        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 January 22, 2015 Session

       CURTIS CECIL WAYNE BOLTON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Campbell County
                     No. 10567    Ben H. Cantrell, Senior Judge


                   No. E2014-00559-CCA-R3-PC - Filed July 29, 2015


The Petitioner, Curtis Cecil Wayne Bolton, was convicted of the first degree premeditated
murder of his two and one-half year old son and received a life sentence. In the present
post-conviction action, the post-conviction court granted relief on two ineffective assistance
of counsel claims but denied relief on the Petitioner’s remaining ineffective assistance of
counsel claims. In this appeal, the State contends that the post-conviction court erred by
granting relief for ineffective assistance of counsel in failing to seek a severance and in
failing to object to the State’s bolstering and vouching for the codefendant’s testimony. The
Petitioner also contends that the post-conviction court erred by denying relief on his
ineffective assistance of counsel claims related to failure to consult with a medical expert and
investigate the medical evidence, failure to advise the Petitioner accurately during plea
discussions regarding the sentence he would face if convicted, and failure to object to
prosecutorial misconduct. We affirm the judgment of the post-conviction court granting
post-conviction relief on the ground that trial counsel was ineffective for failing to seek a
severance.

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

R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which J AMES
C URWOOD W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Deshea Dulany Faughn, Senior Counsel; Lori Phillips-Jones, District Attorney General; and
Michael Olin Ripley, Assistant District Attorney General, for the appellant, State of
Tennessee.

Jessica Van Dyke, Nashville, Tennessee, for the appellee, Curtis Cecil Wayne Bolton.
                                          OPINION


                                  Conviction Proceedings


       The record of the Petitioner’s conviction proceedings, which was made part of the
post-conviction record, reflects that the Petitioner’s son died at the University of Tennessee
Medical Center on November 23, 1995, from blunt force head trauma. The victim had other
injuries, as well, and the medical evidence showed that the victim’s injuries were
non-accidental. The Petitioner and his girlfriend, Lisa Boyer, were charged with first degree
premeditated murder and were tried jointly. Ms. Boyer testified for the State at the trial.

       The evidence showed that Ms. Boyer and the Petitioner lived together. They had a
four-week-old daughter, and Ms. Boyer was still recovering physically from a difficult
delivery. The victim lived in the home, and although he was not Ms. Boyer’s child, she cared
for him during the day when the Petitioner worked. Ms. Boyer was 5'1" and weighed
ninety-five pounds. The Petitioner was 5'8" and weighed 148 pounds.

        Police officers testified about the Petitioner’s and Ms. Boyer’s pretrial statements. An
officer who went to the home within hours of the injured victim’s arrival at the hospital
testified that Ms. Boyer stated the victim fell out of a highchair. Ms. Boyer told the officer
that earlier in the evening, the Petitioner had gone to the emergency room because he had
injured his finger at work earlier in the day. The victim cried when the Petitioner left the
house, and Ms. Boyer got him up to feed him around 11:30 p.m. She put him in his
highchair, went to another room to wash the highchair’s tray, and heard a loud bang. She
found the victim on the floor, and he had a bruise on his temple and was not breathing. She
slapped him three times, with the third slap being hard, and he resumed breathing. She called
the emergency room and told the Petitioner to come home. The Petitioner returned to the
house and took the victim to the emergency room. Ms. Boyer told the officer the victim had
not been injured when the Petitioner left the first time to go to the emergency room.

        The sheriff testified that the Petitioner was questioned at the sheriff’s office and
explained that the bandage on his finger was from a work-related injury. The Petitioner said
he aggravated this injury when he swatted the victim’s bottom because the victim would not
listen.

      A neighbor testified that on the night before the victim’s death, she heard thumps
coming from the Petitioner and Ms. Boyer’s trailer about thirty minutes after she went to bed



                                              -2-
around 8:30 or 9:00 p.m. She had looked outside and had seen a man and woman running
back and forth in the hall of the Petitioner and Ms. Boyer’s trailer.

       When called as a State’s witness, Ms. Boyer testified that the Petitioner was not a
good father, did not work regularly, did not buy groceries for his family, and did not
contribute to the household financially other than by paying rent. She said she received
governmental assistance.

        Regarding the events of November 22, 1995, Ms. Boyer testified that the victim had
been weak, had fever, and had a poor appetite for a few days. Although three doctor’s
appointments were made for the victim, the Petitioner had cancelled them and would not
allow her to take the victim to the doctor. She said the Petitioner came home from work
around 6:30 p.m. with an injured finger. The Petitioner left to run errands, and during his
absence, Ms. Boyer started to give the victim a bath and noticed he had “massive” bruises
on his chest. When the Petitioner returned, he went into another room to change the victim’s
clothes and talked by telephone with his sister behind a closed door. Ms. Boyer said that the
victim did not want to eat dinner and gagged on his juice. She said that the Petitioner took
the victim from his highchair and spanked him repeatedly and that she finally told the
Petitioner to leave the victim alone. She said that the Petitioner continued spanking the
victim as he walked the victim to the victim’s bedroom. She said that the Petitioner hit the
victim so hard that the victim started to fall and that the Petitioner grabbed the victim by his
collar and carried him into the bedroom. She walked past the bedroom and saw the Petitioner
pointing at the victim and talking to him. She heard a loud thump from the bedroom. When
she went into the bedroom, the Petitioner was holding the victim by his ankle and wrist. The
Petitioner threw the victim into the wall above the victim’s bed. The victim fell face-forward
to the bed and was limp. Ms. Boyer said the Petitioner forcefully spanked the victim’s
bottom. She said she screamed at the Petitioner that he had done enough. She said the
Petitioner left the bedroom and stated, “I warped him so hard, I can’t believe he’s not crying,
I warped him so hard I hurt my hand.”

       Ms. Boyer testified that she told the Petitioner to go to the hospital. She tried to get
the victim out of bed to feed him, but he was unresponsive. She helped him out of bed and
noticed that he walked with his legs crossed, that he slouched, and that he scooted. She said
the victim moaned when she told him to get into his highchair. She tried to pick up the
victim, but she stumbled because she was also holding her daughter, causing the victim’s
head to bump the wall. She gave the victim some food and noticed he stared straight ahead
and had dilated pupils. She said he started to slide back and down in the highchair. She went
to the bathroom to get the highchair tray and heard a thump. When she returned to the
kitchen, the victim was on the floor. She said the victim was not breathing and did not have
a pulse. She splashed cold water on him and slapped him lightly twice and hard once, and

                                              -3-
he began breathing. She noticed large bruises on the victim’s face. She called the emergency
room and spoke with the Petitioner, who told her not to call an ambulance because he would
be home in a few minutes.

       Ms. Boyer testified that she did not tell the police about the Petitioner’s actions when
an officer came to the house around 3:00 a.m. on November 23 because she was afraid of the
Petitioner. She said she told a detective about the Petitioner’s actions on November 23
around 4:55 p.m. She acknowledged she gave the statement implicating the Petitioner after
she had been arrested and jailed for first degree murder.

        The Petitioner testified that he injured his hand at work on November 22. He said that
when he went home after work, Ms. Boyer told him the victim had fever earlier in the day.
He said the victim looked as if he did not feel well and was not responsive. The Petitioner
said he bathed the victim and left to run errands. He returned home and noticed the victim
did not eat dinner but drank juice. The Petitioner said he watched television with the victim
until he left around 10:30 p.m. to go to the emergency room. He said he put the victim to bed
before leaving.

       The Petitioner testified that while he was at the emergency room, Ms. Boyer called
and said the victim had fallen from the highchair. He said that he went home and that it
never occurred to him to get an ambulance. He went home and found the victim face-down
on the bed. He said the victim was pale, limp, helpless, and had dilated pupils. He took the
victim to the emergency room.

       The Petitioner said his discipline methods included a slight swat or a smack to the
victim’s hand. He denied throwing the victim into a wall and said he did not swat the
victim’s bottom on November 22. He said he and Ms. Boyer agreed that he would discipline
the victim and that she would not.

       On cross-examination, the Petitioner admitted that despite his earning $4780 in a
four-month period, he filed an application for governmental assistance that stated his income
was $480 per month. He acknowledged that he had called two or three times to check on his
daughter, who had been in Department of Human Services’ custody for a year, and that he
had not called to check on his daughter at all in the past several months. Ms. Boyer’s
mother’s boyfriend testified that in contrast, Ms. Boyer called almost nightly to check on the
child and that Ms. Boyer visited the child as often as she was allowed. See State v. Curtis
Cecil Wayne Bolton, No. 03C01-9707-CR-00255, 1999 WL 93107, at *1-12 (Tenn. Crim.
App. Feb. 25, 1999), perm. app. denied (Tenn. Sept. 13, 1999).




                                              -4-
     The record of the trial proceedings reflects that at the end of the State’s proof and
immediately after Ms. Boyer testified, the prosecutor made the following announcement:

               If it please the Court and the members of the jury, the State of
       Tennessee rests. At the conclusion of our proof, we elect pursuant to Section
       39-11-401 of the Tennessee Code that the defendant, Curtis Bolton, based on
       this proof is criminally responsible as the party who committed the offense and
       we further elect, Your Honor, pursuant to section 39-11-402, that Lisa Boyer
       is also criminally responsible for the conduct of another, as an aider and
       assister [sic].

The record of the trial proceedings also reflects that the jury acquitted Ms. Boyer and
convicted the Petitioner.

       In the appeal of the conviction, the Petitioner raised issues related to the sufficiency
of the evidence to support the conviction, a juror’s failure to reveal he had been a college
roommate of an assistant district attorney general, cross-examination of the Petitioner by Ms.
Boyer’s attorney about the Petitioner’s previous convictions and charges for passing
worthless checks, admission of a diagram of the victim’s body and the medical examiner’s
references to photographs that were not admitted, and the prosecutor’s use of Biblical
references during closing argument. This court denied relief. See id. at *13-19.

                                Post-Conviction Proceedings

       The Petitioner filed a pro se petition for post-conviction relief. For reasons that are
not explained in the record, the Petitioner’s post-conviction case remained pending in the
lower court for over a decade before the hearing. The record reflects that the Petitioner had
a succession of appointed attorneys and that special judges were appointed. Some of the
delay was attributable to disputes between the Petitioner and his appointed attorneys.

        At the post-conviction hearing, the Petitioner testified that before the trial, he received
a plea offer that involved a twelve-year sentence. He said trial counsel advised him of the
offer at a meeting at which the Petitioner’s mother and sister-in-law were present. He did
not recall the conviction offense proposed by the plea offer, and although he did not recall
the range classification of the offer, he assumed it was 100% because he was told it involved
twelve years “to serve.” He said that in the meeting, counsel advised him that if he were
convicted of first degree murder at a trial, he would receive a life sentence but would be
eligible for a parole hearing after serving twenty-five years. He said he was told that if he
kept his “nose clean,” he had “a pretty good shot of getting out at 25 years.” He said he
weighed the options of accepting a plea offer versus going to trial in light of the difference

                                                -5-
between a twelve-year sentence and parole eligibility after twenty-five years. He said that
considering the “small difference” between the two, he wanted to “go to bat” for the victim.
He said that he “[m]ost certainly” would have accepted the offer and would not have gone
to bat for the victim if he had known he faced the possibility of serving fifty-one years in
prison if convicted at a trial. He said he did not learn that he would have to serve fifty-one
years until a few months after the conviction and his transfer to the Department of
Correction. He acknowledged that in the meeting about the offer, his mother said the
Petitioner was not going to accept the offer. He said that she helped but did not make the
final decision. The Petitioner said it was up to him to make the decision and that he was
asked “point blank” for his decision. He said he understood that he could accept an offer
without admitting guilt.

        The Petitioner testified that he and trial counsel did not discuss the prospective jurors.
He said he would have been concerned if he had known about a juror and an assistant district
attorney general having been college roommates. He said he did not learn of this information
until after the trial.

       The Petitioner testified that he and trial counsel did not discuss a severance of his case
from Ms. Boyer’s case before or during the trial. He said he never heard the words
“severance” or “motion to sever” until after the trial. He said that Ms. Boyer and the State
pursued the same theory at the trial and that if Ms. Boyer’s testimony were believed, he
would be convicted. He said he and counsel did not discuss the use of medical experts or
consultants. He did not recall if they discussed how Dr. Blake would testify.

        The Petitioner testified that he did not kill the victim, that he had always said he did
not, and that he did not know what happened to the victim. He agreed that his theory was
that Ms. Boyer had to have been the person who injured the victim. He acknowledged that
his testimony did not go well and that he had difficulty with cross-examination. He said this
was not trial counsel’s fault.

       Attorney Thomas Dillard, an expert in trial practice, testified that in July 1993, the
sentencing law for first degree murder was changed to provide that a life sentence was a
sixty-year sentence, requiring a defendant to serve 60%, or 36 years, before being released.
He said that in addition, a defendant could earn 15% sentence credits that could reduce the
sentence to twenty-five years’ service. He said that a person who did not have sufficient
sentence credits to be released might still be paroled. He said that effective July 1, 1995, the
law was amended to eliminate parole for first degree murder. He said the percentage of
service was increased to 100% of sixty years, although a defendant could still earn up to 15%
sentence credits, which could result in release after fifty-one years. He said the provisions



                                               -6-
providing for parole and the possibility of release after service of twenty-five years were
eliminated.

       In Mr. Dillard’s opinion, failure to advise a client of the maximum sentence the client
faced if convicted at a trial was ineffective assistance of counsel. He said this was
particularly the case if the client received a plea offer. He said he would not advise a client
to plead guilty if the client insisted he was not. He said, though, that defense counsel had a
duty to advise a client of all plea offers without regard to the client’s interest in an offer. He
said defense counsel likewise had a duty to advise a client accurately about the possible
sentence and its effect.

      Mr. Dillard testified that his practice under the prior first degree murder sentencing
law was to advise clients that parole was difficult to obtain and that the victim’s relatives
would oppose parole. He agreed he told clients that despite the possibility of parole, they
would likely spend most of their lives in prison and might never receive parole.

        Mr. Dillard testified that he had never seen a criminal case in which a codefendant
testified for the State in a joint trial. He said that as a defense attorney, if he became aware
before the trial of a situation in which this would occur or if he learned it would occur from
the opening statements, he would move for a severance. He said that if his client’s
codefendant testified for the State, he would move for a mistrial, even if he knew the trial
court would deny it. He acknowledged that he would not have a basis for objecting to a
codefendant’s testifying for the State. He said that a situation in which two defendants were
on trial together and one testified for the State was extremely prejudicial to the defendant
who did not testify for the State. He said that in cross-examining a testifying codefendant,
it was important to impeach the codefendant’s testimony by showing bias or prejudice, offers
from the State, and any other relevant matters.

        Gregory Davis, M.D., an expert in forensic pathology, testified he reviewed the
victim’s autopsy report and the trial testimony of Doctors Blake and Clawson, who testified
for the State. He said he agreed to work on the Petitioner’s post-conviction case pro bono
because he thought Dr. Blake’s autopsy report contained conjecture outside the bounds of
knowledge in forensic pathology that needed to be addressed.

       Dr. Davis testified that he agreed with Dr. Blake’s determinations that the cause of
death was blunt force head trauma and that the manner of death was homicide. He said,
though, that he questioned Dr. Blake’s opinions about the ages of some of the victim’s
contusions. He said that according to current medical knowledge, determining the age of a
bruise was problematic. He said that people bruise and heal at different rates and that it was



                                               -7-
difficult to determine the ages of bruises, except that an expert might determine that injuries
leading to multiple bruises did not occur at the same time.

        Regarding Dr. Blake’s testimony that “at least an hour or so could have passed”
between the victim’s sustaining a head injury and the appearance of symptoms, Dr. Davis
testified that Dr. Blake’s opinion was not scientifically substantiated and was speculative.
He said it was impossible to pinpoint the time of the victim’s head injury. Dr. Davis
disagreed with Dr. Blake’s testimony that the victim’s injury did not occur suddenly from a
massive brain bleed and that had that occurred, the victim would have died by the time he
was seen at the emergency room. He said that no guideline existed regarding the amount of
time a child might live after a massive brain bleed and noted that some children lived for
days in the pediatric intensive care unit. Dr. Davis did not think any pathologist could
determine exactly when the victim’s injuries occurred before the victim came to the
emergency room.

       Dr. Davis agreed with Dr. Blake’s assessment that the victim’s unconscious state and
fixed and dilated pupils when the victim presented at the emergency room were early signs
of brain damage. He agreed with Dr. Blake’s testimony that the victim was comatose due
to building pressure in the victim’s head.

        Dr. Davis testified that although he would not say it was impossible for a highchair
fall to cause the victim’s fatal injuries, he thought it was highly unlikely. He thought Dr.
Blake’s testimony that the victim’s injuries were sustained from an amount of force
equivalent to a fall from one to two stories was “dramatic” and said that analogies of this
nature had fallen out of favor in the past decade, although they had been used by pathologists
in the 1990s when the Petitioner’s trial took place. He said a toddler who fell from standing
on a podium and hit his head had a good chance of dying. Regarding Dr. Blake’s testimony
about the ages of the victim’s bruises, Dr. Davis said that even in the 1990s, he was
uncomfortable providing opinions of this nature.

       Regarding Dr. Blake’s testimony that the victim’s injuries were consistent with having
been thrown against a wall more than once, Dr. Davis testified that had he been called as a
witness, he would have been able to testify that the injuries were consistent with a number
of other things. He thought Dr. Blake alluded to the possibility of the injuries occurring in
another scenario.

       Dr. Davis testified that had he been called as a witness at the Petitioner’s trial, he
would have been able to state the same opinions as those expressed in his post-conviction
hearing testimony. He said that in several cases in which he served as an expert witness, he



                                              -8-
had been allowed to remain in the courtroom and evaluate other medical testimony. He said
he had helped attorneys formulate cross-examination questions.

       Dr. Davis testified that overall, he agreed with most of Dr. Blake’s testimony. With
respect to his disagreements, he did not think Dr. Blake testified falsely or was misleading.
He said pathologists might look at the evidence objectively but disagree on its interpretation.

        Dr. Davis testified that no evidence pointed to a conclusion that the victim’s injuries
were inflicted by a 5'8", 150 pound man. He said that likewise, no evidence excluded the
possibility that they were inflicted by a petite woman. He said that he would have been able
to testify that it was possible a petite woman could have thrown the victim into the wall with
sufficient force to cause the injuries.

        Jessie Stalnaker testified that she had been married to the Petitioner’s brother, who
passed away in 2007. Regarding the Petitioner’s pretrial proceedings, she recalled
conversations at home and at trial counsel’s office about whether the Petitioner would accept
the State’s plea offer. She said she went with the Petitioner and the Petitioner’s mother to
meet with counsel about the offer. She thought counsel’s assistant was also present at the
meeting. She said counsel stated that the offer was for twelve years “to serve.” She did not
recall the offense to which the offer required the Petitioner to plead guilty. She said the
Petitioner’s mother was not pleased with the offer and told the Petitioner he was not going
to accept the offer. Ms. Stalnaker said the Petitioner’s mother asked counsel what the
Petitioner “was looking at.” She said counsel stated that the Petitioner faced a life sentence
and would be eligible for parole after serving twenty-five years. Ms. Stalnaker said the
Petitioner’s mother did most of the talking in the meeting. She did not recall the Petitioner’s
saying much.

        Ms. Stalnaker testified that she recalled the details regarding parole eligibility because
it was discussed frequently for several days. She said that after the meeting, the Petitioner’s
father calculated that the Petitioner would be eligible for parole at age fifty. She said she
found out one or two days after the Petitioner’s conviction that trial counsel’s advice about
parole eligibility was incorrect. She said she was at the Petitioner’s parents’ house and
learned the correct sentencing information from her son, who was employed by the district
attorney general. She said the Petitioner also learned the correct information, although she
did not know when. She said it was not years after the conviction. She said that she had
always believed the victim’s death was accidental and that the Petitioner had always denied
killing the victim.

       Trial counsel testified that he was employed previously as an assistant public defender
and that he represented the Petitioner in the conviction proceedings. He said that he had not

                                               -9-
been able to review the public defender’s file regarding the case because it could not be
located but that he had reviewed the transcript of the trial.

       Trial counsel testified that, after the trial, he learned of a juror’s connection with one
of the assistant district attorneys general. He said that he raised the issue in the motion for
a new trial and that the juror and the assistant district attorney general testified at the hearing.
He did not recall anything significant about the juror during jury selection. He said his habit
was to discuss prospective jurors with his clients. He did not recall if after the trial, he and
the Petitioner discussed the Petitioner’s thoughts about the connection between the juror and
the assistant district attorney general.

       Trial counsel testified that he did not obtain a medical expert to review the evidence.
He acknowledged he had no medical training or experience. He said he had never conducted
a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993),
regarding the admissibility of scientific expert evidence. He did not recall whether he
reviewed any medical literature provided by Doctors Blake and Clawson but said he would
have if it was provided. He said that he met with Dr. Blake before the trial and that Dr.
Blake answered his questions. He said that based upon the pretrial interview, he was not
surprised by Dr. Blake’s testimony.

       Regarding preparing the Petitioner for the trial, trial counsel testified that he and the
public defender’s investigator questioned and cross-examined the Petitioner in the courtroom
and familiarized him with the courtroom process. Although he could not specifically recall
reviewing the Petitioner’s pretrial statements with him, he was sure he did. He said he also
talked to the Petitioner at counsel’s office.

       Trial counsel testified that the defense theory was that the Petitioner was not home
when the victim was injured and therefore could not have inflicted the injuries and that the
Petitioner loved the victim. He said they tried to show that the Petitioner hurt his finger at
work, went home, talked to Ms. Boyer, went to the hospital, received a call that the victim
had fallen, went home, and took the victim to the hospital. He said that he had reviewed the
defense strategy with the Petitioner but that ultimately, the jury did not accept it. He did not
recall whether he knew going into the trial that food stamps, AFDC, and WIC would be
mentioned repeatedly.

        Trial counsel acknowledged a letter to the district attorney general as bearing his
signature, although he had no independent recollection of the letter. The letter requested the
district attorney general’s assistance in correcting the Department of Correction’s incorrect
classification of the Petitioner’s sentence as life without parole.



                                               -10-
        Regarding his recollection of when he learned Ms. Boyer would testify for the State,
trial counsel said that he had been trying to remember and that “the only thing I can come up
with is during the trial.” He said he thought the Petitioner’s and Ms. Boyer’s defenses were
“on the same page as we went into this trial and then she testified.” He said he cross-
examined Ms. Boyer about the timing of her release from jail when she changed her story.
Although he did not recall the specifics of his conversations with Ms. Boyer’s attorney, he
said he had the impression Ms. Boyer would support the Petitioner’s theory that the victim
was injured in a highchair fall when the Petitioner was not home. He agreed that Ms. Boyer
testified that the Petitioner was not home when the victim fell from the highchair but that she
said the Petitioner threw the victim against a wall and whipped the victim. He acknowledged
that at some point during the opening statements, he became aware that Ms. Boyer’s defense
was not “on the same page” as the Petitioner’s defense.

        Trial counsel initially said he did not recall whether the State made a plea offer,
although he later recalled discussions relative to the offer. He said he advised the Petitioner
of the possibility of receiving a life sentence and told him he would spend a “large majority
of his life” in prison. He said, though, he was sure he or the private investigator advised the
Petitioner of the number of years the Petitioner would have to serve if he received a life
sentence. Counsel said the advice would have been in accord with the then-current state of
the law. He said the Petitioner stated he was not guilty, would not accept a plea offer, and
wanted to “go to trial for” the victim.

       Dr. Darinka Mileusnic-Polchan, an expert in forensic pathology, testified for the State.
Before her testimony, she reviewed Dr. Blake’s autopsy reports, a transcript of his testimony,
“a couple of opinions,” and evidentiary items she received from Dr. Blake’s widow. She said
she received a body diagram, the victim’s medical records from LaFollette and UT Hospitals,
photographs, and “glass lights.”1 She said that after studying these items, she agreed with
Dr. Blake’s determination of the cause of death as blunt force trauma and the manner of
death as homicide. In her opinion, the victim’s injuries were non-accidental.

        Dr. Mileusnic-Polchan testified that although she agreed with Dr. Blake’s description
in the autopsy report of the injuries and his overall opinion, he made statements she would
not have made. She would not have made the analogies Dr. Blake and Dr. Clawson made
to the force of the injury being equivalent to a fall from two or more stories. She said that
current medical knowledge was that short falls could result in trauma and could occasionally
be deadly. In Dr. Mileusnic-Polchan’s opinion, Dr. Blake’s testimony was not misleading.



          1
              We infer from the context that “glass lights” was a transcription error and that the items were glass
slides.

                                                         -11-
       Dr. Mileusnic-Polchan testified that the victim’s injuries were consistent with his
having been thrown into a mobile home wall. She said the injuries were consistent with an
impact with a number of hard surfaces. She found it inconceivable that a fall from a
highchair would result in internal and external injuries of the magnitude of the victim’s
injuries. She said the victim had both fresh and “quite numerous” old traumas.

       Dr. Mileusnic-Polchan testified that Dr. Blake analyzed samples of the victim’s
bruises microscopically, which she said was more accurate than determining their ages
visually. In her opinion, most of the samples were from traumas that occurred about twenty-
four hours before the victim’s death between 11:00 a.m. and noon on November 23, 1995.
She said that some of the bruises on the lower back and gluteal area could be as much as one
week old. In addition, she said a liver laceration was two to three days old.

        Dr. Mileusnic-Polchan testified that the victim’s “most pertinent” injury was to his
head. She said that an injury of this nature would cause a child to act sick, possibly with flu-
like symptoms. She said the brain would start to swell at a rate that varied from person to
person. She said the child would become lethargic, sleepy, and hard to arouse; would have
a poor appetite; and eventually, would slip into a coma. She said that death would occur
when the brain swelling herniated through the base of the skull and compressed vital centers
in the brain stem.

       Dr. Mileusnic-Polchan testified that in her opinion, the victim’s head trauma and
clavicle fracture occurred twenty-four to forty-eight hours before his death. When asked if
the victim’s injuries could have occurred about one hour before the victim was seen at
LaFollette Hospital, she said she was not comfortable with dating the injuries to twelve to
thirteen hours before the death. She said that if she had been called as a witness at the trial,
she would have said the victim would have been injured in the morning, around noon, or
early afternoon of November 22.

       Dr. Mileusnic-Polchan testified that based upon the distribution and extent of the
victim’s injuries, she did not think they were from childhood play. She noted a pattern of
injuries was visible after the victim’s head was shaved.

        Attorney John Beaty testified that he was a former assistant public defender and that
he helped trial counsel investigate the Petitioner’s case. He said that they went to the scene,
that they met with the Petitioner, and that he thought they met with Dr. Blake.

       Mr. Beaty testified that the district attorney general conveyed a plea offer to trial
counsel and him shortly before the trial. He said the offer was for a twelve-year sentence and
an out-of-range classification as a career or multiple offender. He thought the conviction

                                              -12-
offense would be reckless homicide. He said the offer was communicated to the Petitioner
and thought the Petitioner’s parents were present. He said he and the public defender’s
investigator were also present. Although he did not recall the specifics of the discussion
about the offer, he said that the Petitioner declined to accept the offer and “was going to trial
for” the victim. Mr. Beaty thought the Petitioner was advised he would receive a life
sentence if he were convicted and did not recall telling the Petitioner the minimum service
was twenty-five years. He felt confident the Petitioner understood that if a life sentence were
imposed, the Petitioner would likely be in prison for the rest of his life. He did not recall the
Petitioner’s expressing any interest in entering a guilty plea or engaging in plea negotiations.

        After receiving the proof, the post-conviction court granted relief on the Petitioner’s
claims that trial counsel was ineffective in failing to seek a severance and in failing to object
to the State’s bolstering of and vouching for Ms. Boyer’s testimony. Regarding the
Petitioner’s claim that he was erroneously advised regarding parole eligibility for a life
sentence, the court found that although the Petitioner received erroneous advice, he was not
entitled to relief because he failed to provide clear and convincing proof that he would have
accepted a plea offer had he received correct advice. The court also denied relief on the
Petitioner’s claim that counsel was ineffective in failing to consult with a defense medical
expert. This appeal followed.

                                           Analysis

       Post-conviction relief is available “when the conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103 (2012). A petitioner has the burden
of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f)
(2012). A post-conviction court’s findings of fact are binding on appeal, and this court must
defer to them “unless the evidence in the record preponderates against those findings.”
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-
57 (Tenn. 2001). A post-conviction court’s application of law to its factual findings is
subject to a de novo standard of review without a presumption of correctness. Fields, 40
S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364,
368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to an
accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

                                              -13-
          A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . , are [not] within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of the
circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound,
but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference, however,
only applies “if the choices are informed . . . based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice prong, a
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.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.

                                               I

        The State contends that the post-conviction court erred in granting post-conviction
relief on the basis that trial counsel provided ineffective assistance by failing to seek a
severance. The Petitioner responds that the court properly granted relief. We conclude that
the court did not err in granting relief on this basis.

        The evidence at the hearing showed that trial counsel thought until the trial began that
the Petitioner and Ms. Boyer were of like mind as regards the defense. Counsel anticipated
Ms. Boyer would testify that the victim was injured from a highchair fall when the Petitioner
was not home. As we have stated, the trial record reflects that counsel did not request a
severance when the prosecutor said in opening statements that Ms. Boyer wanted to tell the
jury what happened. The trial record likewise reflects that in her testimony, Ms. Boyer
blamed the victim’s injuries on the Petitioner and said the police initially misled her by
stating that the victim’s death resulted from the highchair fall and her resuscitation efforts.

      At the time of the Petitioner’s trial, Rule 8(c) of the Tennessee Rules of Criminal
Procedure provided:



                                              -14-
             (c) Joinder of Defendants. Two or more defendants may be joined in
      the same indictment, presentment, or information:

             (1) if each of the defendants is charged with accountability for each
      offense included; or

             (2) if each of the defendants is charged with conspiracy, and some of
      the defendants are also charged with one or more offenses alleged to be in
      furtherance of the conspiracy; or

            (3) even if conspiracy is not charged and all of the defendants are not
      charged in each count if the several offenses charged:

                    (i) were part of a common scheme or plan; or

                    (ii) were so closely connected in respect to time, place,
             and occasion that it would be difficult to separate proof of one
             charge from proof of the others.

Tenn. R. Crim. P. 8(c) (1996). At the time, Rule 14(b)(2) provided:

             (c) Severance of Defendants.

      ....

             (2) The court, on motion of the State or on motion of the defendant
      other than under subdivision (c)(1) [pertaining to severance because of a
      codefendant’s out-of-court statement] shall grant the severance of defendants
      if:
             ....

             (ii) during trial, with consent of the defendant to be severed, it is
      deemed necessary to achieve a fair determination of the guilt or innocence of
      one or more defendants.

Tenn. R. Crim. P. 14(c)(2)(ii) (1996). The decision whether to grant a severance is within
the trial court’s discretion. State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981).

      The test for determining whether a trial court has abused its discretion in
      denying a severance is “whether or not the defendant was clearly prejudiced

                                           -15-
       in his defense by being jointly tried with his co-defendants.” [Hunter v. State,
       440 S.W.2d 1, 6 (Tenn. 1969)]. See State v. Lunati, 665 S.W.2d 739, 745-746
       (Tenn. Crim. App. 1983), cert. denied, 466 U.S. 938, 104 S. Ct. 1913, 80 L.
       Ed. 2d 461 (1984). The record must demonstrate that “the defendant was
       clearly prejudiced to the point that the trial court’s discretion ended and the
       granting of [a] severance became a judicial duty,” [Hunter, 440 S.W.2d at 6],
       before an accused is entitled to a reversal of his conviction.

State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988).

       Relative to the severance issue, the post-conviction court found:

              This court is of the opinion that it was not ineffective assistance of
       counsel to fail to move for a severance initially. The only evidence on the
       defendants’ position prior to trial was trial counsel’s testimony that his side
       believed Ms. Boyer was relying on the same defense and would not testify
       against Mr. Bolton.

              On the first day of trial, however, when it appeared that Ms. Boyer
       would be a key witness for the state, the need for a severance became obvious.
       Then counsel must have realized that he needed to know how Ms. Boyer’s
       story had changed, how to plan the defense in light of the new information and
       what had induced her to change so dramatically. The Court believes that a
       motion for severance at that time became imperative.

               It is true that whether to grant a severance is within the discretion of the
       trial judge, but in the opinion of this Court, under these circumstances, Mr.
       Bolton was clearly prejudiced and granting a severance would have been
       judicial duty. [State v. Caruthers, 35 S.W.3d 516, 553 (Tenn. 2000)].

        The State argues that the Petitioner cannot prevail because he has not shown that the
trial court would have granted a severance motion. It argues that the Rules of Criminal
Procedure permit a severance during a trial with “consent of the defendants to be severed,”
but no proof shows Ms. Boyer would have consented to a mid-trial severance. The State’s
argument relies upon the current language of Rule 14(c)(2)(B). We note, however, that when
the trial took place, Rule 14(c)(2)(ii) permitted the court to grant a severance with “consent
of the defendant to be severed.” Tenn. R. Crim. P. 14(c)(2)(ii) (1996) (emphasis added). We
conclude that had trial counsel sought a severance on behalf of the Petitioner, Ms. Boyer’s
consent would not have been required under the then-current provisions of Rule 14.



                                              -16-
        The State also argues that continuing with the trial without requesting a severance was
a strategic alternative available to trial counsel. It argues that the record fails to reflect that
a severance was necessary for a fair determination of guilt. We disagree.

        In the context of considering an evidentiary matter arising in a joint trial of
codefendants for aggravated child abuse and felony murder resulting from the death of their
child, our supreme court has observed:

       Neither party has questioned whether the cross-examination of a defendant on
       a subject by counsel for a co-defendant may “open the door” to further
       cross-examination on that subject by the State. Cf. United States v.White, 887
       F.2d 267, 270 (D.C. Cir.1989) (“The prosecution may not gain, through the
       device of a joint trial, admission against one defendant of otherwise
       inadmissible evidence on the happenstance that the door to admitting the
       evidence has been opened by a co-defendant.”). This issue, as well as others
       addressed in this opinion, underscores the difficulty in pursuing joint trials for
       co-defendants who are charged with abuse of a child. Neither co-defendant
       moved for severance in this case. Although we decline to require the
       severance of the trials of defendants in similar cases, trial courts should give
       motions to sever serious consideration when such motions are made.

State v. Gomez, 367 S.W.3d 237, 264 n.7 (Tenn. 2012) (emphasis added).

        Once it became known in the present case that the codefendant would testify for the
State, any basis for sound trial strategy for proceeding in a joint trial disappeared. As the trial
progressed, it became apparent that the codefendant and the State were pursuing a common
theme casting the Petitioner in a poor light, even beyond the facts related to the charged
offense. We note Ms. Boyer’s trial testimony that the Petitioner did not support the family,
that he had a history of abusing the victim, that she found bruises on the victim’s body on the
night of the crime, and that she was afraid of the Petitioner. The Petitioner’s trial practice
expert, Mr. Dillard, testified that in his opinion, a situation in which a codefendant testified
against a defendant as a State’s witness was prejudicial and necessitated a motion for a
severance. He likewise testified to the anomalous nature of this type of prosecution. As we
have noted, trial counsel believed going into the trial that Ms. Boyer would testify that the
victim was injured when the victim fell from the highchair while the Petitioner was away.
Once it became apparent Ms. Boyer would testify for the State, counsel should have
recognized that Ms. Boyer’s plan to testify as a State’s witness was inconsistent with her
anticipated testimony and that the Petitioner’s defense strategy must be revisited.




                                               -17-
       When Ms. Boyer’s intent to testify for the State became known, trial counsel should
have realized the inherent prejudice in the State’s being the proponent of testimony of a
codefendant who was on trial in the same proceeding, particularly given the facts of this case.
We acknowledge that the Petitioner was powerless to prevent Ms. Boyer from testifying for
the State if she so desired and if the State elected to call her as a witness. We note, though,
that had the trial court granted the severance and had Ms. Boyer testified as a mere witness
in a separate trial, her testimony would have had a different impact than it did in the
proceeding that took place, in which she was seated at the defense table with the Petitioner
and in which the Petitioner had to defend against both the prosecutor’s and his codefendant’s
attorney’s allegations and arguments. In the joint trial, the State and Ms. Boyer’s defense
both characterized the Petitioner as an abusive, intimidating man and characterized Ms.
Boyer as being dominated by him and physically incapable of causing the victim’s injuries.
The Petitioner’s credibility and character and the question of his guilt were attacked not only
by the prosecutor, but also Ms. Boyer’s defense counsel. The alignment of the State’s and
Ms. Boyer’s theories and the State’s reliance on her testimony to make its case against the
Petitioner conferred the State’s endorsement upon her reliability and credibility in a profound
manner. Had the cases been severed, the Petitioner would not have had to defend against the
allegations of Ms. Boyer’s defense in addition to those of the State.

       It is worthwhile to emphasize that “[e]ven ‘mutually antagonistic’ defenses do not per
se require a severance, though they may in some circumstances.” State v. Gosnell, 62 S.W.3d
740, 749 (Tenn. Crim. App. 2001); see also Zafiro v. United States, 506 U.S. 534, 537-38
(1993); State v. Ensley, 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996) (“While ‘mutually
antagonsitic’ defenses may mandate severance in some circumstances, they are not
prejudicial per se.”). We do not view mere mutual antagonism of defenses in the petitioner’s
case, had it been known before the trial, as a sufficient reason for a severance. The
circumstances of this case, and particularly the surprise to the petitioner and the resulting
difficulty in reformulating a defense strategy, justify our conclusion that a severance was
required.

        We conclude that the State’s unanticipated calling Ms. Boyer as its own witness and
the presence of Ms. Boyer’s attorney as an additional source of disparagement of the
Petitioner’s credibility and character made it essential for the defendants to have been tried
separately in order to ensure the Petitioner received a fair trial. Because the Petitioner
established both deficiency and prejudice, the post-conviction court did not err in granting
relief on this basis.




                                             -18-
                                                II

       The second component of the State’s appeal relates to the post-conviction court’s
granting relief based upon trial counsel’s failing to object to the State’s alleged vouching for
and bolstering of Ms. Boyer’s testimony, particularly during its closing arguments. In a
related issue, the Petitioner contends that the court erred in failing to grant relief on his claim
that counsel provided ineffective assistance for failure to object to repeated instances of
prosecutorial misconduct. Because these issues involve related facts, we will consider them
together.

        As we have stated, Ms. Boyer testified for the State that the Petitioner physically
abused the victim. She likewise testified about his poor parenting skills and abusive conduct
toward the victim beyond the facts of the offense and his lack of fiscal stewardship relative
to his family. After Ms. Boyer testified, the prosecutor announced that the State was
pursuing a conviction of the Petitioner as the person principally responsible for the charged
offense and was seeking a conviction of Ms. Boyer as an aider and abetter, meaning the State
relied upon a theory of criminal responsibility for the conduct of another. See T.C.A. § 39-
11-402 (2014). The strategy employed by both the prosecution and Ms. Boyer’s defense
characterized the Petitioner as the perpetrator and Ms. Boyer as physically incapable of
causing the victim’s injuries.

       In the State’s closing argument, the prosecutor argued that the jury knew what
happened to the victim because Ms. Boyer told them and that “many reasons” existed to
believe her. The prosecutor also argued that Ms. Boyer was young, small, and recovering
physically from childbirth, and that it was not logical to conclude she was able to throw the
victim forcefully against a wall.

         Ms. Boyer’s attorney’s closing argument generally disparaged the Petitioner, stating
that the Petitioner “robbed Lisa Boyer of her youth” and dated and impregnated her when she
was seventeen. Ms. Boyer’s attorney also argued that the Petitioner and his client “had to
live at the mercy of the taxpayers and her family.” Ms. Boyer’s attorney also argued that the
Petitioner lied about his income in his application for public assistance, that the Petitioner
was not a caring father and had not called regularly to check on his daughter with Ms. Boyer
who was in DHS custody, and that the jury should return a verdict reflecting justice for the
victim, Ms. Boyer, and their daughter.

        In the State’s rebuttal argument, the prosecutor contested the defense argument that
the Petitioner was a good parent who loved his children by arguing that the Petitioner put up
a “good front” at the hospital around his own parents regarding his concern for the victim,
that the Petitioner had been more concerned about his injured finger than the victim’s flu-like

                                               -19-
symptoms that had existed for several days, and that the Petitioner had advantages in life that
the victim was not afforded. The prosecutor argued that the Petitioner had the benefit of
several jobs but that he never remained employed, that he had two children with different
women, that his family provided financial support, that he allowed Ms. Boyer to receive
AFDC and food stamp benefits for their child, that he untruthfully stated his income on his
application for AFDC and food stamp benefits for the victim, and that although he was
released on bond, he only called to check on his daughter two or three times in the year that
the child was in DHS custody. The prosecutor argued that the victim’s autopsy could not
show a broken heart and asked, “Now, is he going to go free for that?” The prosecutor ended
his rebuttal argument with the following:

               There was a man long ago, a teacher. He was walking along a dusty
       road and others were following him. His closer followers called him rabbi.
       Teacher. And beside his close followers, there was a big crowd that followed
       him nearly everywhere he went. And as the man, the leader, the teacher, went
       along, he heard his close followers arguing amongst themselves. And he
       turned around and he said - why are y’all arguing? And they were sheepish.
       Because they didn’t want to tell the rabbi why they were arguing. But he
       pressed them. He said - tell me, why are you arguing. And they said - well,
       rabbi, we just were wondering in the kingdom that you are going to set up,
       which one of us will be the greatest - who will be number one, and who will
       be number two, who will be on your right hand and who will be on your left
       hand? And the teacher, he kind of took a test, he said - whoever - whoever
       would be greatest, he must be last and the least, and whoever - whoever would
       be great among you, must be the servant of all. And then he turned around and
       in the crowd that was gathered around him which is always - almost always
       there, he found a little child, a boy. He took the little boy and he sat the little
       boy in the midst of his close followers and he said - whoever receives a little
       one like this, receives me. Whoever receives a little one like this, receives me.
       But you know, he didn’t leave it there. He didn’t leave it there. He went on
       to say sternly - but anyone, anyone who causes one of these little ones to
       stumble, it would be better for him if a millstone was put around his neck and
       he was drowned in the sea. The good rabbi said that.

               Members of the jury, we simply ask for justice. Let justice come down
       like the mighty waters.

       The trial record reflects that trial counsel did not object at any point to the State’s or
Ms. Boyer’s closing arguments. In the appeal of the conviction, the Petitioner raised as plain
error an issue regarding the propriety of the district attorney general’s Biblical argument, but

                                              -20-
he did not raise an issue regarding other aspects of the argument. The court characterized
the impropriety of the Biblical argument as “obvious” but declined to recognize plain error
because it could not conclude that the improper argument affected the verdict to the
Petitioner’s prejudice given the strength of the evidence. See Curtis Cecil Wayne Bolton,
1999 WL 93107, at *18-19.

       Relative to trial counsel’s failure to object to the alleged vouching and bolstering, the
post-conviction court found:

               In this case, the state’s attorney did not overtly express his personal
       belief in Ms. Boyer’s veracity. But the record shows without any doubt the
       prosecuting attorney’s urgency in having the jury believe her testimony. He
       told them in great detail why they should believe her final story, and his act of
       dropping the murder charges against her immediately after she finished her
       testimony couldn’t have said any clearer: “I believe she was telling the truth.”

              Trial counsel did not object to the prosecutor’s conduct.

               In order to establish an ineffective assistance of counsel claim for
       failing to object to prosecutorial misconduct, the misconduct must be “plain
       enough for a minimally competent counsel to have objected.” Washington v.
       Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000). The conduct described in the
       record meets that test. Ms. Boyer’s testimony was the only proof on which the
       jury could have based a verdict of first degree murder. The state had to have
       the jury believe her, despite the conflicting testimony she had previously given.

              After concluding that the prosecutor’s comments were improper, the
       Court must then conclude that the comments “so infect[ed] the trial with
       unfairness as to make the resulting conviction a denial of due process.”
       Darden v. Wainwright, 477 U.S. 168, at 181 (1986). The Court concludes that
       the record satisfies that test, also.

The post-conviction court then concluded:

              The Court finds and holds that the conduct of [the Petitioner’s] trial
       attorney in (1) not seeking a severance when it became obvious that Ms. Boyer
       was going to incriminate him, and (2) in not objecting to the State’s bolstering
       and vouching for Ms. Boyer’s testimony fell below the standard of care.




                                              -21-
               The court also finds and holds that but for the deficient performance
       there is a reasonable probability that the result of the proceedings would have
       been different.

       Relative to ineffective assistance in failing to object to prosecutorial misconduct, the
post-conviction court’s order states:

               Grounds (7) and (8) allege prosecutorial misconduct related to a juror
       /assistant District Attorney relationship not disclosed during voire dire,
       Ground (9) alleges prosecutorial misconduct by making improper statements
       to the jury, and ground (10) alleges ineffective assistance of counsel for failure
       to object to the prosecutorial misconduct.

             The Court finds that these grounds are now foreclosed because they
       were previously determined by the Court of Criminal Appeals and found not
       to amount to reversible error. . . .

              Since the grounds were not prejudicial to the petitioner’s case it would
       not be ineffective assistance of counsel to fail to object to them (ground 10).

A.     Failure to Object to Vouching and Bolstering

        We consider, first, the post-conviction court’s grant of relief for trial counsel’s failure
to object to alleged vouching and bolstering of Ms. Boyer’s testimony. Vouching occurs
when a prosecutor expresses personal opinion that a witness is telling the truth. See, e.g.,
State v. Sexton, 368 S.W.3d 371, 419-20 (Tenn. 2012); State v. Goltz, 111 S.W.3d 1, 6-7
(Tenn. Crim. App. 2003). Our supreme court has repeatedly condemned a prosecutor’s
expression of personal belief in the truth or falsity of evidence. See, e.g., Sexton, 368 S.W.3d
at 420. The term “bolstering” generally refers to the admission of a witness’s prior consistent
statement. See State v. Hodge, 989 S.W.2d 717, 725 (Tenn. Crim. App. 1998); State v.
Robert D. Walsh, No. W1999-01473-CCA-R3-CD, 2001 WL 91949, at *8 (Tenn. Crim. App.
Jan. 30, 2001) (“‘[B]olstering’ generally refers to the situation in which the state offers a
prior consistent statement of the victim to enhance the credibility of her testimony at trial.”),
perm. app. denied (Tenn. June 4, 2001). Although bolstering is not permitted as a general
proposition, it may be allowed to rehabilitate the credibility of a witness whose testimony is
impeached during cross-examination as being a “recent fabrication” or “deliberate
falsehood.” State v. Frederick Herron, — S.W.3d —, —, No. W2012-01195-SC-R11-CD,
2015 WL 1361262, at *11 (Tenn. Mar. 26, 2015).




                                               -22-
       We note, first, that the conduct upon which the post-conviction court granted relief
does not fit the definition of bolstering because the Petitioner did not complain in the petition
of admission of prior consistent statements to bolster the credibility of Ms. Boyer’s
testimony. We will consider whether the State improperly vouched for her testimony.

        In that regard, we note the post-conviction court’s erroneous finding that the State
announced at the end of Ms. Boyer’s testimony that it was dropping the murder charge
against her. The trial record reflects that the State announced its intent relative to Ms. Boyer
to pursue a first degree murder conviction under a theory of criminal responsibility for the
conduct of another. See T.C.A. § 39-11-402 (2014). In his brief, the Petitioner characterizes
the State’s action after Ms. Boyer’s testimony as “downgrad[ing] to some sort of ‘bystander’
status.” However, Ms. Boyer continued to face the prospect of a conviction of first degree
murder, and the record reflects that the jury was instructed accordingly. Nevertheless, we
acknowledge that the prosecutor’s announcement regarding the State’s theory relative to Ms.
Boyer immediately after her testimony inevitably would have conferred some indicia of the
State’s belief in her testimony.

       We have considered the prosecutor’s conduct relative to Ms. Boyer’s testimony, his
vigorous cross-examination of defense witnesses, and his closing arguments. Relative to the
question of vouching, we conclude that despite the theme that Ms. Boyer was believable and
the Petitioner was not, the district attorney limited his argument in this regard to highlighting
facts why Ms. Boyer’s testimony should be accredited and why the Petitioner’s should not.
The district attorney did not make inappropriate statements about his personal belief in Ms.
Boyer’s testimony. We are concerned by the tenor of the prosecution’s closing arguments,
and we will consider them further below. That aside, we have not found in the trial record,
nor has the Petitioner pointed us to, any express statement of the prosecutor’s personal belief
in Ms. Boyer’s testimony. We conclude that the evidence preponderates against the post-
conviction court’s determination that the prosecutor improperly vouched for Ms. Boyer’s
credibility. To the extent that the post-conviction court granted relief on this basis, it erred.

B.     Failure to Object to Other Alleged Prosecutorial Misconduct

        The Petitioner contends that the post-conviction court erred in denying relief on his
ineffective assistance of counsel claim relative to trial counsel’s failure to object to multiple
instances of prosecutorial misconduct during the trial, which he contends were magnified by
the role of Ms. Boyer’s attorney in attacking him and his character. The Petitioner identifies
the following as prosecutorial misconduct:




                                              -23-
       1.     Direct examination of Ms. Boyer about the Petitioner’s poor
              parenting, his sporadic work history, and his failure to provide
              financially for his family’s necessities.

       2.     Cross-examination of defense witnesses about the veracity of
              the Petitioner’s statement about his income on an application for
              governmental assistance and cross-examination of the
              Petitioner’s relatives, for whom the Petitioner worked, about
              their business record-keeping practices.

       3.     Cross-examination implying that the Petitioner was not a good
              father by asking whether he had called to check on his daughter
              since she had been placed in DHS custody and by asking if he
              had called Ms. Boyer on the night of the victim’s injuries to see
              if she or the children needed anything.

       4.     Closing arguments designed to inflame the jury’s passions.

The State responds that counsel was under no compulsion to object to the alleged instances
of misconduct and that the Petitioner has not established a reasonable probability of a
different result had counsel objected.

        As we have stated, the post-conviction court found that prosecutorial misconduct was
raised in the appeal of the conviction and that although error occurred, it did not rise to the
level of plain error requiring reversal. In disposing of the post-conviction claim of
ineffective assistance of counsel for failure to object to prosecutorial misconduct, the court
concluded that this court’s determination of no reversible error meant that trial counsel’s
performance could not have been deficient in failing to object. We note that the issue raised
in the direct appeal was prosecutorial misconduct, whereas the issue raised in the post-
conviction action is ineffective assistance of counsel in failing to object to prosecutorial
misconduct. We likewise note that the Petitioner raised allegations in the post-conviction
action of instances of prosecutorial misconduct at the trial that were not considered by this
court in the appeal of the conviction. We do not view the previous determination of no
reversible error on limited allegations of prosecutorial misconduct to foreclose consideration
of counsel’s effectiveness in failing to object to the alleged prosecutorial misconduct.

       Regarding the failure to object to testimony about the Petitioner’s previous physical
abuse of the victim, his intimidation of Ms. Boyer, and his failure to support his family, we
note that the Petitioner’s defense included the theory he was a good parent. Regarding the
evidence of his dishonesty about his income, we note that he placed his credibility in question

                                             -24-
by testifying. We acknowledge, though, that some of the unfavorable evidence went beyond
the bounds of relevance and that counsel did not object to the prosecutor’s questions that
elicited the evidence. At the post-conviction hearing, trial counsel was not asked why he did
not object to these matters. Because counsel was not asked about his lack of objections, we
are unable to assess whether counsel’s lack of objections was a matter of trial strategy, and
in any event, we will not scrutinize counsel’s strategic and tactical decisions absent clear and
convincing evidence they were uninformed due to counsel’s inadequate preparation. See,
e.g., Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

       Regarding the closing arguments, we again recognize that this court stopped short of
recognizing plain error in the previous appeal but determined that the district attorney’s
Biblical references were improper. We believe the argument regarding the autopsy report’s
not showing a broken heart and the query whether the Petitioner was going to go free for
breaking the victim’s heart were improper because they were designed to inflame to the
jury’s emotions. See Goltz, 111 S.W.3d at 6 (stating that a prosecutor “should not use
arguments calculated to inflame the passions or prejudices of the jury”) (quoting Standards
Relating to the Prosecution Function and the Defense Function, §§ 5.8-5.9, Commentary
(ABA Project on Standards for Criminal Justice, Approved Draft 1971)). We also note the
references to the Petitioner’s application for public assistance. While the Petitioner’s false
statement on a governmental assistance application regarding his income was relevant
evidence to impeach his credibility, argument that the Petitioner did not work regularly and
forced Ms. Boyer, the victim, and his child with Ms. Boyer to live on public assistance was
inappropriate to the extent that it relied upon economic prejudices that the jurors might have
harbored. See id. at 7. We conclude that proper bases for objection by counsel existed.

      Determining that objections could have been made appropriately, however, does not
necessarily mean trial counsel performed deficiently in failing to make them.

       This court has previously considered “whether the failure to object during a
       closing argument is generally sufficient for a showing of ineffective assistance
       of counsel.” Derek T. Payne v. State, No. W2008-02784-CCA-R3-PC, 2010
       WL 161493, at *15 (Tenn. Crim. App. Jan.15, 2010), perm. app. denied (Tenn.
       May 10, 2010) (citation omitted); see Lemar Brooks v. State, No. M2010-
       02451-CCA-R3-PC, 2012 WL 112554, at *14 (Tenn. Crim. App. Jan. 11,
       2012), perm. app. denied (Tenn. May 16, 2012). Trial counsel’s decisions of
       whether to object to the arguments of opposing counsel “‘are often primarily
       tactical decisions.’” Lemar Brooks, 2012 WL 112554, at *14 (quoting Derek
       T. Payne, 2010 WL 161493, at * 15). Trial counsel could refrain from
       objecting for several valid tactical reasons, including not wanting to emphasize
       unfavorable evidence. Derek T. Payne, 2010 WL 161493, at * 15. As a result,

                                              -25-
       “testimony from trial counsel as to why he or she did not object to the
       allegedly prejudicial remarks is essential to determine whether trial counsel
       was ineffective.” Lemar Brooks, 2012 WL 112554, at * 14. Absent testimony
       from trial counsel or evidence indicating that counsel’s decision was not
       tactical, “we cannot determine that trial counsel provided anything other than
       effective assistance of counsel.” State v. Leroy Sexton, No. M2004-03076-
       CCA-R3-CD, 2007 WL 92352, at *5 (Tenn. Crim. App. Jan.12, 2007), perm.
       app. denied (Tenn. May 14, 2007).

Gregory Robinson v. State, No. W2011-00967-CCA-R3-PD, 2013 WL 1149761, at *79
(Tenn. Crim. App. Mar. 20, 2013), perm. app. denied (Tenn. Aug. 14, 2013).

        At the post-conviction hearing, the Petitioner’s attorney asked trial counsel, “Do you
recall if you objected at all during the trial?” Counsel responded, “I’m sure I did if there was
something to object to. I hope I did.” The Petitioner’s attorney then asked if counsel
objected to Ms. Boyer’s testifying, and counsel stated he did not recall. Aside from the
question about whether he objected to Ms. Boyer’s testifying, counsel was not asked about
his rationale for objecting or not objecting to any specific matter. As a result, we are unable
to determine whether counsel chose not to object to the State’s closing argument as a valid,
informed trial strategy, such as to avoid calling greater attention to it.

        Upon review, we conclude that the Petitioner failed to establish that trial counsel’s
failure to object to irrelevant evidence and improper argument was deficient performance.
Counsel was not asked to explain any of his decisions not to object to the evidentiary matters,
aside from his being asked whether he objected generally to Ms. Boyer’s testifying. He
likewise was not asked to explain his decision not to object to the State’s closing argument.
The record does not support a conclusion that counsel’s lack of objections was a product of
uninformed trial strategy.

       We conclude, as well, that the Petitioner did not establish prejudice. Although trial
counsel did not object when the prosecution cast the Petitioner in an unflattering light and
made inappropriate arguments, we cannot overlook that the medical evidence was
inconsistent with the Petitioner’s theory the victim was injured in a highchair fall and that the
medical evidence supported the State’s theory that the victim was thrown into a wall. Ms.
Boyer testified that the Petitioner caused the injuries, and a neighbor testified about hearing
a thump and seeing a man and a woman running in the trailer the Petitioner shared with Ms.
Boyer and the children. The proof established the Petitioner’s guilt of the offense. He
cannot establish prejudice from any lack of objections to evidentiary matters or closing
argument. He is not entitled to relief on this basis.



                                              -26-
                                              III

       The Petitioner contends that the post-conviction court erred in denying post-
conviction relief on his ineffective assistance claim relative to trial counsel’s failure to
investigate and develop expert medical proof. This court’s opinion in the appeal of the
conviction summarized the State’s medical proof:

               Dr. Cleland Blake, the assistant chief medical examiner for Tennessee,
       testified that he performed an autopsy on the victim on November 23, 1995.
       He said the victim had many bruises of differing ages on his body. He said the
       victim had fresh bruises covering the left side of his face, a bruise under the
       high right part of his scalp, and a broken right collarbone. He said the victim
       had deep bleeding under his scalp at the top of his head and in the right side
       of his brain under the skull. He said that this type of bleeding is caused by an
       impact to the left side of the head which forces the brain across the skull and
       causes it to bounce against the other side of the skull, tearing blood vessels and
       causing the bleeding. He said the victim had swelling and compression of the
       brain that pushed the brain stem down to the hole in the base of the skull and
       cut off the victim’s blood supply, ultimately causing his death.

               Dr. Blake testified that the victim’s fatal injury was on the left side of
       the victim’s face on his jaw, left cheek, temple, and behind his left ear. He
       said the injury was caused by the blunt impact of a surface that pressed the left
       ear against the head. He said that when the victim arrived at the emergency
       room at 11:00 p.m., the victim was unconscious. He said the injury would
       have occurred two to three hours earlier, not immediately before he was
       brought to the hospital. He said the victim had fresh injuries on the left side
       of his face, the back of his head, the back of his right shoulder, and his
       buttocks. He said that the bruise on top of the victim’s head was consistent
       with the victim falling out of a highchair, but it did not cause his death. He
       said it is inconceivable that the victim’s internal bleeding or brain injuries
       resulted from falling out of a highchair, and to receive such injuries from a
       fall, the victim would have had to fall more than twenty feet. He said the
       victim’s injuries were consistent with child abuse, and the victim’s fatal injury
       had to be from a very forceful blunt impact between an object and the victim’s
       head. He said that after the victim received the injury, he would have
       gradually lost consciousness, which could have caused him to fall out of the
       highchair. He said the injuries on the victim’s back and right shoulder and his
       broken collarbone show that there were definitely two impacts.



                                              -27-
               On cross-examination, Dr. Blake testified that the victim had some
       bruising where life support equipment was attached, but he said the bruising
       was different from the victim’s injuries. He said that attempts to resuscitate
       the victim by slapping him hard on the face would not have caused the victim’s
       injuries or his death. He said the victim’s bruises that were one to two days
       old did not contribute to his death.

       ....

              Dr. Peter V. Claussen testified that he was on duty at the University of
       Tennessee Hospital in Knoxville that night. He said the victim was flown to
       UT Hospital from Campbell County by LifeStar. He said the victim’s
       symptoms were consistent with a blunt, closed-head trauma, and the victim had
       massive bleeding inside the brain. He said the victim had other injuries
       consistent with child abuse. He said the victim’s injuries could not have been
       caused by a fall from a highchair. He said the fall would have had to be from
       about twenty feet. He said the victim’s injuries were consistent with him
       having been thrown into a wall with substantial force, and the fatal injuries
       occurred one to two hours before the victim was brought to the emergency
       room. He said the victim may have lost consciousness from the blow, regained
       consciousness, then deteriorated again. He said it would take the victim one
       to two hours after the injury to become cold, to have a weak pulse, and to be
       near death.

              On cross-examination, Dr. Claussen testified that it would be possible
       for a strong, young adult male to throw the victim into a wall covered with
       paneling. He said that such a force would cause the injuries the victim
       received.

Curtis Cecil Wayne Bolton, 1999 WL 93107, at *2-4.

       After reviewing this trial proof and receiving the post-conviction hearing testimony
of Drs. Davis and Mileusnic-Polchan, the post-conviction court stated in its final order:

             The petitioner alleges that trial counsel should have searched for a
       medical expert to refute the conclusions of the state’s experts who stated their
       conclusions about [the victim’s] injuries.

             The critical evidence from the state’s experts (viewed in hindsight)
       involved the time the fatal injuries occurred, the force that was used, and

                                             -28-
       whether a petite woman, a short time after giving birth herself, could have
       inflicted the injuries that caused the child’s death. Both experts concluded that
       a fall from a high chair would not have caused the child’s injuries.

              At the hearing on the post conviction petition, counsel for the petitioner
       presented an eminent medical expert who had reviewed the trial transcript, the
       autopsy report and accompanying pictures. He agreed with the cause of death
       (blunt trauma to the head) but disputed the conclusion about the amount of
       force used (a fall from a one or two-story building). He admitted that he
       couldn’t say how or when the trauma occurred. His opinion was that it could
       have been caused by hitting the wall, or the floor, or by being hit by a moving
       object. His opinion also was that a petite woman could have thrown the child
       into the wall and caused his death.

              The Court concludes that the facts in this record do not satisfy the
       second prong of the Strickland test: a reasonable probability that with the
       expert’s evidence the result of the criminal trial would have been different.
       The only part of the state’s expert evidence that is absolutely controverted by
       the expert who testified at the post-conviction hearing was the opinion that the
       force causing the victim’s injuries was equivalent to a fall from a one or two-
       story building.

             Although the new opinion expressed a belief that the injuries could
       have been caused by a much smaller force, even the new expert hesitated to
       conclude that a fall from a high chair would have been sufficient.

              Finding an expert who would have implicated Ms. Boyer was the last
       thing on counsel’s mind before the criminal trial. As far as he and Mr. Bolton
       were concerned, the two defendants were “on the same page.”

              The Court rejects this argument as a ground for post conviction relief.

       The evidence at the post-conviction hearing showed that although trial counsel met
with Dr. Blake before the trial, counsel did not seek an independent expert’s review of the
medical evidence. Both Dr. Davis, the Petitioner’s medical expert, and Dr. Mileusnic-
Polchan, the State’s medical expert, agreed with Dr. Blake regarding the cause and manner
of death. Dr. Davis and Dr. Mileusnic-Polchan both questioned Dr. Blake’s use of the
analogy of the force required to cause the victim’s injuries being equivalent to a fall from one
to two stories. Dr. Davis said the victim’s injuries could have resulted from a fall from a
highchair. He thought this scenario was possible but was highly unlikely. Dr. Mileusnic-

                                              -29-
Polchan found it “inconceivable” that a highchair fall would have resulted in injuries of the
magnitude of the victim’s. She said, though, that current medical knowledge provided that
short falls might occasionally result in deadly trauma. Dr. Mileusnic-Polchan excluded
childhood play as the origin of the victim’s injuries based upon their distribution and extent.
Dr. Davis said the victim’s injuries were consistent with a number of scenarios other than the
theory advanced by the State, although he thought Dr. Blake had alluded in his testimony to
the possibility of other mechanisms of injury. Dr. Davis questioned Dr. Blake’s opinions
regarding the ages of some of the victim’s bruises and said determining the age of a bruise
was considered problematic pursuant to current medical knowledge. Dr. Davis said that even
at the time of the trial in the 1990s, he would have been uncomfortable providing opinion
testimony about the age of a person’s bruises. Dr. Mileusnic-Polchan was less concerned
about Dr. Blake’s testimony about the ages of the bruises and noted that Dr. Blake
microscopically examined tissue, which was more accurate than determining bruise age by
visual inspection. Dr. Mileusnic-Polchan said that most of the victim’s bruises occurred
about twenty-four hours before his death, although some could have been as much as one
week old.

        Regarding the timing of the victim’s head injury, Dr. Davis said Dr. Blake’s testimony
that “at least an hour or so could have passed” between the victim’s sustaining a head injury
and the onset of symptoms was speculative and was not scientifically supported. Dr. Davis
said it was impossible to pinpoint the time of the victim’s head injury. Dr. Davis disagreed
with Dr. Blake’s opinion that the victim’s head injury could have occurred suddenly from a
massive brain bleed and said no guidelines existed regarding the amount of time a child
might live after a massive brain bleed. In Dr. Mileusnic-Polchan’s opinion, the victim’s head
trauma and clavicle fracture occurred twenty-four to forty-eight hours before his death, and
she said that had she been called as a witness, she would have testified that the injuries
occurred in the morning, around noon, or early afternoon of November 22, the day before the
victim’s death.

        In Dr. Davis’s opinion, no forensic evidence showed that a 5'8", 150-pound man was
the perpetrator, nor did any forensic evidence exclude the possibility that the perpetrator was
a petite woman. In his opinion, it would be possible for a petite woman to throw the victim
into a wall with sufficient force to cause the injuries. He said that in other cases in which he
served as an expert witness, he had sometimes been allowed to remain in the courtroom to
evaluate other medical testimony and that he helped attorneys formulate cross-examination
questions. Despite their disagreements with some of Dr. Blake’s opinions, both Dr. Davis
and Dr. Mileusnic-Polchan agreed with significant components of Dr. Blake’s testimony and
both said they did not think Dr. Blake’s testimony was misleading.




                                              -30-
       We note that the post-conviction court did not make an explicit finding regarding
whether trial counsel’s performance was deficient in failing to investigate the medical
evidence. The record reflects that counsel met with Dr. Blake and that Dr. Blake was
cooperative in answering counsel’s questions. At the trial, Dr. Blake testified that although
the victim had a non-fatal bruise on top of the victim’s head that was consistent with falling
from a highchair, it was “inconceivable” that the victim’s internal bleeding or brain injuries
resulted from a highchair fall. Dr. Blake said that for the victim’s fatal injuries to have
occurred in a fall, the victim would have had to fall more than twenty feet. He said the
victim’s injuries were consistent with child abuse, and the victim’s fatal injury had to be from
a very forceful blunt impact between an object and the victim’s head. The post-conviction
evidence shows that Dr. Blake was available to discuss the evidence with counsel and that
Dr. Blake’s opinions were inconsistent with the defense theory. The failure to ascertain or
understand the extent of Dr. Blake’s opinions before the trial constituted deficient
performance. Had counsel anticipated that the chosen defense was inconsistent with the
State’s medical proof, he would have known that further investigation into an alternative
defense was warranted. In that regard, an appropriate inquiry into Dr. Blake’s opinions
should have prompted counsel to seek an independent review of the medical evidence. In
addition to providing an independent review, a defense expert could have assisted counsel
in preparing for cross-examination.

       We note that although Ms. Boyer initially gave statements to law enforcement that
mentioned the fall from the highchair when the Petitioner was not home and omitted any
allegations of the Petitioner’s abusing the victim, she later gave a statement before the
autopsy report was available in which she said the Petitioner threw the victim against a wall.
Curtis Cecil Wayne Bolton, 1999 WL 93107, at *13. We have reviewed Ms. Boyer’s pretrial
statements and her trial testimony. In her initial statements, she appeared to believe the
victim’s highchair fall caused his death, and she testified at the trial that she was told initially
the police believed the highchair fall and her resuscitation efforts caused the victim’s death.
Although her final pretrial statement to law enforcement indicated that the Petitioner
whipped the victim vigorously and threw him onto a bed and that the victim hit his head on
a wall when he was thrown on the bed, Ms. Boyer’s trial testimony provided greater detail
about her hearing a thump in the victim’s bedroom, going to the bedroom, and seeing the
Petitioner throw the victim against the wall and cause a second thump. Ms. Boyer’s
succession of pretrial statements, culminating in her disclosing some of the Petitioner’s abuse
of the victim, pointed to the need for further investigation by counsel of the medical proof
and the planned theory of defense.

       The expert testimony at the post-conviction hearing regarding the timing of the
injuries likewise highlighted the need for inquiry beyond Dr. Blake’s opinions. We
acknowledge the lack of proof that trial counsel could have discovered, before the trial, that

                                               -31-
Ms. Boyer would testify for the State. We recognize that Ms. Boyer’s defense may have
planned to surprise the Petitioner with their strategy when the trial began. We conclude,
though, that counsel’s investigation of the medical proof was deficient performance.

        The remaining question is whether the Petitioner established that he was prejudiced
by trial counsel’s failure to obtain a defense medical expert. In that regard, we note that the
expert medical proof at the post-conviction hearing did not contradict Dr. Blake’s testimony
regarding the cause and manner of death. Like Dr. Blake, Dr. Mileusnic-Polchan thought the
possibility of the victim’s injuries being sustained in a fall from a highchair was
inconceivable, and Dr. Davis thought it was extremely unlikely. We acknowledge that as the
case developed with Ms. Boyer testifying the Petitioner injured the victim by throwing the
victim against a wall rather than in a highchair fall, the timing of the injury became
significant. Although a defense medical expert might have been able to challenge Dr. Blake’s
testimony that the injury occurred around one to three hours before the victim presented at
the emergency room, the evidence nevertheless overwhelmingly points to the Petitioner as
the person who fatally injured the victim. Ms. Boyer implicated the Petitioner, and her
testimony was corroborated by the neighbor’s testimony about hearing thumps come from
the Petitioner and Ms. Boyer’s trailer and seeing a man and woman run back and forth in the
hall of the trailer. Ms. Boyer’s trial testimony corroborated that the neighbor could have seen
into the trailer in the manner the neighbor described. As this court noted in the appeal of the
Petitioner’s conviction,

       The medical examiner testified that the victim’s injuries did not come from a
       highchair fall but rather from a strong impact to the victim’s head with a blunt
       object. It is significant that when Ms. Boyer finally told Detective Smith about
       the defendant slamming the victim into the wall, it was before the autopsy
       results, which supported Ms. Boyer’s statement, were available.

Curtis Cecil Wayne Bolton, 1999 WL 93107, at *13. We conclude that despite counsel’s
deficient investigation of the medical proof, the post-conviction court did not err in
concluding that the Petitioner failed to show prejudice through proof of a reasonable
probability of a different result at the trial. The Petitioner is not entitled to relief on this
basis.

                                              IV

       The Petitioner contends that the post-conviction court erred in denying relief on his
ineffective assistance of counsel claim relative to trial counsel’s advice regarding the plea
offer and the amount of time the Petitioner would be required to serve in prison if he were
convicted of first degree murder. The court found the following:

                                              -32-
               The Court does find that [the Petitioner] was given erroneous
       information. But he always adamantly insisted he was innocent. His mother
       was present when the offer was being considered and she insisted that he turn
       it down. His sister-in-law, who was present, heard all the discussion and
       testified that the erroneous information was given but she clearly remembered
       her mother-in-law’s insistence.

               Another circumstance that bears on [the Petitioner’s] credibility on this
       issue is the fact that he did not raise the issue in his first or second petition for
       relief. The sister-in-law testified that she learned the bad news two or three
       days after he was convicted. [The Petitioner] himself testified that he learned
       the bad news while he was at the classification center in Nashville before the
       case went up on direct appeal. Yet when he filed his first petition for post-
       conviction relief (approximately four years later) he did not raise that issue.
       The Court is not convinced that [the Petitioner] rejected the state’s offer
       because of the erroneous advice of his trial counsel.

       Upon review, we conclude that the evidence does not preponderate against the post-
conviction court’s factual finding that the Petitioner was given erroneous advice. The failure
to provide the Petitioner with accurate information about parole eligibility and the required
minimum service of the sentence was deficient performance.

        The Petitioner is not entitled to relief, though, unless he has established that he was
prejudiced by counsel’s deficient performance. The post-conviction court’s order reflects
that the court was influenced by two factors in rejecting the Petitioner’s testimony as credible
regarding whether he would have accepted the plea offer: (1) his insistence he was innocent
and his mother’s insistence he not accept the offer at the plea offer meeting, and (2) his
failure to raise the issue earlier than he did.

       Regarding the events of the plea offer meeting, Ms. Stalnaker testified that the
Petitioner’s mother told the Petitioner and trial counsel that the Petitioner would not accept
the offer. Ms. Stalnaker said that the Petitioner’s mother did most of the talking and that the
Petitioner did not say much in the meeting. The Petitioner testified that his mother said he
would refuse the offer and go to trial. He said the decision was his and that he told counsel
he would not accept any offer and wanted to go to trial. Counsel testified that the Petitioner
said he was not guilty and wanted to go to trial. He specifically recalled the Petitioner’s
saying he was going to trial for the victim. Mr. Beaty corroborated counsel’s testimony that
the Petitioner said he was going to trial for the victim. The evidence shows that although the
Petitioner’s mother stated that the Petitioner would not accept the plea offer, the Petitioner
made his own decision and communicated his intent to counsel. The evidence also shows

                                               -33-
that the Petitioner was adamant in his rejection of the offer, albeit based upon erroneous
advice.

       Regarding the post-conviction court’s evaluation of the Petitioner’s credibility, in part,
based upon the Petitioner’s failure to raise the issue sooner, a review of the procedural
history informs our analysis. Permission to appeal the conviction was denied in September
1999, and the Petitioner filed his pro se post-conviction petition in September 2000. Counsel
was appointed in 2000 but permitted to withdraw in 2001 after filing a motion stating he had
a conflict of interests, and new counsel was appointed. In late 2002, the second attorney
appears to have filed a motion to amend the petition. A copy of the document that does not
contain a file stamp appears in the technical record, and the certificate of service reflects the
date as December 27, 2002. The motion alleged:

              That during the course of the investigation [of the Petitioner’s post-
       conviction claims], that present counsel did discover that during plea
       negotiations that an offer of 12 years to serve on a Class A felony was
       presented to the Defendant and that Counsel advised the Defendant that if the
       matter went to trial as charged and that the Defendant was convicted and
       Sentenced to Life with Parole, that the Defendant would only have to serve 25
       years.

Counsel sought permission to amend the petition to add an additional ground for relief on
this basis. The record does not reflect that the court ruled on the motion or that the second
attorney filed an amended petition. The second attorney was permitted to withdraw in
September 2005 after the Petitioner filed a complaint against him with the Board of
Professional Responsibility, and new counsel was appointed. The record reflects no further
action until October 2007, when the Petitioner filed a pro se motion to have his counsel
removed. The Petitioner was brought to court in February 2008 in order to meet with his
third attorney, and the record does not reflect further action until April 2010, when the
Petitioner filed a second motion to have his counsel removed. The record next reflects two
pro se motions to have counsel removed in February and April 2012. Around this time, the
Chief Justice of the Tennessee Supreme Court designated a senior judge to hear the case. In
July 2012, the post-conviction court appointed the Petitioner’s present attorney, and she filed
an amended petition in November 2012 that included allegations regarding the erroneous
plea advice.

       Upon review of the lengthy and complex procedural history of this case, we disagree
with the post-conviction court that a layman’s failure to raise the issue in a pro se post-
conviction petition should reflect adversely upon his credibility regarding the decision he
would have made if he had been properly advised about the sentence he faced if he rejected

                                              -34-
the plea offer. We note that the Petitioner’s first appointed attorney never filed an amended
petition and was permitted to withdraw after he discovered a conflict of interests. The
Petitioner’s second attorney alleged that the issue existed in his motion to file an amended
petition. We are gravely concerned by the long delays in this case. We note that the
Petitioner appears to have been dissatisfied with his second and third attorneys, neither of
whom filed an amended petition. Given these facts, we disagree with the post-conviction
court that the Petitioner’s delay in raising an issue regarding the erroneous advice reflects
adversely upon his credibility.

        The remaining question is whether the Petitioner showed clear and convincing proof
he would have accepted the plea offer. Although the post-conviction court erroneously relied
upon the Petitioner’s delay in raising the issue, it was likewise unpersuaded by the
Petitioner’s testimony that he would have accepted the plea offer, given the evidence about
the events of the plea meeting. The Petitioner’s mother strongly desired that the Petitioner
not accept the plea. The Petitioner expressed his desire to reject the offer and go to trial for
the victim. The court rejected the Petitioner’s testimony that he would have made a different
decision if he had received the correct advice. In the face of the court’s rejection of the
Petitioner’s testimony, we conclude that the Petitioner failed to establish his factual claim by
clear and convincing proof and that the evidence does not preponderate against the court’s
determination. The Petitioner is not entitled to relief on this basis.

       In consideration of the foregoing and the record as a whole, we affirm the judgment
of the post-conviction court.


                                            ____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




                                              -35-
