         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs November 12, 2008

               GERALD PENDLETON v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                       No. 02-00512    Carolyn Wade Blackett, Judge



                  No. W2007-02273-CCA-R3-PC - Filed December 12, 2008


The petitioner, Gerald Pendleton, was convicted of first degree felony murder, aggravated child
abuse, aggravated child neglect, and perjury and sentenced to life imprisonment for the felony
murder conviction and twenty years each for the aggravated child abuse and aggravated child neglect
convictions, with all sentences to be served concurrently. He was also sentenced to eleven months,
twenty-nine days for the perjury conviction, to be served consecutively to the aggravated child
neglect conviction. He subsequently filed a petition for post-conviction relief, which the court
denied. On appeal, the petitioner contends he received ineffective assistance of counsel at trial.
Following our review, we affirm the judgment of the post-conviction court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and D.
KELLY THOMAS, JR., J., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Gerald Pendleton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Dennis Johnson, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                              FACTS

        The petitioner was indicted for first degree felony murder, aggravated child abuse, aggravated
child neglect, and perjury, arising out of the death of his girlfriend’s two-year-old son. Our opinion
on direct appeal provides a synopsis of the evidence presented at his trial:
Camilya Wright testified that she has two children, a son named J.W.,1 and a
daughter named K.W.,2 who was also the Defendant’s daughter. She testified that,
on July 12, 2001, J.W. was two years old. She said that her relationship with the
Defendant was “all right” until he lost his job and she told him, right after the 4th of
July, that she was going to move back home to live with her mother. She testified
that the Defendant said he was fine with that “but the expression on his face was like
he was upset, angry.” She said that, on July 12, 2001, she was working at Cingular
Wireless Warehouse and she lived about forty to forty-five minutes from work. She
testified that, on that morning, she left for work around 9:30 a.m. and when she left
that morning, K.W. and the Defendant were still sleeping and J.W. was awake. She
said that J.W. was “saying his A.B.C’s,” and she told him she was leaving and he
should go back to sleep. Wright testified that the last time she saw J.W. before he
died he looked normal and there were no bruises on him.

        Wright testified that she came home right after work, on July 12, 2001, and
she found the Defendant in the kitchen cleaning a pillow. The Defendant told her
that “he had spanked [J.W.] for messing on the pillow.” Wright testified that she had
seen the Defendant spank J.W. before using his hand or a belt. She said that the
Defendant then went outside to get a basket from her car, and she turned on the
hallway light to “look in on [the children].” She testified that she and the Defendant
went to bed around 11:30 p.m., and she said that she did not wake up during the
night.

        Wright testified that the Defendant woke her up at around 6:00 a.m. and he
“told me there was something wrong with [J.W.]”. She said that the Defendant was
“holding him, shaking him, I guess trying to wake him up.” She testified that the
Defendant tried to revive J.W., and he told her to “go call 911,” which she did.
Wright testified that, during this time, the Defendant would not let her touch J.W.,
and the Defendant told her to get K.W. and go into the living room. She said that she
then called her mother and “told her to come out there.” Wright testified that a fire
truck arrived and the emergency workers tried to give J.W. oxygen. An ambulance
arrived a short time later. She said that the emergency workers took J.W. downstairs
to the ambulance and then they told her “that he was already dead.” Wright testified
that, during this time, the Defendant was talking to the paramedics and the police
officers that had arrived, but she did not hear these conversations.

        Wright testified that she, the Defendant, and K.W. went to her mother’s
house. She said that the Defendant said that he had given J.W. “some Fletcher’s
Castoria because he . . . messed on the pillow.” She testified that the Defendant said
that he heard J.W. “squirming,” and he went to see if he was doing alright. She said


1
    We will refer to the minor children by their initials.
2
    We will refer to the minor children by their initials.

                                                     -2-
that the Defendant told her that he put J.W. “on the toilet” because he “thought
maybe [J.W.] had to go to the bathroom.” Wright testified that they stayed at her
mother’s house until the detectives called and told them to come to the police station.

        On cross-examination, Wright testified that, when she first met the
Defendant, J.W. was approximately ten months old. She said that she lived with her
mother, the Defendant, J.W., and K.W. at her mother’s house for about four or five
months. She testified that J.W. had had “bowel problems” since he was about one
year old. She explained that this began when he changed from “infant milk to regular
milk” because “[i]t would make [J.W.] constipated.” Wright testified that, based on
doctor’s instructions, she and the Defendant gave J.W. Fletcher’s Castoria
sometimes. She said that when she and the Defendant moved to Millington, she
would work and the Defendant would look after J.W. and K.W., and, if the
Defendant was looking for a job, the Defendant’s sister would watch the children.

        Wright testified that, sometime before the 4th of July, the Defendant and J.W.
told her that J.W. had slipped and fallen in the kitchen. She said that she would ask
J.W. “if anyone hurt him” and “[J.W.] said he would tell [her] if anybody hurt him,”
but he never indicated that anyone had hurt him. Wright said that J.W. was with the
Defendant for about eleven hours a day, five days a week. She said that, when the
family moved to Millington, J.W. still had problems with “his bowel movements”
but not as much because he was not drinking regular milk that often. She testified
that, most often, the Defendant would feed J.W., and he was responsible for J.W.’s
diet. She said that the Defendant was the primary care provider for about three
months, and she felt comfortable about leaving him with the children.

        Mike Johnson, an Emergency Medical Technician (“EMT”) with the
Millington Fire Department, testified that, on July 13, 2001, he responded to a call
about a two-year old child, who he later determined was J.W., suffering from a
“possible full arrest.” He said that, when they arrived at the apartment, J.W. “was
laying on the bed and he was not breathing. He was cool to the touch.” He testified
that he and another fireman began to perform CPR on J.W. until the ambulance
arrived, and when the ambulance arrived, Johnson took J.W. to the ambulance.
Johnson testified that the paramedic on the ambulance called a physician who told
the paramedic “she could go ahead and stop CPR.” He said that the police were
called to the scene “[b]ecause of bruising . . . that was found on [J.W.] . . . [i]n the
stomach area.”

        On cross-examination, Johnson testified that his station received the call
because they were closest to the address, and it took about three minutes to arrive at
the residence. He said that, when they first arrived, there was no “suspicion of any
wrongdoing” and that they found J.W. on the bed. He testified that there was “some
discolored stuff right there around [J.W.’s] mouth,” which he guessed “was the castor
oil.” Johnson testified that he checked for a pulse, did not find one, but still thought


                                          -3-
that CPR might help. Johnson testified that he noticed bruising in the abdomen area,
and “there were several places [of bruising] that we noticed in this area.”

        On re-direct examination, Johnson testified that he and other emergency
personnel “started getting suspicious” after they got J.W. into the ambulance. He
explained that he was not suspicious when he received this call because such calls are
“pretty common.” On re-cross examination, Johnson testified that he did not notice
any bruising on J.W.’s forehead, and it was the bruising in the abdomen region that
caused his suspicion about “who did what.” He conceded that he was not trained to
determine whether bruising was caused internally or externally.

        Reed Johnson, an officer with the Millington Police Department, testified that
he was working on the morning of July 13, 2001, and he was called to the
Defendant’s residence. He said that, when he got there, he saw an ambulance and a
fire truck, and other emergency personnel told him that there was a two-year-old
male that the paramedics were no longer giving CPR. Officer Johnson testified that
he met with the Defendant who told him that, at about 1:00 a.m., J.W. woke up and
told the Defendant that he had a sore stomach. He said that the Defendant said that
he gave J.W. some Fletcher’s Castoria and put J.W. on the toilet, and J.W. and the
Defendant went back to sleep at about 2:00 a.m. He testified that he was the first
police officer on the scene and, after “assess[ing] the situation,” he called the
detectives. Officer Johnson testified that he did not go into the apartment at any
time. He said that he saw the child in the ambulance, but he did not go into the
ambulance and he did not “notice anything about the child[.]”

         On cross-examination, Officer Johnson testified that it is normal standard
operating procedure in Millington to call a detective when a two-year-old child had
died. On re-direct examination, Officer Johnson testified that it was normal
procedure for the police to respond to any death. He said that his suspicions may
have been raised because the Defendant repeated his story three or four times, which
seemed as though he was “mak[ing] sure it was right.” On re-cross examination,
Officer Johnson testified that the Defendant repeated the same story to him and the
lieutenant with the fire department. He said that the Defendant was speaking with
the fire lieutenant when he arrived so he did not know who initiated that conversation
and, since he was the first officer on the scene, he wanted to know what had
happened.

        Chris Stokes, a detective with the Millington Police Department, testified
that, on July 13, 2001, he was called to the scene to investigate J.W.’s death. He said
that, when he arrived, the fire department, ambulance, and two patrol cars were
present and there was a two-year-old child in the ambulance that “had been
pronounced dead.” Detective Stokes testified that he looked at the child and, at first,
did not notice anything, especially since the ambulance was dark. He said that he
took photographs and, after they were developed, he noticed “bruises on the chest
and stomach, mainly the stomach.” He testified that, when he was at the crime scene,

                                         -4-
Ms. Wright, the child’s mother, was present outside, and he went into the residence
with the Defendant and Officer Reed Johnson. Detective Stokes testified that, inside
the apartment, there were “blood stains or what appeared to be a brown stain on the
bed where the child was on the pillow.” He said that the Defendant said that he had
given the child “some brown medicine . . . Fletcher’s Castoria.” Detective Stokes
testified that a belt was found under the cushions of the couch at the Defendant’s
residence. He testified that the child was taken to the medical examiner’s office, and
he went back to the department to note what he had learned at the scene. He said that
he spent about forty-five minutes at the scene.

         Detective Stokes testified that, later that afternoon, he spoke with the medical
examiner, after which, he spoke with Ms. Wright, the Defendant, and the Defendant’s
sister. He said that it is the Millington Police Department procedure to videotape
statements, and there was a video camera in the room where the interviews are
conducted. He testified that, when he talked with the Defendant, there were two
other detectives present, Sergeant White and Sergeant Cross. Detective Stokes
testified that, before interviewing the Defendant, he advised him of his rights, which
was recorded on the video. He said that the interview lasted almost two hours, and
the Defendant was not under arrest at that time. He testified that he and his “co-case”
officer, Sergeant White, were in contact with the Attorney General’s Office and
informed the Office of what information they had obtained. He said that the
Attorney General’s Office told them to arrest the Defendant about an hour after the
Defendant left the station.

        On cross-examination, Detective Stokes testified that this was his first
homicide investigation. He said that, when he got to the scene, he first spoke to
Officer Reed Johnson to find out what had happened. He explained that Officer
Johnson told him that the fire department responded to a 911 call, and the police
responded at the fire department’s request after the child was pronounced dead.
Detective Stokes testified that he looked at the child, and did not notice bruising on
the abdomen. He said that he did not speak with Ms. Wright because she was
“distraught,” but he did speak with the Defendant who told him that he tried to do
CPR on J.W. He testified that the Defendant showed him where everyone in the
residence sleeps. He said that he did not see K.W. on the scene, but she may have
been with her mother in the vehicle. Detective Stokes testified that, on the interview
videotape, the Defendant told him that K.W. was a “buck wild sleeper.” He testified
that J.W. and K.W. slept together, according to the Defendant and Ms. Wright, in a
small children’s bed. He said that when they interviewed Ms. Wright, she was given
Miranda warnings because “she was also one of the care givers of the child” and “a
suspect at this point.” He explained that both the Defendant and Ms. Wright were
viewed as suspects, the Defendant’s sister was not a suspect.

       Detective Stokes testified that he spoke with the medical examiner, Dr. Cindy
Gardner, who told him that the cause of death might be trauma to the abdomen and
the head. He said that Dr. Gardner told him that the abdomen was filled with soup

                                          -5-
and macaroni and a two-year-old child has a small abdomen and it was “like a
balloon bursting. . . .” He testified that he did not remember any other explanation
“other than a hard trauma to that area.” He said that he asked the medical examiner
if a belt could have caused this injury and the examiner told him it could not be
because it would “have to be some kind of force . . . some kind of weight.” Detective
Stokes testified that the TBI Lab analyzed the “brown stains” found on the pillow in
J.W.’s room and, to his recollection, determined it to be blood. He said that, when
he arrived at the scene, his first theory was that the child may have overdosed or
ingested some poison because the fire department and medics on the scene “thought
that the child had aspirated on the liquid during the night.” He testified that, based
on the medical examiner’s conclusion, he thought there must have been a person that
applied force to cause the ruptured abdomen, but he did not consider that person to
be a child.

         On re-direct examination, Detective Stokes testified that he first learned that
the Defendant had spanked J.W. when he admitted to disciplining him on the
videotape interview. He said that, based on what the Defendant told him, he had no
reason to believe that the substance on the pillow was blood because it was the same
color as the castor oil that the Defendant gave to J.W. He said that he asked the lab
to test the pillow to see if castor oil was present and they said they could not. He
testified that the bottle of castor oil that was in the house was still sealed. On
re-cross examination, Detective Stokes testified that he did not ask the Defendant,
Ms. Wright or the Defendant’s sister to sign any documents waiving their rights, but
“[i]t was all done on video.”

        William Graves, an officer with the Millington Police Department, testified
that, on July 14, 2001, he arrested the Defendant and transported him to Millington
Police Headquarters. He said that he and Lieutenant Estes read the Defendant his
Miranda rights and had him sign a waiver form in his presence.

         Dr. O’Brian Cleary (“O.C.”) Smith, the head of the Forensic Pathology
Division at the University of Tennessee and associate professor of pathology,
testified, as an expert, that he is licensed to practice medicine in Tennessee and that
one of his duties was to perform autopsies. He testified that he performed an autopsy
on J.W. on July 13, 2001, and concluded that J.W. had died as a result of multiple
injuries. He said that J.W.’s injuries consisted of head injuries and “predominately
injuries to the abdominal area” including the rupture of the stomach. Dr. Smith
testified that there was bruising on the “left brow of the head,” as well as bruising
around the left side of the chest and the right side of the abdomen. The doctor
explained that there were three areas of bruising: the right side of the abdomen;
below the rib cage; and “where the bottom of the rib cage meets the abdomen.” He
said that this bruising was “relatively recent” because there was a “recent
hemorrhage” but no inflammation. He opined that the child did not live long enough
for inflammation to occur. He testified that the “predominant injury” was a stomach
rupture “in which compressive force had caused the stomach to burst releasing the

                                          -6-
stomach contents within the abdomen as well as causing bleeding to accumulate
within the abdomen.”

        Dr. Smith testified that the abdomen swelled from about three cups of “fluid
which was fecal seep from the inflamed or the irritated abdominal wall” that was
caused by the ruptured stomach. He said that there was also bleeding of the pancreas
and bruising of the intestines, “especially the large intestine.” He explained that
“[s]ome . . . blunt force” contacted J.W.’s abdominal wall with enough force as to
bruise his intestines. Dr. Smith testified that he did not believe the force of a belt
could have caused the injuries because “in order to achieve the compression that is
necessary to rupture the stomach, there has to be a lot of pressure put on the
abdominal wall.” He explained that this force was more likely the result of a heavy
object, rather than a light one,[] like a belt. He said that, had a belt caused J.W.’s
injuries, J.W. would have had a scrape on the skin surface, which was not present,
therefore the doctor “reject[ed]” the notion that a belt was the instrument which
caused J.W.’s injuries.

         Dr. Smith testified that J.W.’s injuries would have to be caused by “severe
force and sometimes even massive force in order to cause damage this deep inside
the abdominal cavity. . . .” He said that the abdomen “has to be compressed deeply
enough” to cause the stomach to rupture. He testified that he did not believe that a
ten month to a one-year-old child could have “feasibl[y]” caused this injury unless
there were “greater specifics as to how a child of that age could deliver a blow of that
force.” Dr. Smith testified that the injuries would be consistent with some force
inflicted from an adult with “[a] hand, a fist, a knee, a foot, something like that could
produce it.” He said that the symptoms of this type of injury would include, initially
“tak[ing] a person’s wind” and causing pain because the nerve endings that line the
abdominal cavity are sensitive to pain. He testified that, when the stomach ruptures,
the contents will “spill out” and these contents will contain acid. He testified that a
person may not want to be moved in order to avoid further irritation. Dr. Smith
testified that a child may die within hours after receiving this type of injury, but it is
difficult to state exactly how long it would take for death to occur. He said that he
did not believe that this type of injury could come from CPR performed by trained
professionals because the damage was too extensive, and “the compressions would
be in entirely the wrong spot.” Further, he testified that it appeared that the
accumulation of fluid occurred before CPR had been applied. Dr. Smith testified that
this rupture probably occurred within a short time after the child had a meal because
a full stomach is “tense” making it “easier to rupture. . . .” He said that, because the
abdominal skin is “elastic,” it is possible to cause internal damage to the organs
without leaving a surface mark.

        On cross-examination, Dr. Smith testified that he could not state with
certainty what time J.W. was struck, exactly what struck J.W., who struck him, or
why he was struck. He testified that he could not say whether a fist or a foot caused
the injury because he did not know. He said that, in order to produce damage, the

                                           -7-
        object has to have weight and must be moving. He testified that he did not believe
        the injuries were caused by “lying on the child” because that would also result in
        further restrictions on the child’s chest and his ability to breathe. Dr. Smith
        explained that this would lead to a condition known as “traumatic asphyxia” where
        there is bleeding in the whites of the eyes because of rupture of the blood vessels.
        He said that this condition causes a person to die because of failure to breathe. He
        testified that, based on the traumatic asphyxia cases he had seen, gastric rupture was
        not a component. He said that, since the instrumentality was not know[n], it was
        difficult to estimate whether the injuries occurred as a result of “one blow or several
        blows.” He testified that it was possible for someone not trained in CPR to cause the
        bruising around the abdomen.

                On re-direct examination, Dr. Smith testified that CPR applied at or near the
        time of death “would not show the degree of bleeding in the child’s tissues. And it
        would not show the degree of inflammation which is the reaction of living tissue to
        an insult of some sort.” He said that, based on the tissue examined, the injury had
        to occur “some hours” before CPR was applied. He testified that, based on his
        observations, J.W.’s injuries were consistent with an injury that occurred before 7:00
        or 8:00 p.m. and before the child was found at 6:00 a.m. the next morning. He said
        that other variables to consider were that, at some point, the child goes into shock
        based on the lost fluid and this slows down the inflammatory process.

State v. Gerald Pendleton, No. W2003-03043-CCA-R3-CD, 2004 WL 2941153, at *1-7 (Tenn.
Crim. App. Dec. 20, 2004), perm. to appeal denied (Tenn. May 9, 2005). At the conclusion of the
trial, the jury convicted the petitioner as charged, and he was sentenced to life imprisonment for the
felony murder conviction and twenty years each for the aggravated child abuse and aggravated child
neglect convictions, with all sentences to be served concurrently. He was also sentenced to eleven
months, twenty-nine days for the perjury conviction, to be served consecutively to the aggravated
child neglect conviction.

        Following an unsuccessful direct appeal and application for permission to appeal to the
Tennessee Supreme Court, the petitioner sought post-conviction relief, contending he received the
ineffective assistance of trial and appellate counsel, his conviction was based on use of a coerced
confession, and his confession was “based on use of illegal search and seizure.” The post-conviction
court dismissed all of the petitioner’s allegations3 except his claim of ineffective assistance of trial
counsel, for which it conducted an evidentiary hearing on August 9, 2007.

        At the hearing, trial counsel testified that he was hired to represent the petitioner at trial and
on appeal. Counsel said that the petitioner gave an unfavorable videotaped statement to police that
was preceded by a written waiver of rights. However, the petitioner claimed it was not his signature
on the waiver of rights form, so the case was delayed to determine whether the signature was the
petitioner’s. Counsel recalled that handwriting experts for both the State and defense determined


        3
            The petitioner does not dispute the dismissal of these issues.

                                                            -8-
that the signature on the waiver was the petitioner’s, which ultimately led to the petitioner’s perjury
conviction and the strategic decision that the petitioner not testify at trial.

        Counsel testified that two coroners, Dr. O.C. Smith and Dr. Cynthia Gardner, performed the
autopsy of the victim. Counsel explained that one defense strategy was that the victim’s death was
an accident, but the coroners ruled that his death was not an accident. Counsel recalled that “the best
that [he] could get” was Dr. Smith saying he did not know exactly when the victim sustained the
injury to his stomach. Counsel recalled that Dr. Smith testified that it would have taken the force
of a “full blown kick” to cause the victim’s stomach to rupture, which was also what Dr. Gardner
told counsel early in the investigation.

         Counsel testified that he decided not to call Dr. Gardner to testify at trial because Dr. Smith
was going to testify as a witness for the State and “if we have two doctors who are saying the same
thing it is going to reinforce the [S]tate’s argument and it’s not going to help us.” Counsel explained
that the coroners did a preliminary report and then a final full report for use in court and said he
thought that was what caused confusion with the petitioner. Counsel said that Dr. Gardner’s initial
report implied there was a possibility the victim’s death was an accident and that was why he noted
the word “accident” in his notes. Counsel stated, however, that Dr. Gardner never said it was an
accident, but “it was perhaps more me than her saying that it was an accident.” Both doctors told
counsel that more force “than simply dropping the child” was needed to rupture the stomach,
“literally, a kick, or a punch, or something of that nature.” Counsel testified that the timing of the
injury was a big issue because that could have included or excluded the petitioner as the one
responsible, but he was not able to get that information from either doctor.

        Counsel testified that he talked to the victim’s mother and the petitioner’s sister and mother,
and all agreed that “stomp[ing] on a child” was out of character for the petitioner. Counsel stated
that another defense strategy was that someone else, such as the victim’s mother, administered the
“blow” to the victim’s stomach. Counsel said that he spoke with the victim’s mother and did not
get the impression that she had a violent nature. However, he “didn’t see any reason why she
couldn’t have snapped any more than [the petitioner] could have snapped.” Counsel said he
discussed this theory with the petitioner but did not remember whether the petitioner gave him the
names of any witnesses who could have supported the theory that the victim’s mother “was a violent,
unstable person.” Counsel did not conduct a criminal background check on the victim’s mother
because “she held a pretty good job where [he did not] believe that she would have been employed
by that particular company . . . if she had a record.” Counsel said he was able to present through the
testimony of the victim’s mother that she was alone with the victim during the time frame in which
the victim’s injury may have occurred.

        Counsel testified that he discussed the victim’s history of peritonitis with Dr. Gardner and
the doctor was clear that the victim’s injuries were not related to any stomach or bowel problem.
Counsel recalled that the petitioner attempted to administer CPR to save the victim but was
unsuccessful. Counsel said he did not obtain an expert to testify concerning injuries arising out of
improper CPR administration because that was inconsistent with the victim’s cause of death of
“blunt trauma to the stomach.”


                                                  -9-
         The petitioner testified that his family obtained his case file from counsel in preparation for
the post-conviction proceeding and that the file contained an autopsy report with the word “accident”
on it. He stated that he wanted Dr. Gardner to testify because she could explain why “accident” was
written on the autopsy report. The petitioner could not recall whether counsel ever told him that he
wrote “accident” on the report. The petitioner asked counsel to have Dr. Gardner explain why
“accidental death” and “peritonitis” were written on the autopsy report, and counsel told him that
Dr. Gardner and Dr. Smith were saying the same thing so there was “no sense in getting her down
here.” The petitioner admitted that the autopsy report he received before trial had “peritonitis” on
it, but did not have “accident” written on it. The petitioner acknowledged that counsel presented
defenses on his behalf, including that the death was an accident or that the victim’s mother was at
fault.

       The State recalled counsel, and counsel testified that it was he who had handwritten the word
“accident” on a copy of the medical examiner’s report.

        After the evidentiary hearing, the post-conviction court entered an order denying the petition.
The court found that the petitioner failed to prove counsel’s conduct fell below the objective standard
of reasonableness or that the outcome of his trial would have been different but for the alleged
deficiencies in counsel’s performance.

                                             ANALYSIS

                                        Standard of Review

        Post-conviction relief “shall be granted when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The petitioner bears the
burden of proving factual allegations by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f) (2006). When an evidentiary hearing is held in the post-conviction setting, the findings
of fact made by the court are conclusive on appeal unless the evidence preponderates against them.
See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When reviewing factual issues, the appellate
court will not reweigh the evidence and will instead defer to the trial court’s findings as to the
credibility of witnesses or the weight of their testimony. Id. However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of correctness. See
Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel and
possible prejudice to the defense are mixed questions of law and fact and, thus, subject to de novo
review by the appellate court. See Wiley, 183 S.W.3d at 325; State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999).

                                 Ineffective Assistance of Counsel

        The right to effective assistance of counsel is safeguarded by the Constitutions of both the
United States and the State of Tennessee. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In
order to determine the competence of counsel, Tennessee courts have applied standards developed


                                                 -10-
in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel that is applied in federal cases
also applies in Tennessee). The United States Supreme Court articulated the standard in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), which is widely accepted as the appropriate
standard for all claims of a convicted petitioner that counsel’s assistance was defective. The standard
is firmly grounded in the belief that counsel plays a role that is “critical to the ability of the
adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standard
is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive
       the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

       In any case presenting an ineffectiveness claim, the performance inquiry must be
       whether counsel’s assistance was reasonable considering all the circumstances. . . .
       No particular set of detailed rules for counsel’s conduct can satisfactorily take
       account of the variety of circumstances faced by defense counsel or the range of
       legitimate decisions regarding how best to represent a criminal defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”). To satisfy the prejudice requirement of Strickland when alleging that counsel was
ineffective for failing to offer testimony from a favorable witness, the post-conviction petitioner
must “(1) produce the witness at his post-conviction hearing; (2) show that through reasonable
investigation, trial counsel could have located the witness; and (3) elicit both favorable and material
testimony from the witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996)
(citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)).

        The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct.
at 2066, and may not second-guess the tactical and strategic choices made by trial counsel unless

                                                 -11-
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982). The fact that a strategy or tactic failed or hurt the defense does not alone support
the claim of ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn.
Crim. App. 1997). Finally, a person charged with a criminal offense is not entitled to perfect
representation. See Denton, 945 S.W.2d at 796. As explained in Burns, 6 S.W.3d at 462, “[c]onduct
that is unreasonable under the facts of one case may be perfectly reasonable under the facts of
another.”

        On appeal, the petitioner argues that counsel was ineffective in his investigation of the
victim’s cause of death. He specifically asserts that counsel failed to investigate who had written
the word “accident” on the autopsy report and failed to call Dr. Gardner, who “would have been
better suited than Dr. Smith to testify about the autopsy and the likelihood of accidental death,” as
a witness. The petitioner also asserts that counsel was ineffective for failing to call an expert from
outside the medical examiner’s office to testify about how the victim’s death could have been
accidental.

        First, with regard to counsel’s failure to investigate who wrote the word “accident” on the
autopsy report, we discern no deficiency in counsel’s performance. Counsel testified at the
evidentiary hearing that it was he who wrote the word “accident” on a copy of the autopsy report as
part of his “own thought process.” Therefore, there was no reason for counsel to investigate who
had written it or why.

         Second, we discern no deficiency in counsel’s performance with regard to counsel’s failure
to call Dr. Gardner as a witness. Counsel testified that he made the strategic decision not to call Dr.
Gardner because her testimony would have been redundant of Dr. Smith’s and would have only
served to reinforce the State’s case against the petitioner. The post-conviction court found that the
“[p]etitioner made no showing that defense counsel’s decision not to introduce Dr. Gardner as an
expert witness fell below the objective standard of reasonableness.” This decision was an informed
tactical and strategic choice made by counsel, which this court will not second-guess. See Hellard,
629 S.W.2d at 9.

         Moreover, the petitioner failed to call Dr. Gardner as a witness at the post-conviction hearing
to show what her testimony would have been had she testified at trial. “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” in order to establish
prejudice. Black, 794 S.W.2d at 757-58.

       Third, with regard to counsel’s failure to secure an independent expert to testify that the
victim’s death could have been accidental, the petitioner has failed to establish prejudice. As found
by the post-conviction court, the petitioner did not present this hypothetical witness at the
evidentiary hearing, and this court may not guess what this hypothetical witness’s testimony would
have been. Id. at 757.

                                          CONCLUSION


                                                 -12-
        Based on the foregoing reasoning and authorities, we affirm the post-conviction court’s
denial of post-conviction relief.


                                                    ___________________________________
                                                    ALAN E. GLENN, JUDGE




                                             -13-
