural father.

       On March 22, 1992, while the trio was living in Salt Lake City, the defendant became
       angry at D.J. for wetting his pants. Anderson testified that even though D.J. had not
       been quite two years old, the defendant had become angry at D.J., pulled down his
       pants, and whipped him with a switch. Anderson testified that she had told the
       defendant to stop but that he had refused. She further testified that she had attempted
       to call the police but that the defendant had thrown the telephone at her. Anderson
       testified that the defendant had then hit D.J. in the head with the television remote
       control. Anderson then grabbed her son and fled the residence. She testified that
       D.J. had had marks on his body from being hit by the switch and had a little blood
       by his nose. She and D.J. returned to Jackson the next day.

       However, the following month, Anderson and D.J. returned to Salt Lake City and
       began living with the defendant once again. Anderson testified that the defendant
       had said he was sorry for the way he had treated D.J. and that there were no further
       problems until August 1992.

       One afternoon in August of 1992, Anderson left D.J. in the defendant’s care while
       she went to her job at a convenience store. She testified that when she arrived at
       home after work, she noticed bruises on D.J.’s face and arms. Anderson testified that
       she had questioned the defendant about the bruises and that he had said he had to
       whip D.J. because he was being bad. She testified that the next day she had noticed
       some “fine little bumps” on D.J. She also noticed some red marks on his back. She
       purchased some cream and applied it to the bumps. On the third day, as she was
       giving D.J. a bath, Anderson noticed blisters on D.J.’s legs and buttocks. D.J. was
       then taken to the hospital where he remained until the end of September. Anderson
       testified that she had asked the defendant about the origin of the blisters but he had


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no explanation. However, Anderson testified that the defendant had later told her the
marks on D.J.’s body were made when the defendant hit D.J. with a brush.

Because of the unexplained injuries to D.J., Anderson lost custody of her son. Her
mother, Virginia Anderson, later gained custody of D.J. and cared for him in her
home in Jackson. Evangeline Anderson then left Utah in October of 1992 and moved
in with Virginia Anderson and D.J. in their home in Jackson. The defendant also
returned to Jackson at this time and lived with his mother. He and Evangeline
Anderson continued to date each other and in March 1993, they began to live
together. D.J. joined them shortly thereafter. While living together, Anderson and
the defendant devised a form of discipline for D.J. called “bouncing.” Anderson
demonstrated this technique for the jury. The punishment apparently amounted to
squatting to the knees and bouncing up and down. She testified that she and the
defendant would make D.J. “bounce” for ten to fifteen minutes rather than whipping
him. However, she admitted that she did still whip him from time to time.

On November 17, 1994, Anderson received a note from D.J.’s kindergarten teacher
saying that D.J. had been disrupting class by talking too much. Anderson testified
that because of the note, the defendant whipped D.J. with a belt leaving marks on
D.J.’s legs, neck, and back. She testified that she had told him to stop, but the
defendant refused. The next day, Anderson picked D.J. up at school and spoke to his
teacher, Stephanie Lynn Stephens Beasley, about the earlier note. Ms. Beasley
testified that during the conversation, she had asked Anderson about the marks on
D.J. and that Anderson had admitted to whipping the child. Ms. Beasley further
testified that Anderson had said she whipped D.J. good and that she had raised her
arm about her head and had said she had it up to here with him. At trial, Andersen
said she did not remember making such remarks.

On Sunday, November 20, 1994, Anderson began getting ready for church. She
testified that D.J. had been eating his breakfast slowly and that this had angered the
defendant. As a result, the defendant made D.J. start “bouncing.” Anderson testified
that while D.J. had been bouncing, the defendant had hit D.J. with his hand, causing
him to fall over. Despite already being dressed in his church clothes, a black
turtleneck and black pants with white specks, Anderson decided to leave D.J. at
home. She testified that the defendant and D.J. had talked and that everything
seemed all right. She then left the house around 11:00 a.m. and went to church.

Anderson testified that she did not return home from church until about ten after six
o’clock that evening. She testified that she entered the house through the back door
and then went into the bedroom she shared with the defendant. She testified that the
defendant had been lying on the bed watching television. She showed the defendant
a suit that someone had given her at church for D.J. and then called D.J.’s name in
order to show him the suit too. When D.J. did not answer, Anderson went into D.J.’s


                                        -3-
bedroom and turned on the light. When she could not get a response from D.J. she
yelled to the defendant that D.J. was not breathing. Anderson testified that she had
then called 911. She further testified that the defendant had taken the phone from her
and had begun to talk to the operator. The operator instructed the defendant to
perform CPR which the defendant attempted to do. Shortly thereafter, emergency
personnel arrived and made an unsuccessful attempt to revive D.J. At the time he
was found, D.J. was no longer wearing his church clothes. Instead, he was wearing
a red jogging suit.

On cross-examination, Anderson admitted that she had given the defendant
permission to discipline D.J. by whipping him, but that she and the defendant had
devised the alternative punishment of “bouncing.” She further admitted that on the
morning of D.J.’s death, she too had hit him. However, she testified that, excluding
Sunday morning, she had not whipped D.J. in the last two weeks. She also admitted
that she had a five thousand dollar ($5,000) life insurance policy on D.J. and that she
had filed a claim. The claim had not yet been paid because of the present proceeding.

Anderson also informed the jury that she was being held at the Madison County
Penal Farm as a material witness in this case. She testified that her failure to
cooperate with authorities in Utah was the reason for her present incarceration.

Dr. Karen Hansen, a physician on the faculty of University of Utah and a member of
the Child Protection Team at Primary Children’s Medical Center in Salt Lake City,
testified about the nature of D.J.’s injuries when he was hospitalized in August 1992.
She testified that D.J. had had bruising to his right temple, right eyelid, and right ear
lobe. He also had bruises on his abdomen and on his left elbow. Burn marks were
detected on D.J.’s left buttock and lower left leg. He also had blistering burn marks
on his shoulder, right buttock, and right heel. As a result of these injuries, an
extensive skin graft was performed, and D.J. remained hospitalized for over a month.

Dr. Hansen testified that in her opinion the bruises and burns on D.J. had been clearly
abusive. She testified that the bruises had been patterned and that there is no other
way to get the patterned marks other than through inflicted injury. She also testified
that earlobe bruises are classic examples of child abuse. Dr. Hansen further testified
that the burns on D.J. were consistent with an immersion type of scalding injury.

Michael B. Morgan, director of training at Jackson Fire Department and a part-time
paramedic with Medical Center EMS, testified that he and his partner were the first
to respond to Anderson’s call to 911. Morgan testified that when he had arrived, he
found the defendant trying to perform CPR on D.J. He further testified that D.J.’s
body had been very cold and that there had been obvious signs of rigor mortis. Will
Helms and Joe House, Jackson Police Department officers, gave similar testimony
about the condition of D.J.’s body.


                                          -4-
Dr. Thomas K. Ballard, county medical examiner and coroner for Madison County,
also testified about the condition of D.J.’s body. He testified that D.J. had had a
bruise around his left eye, old burn scars on the back of his left foot, left ankle and
lower left leg, fractures around his neck, small scratches on his face, an earlier scar
on his right forehead, skin grafts on his left buttock and lower left back area, bruises
on his buttocks, and a number of abrasions on his buttocks, arms, and legs. He
opined that D.J. had died at least three hours before he examined him at 7:30 p.m.

Dr. O’Brien Cleary Smith, a forensic pathologist, performed an autopsy on D.J. at Dr.
Ballard’s request. Dr. Smith testified that D.J.’s death had been a result of blunt
force injuries. He testified that multiple blows had caused internal bleeding which
eventually led to death. During the autopsy, Dr. Smith divided D.J.’s injures into
categories according to the probable time the injury was received. In the category of
months to years, Dr. Smith noted scars with characteristics of a healing or healed
burn. He also noted fine line-like scars which were characteristic of being switched
or whipped with a branch or piece of wire. In the category of days to weeks, Dr.
Smith noted skin abrasions on D.J.’s right thigh. In the six to twenty-four hour
category, Dr. Smith detected a bruise to the buttock area, an abrasion to the right
neck, a bruise to the right hand, bruises on the right arm, three bruises to the head,
a bruise above the left ear, and a bruise on the scalp. In the category of zero to two
hours, Dr. Smith found two abrasions to the right neck, a bruise on the left forearm,
and a bruise on the front right thigh.

Dr. Smith testified that D.J. had suffered multiple blows to the buttock area and as
a result had bled to death. He testified that a number of small blood vessels had been
broken by the blunt trauma. He testified that the bleeding had begun in the buttock
region and that the bleeding had been so extensive that the blood made its way to the
front of the body to show itself at the skin surface of the groin. Dr. Smith further
testified that D.J. had likely lived somewhere between two and six hours before
bleeding to death. He testified that the injuries would have been very painful to D.J.
and would have caused him to want to stay very still. Dr. Smith testified that most
likely D.J.’s heart began to race and his breathing began to hasten. Then, his heart
slowed and he became cold and clammy or he may have been shivering in a cold
sweat. Eventually, he began to lose consciousness and slipped into shock before
dying. Dr. Smith testified that had D.J. received medical attention, he could have
survived.

Dr. Smith also testified that some of D.J.’s injuries had had the characteristics of a
defensive wound. He testified that the multiple circular bruises across the back of
D.J.’s left forearm and bruises on the right wrist and arm had been most likely
defensive wounds, but that he could not say for certain that there was not another
explanation for those injuries.



                                          -5-
Dr. Smith further testified that D.J.’s most extensive injuries were to his lower back
and buttocks region. He testified that the injuries could have been inflicted in a span
of five minutes or over an extended period of time. Dr. Smith testified that of the
several hundred autopsies he had performed concerning blunt trauma type injuries,
D.J.’s injuries were the most severe injuries he had seen of this type. He further
testified that these injuries had not been inflicted by accidental means.

Doris Jackson, an investigator with the Jackson Police Department, was next to
testify. Jackson testified that she had gone to the house the day after D.J.’s death and
had spoken to Anderson, D.J.’s mother. While at the house, Jackson retrieved D.J.’s
black turtleneck, his underwear, and some socks. She testified that she had found the
clothes in the dirty laundry basket and that all the clothes had been wet as if they had
been washed and squeezed out. She further testified that she had observed a mucous
type substance on the black shirt. These items were sent to the crime lab but nothing
of evidentiary value was found. D.J.’s pants, which were found at the foot of his bed,
were not sent to the crime lab.

Jackson also testified that on this same day she spoke to the defendant, read him his
Miranda rights, and had him sign a rights waiver. Jackson then read to the jury the
statement given to her by the defendant. At the close of her testimony, the State
rested.

The defendant called Sam Phelps, Jr., as his first witness. Phelps testified that he and
the defendant had known each other for nearly fifteen years. He further testified that
on November 20, 1994, the day of D.J.’s death, he had telephoned the defendant at
home. He testified that he had called around eleven or twelve o’clock that morning
and that he did not hear anyone in the background. He further testified that the
defendant did not act out of the ordinary.

Robert Williams, who had given the defendant janitorial work over the last three or
four months, also testified that he had spoken to the defendant on that Sunday.
Williams testified that he had telephoned the defendant around one o’clock to see if
he could work. He testified that the defendant had said he was babysitting and could
not work. Williams further testified that he did not hear anything in the background
and that the defendant did not sound agitated.

A third witness, Sam L. Reeves, Jr., also testified that he had telephoned the
defendant on that Sunday. He testified that he had called around 1:30 p.m. in order
to talk about the football game. He testified that he had talked to the defendant for
about an hour and that the defendant had not sounded upset or in any way unusual.

The defendant took the stand in his own defense. He testified that he had treated D.J.
as if he were his natural son. He stated that they had played together, had gone to


                                          -6-
       events, and in general, had had a good relationship. He testified that he had spanked
       D.J. one time with a belt, but that he mainly used his hand. He further testified that
       Anderson had not objected to his spanking D.J.

       As to the incident in August of 1992, the defendant testified that D.J. had had little
       bumps on him that the defendant and Anderson discovered after Anderson had given
       D.J. a bath. He further testified that when these bumps turned into blisters and began
       to look much worse, he convinced Anderson to take D.J. to the hospital. He testified
       that he had not caused the injuries and that he did not know how they were caused.

       As to the week preceding D.J.’s death, the defendant testified that Anderson had
       spanked D.J. for ten to fifteen minutes because of the note D.J. brought home from
       his teacher. The defendant testified that he no longer spanked D.J., but instead used
       an alternative method of punishment such as “bouncing” or standing in the corner.

       The defendant testified that on the following Sunday morning, Anderson had been
       fussing at D.J. for being too slow to get ready for church. The defendant testified that
       he had told D.J. to start bouncing. He further testified that while D.J. had been
       bouncing, he hit his head on the bed rail, but that D.J. had said he was unhurt. The
       defendant testified that D.J. had bounced for ten to fifteen minutes and then had
       stopped. Anderson left to go to church shortly thereafter around 11:15 a.m. The
       defendant testified that he and D.J. then watched television in the defendant’s
       bedroom. He testified that around 1:30 p.m. he had fixed lunch for D.J. Then at
       about 3:00 p.m., D.J. left the defendant’s bedroom and went to his own room because
       he was sleepy. The defendant testified that he too then fell asleep and did not awaken
       until around 5:20 p.m. when the telephone began to ring. He further testified that he
       had remained in his bedroom and did not check on D.J. He stated that he had been
       in his bedroom when Anderson came home around 6:15 p.m.

        He testified that after D.J. left his bedroom he had not heard any sounds from D.J.’s
        room. He further testified that D.J. had appeared to be fine the whole day. He
        testified that he had not struck or hit D.J. that day and that he had not caused the
        boy’s injuries. However, he could not explain how D.J. had received the numerous
        injuries that ultimately caused his death.

State v. Lacy, 983 S.W.2d 686, 687-91 (Tenn. Crim. App. 1997), perm. appeal denied, (Tenn. Sept.
21, 1998).

                                               Analysis

         The petitioner asserts that the post-conviction court erred in denying him post conviction
relief. Specifically, he claims that he received ineffective assistance of counsel because trial counsel



                                                  -7-
failed to obtain a 911 tape from the incident, inadequately prepared for trial, and failed to present
potentially exculpatory evidence.

        Post-conviction petitioners bear the burden of proving their allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the appellate court accords 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).

        The Sixth Amendment to the United States Constitution and Article I, section 9 of the
Tennessee Constitution both require that a defendant in a criminal case receive effective assistance
of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
constitutionally ineffective assistance of counsel, the standard applied by the courts of Tennessee is
“whether the advice given or the service rendered by the attorney is within the range of competence
demanded by attorneys on criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim.
App. 1980).

        In Strickland v. Washington, the United States Supreme Court outlined the requirements
necessary to demonstrate a violation of the Sixth Amendment right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the defendant must show that
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms and must demonstrate that counsel made errors so serious that he was not
functioning as “counsel” guaranteed by the Constitution. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. Second, the petitioner must show that counsel’s performance prejudiced him and that errors
were so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the
outcome. Id.; Henley, 960 S.W.2d at 579.

        “When addressing an attorney’s performance it is not our function to ‘second guess’ tactical
and strategic choices pertaining to defense matters or to measure a defense attorney’s representation
by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982)). Rather, a court reviewing counsel’s performance should “eliminate the distorting effects of
hindsight . . . [and] evaluate the conduct from the perspective at the time.” Strickland, 466 U.S. at
689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation.” Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996). On the other hand, “deference to matters of strategy and tactical choices applies only
if the choices are informed ones based upon adequate preparation.” Id.

       To establish prejudice, a party claiming ineffective assistance of counsel must show a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id.; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable
probability is “a probability sufficient to undermine confidence in the outcome.” Id.




                                                   -8-
        In reviewing a claim of ineffective assistance of counsel, an appellate court need not address
both prongs of Strickland if it determines that the petitioner has failed to carry his burden with
respect to either prong. Henley, 960 S.W.2d at 580. When the claim is predicated upon counsel’s
failure to present potential witnesses, their testimony should be offered at the post-conviction
hearing. In this manner the court can consider (1) whether a material witness existed and could have
been discovered but for counsel’s neglect, or a known witness was not interviewed by counsel; and
(2) whether the failure to discover or interview a witness prejudiced the petitioner or the failure to
call certain witnesses denied critical evidence to the prejudice of the petitioner. See Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

         First, we address the petitioner’s claim that his trial counsel was ineffective for not obtaining
a copy of the 911 tape of the incident. At the post-conviction hearing, both of petitioner’s trial
attorneys testified about the 911 tape. According to their testimony, they attempted to obtain a copy
of the tape in preparing for the trial. They testified that they were unable to obtain the tape because
the tape had either been erased or destroyed. Additionally, the testimony indicated, as did the trial
transcript, that the substance of that call was addressed at trial. The post-conviction court concluded
that trial counsel was not ineffective for not obtaining the tape. Furthermore, given the fact that the
substance of the tape was addressed at trial, the petitioner has failed to show how he was prejudiced
by the unavailability of such tape. Accordingly, the evidence does not preponderate against the post-
conviction court’s findings of counsel’s effectiveness regarding the 911 tape.

        Next, we address the petitioner’s claim that trial counsel was also ineffective for not properly
investigating and introducing potentially exculpatory evidence in support of his defense. Although
the petitioner alleges several incidences of not properly preparing a defense, the crux of this claim
is three-fold: (1) that trial counsel did not meet with the petitioner an adequate number of times in
preparation of a defense; (2) that trial counsel failed to introduce the results of fingernail scrapings
taken from the defendant; and (3) that trial counsel failed to adequately interview one of the State’s
witnesses and failed, at trial, to properly develop her as a suspect in the crime.

        At the post conviction hearing, both of the petitioner’s trial attorneys testified that they met
with the petitioner several times, including at least three visits to the various facilities where he was
incarcerated. Also, trial counsel met with the petitioner several times before and after some of the
hearings before trial. Additionally, trial counsel communicated with the petitioner several times via
telephone and mail in preparation for his trial. The post-conviction court concluded that trial counsel
was not ineffective in preparing a defense for the petitioner. The record clearly supports those
findings.

        The petitioner’s claim that his counsel was ineffective for failing to pursue the lab results of
his fingernail scrapings taken during the investigation is based on his assertion that this evidence was
exculpatory and could have been used to show his innocence. However, at the post-conviction
hearing, the petitioner failed to introduce the results of such samples nor how he could have used
them to prove his innocence. The post-conviction court found that the petitioner failed to show how



                                                   -9-
he was prejudiced by his counsel failing to introduce such evidence. The record supports the post-
conviction court’s findings.

         Finally, the petitioner claims that his counsel was ineffective for failing to adequately
interview the victim’s mother, one of the State’s key witnesses. The petitioner also asserts that by
failing to adequately pursue the victim’s mother’s background and develop her as the perpetrator of
the crime, trial counsel was ineffective and should have requested a psychological evaluation of her
to attack her credibility at trial. Trial counsel testified that he did in fact meet with the victim’s
mother and she refused to speak to him about the events surrounding this crime. Although trial
counsel made all reasonable efforts to speak with her, this witness was clearly under no obligation
to speak to trial counsel. Trial counsel testified that they did not pursue a psychological evaluation
of the victim’s mother because they felt like that was an approach that might damage their case. In
essence, trial counsel was without the necessary evidence to attack the victim’s mother’s mental
stability and made a strategic decision in presenting the defendant’s case. This court will not second
guess trial counsel’s strategic decisions in presenting a defense. See, e.g., Goad v. State, 938 S.W.2d
363, 369 (Tenn. 1996). We agree with the post-conviction court’s finding that this was not
ineffective assistance of counsel.

                                             Conclusion

        After reviewing the entire record before us and the post-conviction court’s findings, we hold
that the petitioner has failed to show that the record preponderates against the trial court’s finding
that the petitioner received effective assistance of counsel. We affirm the judgment of the post-
conviction court.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




                                                -10-
