        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 24, 2010

              MATTHEW R. HAKODA v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                       No. 2004-B-1212    Steve Dozier, Judge



               No. M2009-01152-CCA-R3-PC - Filed November 30, 2010


Petitioner, Matthew R. Hakoda, appeals the post-conviction court’s dismissal of his petition
for post-conviction relief in which he alleged the ineffective assistance of counsel at trial and
on appeal. After a thorough review, we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER, JJ., joined.

J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Matthew R. Hakoda.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; Amy H. Eisenbeck,
Assistant District Attorney General; and Rachel Sobrero, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                          OPINION

I. Background

       Following a jury trial, Petitioner was convicted of three counts of solicitation of first
degree murder, a Class B felony, and the trial court sentenced Petitioner as a Range I,
standard offender, to an effective sentence of twenty-nine years. The facts surrounding
Petitioner’s convictions were summarized by this Court on appeal as follows:

        The defendant was charged with soliciting fellow jail inmate, Joseph
        Chamberlain, to murder his wife and her two children. At the trial,
Investigator Kevin Carroll with the Davidson County Sheriff’s Department
testified that every telephone call made by jail inmates was recorded in the
normal course of business. He said the defendant was housed at the
Davidson County Correctional Work Center (CWC) on January 27, 2004.
The state introduced excerpts of three telephone calls the defendant made
to his mother on January 27. In the first excerpt, from a conversation at
8:32 a.m., the defendant told his mother to write down a series of items that
he wanted. He told her, “I want one to do deer with, one to do quail with
... one to do defense with, home defense ... one to hose down [a] car with.”
The defendant told his mother that he hoped she could “figure this out.”
The defendant also instructed his mother that he would “need all the bells
and whistles to go with those.”

In the second excerpt, from a telephone call made at 5:20 p.m., the
defendant’s mother reminded the defendant that the telephone calls were
being recorded. During this conversation, the defendant expressed anger
and instructed his mother to “put the smack down where it needs to be put
down.” He also instructed her to get his “garbage” and to give it to his
girlfriend, Scarla. The defendant’s mother assured him that “we’ve got
everything taken care of.” They also talked about family members,
including his two brothers, and how they were “taking all this.” The
defendant again stated that he hoped they were “on track,” to which his
mother responded, “It doesn’t take a rocket scientist to put ... puzzles
together.” The defendant talked about getting his “business” out of the
house, and his mother stated that she would put a gun in the trunk and
ammunition in the glove box of a car. His mother also stated that, “as far
as I’m concerned, I don’t have a f-ing sister .” The second excerpt ends
with the defendant stating that “hopefully come Sunday, we’ll mourn
together about the loss of family members.”

During the third excerpted conversation, from a telephone call made at 7:14
p.m., the defendant told his mother to “transfer the goodies” and to take
possession of cash. He spoke repeatedly of a “goody bag” and told his
mother to use telephones “that aren’t ... you know.” The defendant got
angry with his mother, who did not immediately understand his directions,
and he told her that she was “so slow.”

Next, Joseph Chamberlain testified that he was an inmate at CWC on
January 28, 2004. He testified that while working in the kitchen on that
day, the defendant approached him and asked if Chamberlain “could get a

                                    -2-
job done for him.” Chamberlain stated that the defendant explained that he
wanted his stepchildren and possibly his wife killed. Chamberlain said the
defendant was particularly interested in having the two children killed
because “it would devastate the mother.” He testified that the defendant
did not tell him how he wanted the killings accomplished but that the
defendant did tell him about weapons that he had, including a .22 caliber
handgun with a silencer, which the defendant referred to as “a pea-shooter
with a muffler,” and a .45 caliber gun that the defendant did not want to use
because it was registered in the defendant’s name.

According to Chamberlain, the defendant also said he wanted the killings
done before the defendant was released from jail, so he could have an alibi
and because “he was already under investigation and being watched for a
... previous fire and stalking.” Chamberlain said that he told the defendant
he would help because he was afraid the defendant would find somebody
else to do it and that he asked the defendant to provide him with
information on the victims. He stated that he had no intention of actually
helping the defendant and that he immediately told his “pod counselor”
about his conversation with the defendant.

Chamberlain testified that two days after this initial encounter, the
defendant again approached him. The defendant gave him a piece of paper,
which was introduced into evidence, with handwritten personal information
about the defendant’s wife, including her full name, social security number,
date of birth, place of employment, vehicle description, license plate
number, and physical description. The paper also included information
about his wife’s two children, including where they went to school. The
note stated, “The children definitely need to be taken care of at all costs,
because they’re so precious.” The note also contained information about
the defendant, including his date of birth, social security number, address,
and cellular telephone numbers. Chamberlain testified that on February 2,
the defendant again approached him and asked if he had any guns for sale.
He said the defendant discussed possible payment options, including a
bond his mother was supposed to sign, some appliances the defendant had
in storage, and a litter of puppies. He said that they talked about possible
installment payments but that no set amount was ever determined.
Chamberlain said the defendant repeated that he definitely wanted the
children killed but that he possibly wanted the wife hurt or maimed,
perhaps through the use of acid.


                                    -3-
Chamberlain testified that the next time he met with the defendant was on
February 3 and that he had worn a “wire” provided by the police. He said
the defendant appeared suspicious of him and did not provide much
information. He also stated that the transmitting and recording devices did
not work and that authorities were unable to hear his conversation with the
defendant. Chamberlain testified that he spoke to the defendant briefly on
two other occasions. He said the defendant was angry at the lack of
progress with his request. He said the defendant told him that the police
had searched his aunt’s house, where he was previously living, and had
found his .45 caliber gun. The defendant also told him that the .22 caliber
pistol was in a shed on a neighbor’s property that was guarded by a pit bull.
Chamberlain testified that the police informed him that he would not get
out of jail any sooner or receive any other help as a result of his cooperation
in the defendant’s case. He stated that, in fact, jail life became more
difficult for him afterward, as he was labeled a “snitch” by other inmates
and was taken out of communal facilities.

On cross-examination, the defense questioned Chamberlain about apparent
inconsistencies between his current testimony and his testimony at the
preliminary hearing. Chamberlain admitted that at the preliminary hearing,
he stated that the first time the defendant told him he wanted to kill the
children was January 30, not January 28. Chamberlain said he was
mistaken during the preliminary hearing. He testified that the defendant
had approached him because he had a reputation for knowing “how to clear
out a party,” based on a previous incident when he informed a friend to call
the police to stop a party. Chamberlain testified that he was previously in
jail because he had not paid child support and that when the defendant
initially approached him, the defendant only had thirteen days left of his jail
sentence whereas Chamberlain was not scheduled for release for another
five months. Chamberlain said he led the defendant to believe that his
attorneys and his brother were working to get him out early. The defense
also questioned Chamberlain on the methods of payment proposed by the
defendant, and Chamberlain stated that he knew the defendant was
unemployed.

Officer William Kirby of the Metropolitan Nashville Police Department
testified that he examined and located latent fingerprints on the paper
allegedly written by the defendant and given to Chamberlain. Linda
Wilson, an Identification Analyst with Metro Police, was qualified as an
expert in fingerprint identification. She testified that she identified four

                                     -4-
latent fingerprints on the paper as belonging to the defendant. Metro Police
Detective Timothy Sneed, with the Domestic Violence Division, testified
that he spoke with staff at CWC and with Chamberlain about the
allegations against the defendant. He said he informed Chamberlain that
the police department could not assist him with getting out of jail early. He
said Chamberlain’s written statements were consistent with his interviews.
He stated that through a search warrant based on information provided by
Chamberlain, he found the .45 caliber gun in the defendant’s aunt’s house
and a magazine for a .45 caliber gun in a shed in the defendant’s aunt’s
yard which was guarded by a pit bull. Sneed also said the defendant was
suspected in the burning of the defendant’s wife’s house.

On cross-examination, Detective Sneed testified that the police did not find
a .22 caliber gun during their searches. He stated that he did not question
any jail inmates other than Chamberlain. He said that he knew the
defendant was “about to get out” of jail by the time he became involved in
the investigation and that Chamberlain had approximately five months left
to serve. He testified that there was nothing in the note written by the
defendant and given to Chamberlain that indicated a murder was to take
place or a price, location, date, or method for a murder. He said he did not
interview the defendant’s mother or charge her with any crime in
connection with the alleged solicitation. He stated that he learned that the
defendant had attempted to hire a private investigator but that he did not
follow up on that information. On re-direct examination, Detective Sneed
stated that Joseph Chamberlain was not a private investigator and that it
would violate an order of protection to keep observation or make contact
with the protected party through a third person.

The defendant’s wife, Ruth Dren-Hakoda, testified that she and the
defendant married in 1999, divorced, and remarried in 2001. She filed for
a second divorce in 2003. She stated that she obtained an order of
protection against the defendant in September 2003 and that she saw the
defendant on her property in violation of the order several times. She said
the information about her and her children given by the defendant to
Chamberlain was correct, with the exception of her height. She identified
the handwriting on the paper as belonging to the defendant. She said that
after hearing of the allegations in the present case, she and her children
went into hiding out of fear for their safety. She said the defendant owned
a .45 caliber handgun and a .22 caliber gun, and she believed the latter was
registered in her name. As to appliances in the defendant’s possession, she

                                    -5-
said he had a refrigerator. She also said he had pit pulls that he bred and
whose puppies he sold for anywhere between $100 and $250.

On cross-examination, Ms. Dren-Hakoda testified that the defendant did
not touch her on the occasions that he violated the protective order. She
said she never told police that he threatened to kill or harm her or her
children. She did say, however, that she felt threatened by the defendant.

The defendant’s mother, Debbie Keller, testified for the defendant. She
discussed the excerpted telephone conversations with her son that were
previously submitted into evidence. She said that while her son was in jail,
she talked to him on the telephone multiple times a day for approximately
fifteen minutes at a time, for a total of at least thirty hours. She explained
that in the January 27, 8:32 a.m. conversation, she understood that her son
was asking her for needles. She said the defendant liked to sew and had a
deerskin that he planned to make into moccasin boots. She said “quails”
were items used to decorate the boots. She said she thought her son was
also talking about a hose needed for a carwash and did not know what he
meant by “home defense.” She said that the defendant had awakened her
from sleep and that she just pretended to understand and write down what
he said in order to go back to sleep. She said that she did not think he was
talking in a code and that he was not talking about guns. She said that
during the 7:14 p.m. conversation, the defendant was instructing her to
speak to a bondsman about getting a friend out of jail. She said she
understood only part of what the defendant was saying. She said she
understood that “goody bag” referred to money for the bond. She also
testified that during the 5:20 p.m. conversation, she and her son were
talking about strained family relationships. She said her sister Carol, in
whose house she was living, was unhappy about the police coming to her
house because of the defendant. She said “smack down” was a wrestling
term and a figure of speech that the defendant only used as a joke. She said
the “garbage” the defendant referred to were his clothes that he wanted
removed from Carol’s house. She said that the defendant wanted her to get
some guns out of Carol’s house but that she did not do so. She said that the
defendant had recently had a falling out with his brother Benji and that the
comment about mourning the loss of family members referred to his
conflict with Benji and her plan to cut off ties with Carol.

Ms. Keller also testified that the three tapes played for the jury were not the
complete conversations that she had with the defendant, although she could

                                     -6-
         not remember what else was discussed. She said the only appliances the
         defendant had were an old homemade computer, a non-functioning
         television set, and a hand saw. She said that the defendant never threatened
         his wife and that he cared about his step-children. On cross-examination,
         Ms. Keller stated that she did not know to what the $6000 to $8000 the
         defendant discussed with her referred and that she sometimes only
         pretended to understand her son. She later said the large sum of money was
         for a down payment on a house. She said she did not know what her son’s
         reference to “carwash” or “home defense” meant.

         Mario Hambrick, a bail bondsman, testified that he had worked with the
         defendant several times. He said that after a conversation with the
         defendant, he had given the defendant telephone numbers for two private
         investigators. Tommy Jacobs, a retired police officer and professional
         private investigator, testified that, in his experience, it is common for
         people involved in divorces to hire private investigators. He testified that
         a private investigator would need information from a client about the
         person to be investigated, such as the person’s name, address, place and
         hours of employment, and frequented locations. He said it would be
         important to have information on any children involved, including where
         they went to school.

State v. Matthew R. Hakoda, No. M2005-01864-CCA-R3-CD, 2006 WL 2738881, at *1-5
(Tenn. Crim. App., at Nashville, Sept. 21, 2006), perm. to appeal denied (Tenn. Oct.
27, 2008).

II. Post-Conviction Hearing

        At the post-conviction hearing, Petitioner testified that he and trial counsel “met
several times, to go over stuff.” Petitioner stated that he and counsel were aware that the
public defender’s office had approximately forty hours of Petitioner’s taped telephone
conversations with his mother on DVD, but trial counsel did not receive a copy of the DVD
until the night before a scheduled hearing. Petitioner acknowledged that trial counsel moved
for a continuance at the hearing in order to have time to review the DVD, and the trial court
denied her motion. Petitioner stated that he did not believe that trial counsel had ever
reviewed the taped conversations in their entirety. Petitioner said that he and trial counsel
never discussed a trial strategy. Trial counsel advised Petitioner not to testify at trial because
the State “didn’t [sic] have a case and that it would probably be detrimental for [him] to take
the stand.” Petitioner said that he understood the elements of the offense of solicitation of


                                               -7-
first degree murder, but he did not understand the concept of “mens rea.” Petitioner stated
that trial counsel did not challenge the trial court’s sentencing determinations on appeal.

       Petitioner said that at the time the offenses were committed, he was serving twenty
days for various violations of an order of protection. Petitioner explained that he told Mr.
Chamberlain that the violations were a “set up,” and he wanted Mr. Chamberlain to hire a
private investigator so that Petitioner could find the witness who said that he had committed
the violations. Petitioner stated that he gave Mr. Chamberlain the personal information
about his wife and step-children to assist the private investigator. Instead, Mr. Chamberlain
told the law enforcement officials that Petitioner “was trying to hire him to do a hit.”
Petitioner stated, however, that Mr. Chamberlain told the police that Petitioner had
renounced the solicitation plan. Petitioner said that Mr. Chamberlain told the police about
the plan to murder Petitioner’s wife and step-children in order to have Mr. Chamberlain’s
sentence of six months reduced. Petitioner stated that other inmates were in the kitchen
when he spoke with Mr. Chamberlain, but trial counsel did not interview them prior to trial.
Petitioner acknowledged that his theory of defense, that he was only trying to hire a private
investigator, was presented at trial.

        On cross-examination, Petitioner acknowledged that he and trial counsel reviewed
the transcripts of the portions of his taped telephone conversations which the State intended
to introduce at trial. Petitioner also acknowledged that he did not know the names of his
fellow inmates who were in the kitchen when he spoke to Mr. Chamberlain. Petitioner
stated that he chose not to testify at trial, but he explained that was “at that time.” Petitioner
said that the excerpts of his taped telephone conversations to his mother were taken out of
context. He stated that his statements about mourning family members and his use of the
phrase “smack down” were just “figures of speech.” Petitioner said that the money
mentioned during the conversations concerned the amount of a bond his mother was to
obtain for a fellow inmate. On redirect examination, Petitioner stated that he and trial
counsel did not review the telephone conversations until the day of trial.

       Trial counsel testified that she had worked in the Public Defender’s Office for five
years before entering private practice five or six years prior to the post-conviction hearing.
Trial counsel stated that approximately ninety percent of her private practice involved
criminal cases. Trial counsel said that she and Petitioner discussed trial strategy on
numerous occasions. Petitioner’s defense was that he was asking Mr. Chamberlain’s
assistance in finding a private investigator. Trial counsel stated that she emphasized during
opening argument that the State had “jumped to conclusions” in charging Petitioner with the
offenses, and that the evidence would not show that Petitioner had the requisite intent to
murder his wife and stepchildren. Trial counsel acknowledged that she did not object to the
State’s reference during opening argument to a charge of aggravated arson against Petitioner

                                               -8-
that was pending at the time of trial. Trial counsel stated that a hearing had been conducted
prior to trial after which the trial court found that the fact that Petitioner had been charged
with arson in connection with the burning of his wife’s house was admissible under Rule
404(b) of the Tennessee Rules of Evidence. The trial court also found, however, that the
circumstances surrounding the arson charge was inadmissible.

        Trial counsel said at the post-conviction hearing that she did not receive the entire
taped telephone conversations between Petitioner and his mother until the day before trial.
(We note that the transcript of the hearing on trial counsel’s motion to continue reflects that
trial counsel received the DVD of the telephone conversations on March 31, 2005, the day
before the hearing and four days before trial.) Trial counsel considered the excerpts of the
telephone conversation which were played for the jury damaging because of the tone of
Petitioner’s voice and his demeanor during the conversation. Trial counsel brought out at
trial that the jury was not hearing the complete conversations, and the excerpts had been
taken out of context. Trial counsel said that she reviewed with Petitioner “numerous times,”
Mr. Chamberlain’s letters, statement to the police, and preliminary hearing testimony. Trial
counsel stated that she also reviewed the excerpts of the taped telephone conversations with
Ms. Keller prior to trial. Trial counsel said that if she had felt there were any issues
pertaining to sentencing that could have been raised on appeal, she would have done so.

III. Standard of Review

        To succeed on a challenge of ineffective assistance of counsel, the petitioner bears
the burden of establishing the allegations set forth in his petition by clear and convincing
evidence. T.C.A. § 40-30-210(f). However, the trial court’s application of the law to the
facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed
question of fact and law and therefore also subject to de novo review. Id.; State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he or she must establish that counsel’s performance fell below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). In addition, he or she must show that counsel’s ineffective performance
actually adversely impacted his defense. Strickland v. Washington, 466 U.S. 668, 693, 104
S. Ct. 2052, 2067 (1984). In reviewing counsel’s performance, the distortions of hindsight
must be avoided, and this Court will not second-guess counsel’s decisions regarding trial
strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court,
therefore, should not conclude that a particular act or omission by counsel is unreasonable
merely because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at

                                             -9-
2065. Rather, counsel’s alleged errors should be judged from counsel’s perspective at the
point of time they were made in light of all the facts and circumstances at that time. Id. at
690, 104 S. Ct. at 2066.

       A petitioner must satisfy both prongs of the Strickland test before he or she may
prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997). That is, a petitioner must not only show that his or her counsel’s
performance fell below acceptable standards, but that such performance was prejudicial to
the petitioner. Id. Failure to satisfy either prong will result in the denial of relief. Id.
Accordingly, this Court need not address one of the components if the petitioner fails to
establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

IV. Opening Statements

       Petitioner argues that trial counsel’s assistance was deficient because she failed to
object to the prosecutor’s statement during opening statements that Petitioner told Mr.
Chamberlain to commit the solicitation offenses while Petitioner was still in jail “so that he
could have an alibi, because he was suspected of burning his wife’s house down.” Petitioner
also points out that trial counsel did not ask for a curative instruction to the jury concerning
the reference to prior bad acts.

       Trial counsel testified that she did not object to the arson reference because the trial
court had ruled the evidence admissible prior to trial. Furthermore, although trial counsel
did not preserve the issue for appellate review by failing to object to the comment, this Court
nonetheless addressed Petitioner’s claim on appeal that the reference constituted
prosecutorial misconduct. On appeal, we concluded that “[r]egardless of any waiver, this
issue does not warrant reversal. The prosecutor’s statement was a reference to evidence that,
as discussed above, while not properly admitted, was harmless.” Matthew R. Hakoda, 2006
WL 273881 at *10. It is well-established that post-conviction proceedings may not be
employed to raise and re-litigate issues previously determined on direct appeal. Roy E.
Keough v. State, No. W2008-01916-CCA-R3-PD, 2010 WL 2612937, at *38 (Tenn. Crim.
App., at Jackson, June 30, 2010) (citing Miller v. State, 54 S.W.3d 743, 747-48 (Tenn.
2001)). Accordingly, we conclude that Petitioner is not entitled to relief on this ground.

        Petitioner also argues that trial counsel’s opening statement was deficient because she
failed to “name a single witness,” address the State’s burden of proof and the elements of
the offense, and present Petitioner’s “version of the facts.” The right to effective assistance
of counsel extends to opening and closing arguments. Yarborough v. Gentry, 540 U.S. 1,
5-6, 124 S. Ct. 1, 4 (2003); Bell v. Cone, 535 U.S. 685, 701-02, 122 S.Ct. 1843 (2002).
Nonetheless, counsel has wide latitude in deciding how best to represent a client, and

                                             -10-
deference to counsel’s tactical decisions in his or her opening or closing argument is
particularly important.

        In her opening statement, trial counsel stressed the fact that the State had “jumped to
conclusion [sic]” based on the statement of one witness. Trial counsel urged the jury to
consider whether Mr. Chamberlain’s testimony was reasonable or even logical. Trial
counsel outlined what the State’s evidence would not show, and posited that the evidence
instead would support Petitioner’s position that he was going through a divorce and was
only attempting to find a private investigator. Although trial counsel’s arguments failed to
set forth any facts of the crimes or the elements of the offense the State was required to
prove, the evidence does not preponderate against the post-conviction court’s finding that
the composition of trial counsel’s opening argument was a tactical decision not subject to
hindsight review. Moreover, we conclude that Petitioner has failed to show that had trial
counsel presented a different opening argument, a different result would have occurred.
Petitioner is not entitled to relief on this claim.

V. Admission of the Taped Telephone Conversations

        Petitioner argues that trial counsel’s assistance was ineffective because she failed to
object to the introduction at trial of the taped excerpts of Petitioner’s telephone
conversations with his mother while Petitioner was in jail. Citing State v. Jones, 598 S.W.2d
209, 223 (Tenn. Crim. App. 1980), superseded by statute on other grounds as stated in State
v. Shropshire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993), Petitioner also contends that
trial counsel’s assistance was deficient because she failed to request a limiting instruction
to the jury “that only the statements, admissions, and declarations of [Petitioner] in the taped
conversations may be considered.”

        Petitioner’s first contention, trial counsel’s failure to object, was addressed by this
Court on direct appeal. Based on our review, we concluded that Petitioner had failed to
establish that he was unfairly prejudiced by the introductions of the taped excerpts. Matthew
R. Hakoda, 2006 WL 2738881, at *8. Thus, Petitioner is not entitled to relief on this claim.
See T.C.A. § 40-30-106(h). Petitioner’s second contention, trial counsel’s failure to request
a limiting instruction to the jury, was also raised in his direct appeal but was found waived
by this Court. Matthew R. Hakoda, 2006 WL 2738881, at *8 (citing Tenn. R. App. P. 3(e),
36(a); State v. Howell, 868 S.W.2d 238, 255-56 (Tenn. 1993); State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)) (noting that trial counsel did not request an instruction and failed to
raise the issue in her motion for new trial).

       Nonetheless, Petitioner has failed to show that he was prejudiced by the omission.
Trial counsel testified at the post-conviction hearing that she brought out on cross-

                                             -11-
examination the fact that the tapes did not portray Petitioner’s entire conversations with his
mother. Petitioner called Ms. Keller at trial as a defense witness to explain the context in
which the statements were made. Based on our review, we conclude that the evidence does
not preponderate against the post-conviction court’s finding that trial counsel’s conduct was
not deficient in this regard.

VI. Expert Testimony

        Petitioner argues that trial counsel’s conduct fell below the standard expected of
defense counsel when she failed to consult with a fingerprint expert prior to trial and failed
to cross-examine the State’s expert witness. At trial, Officer Linda Wilson, an identification
analyst with the Metro Nashville Police Department, testified that the four latent fingerprints
lifted from a note containing personal information about Petitioner’s wife and stepchildren
belonged to Petitioner. Matthew R. Hakoda, 2006 WL 2738881, at *3. Trial counsel
testified at the post-conviction hearing that there was no reason to hire a fingerprint expert
because Petitioner did not deny that he had written the information for Mr. Chamberlain, and
it was Petitioner’s defense theory at trial that he had provided this information so that Mr.
Chamberlain could give it to a private investigator. Based on our review, we conclude that
the evidence does not preponderate against the post-conviction court’s finding that Petitioner
has failed to show that his trial counsel’s conduct was deficient or that he was prejudiced by
trial counsel’s failure to consult an expert before trial or cross-examine Officer Wilson at
trial. Petitioner is not entitled to relief on this issue.

VII. Cross-examination of Mr. Chamberlain

       Petitioner argues that trial counsel’s assistance was ineffective during Mr.
Chamberlain’s cross-examination. Petitioner acknowledges that trial counsel highlighted
the inconsistencies between Mr. Chamberlain’s trial testimony, preliminary hearing
testimony, and his statement to the police, but contends generally that “counsel failed to
make numerous obvious points that would have undermined the substance of Mr.
Chamberlain’s testimony.” Petitioner does not state in his brief what those “obvious points”
might have been. Trial counsel stated at the post-conviction hearing that she thoroughly
cross-examined Mr. Chamberlain concerning his inconsistent statements and the trial
transcript so reflects. Based on our review, we conclude that Petitioner has failed to
establish that trial counsel’s assistance was deficient in this regard.

       Petitioner also argues that trial counsel’s assistance was ineffective because she failed
to interview prior to trial any kitchen workers who may have been present during
Petitioner’s conversations with Mr. Chamberlain. Trial counsel at the post-conviction
hearing stated that she had no recollection of Petitioner asking her to locate any specific

                                             -12-
witnesses. Petitioner did not call any witnesses at the post-conviction hearing to establish
what information, if any, the witnesses may have had about the conversations or even that
such witnesses existed. Accordingly Petitioner has failed to establish any prejudice. See
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (when a petitioner contends
that trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented by the petitioner at the evidentiary hearing). Petitioner
is not entitled to relief on this ground.

VIII. Failure to Review the Taped Conversations in their Entirety

        Petitioner argues that trial counsel’s assistance was ineffective because she failed to
request from the State the approximately forty hours of taped telephone conversations
between Petitioner and his mother until a week before trial. At the post-conviction hearing,
trial counsel explained that Petitioner was initially represented by the Public Defender’s
Office. Trial counsel believed that she had received all of the public defender’s file after
she had been retained to represent Petitioner. When she realized that she had not received
the DVD containing the entire taped telephone conversations, trial counsel filed a motion
for a continuance which was denied by the trial court. Trial counsel stated that she received
the taped conversations from the State the afternoon before trial and reviewed the recordings
prior to trial. However, as noted above, the record indicates that trial counsel received the
DVD at issue the day before the hearing on her motion to continue, or four days before trial.

        Nonetheless, trial counsel was provided transcripts of the excerpts the State intended
to introduce at trial, and she reviewed the transcripts with both Petitioner and Ms. Keller.
Petitioner did not offer any proof at the post-conviction hearing as to the existence of any
exculpatory information in the unredacted portion of the telephone conversation, or that
having more time to review the DVD would have benefitted his defense. Accordingly, we
conclude that Petitioner has failed to show that he was prejudiced by trial counsel’s delay
in receiving the tape of Petitioner’s entire telephone conversations with his mother.
Petitioner is not entitled to relief on this issue.

IX. Requisite Intent

       Petitioner argues that trial counsel failed “to highlight” the factors negating a finding
that Petitioner intended to solicit Mr. Chamberlain to murder his wife and stepchildren.
Petitioner acknowledges that trial counsel’s closing argument focused on the inconsistencies
between Mr. Chamberlain’s pre-trial statements and testimony and that presented at trial.
Petitioner, however, contends that trial counsel did not do that “in any substantive way that
would support any defense theory.” Petitioner concludes, therefore, that trial counsel
abandoned his theory of defense after Mr. Chamberlain’s testimony.

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       The post-conviction court found credible trial counsel’s testimony that she developed
a theory of defense based on Petitioner’s intention to hire a private investigator and not a
murderer, and that she discussed this theory with both Petitioner and Ms. Keller prior to trial.
Trial counsel thoroughly cross-examined Mr. Chamberlain, stressing the fact that Petitioner,
who allegedly wanted the murders committed before he was released from jail in thirteen
days, knew that Mr. Chamberlain was not scheduled to be released for another five months.
Trial counsel continued this theme in her closing argument, including such factors as Mr.
Chamberlain’s testimonial inconsistencies, his acknowledgment that a total fee for the
murders was never discussed, that he knew Petitioner did not have a job, the fact that the
investigating officers did not locate a .22 caliber handgun in the location described by Mr.
Chamberlain, and the fact that only excerpts from Petitioner’s taped telephone conversations
had been played for the jury.

       Closing arguments should sharpen and clarify the issues for resolution by the trier of
fact, but which issues to sharpen and how best to clarify them are questions with many
reasonable answers. Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555 (1975).
Judicial review of a defense attorney’s summation is therefore highly deferential. Yarbrough
540 U.S. at 5-6, 124 S. Ct. at 4.

        Based on our review, we conclude that Petitioner has failed to establish that either
trial counsel’s cross-examination of Mr. Chamberlain or her closing argument fell below
reasonable standards of representation. Petitioner is not entitled to relief on this issue.

X. Failure to Challenge Sentence

        Petitioner argues that trial counsel’s assistance was ineffective because she failed to
object at the sentencing hearing to the trial court’s use of enhancement factors to determine
the length of Petitioner’s sentence in violation of Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531 (2004), and failed to appeal the issue. In June 2004, the United States Supreme
Court held in Blakely that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at 301 (quoting Apprendi
v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000)).

        Following Blakely, the Tennessee Supreme Court, in an opinion issued on April 15,
2005, concluded that the Tennessee Sentencing Reform Act of 1989 did not impermissibly
infringe on the province of the jury in violation of a defendant’s Sixth Amendment right to
jury trial. State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005) (“Gomez I”). Thereafter, the
United States Supreme Court vacated the decision in Gomez I and remanded for
reconsideration in light of its decision in Cunningham v. California, 549 U.S. 270, 127 S.

                                             -14-
Ct. 856 (2007). On remand, our supreme court held on October 9, 2007, that a trial court’s
enhancement of a defendant’s sentence on the basis of judicially determined facts other than
the defendant’s prior convictions violates the defendant’s Sixth Amendment rights. State
v. Gomez, 239 S.W.3d 733, 740-41 (Tenn. 2007) (“Gomez II”).

        Defendant’s offenses occurred in January 2004 before the issuance of Blakely.
Although Defendant’s sentencing hearing on May 20, 2005, was held after Blakely, Gomez
I, finding Tennessee’s sentencing scheme constitutional, was the controlling law. This Court
issued the opinion on Petitioner’s direct appeal on September 21, 2006, and Gomez II was
not filed until October 9, 2007. Based on our review, we conclude that the evidence does
not preponderate against the post-conviction court’s finding that trial counsel’s performance
was not deficient for failing to anticipate a change in the law as it existed in Tennessee at
the time of Petitioner’s direct appeal. See State v. Jeffrey Walters, No. M2008-01806-CCA-
R3-PC, 2009 WL 3400687, at *6 (Tenn. Crim. App., at Nashville, Oct. 20, 2009). Petitioner
is not entitled to relief on this issue.

                                     CONCLUSION

       After a thorough review, we affirm the judgment of the trial court.

                                                   _________________________________
                                                   THOMAS T. WOODALL, JUDGE




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