                                                                                            07/14/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs May 19, 2020

               KANE STACKHOUSE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                          No. 98164   Scott Green, Judge


                              No. E2019-01651-CCA-R3-PC


The petitioner, Kane Stackhouse, appeals the denial of his petition for post-conviction
relief, which petition challenged his 2008 Knox County Criminal Court jury convictions
of first degree murder and especially aggravated robbery. In this appeal, the petitioner
claims, as he did below, that he is entitled to post-conviction relief because he was deprived
of the effective assistance of counsel at trial and on appeal. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.

Gerald L. Gulley, Knoxville, Tennessee, for the appellant, Kane Stackhouse.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              A Knox County Criminal Court jury convicted the petitioner of second
degree murder, first degree murder in the perpetration of an attempted robbery, first degree
murder in the perpetration of a robbery, first degree murder in the perpetration of an
attempted theft, first degree murder in the perpetration of a theft, and especially aggravated
robbery related to the November 11, 2006 shooting death of David Lindsey. See State v.
Kane Stackhouse, No. E2009-01669-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App.,
Knoxville, Nov. 12, 2010). The trial court merged the four felony murder convictions and
imposed a single sentence of life imprisonment for the conviction. At the urging of the
prosecutor, the trial court did not merge the second degree murder conviction into the first
degree murder conviction but instead imposed a sentence of 23 years for that conviction to
be served concurrently to the petitioner’s life sentence. See id., slip op. at 9. The court
imposed a consecutive sentence of 20 years’ incarceration for the petitioner’s conviction
of especially aggravated robbery. On direct appeal, the petitioner challenged only the
denial of his motion to suppress the statement he provided to the police following his arrest.
This court affirmed the denial of the motion to suppress and affirmed the petitioner’s
convictions and accompanying sentence of life plus 20 years’ imprisonment but remanded
the case to the trial court for the merger of the petitioner’s conviction of second degree
murder into his conviction of first degree murder. See id., slip op. at 9-10.

               The petitioner filed a timely pro se petition for post-conviction relief in
October 2010, arguing, among other things, that he was deprived of the effective assistance
of counsel at trial and on appeal. As part of his claim of ineffective assistance of counsel,
the petitioner alleged that appellate counsel performed deficiently by failing to advise him
that this court had denied appellate relief, failing to pursue second-tier appellate review by
our supreme court, and failing to withdraw in time for the petitioner to pursue second-tier
appellate review on his own. Following the appointment of counsel in December 2011,
the petitioner filed an amended petition for post-conviction relief in May 2012, reiterating
his claims of ineffective assistance of counsel and specifically asking for the remedy of the
opportunity to pursue a delayed appeal of this court’s opinion to our supreme court. In
September 2013, upon the agreement of the parties, the post-conviction court granted the
petitioner’s request to pursue a delayed appeal to our supreme court and ordered that the
remaining claims of ineffective assistance of counsel be held in abeyance pending the
action of the supreme court.1 The supreme court denied the petitioner’s application for
permission to appeal on January 16, 2014, and the petitioner filed another amended petition
for post-conviction relief.

             In his January 2014 petition, the petitioner added a claim that his counsel
performed deficiently by failing to advise the petitioner to testify at trial. The petitioner
also incorporated by reference the claims for post-conviction relief made in his earlier
petitions.

               At the July 11, 2019 evidentiary hearing, the petitioner alleged that, during
his trial, Judge Baumgartner “had to take five, ten minute breaks every now and then but
1
         By the time the petitioner filed his petition for post-conviction relief, Judge Richard Baumgartner,
who presided over the petitioner’s trial, had resigned after pleading guilty to one count of official
misconduct. See State v. Letalvis Cobbins, LeMaricus Davidson, and George Thomas, No. E2012-00448-
SC-R10-DD, slip op. at 1 (Tenn. May 24, 2012) (Order). Judge Mary Beth Liebowitz was assigned to
preside over the petitioner’s post-conviction case until her retirement in August 2014. Original post-
conviction counsel, who also pursued the delayed Rule 11 appeal, retired from the practice of law, and the
post-conviction court appointed new counsel to represent the petitioner on the remaining post-conviction
claims. The post-conviction court permitted new post-conviction counsel to withdraw and appointed
substitute counsel in May of 2017.
                                                    -2-
they wasn’t that long, I guess bathroom breaks.” The petitioner said that he “felt like that
[Judge Baumgartner] wasn’t paying attention to the trial at hand.”

               The petitioner testified that trial counsel began representing him roughly nine
months prior to trial and that he only met with counsel “[m]aybe three, four times” for 10
to 20 minutes. He claimed that trial counsel never told him “what’s going to take place or
how it’s going to take place.” He said that he told trial counsel that he “didn’t understand
the process of what was going on, and I didn’t know there was a process of me getting on
the stand during trial. I was not understanding of that until I got to prison.” The petitioner
insisted that trial counsel “never really enlightened to me about getting on the stand.
Besides are you getting on the stand? And I said, no, I don’t think so.” The petitioner said
that he believed that, had he testified at trial, the outcome would have been different. The
petitioner said that, had he been called to the stand, he would have testified as follows:

                      After the meeting of Aaron Allen and two of his friends
              in the Food City parking lot, I left that parking lot, walked
              down the street . . . . As I was walking down the street on the
              right side of the highway there the traffic comes towards me, I
              seen a light in the cab of a truck. I walked toward the parking
              lot of where it was. I sat down the bag near the -- the road. I
              walked towards the vehicle. As I got to the vehicle, I
              brandished the revolver. I told him give me your money and
              your keys. He said all I have is $60.00. I got the $60.00. He
              handed me a ring full of keys and a key by itself.

                      I ran away. I got towards my bag again. Once I got
              towards my bag, which was about 20 or 30 yards away from
              the cab, I was going through the keys not knowing what I was
              doing and I heard a voice behind me say, hey, hey. And I
              turned around and when I turned around, I seen the individual
              and he was coming towards me. And I don’t know, I just . . .
              snapped and I started screaming at him pointing the gun
              chasing him just ahhhh. Just chasing him and when we were
              in the chase, the gun goes off. We turn the corner. He falls. I
              start getting close. He falls. The gun goes off again. His head
              shoots back. And he starts to snore.

The petitioner said that, after shooting the victim, he picked up his bag, ran away, and
eventually hid in some bushes, where he “passed out from shock or whatever.” He said
that he thought that this testimony would have helped the jury “understand my point of
view that it wasn’t intentional. It was accidental and I was not in my right mind and I was
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a child.” The petitioner insisted that he did not recall the trial court’s having questioned
him about his right to testify.

              The petitioner also complained that he “was never given a discovery of
evidence.” He said that trial counsel did not show the petitioner any of the audio or video
recordings that were included in the discovery materials prior to trial.

               The petitioner testified that at the time of the offenses he suffered from
“anxiety problems” and that he was “not only coming off of alcohol abuse, but I was also
. . . using prescription -- over the counter prescription meds like Benadryls and
hydrocodone, stuff like that.” He said that he alerted trial counsel to his mental health
issues and told trial counsel that he had been prescribed “Lithium, Cogentin, Risperdal,
[and] a generic form of Prozac” at the jail. He said that despite that his first attorney had
“acquired funds through Baumgartner for a medical therapist to do a medical evaluation
on me,” trial counsel did not pursue the evaluation.

               During cross-examination, the petitioner acknowledged that he had been
represented by other attorneys before trial counsel was appointed to the case and that those
attorneys had discussed with him most of the discovery materials as well as the trial
process. The petitioner acknowledged that he robbed the victim at gunpoint and that he
then chased the victim while holding the gun. He admitted that the gun went off twice,
striking the victim first in the calf and then in the head. He acknowledged that he provided
essentially the same account to the police that he had provided on direct examination and
that the recording of that statement was played at trial. The petitioner insisted that he “did
not want to go to trial” and that he “was trying to push for a second degree murder and
especially aggravated robbery.” The State made no such offer.

               Trial counsel testified that he was “almost the fifth lawyer” to represent the
petitioner and that the trial judge called him personally at his office to appoint him to the
petitioner’s case. He said that he discussed the case with the petitioner’s previous lawyer
and obtained files from all of the lawyers who had represented the petitioner. Additionally,
he obtained some discovery materials from the State.

              Trial counsel described the petitioner’s as

              one of the kinds of cases where you really had to think about
              whether it was a mental issue at all. And as I got to know him
              better and meet with him better, I decided that there was not a
              mental issue. I made that decision. That was a decision I made
              with him, because I talked to him about it.

                                             -4-
He recalled that the petitioner’s previous attorney “was convinced that [the petitioner’s]
affect was part of a mental condition, but in good conscience I could not go that [way]
either mental incompetency or insanity.” He said that it might have been possible to find
“a doctor that could have helped me with that,” noting that the petitioner’s “affect then was
he was very hard to reach.”

               Trial counsel testified that “the jail records will reflect this, that I saw him
more than four times” and that he met with the petitioner following each court appearance
“trying to explain to him, hey, we’re moving it for this reason or we’re not going to trial
this time for this reason.” He said that he utilized the services of a private investigator,
who “enabled me to get to some interesting witnesses” for the suppression hearing. After
the suppression hearing, trial counsel approached the prosecutor in hopes of pursuing a
plea agreement, but the State insisted upon going to trial. Trial counsel testified that he
attempted to explain the felony murder law to the petitioner, but the petitioner just did not
seem to grasp the law. He said that his only trial strategy was to attempt “to nullify the
felony murder and they had to find second degree murder.”

                As to the petitioner’s claim that trial counsel did not prepare him to testify at
trial, trial counsel said, “I would have never let him testify at this trial. I mean . . . we
probably did talk about it a couple of times. Me saying, ‘you’re not testifying in this trial.’”
Trial counsel explained that there was “an hour and a half of video confession and
statements going into excruciating detail. So I couldn’t put him on.” In addition to the
videotaped confession, the police captured on video the petitioner’s leading them to the
murder weapon. Trial counsel said that “the investigation was extremely thorough” and
that he did “the best I could to keep the boat afloat by bailing it out,” referring to the
overwhelming evidence of the petitioner’s guilt. He said that after the trial court denied
the motion to suppress, “we were in trouble.”

                 During cross-examination, trial counsel acknowledged that he was not an
expert in mental health and admitted that “if I had to regret anything, I regret not going
ahead and getting him evaluated.” Trial counsel agreed that the petitioner had a “flat affect
. . . at first” but said that the petitioner “loosened up, talked to me, explained things” as
they got to know one another. He noted that, “[e]ven if a doctor says he has maybe lower
intelligence or something like that, which I didn’t even agree with,” it would not have
changed the outcome of the trial.

               Trial counsel admitted that he did not play any of the audio or video
recordings for the petitioner, but he said that “when I told [the petitioner] everything that
was on it with my notes, he agreed that he had been there and done that.” He added that
the petitioner did not ask to see any of the recordings because “[h]e knew they existed and
what they consisted of.”
                                              -5-
               Trial counsel acknowledged that the issues about Judge Baumgartner’s
potential incompetency due to drug abuse came to light after the petitioner’s trial and that
he and 22 other criminal defense attorneys had discussed the petitioner’s case, along with
many others, in an effort to discern whether Judge Baumgartner “could have been affected
by some kind of narcotic” during the trial. Trial counsel said it was his opinion that, “if
you’re going to raise that kind of argument in good faith, you have to see some indication
that the member of the judiciary is not behaving in an intelligent, effective way.” In the
petitioner’s case, trial counsel said, “Judge Baumgartner was clear as a bell. He was not
behaving in any way that . . . affected his intelligence.” He added that Judge Baumgartner
was on his “A game all the way through.”

               Trial counsel said that he did not seriously consider calling the petitioner as
a witness at the suppression hearing because he “considered that to be too risky.” He said
that he could not have contained the petitioner’s testimony to the suppression issues alone.

                At the conclusion of the hearing, the post-conviction court took the matter
under advisement. In a written order denying post-conviction relief, the post-conviction
court concluded that the petitioner’s claim that he and trial counsel did not discuss whether
he should testify at trial was belied by the trial record. Additionally, the court concluded
that, even if the petitioner’s claim were true, he could not establish prejudice flowing from
the error because “the chance that the petitioner’s testimony would have exonerated him is
so remote as to be non-existent.” Indeed, the court concluded, “the very real possibility
exists that, had the petitioner testified to what he now says transpired, the jury may have
convicted the petitioner of premeditated first degree murder, rather than second degree
murder.” The post-conviction court also “accredit[ed] trial counsel’s testimony that there
existed no issue with the trial court’s fitness to preside, nor was there an ethical basis to
request a mental evaluation of the” petitioner.

               In this timely appeal, the petitioner claims entitlement to post-conviction
relief on grounds that he was deprived of the effective assistance of counsel at trial. He
argues that trial counsel performed deficiently by failing to provide him with discovery
materials, failing to keep him apprised of the case, and failing to request a mental health
evaluation.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “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.” T.C.A. § 40-30-103. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
                                             -6-
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). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “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.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision made
during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim.
App. 1994). Such deference to the tactical decisions of counsel, however, applies only if
the choices are made after adequate preparation for the case. Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762,
766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing
the application of law to the post-conviction court’s factual findings, our review is de novo,
and the post-conviction court’s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

              In our view, the record supports the denial of post-conviction relief. Trial
                                             -7-
counsel’s accredited testimony established that he met with the petitioner several times and
that he reviewed the discovery materials with the petitioner, even though he did not play
the audio and video recordings for the petitioner. No evidence suggests that, had the
petitioner had hard copies of all the discovery materials or reviewed the recorded evidence,
the result of the proceeding would have been different. Additionally, although trial counsel
expressed regret at not having the petitioner evaluated prior to trial, his testimony was clear
that he did not actually believe an evaluation was necessary and that he would have been
doing it “to cross a T.” Importantly, the petitioner presented no evidence to suggest that
he suffered from any mental disease or defect, much less any evidence that would have
called into question the outcome of the trial.

              Accordingly, we affirm the judgment of the post-conviction court.

                                                     _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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