        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       April 8, 2008 Session

                  CHARLES E. JONES v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                              No. P-26528 Lee V. Coffee, Judge




                     No. W2007-01086-CCA-R3-PC - Filed October 6, 2008



The petitioner, Charles E. Jones, was found guilty by a Shelby County Criminal Court Jury of
premeditated first degree murder, and he received a sentence of life imprisonment. Subsequently,
he filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. The post-
conviction court denied the petition, finding that the petitioner failed to prove his allegations by clear
and convincing evidence. The petitioner now appeals this ruling. Upon review of the record and
the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
J.C. MCLIN , JJ., joined.

Autumn B. Chastain, Memphis, Tennessee, for the appellant, Charles E. Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Carrie Shelton and Kirby May, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                               OPINION

                                       I. Factual Background

        On direct appeal, this court summarized the proof adduced at trial as follows:

                       On May 29, 1998, Officer Jeff Dennison of the Memphis
                Police Department was on patrol when he was flagged down by
                Hubert Sturdivant. Sturdivant advised Officer Dennison that there
                was a dead body in Sturdivant’s house at 1357 Taylor Street in
Memphis. Officer Dennison immediately radioed for assistance and
was followed to the scene by Officer Stephen Thaggard. When the
officers arrived at the scene, they saw broken glass on the steps and
porch of the house. As the officers stepped onto the front porch, the
door opened and the [petitioner] stood in the doorway.

        When the [petitioner] opened the door, the officers were able
to see a dead body rolled up in carpet lying on the living room floor.
Officer Dennison immediately ordered the [petitioner] to get down,
then handcuffed him, and placed him in the back of Officer
Thaggard’s car. Both officers observed that the [petitioner] was calm
during the entire episode and never appeared to be upset. The
[petitioner] had scratches on his neck, blood splatters on his left ear,
a scratch on his check, blood splatters in his hair, and a cut on his
finger.

         Officer Thaggard proceeded into the house. He testified at
trial that the victim’s bloody head was sticking out of the carpet. He
saw blood splatters in the living room, on the shades, on the floor,
“everywhere-it’s blood everywhere.” In the dining area, he saw blood
on the floor and marks on the floor that indicated that something had
been dragged across the area. Next to the victim’s body, Officer
Thaggard discovered a bucket of soapy water with a rag in it. He
noted that the water was red, as if discolored by blood. A garbage can
in the room contained broken glass and blood.

        The [petitioner] was taken from the scene to the Regional
Medical Center (Med) for examination and treatment. Captain
Joseph Eldridge of the Memphis Police Department interviewed the
[petitioner] at the Med. Captain Eldridge recounted that he advised
the [petitioner] of his Miranda rights and asked the [petitioner] if he
wanted to give a statement. The [petitioner] answered affirmatively
and responded that he had killed the victim because she had
“disrespected” him and knocked his crack pipe out of his hand.
Captain Eldridge did not reduce this statement to writing.

        The [petitioner] was taken from the Med to the Criminal
Justice Center. After again being advised of his rights, the
[petitioner] gave a written statement. The [petitioner] related that he
met the victim when he “went to the dope house” to buy crack
cocaine. After purchasing the crack cocaine, the [petitioner] went to
a store up the street and purchased beer and cigarettes. The victim,
who was standing in the parking lot of the store, began following the


                                  -2-
[petitioner]. The [petitioner] invited her to accompany him to his
house. When they arrived at his house, the two drank beer and
smoked “$50 dollars worth of crack.” After smoking crack cocaine,
the [petitioner] asked the victim to have sex with him. The victim
agreed and removed her clothes. Later, the victim became angry
when the [petitioner] refused to give her more crack cocaine.
According to the [petitioner], the victim knocked a crack pipe from
the [petitioner’s] hand and they “got to wrestling.”

        The [petitioner] alleged that the victim had a box cutter,
which she began swinging at him, and cut him on the finger. The
[petitioner] insisted that he cut the victim only three times in an effort
to defend himself. He admitted that during their struggle, the victim
was unclothed. He claimed that, after being cut, the victim attempted
to jump through a window. However, there were bars on the window
and she was unable to escape. He contended that the glass from the
broken window caused most of the victim’s injuries.

        [The petitioner claimed that when the struggle ended,] he
panicked and did not know what to do with the victim. He taped the
victim’s ankles and wrists together and placed a garbage bag on the
upper portion of her body. He then rolled the body inside a piece of
carpet. Attempting to clean up the blood, he placed the victim’s
clothes, his clothes, a wig, and the broken glass in a garbage bag. He
then walked out onto his porch and smoked a cigarette.

        The [petitioner] admitted that he did not call for medical
assistance for the victim or call the police. He did not know the
victim’s name and explained that he had never met her before the day
of the incident.

        Dr. O’Brian Cleary Smith, the Shelby County medical
examiner, testified that the autopsy of the victim revealed eighty-three
separate wounds on the victim’s body. He described approximately
sixty-eight stab and incised wounds to the head, neck, torso, and
extremities, opining that seven of the wounds were fatal. The
primary causes of death were: a stab wound through the esophagus;
a stab wound through the left jugular vein; a stab wound through the
subclavicula vein; a stab wound to the right lung; a stab wound
involving tissues of the center of the chest; a stab wound to the left
lung; and a stab wound to the back. He concluded that the wounds
were consistent with injuries from a box cutter, although he
acknowledged that some of the wounds could have been caused by


                                   -3-
                broken glass. However, no glass was found in any of the victim’s
                wounds. Additionally, Dr. Smith reported that the [petitioner’s]
                blood was tested for the presence of cocaine. Dr. Smith related that
                a result of .1 or .2 micrograms of cocaine per milliliter is considered
                normal street level usage. The [petitioner’s] test results showed a
                level of .13 micrograms per milliliter.

State v. Charles E. Jones, No. W2000-02606-CCA-R3-CD, 2001 WL 1381270, at **1-2 (Tenn.
Crim. App. at Jackson, Nov. 2, 2001). On appeal, this court affirmed the petitioner’s conviction.
Id.

         Following this court’s affirmance of his conviction, the petitioner filed a petition for post-
conviction relief, alleging that his trial counsel was ineffective. Namely, the petitioner alleged that
counsel failed to investigate various aspects of his case, to interview all pertinent witnesses, to file
all pertinent pretrial motions, and to properly research or pursue a voluntary intoxication defense.

         At the post-conviction hearing, the petitioner’s trial counsel testified that the petitioner’s case
was originally a capital case and was assigned to the capital case attorneys in the Public Defender’s
Office. However, when the State elected not to pursue the death penalty, the case was reassigned
to trial counsel, who also worked in the public defender’s office.

       Trial counsel said that prior to trial, he had inquired into the victim’s arrest records “using
the computer system.” He conceded that he had failed to discover that the victim had prior
convictions for aggravated assault, prostitution, pedestrian solicitation, and drug possession.

        Trial counsel said that during trial preparation, he and the petitioner met frequently to discuss
the case. Trial counsel testified that the petitioner consistently maintained that the victim’s death
occurred as a result of wounds she sustained while trying to escape through his windows and from
the petitioner’s efforts to defend himself. Trial counsel opined that the version of events the
petitioner shared with him was consistent with the petitioner’s written statement to police and the
discovery materials.

        The petitioner told trial counsel that on the day of the offense, he had worked at a warehouse.
The petitioner said that he used box cutters to open boxes on the assembly line. The petitioner told
trial counsel that when he got off work, he went to a crack house to purchase crack cocaine. After
making the purchase, he went to a nearby convenience store to buy beer. The victim approached him
and asked to share his crack cocaine in exchange for sex. The petitioner said that he and the victim
went to his house where they watched a basketball game on television while drinking beer and
smoking crack. After a couple of hours, the petitioner requested sex. The victim removed her
clothes, and they had “brief sexual intercourse.” Afterward, the victim remained unclothed. The
victim asked for more crack cocaine, but the petitioner refused, saying he wanted to save the last of
his crack rocks for himself.



                                                    -4-
        The petitioner told trial counsel that an altercation ensued after the victim knocked a crack
pipe from his hand onto the floor. The petitioner said that he pushed the victim out of the chair in
which she was sitting. The victim then approached the petitioner with a box cutter, but the petitioner
was able to get the weapon away from her. They wrestled, and the petitioner cut the victim once.
She ran to the door, but the door was deadbolted and the petitioner had the key. The victim went to
the windows on either side of the door, broke the glass, and attempted to get out. However, bars on
the windows prevented her escape. The petitioner told trial counsel that the victim sustained
numerous wounds from the window glass. The petitioner admitted that he “stuck” the victim with
the box cutter three times. The petitioner said that the victim died at some point after her thwarted
attempt to leave. Trial counsel stated that when police arrived at the scene of the crime, they took
pictures of the petitioner’s cuts and abrasions. Trial counsel opined that the petitioner’s injuries were
indicative of a “monumental struggle.”

         The petitioner told counsel that he got a cut on his finger while fighting with the victim.
After his arrest, police took him to the hospital, and he received stitches in his finger. Counsel said
that Officer Joseph Reed Eldridge testified at the preliminary hearing that he did not take a statement
from the petitioner at the hospital. However, on the day of trial the State revealed that it had just
learned that, while at the hospital, the petitioner told Officer Eldridge that he had killed the victim
because she had disrespected him. Trial counsel said that the State disclosed the oral statement
immediately upon discovery of its existence. Trial counsel testified that he spoke with the petitioner
and explained that they could request a continuance to consider their strategy. However, trial
counsel believed that the oral statement supported the petitioner’s version of events, namely that the
struggle began shortly after the victim disrespected the petitioner by knocking his crack pipe out of
his hands. Although the oral statement could have been used to establish a motive for the killing,
counsel said that he did not move to have the statement excluded because it was consistent with the
petitioner’s unwavering version of events. Trial counsel believed that the State’s theory at trial was
that “at some point during the infliction of the wounds . . . he premeditated to kill her.” Trial counsel
conceded that at trial he did not cross-examine Officer Eldridge about his failure to disclose the
statement at the preliminary hearing. Trial counsel surmised that when Officer Eldridge testified at
the preliminary hearing that he had not taken a statement from the petitioner at the hospital, he meant
that he had not taken a written statement from the petitioner.

        The petitioner told trial counsel that most of the victim’s wounds were caused by her attempt
to escape through the broken windows. Trial counsel noted that although the petitioner said he had
removed glass from the victim’s wounds after she fell to the floor, the petitioner had only a single
cut to his finger. Regardless, trial counsel told the petitioner that he would “deal with” that
discrepancy during trial.

         Trial counsel said that he had several discussions with Dr. Smith, the medical examiner who
testified regarding the victim’s autopsy. He specifically asked Dr. Smith if the victim’s wounds
could have been caused by the broken glass. Trial counsel did not request that the glass shards found
on the scene be tested for blood or tissue; however, Dr. Smith stated that the victim’s wounds could
have been caused by sharp glass. Trial counsel said he was surprised when Dr. Smith stated that no


                                                  -5-
glass was recovered from the victim’s wounds and questioned Dr. Smith about it. Trial counsel
would have said that the medical examiner’s office missed the glass during the autopsy, but “that’s
a lot of wounds not to see any glass whatsoever.” Trial counsel acknowledged that he did not
interview Dr. Gunther, the medical examiner who had performed the autopsy, prior to trial because
she had moved to another state. Regardless, trial counsel stated that he felt that he had thoroughly
interviewed Dr. Smith and cross-examined him at trial. Further, Dr. Smith was Dr. Gunther’s
supervisor, and Dr. Smith was present at the autopsy.

        Trial counsel acknowledged that the petitioner, in his written statement to police, maintained
that he could not remember where his first swing of the box cutter struck the victim. Trial counsel
asked the petitioner if he was impaired by drugs or alcohol at the time of the offense, imploring him
to disclose any information that might reveal he was intoxicated and that might lead to a defense.
The petitioner consistently stated that he had a “pleasant buzz” at the time of the offense, but he did
not indicate that he was too impaired to think clearly. Trial counsel learned through his pretrial
investigation that the petitioner had previously sought treatment for his drug addiction.

        Trial counsel said that testing revealed the victim had cocaine in her system. During trial,
trial counsel asked Dr. Smith about the effects of cocaine on the body. However, he did not ask
about the effects of cocaine when coupled with alcohol. Trial counsel explained that he did not ask
the question because the petitioner had not bought much alcohol prior to the offense and because the
incident occurred two to three hours after the petitioner consumed the alcohol.

         Trial counsel stated that he had requested a jury instruction on voluntary intoxication. He
was surprised when the trial court said that the petitioner’s statement that he was “full of dope” was
insufficient to warrant the instruction. Trial counsel conceded that he could have pursued the request
for the instruction more aggressively, but he believed it could have served as a tangential defense at
best. Counsel said that the petitioner was not “knock down sloppy slobbering drunk or high on
cocaine,” and he showed the presence of mind to begin cleaning the crime scene prior to the arrival
of police. Also, Officer Eldridge said that the petitioner acted “calm and collected” when police
arrived on the scene.

        Trial counsel testified that from the beginning of his representation, the petitioner had said
that he would testify at trial. Therefore, trial counsel was “stunned” when the petitioner announced
during trial that he did not want to testify.

         Memphis Police officer Joseph Reed Eldridge testified that when he arrived at the scene,
most of the glass was outside the residence, not inside. At the hospital, the petitioner told Officer
Eldridge that he killed the victim because she disrespected him. Officer Eldridge said that he
testified at the preliminary hearing that he did not take a statement from the petitioner at the hospital
because he did not consider the petitioner’s oral statement to be a formal, written statement. Officer
Eldridge said that the petitioner did not appear to be under the influence at the hospital.

        The petitioner’s mother, Barbara Jones, testified that trial counsel never interviewed her


                                                  -6-
about the petitioner’s drug use. However, she conceded that she did not learn of the petitioner’s drug
use until after he was arrested when a drug dealer came to her house seeking payment from the
petitioner for drugs.

        Dr. O’Brian Cleary Smith testified at the post-conviction hearing that he met with both the
State and trial counsel prior to trial. During the meetings, he went over the autopsy report with them
on a page-by-page basis. The autopsy report stated that the cause of death was sixty-eight “knife”
wounds. Dr. Smith explained that the notation did not necessarily mean that the wounds were
caused by a knife; the notation simply meant that they were “wounds of sharp force.” Dr. Smith said
that the autopsy report indicated that the victim had some defensive wounds. He explained that the
term “defensive wound” was a term of art that was developed in forensics to indicate the injuries
occurred when a person was trying to protect themselves. He said he was reluctant to use the term
in front of the jury because, as a pathologist, he was not present when the wound was inflicted and
could not definitively say how the wound occurred. Dr. Smith said that the medical examiner’s
office had been told that a box cutter was found at the scene; however, the medical examiner’s office
was not advised that some of the wounds were potentially made by glass. Dr. Smith opined that a
“defensive wound” on the victim’s hand could have been caused by holding a shard of glass.

        Dr. Smith said that no glass was detected in the victim’s wounds by either visual inspection
or low level magnification. He stated that additional testing could have been done if it had been
requested. Dr. Smith said that if glass had been found in the wounds, the glass could have been
introduced when the body was rolled in the carpet that had “crumbs of glass” on it. Further, Dr.
Smith noted that “the rug itself contained body fluids or tissue fluids such that finding that sort of
material on a small fragment of glass in association with the rug but not the body would not have
been of value.” On cross-examination, he acknowledged that at trial he testified that “the type of
pattern of injury that I would expect from shards of glass would not be consistent with producing the
cluster type effect of the wounds with the flick marks in those three areas.” Regardless, Dr. Smith
stated that the some of the wounds were consistent with being made by either a glass shard or a box
cutter; however, there was no indication that the wounds were made by glass.

       Dr. Smith said that he discussed with trial counsel the effects of cocaine. Dr. Smith
explained that the use of cocaine initially creates an “excitement phase” which is characterized by
increased blood pressure and stimulation of the heart. The “excitement phase” is followed by a
“crash phase” where an individual’s personality becomes depressed or slowed.

        The petitioner testified that he consistently told trial counsel that he had cut the victim three
times with a box cutter while he was defending himself but that her death resulted from wounds she
sustained when she tried to go through the windows on either side of his door. The petitioner
acknowledged a history of drug abuse. However, he said that theft was the most serious crime he
had ever been convicted of because of his drug addiction. The petitioner told trial counsel that since
he began using crack cocaine in 1992, he had been through several drug treatment programs. The
petitioner recalled, “I also explained to [trial counsel], how can one go from theft to murder, because
I’m a drug addict. I get high. And he was like, it doesn’t matter. He didn’t want to hear anything


                                                  -7-
that I had to say.” The petitioner maintained that trial counsel often told him that his suggestions
were not important.

        The petitioner said that the victim attacked him when he was “paranoid, spooked, and
surprised.” He stated that he fought back by taking away the box cutter and swinging at her with it,
cutting her a total of three times. The petitioner said that after the victim attempted to get through
the windows, she fell to the floor and did not respond when he asked her if she was okay. At that
point, he picked glass out of her wounds, rolled her body in a rug, and started cleaning the house.
The petitioner said he smoked more crack cocaine while he cleaned. He acknowledged that,
although the recitation of events he gave trial counsel was very detailed, he “probably forgot” to tell
trial counsel that he smoked more crack cocaine while cleaning the house. The petitioner said that
he had not changed his story to help himself; he could only remember “portions” of what happened
because of his intoxication.

        The petitioner complained that trial counsel did not put on any proof about the petitioner’s
drug addiction. The petitioner said that he had planned to testify regarding his drug use. The
petitioner maintained that trial counsel should have called the petitioner’s roommate to testify about
the petitioner’s drug use.

        The petitioner maintained that trial counsel should have more vigorously pursued an
instruction on voluntary intoxication. The petitioner acknowledged that trial counsel requested the
instruction, “but he didn’t understand exactly what he was explaining” and the request was denied.
The petitioner said he asked his appellate counsel to include the issue on appeal, but he was told the
issue would have to be raised “[o]n the next appeal.”

         The petitioner said that trial counsel supplied him with copies of all discovery materials, but
he did not review the materials with the petitioner. Prior to trial, he and trial counsel discussed his
trial testimony. However, before voir dire of the jury, trial counsel pulled the petitioner aside and
advised him not to testify because the State would bring in his prior convictions and “eat [the
petitioner] alive.” The petitioner acknowledged that his prior convictions included five counts of
credit card fraud and one conviction for theft.

       The petitioner did not know until the day of trial that the State planned to introduce a
statement he allegedly made to Officer Eldridge at the hospital. The petitioner told trial counsel that
he made no such statement and asked trial counsel to object to it. The petitioner also asked trial
counsel to move to suppress his written statement because he made the statement while under the
influence of drugs and alcohol.

        The petitioner said that he asked trial counsel to do several things prior to trial, such as
investigate the crime scene and ask people in the neighborhood if the victim had assaulted anyone
else. However, the petitioner never received any indication that trial counsel performed the
requested tasks.



                                                  -8-
        The petitioner acknowledged that during his Momon hearing, he told the trial court that he
had intended to testify but that, based upon the development of the State’s proof, he no longer
wanted to take the stand. The petitioner also acknowledged that he told the trial court he was
satisfied with the representation of trial counsel.

        The petitioner maintained that he was telling the truth at the post-conviction hearing but that
trial counsel and Officer Eldridge were not being truthful.

        The post-conviction court found that the petitioner was not a credible witness, stating that
the petitioner “exhibited a very selective memory at the evidentiary hearing.” However, the court
found that trial counsel and Officer Eldridge were credible witnesses. The post-conviction court
found that trial counsel and the petitioner made a tactical decision to focus on self-defense, not
voluntary intoxication. Additionally, the post-conviction court found that the proof indicated that
the petitioner was not intoxicated at the time of the crime or when giving his written statement to
police.

        The post-conviction court found that the State did not learn of the petitioner’s oral statement
to Officer Eldridge until the day of trial and that the State disclosed the statement as soon as it was
discovered. The court further found that trial counsel made a tactical decision not to seek a
continuance after learning of the statement. The post-conviction court noted that the jury rejected
the petitioner’s claim of self-defense, opining that the jury did so because of the strength of the
State’s case on the premeditation issue.

        Regarding the petitioner’s claim that counsel should have submitted proof about the victim’s
criminal history, the post-conviction court found that the petitioner did not know the victim prior to
the crime; therefore, the victim’s criminal history would not have been admissible to prove that the
victim was the first aggressor. The post-conviction court stated that the sole proof that the victim
had glass in her wounds came from the petitioner’s allegations. The court stated that the lack of cuts
on the petitioner’s fingers and the medical examiner’s failure to find glass in the victim’s wounds
suggested that the petitioner’s version of events was improbable. Accordingly, the post-conviction
court found that the petitioner failed to prove by clear and convincing evidence that trial counsel was
ineffective. On appeal, the petitioner challenges this ruling.

                                            II. Analysis

        To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.


                                                 -9-
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). To establish prejudice, the petitioner must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Moreover,

                        [b]ecause a petitioner must establish both prongs of the test,
                a failure to prove either deficiency or prejudice provides a sufficient
                basis to deny relief on the ineffective assistance claim. Indeed, a
                court need not address the components in any particular order or even
                address both if the [petitioner] makes an insufficient showing of one
                component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

        On appeal, the petitioner first argues that his trial counsel was ineffective for “not preparing,
introducing, and arguing for an intoxication charge.” The post-conviction record reflects that trial
counsel requested a charge on voluntary intoxication, but the request was denied. At the post-
conviction hearing, trial counsel stated that the petitioner insisted that he had a “pleasant buzz” but
was not intoxicated. Moreover, Officer Eldridge testified that the petitioner did not seem intoxicated
when they spoke shortly after the crime. Therefore, the post-conviction court found that there was
no evidence that the petitioner was intoxicated at the time of the crime; in fact, the post-conviction
court found that the evidence strongly suggested that the petitioner was in full control of his faculties
when the crime was committed. Accordingly, the post-conviction court found that the petitioner
suffered no prejudice by trial counsel’s failure to pursue a voluntary intoxication charge. We agree
with the post-conviction court.

        Second, the petitioner contends that trial counsel failed to properly investigate and present


                                                  -10-
the petitioner’s claim of self defense. Specifically, the petitioner notes trial counsel’s failure to
interview Dr. Gunther, his failure to have the glass collected at the scene tested for blood or tissue,
his failure to request additional testing of the wounds to check for glass, and his failure to object to
the characterization on the autopsy report of certain wounds as “defensive wounds.”

         The post-conviction court found that Dr. Smith’s testimony comported with the information
contained in the autopsy report. The record supports this finding. Further, the petitioner failed to
present the testimony of Dr. Gunther at the post-conviction hearing to demonstrate how her
testimony would have differed from Dr. Smith’s testimony. Generally, “[w]hen a petitioner contends
that trial counsel failed to discover, interview, or present witnesses in support of his defense, these
witnesses should be presented by the petitioner at the evidentiary hearing.” Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not speculate on what benefit Dr. Gunther
might have offered to the petitioner’s case, nor may we guess as to what evidence further
investigation may have uncovered. Id.

        Regarding the petitioner’s complaint that trial counsel failed to have the glass recovered at
the scene tested for blood and tissue, we note that counsel testified that he interviewed Dr. Smith
several times and asked about the presence of glass. Dr. Smith told counsel that there was no
evidence of glass in the wounds. The post-conviction court found such a lack of glass to be “telling,”
finding the petitioner’s version of events incredulous. We conclude that the post-conviction court
did not err in finding no prejudice in this regard.

        The petitioner also complains regarding trial counsel’s failure to object to the characterization
on the autopsy report of certain wounds as “defensive wounds.” The record reflects that although
Dr. Smith testified that he preferred not to use the term “defensive wound,” he acknowledged that
the phrase is a “term of art” commonly used by medical examiners. Dr. Smith said that in the instant
case, the defensive wound on the victim’s hand could have been caused by her holding a shard of
sharp glass. However, there was no allegation, even from the petitioner, that the victim ever held
glass. Dr. Smith acknowledged that he was questioned extensively about the wounds at trial, and
he explained the wounds in detail. Accordingly, we conclude that the petitioner has failed to prove
how Dr. Smith’s use of the contested term prejudiced him.

       Next, the petitioner maintains that trial counsel should have moved to suppress Officer
Eldridge’s testimony concerning the petitioner’s oral statement at the hospital. The petitioner
contends that the State’s failure to disclose the statement prior to trial was a violation of Tennessee
Rule of Criminal Procedure 16 which prejudiced the petitioner. The petitioner asserts that trial
counsel’s ineffectiveness in this regard was compounded by his failure to interview the police
witnesses prior to trial. Further, the petitioner contends that trial counsel was ineffective by failing
to move to suppress his written statement to police, contending that he was under the influence of
drugs and alcohol when the statement was made.

       Tennessee Rule of Criminal Procedure 16(a)(1)(A) provides that, upon request, the State
must allow a defendant to inspect and copy any relevant written statements made by the defendant


                                                  -11-
which are “within the possession, custody or control of the state.” At the post-conviction hearing,
Officer Eldridge testified that he did not tell the State about the oral statement until the day of trial.
Trial counsel testified that the State disclosed the oral statement immediately upon its discovery, and
the trial court gave the defense the opportunity to consider overnight whether to seek a continuance.
Trial counsel said that, after discussing the issue with the petitioner, the defense decided not to
pursue a continuance. Trial counsel concluded that the oral statement was not inconsistent with the
petitioner’s version of events, and, after discussions with the petitioner, the petitioner said he did not
want a continuance. Pursuant to Rule 16, one of the options available to the trial court if a party fails
to comply with the Rule is to grant a continuance. We note that suppression of evidence upon a Rule
16 violation is a drastic remedy reserved for the most flagrant of violations. See State v. House, 743
S.W.2d 141, 146 (Tenn. 1987). Moreover, we note that trial counsel stated that he was unsure of any
benefit which could have been gained by a continuance. Further, trial counsel’s decision not to seek
a continuance was trial strategy which, even if questionable, we will not second-guess. See State
v. Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). Therefore, we conclude that trial counsel was not
ineffective in this regard.

         Regarding the petitioner’s complaints about the failure to suppress his written statement, we
note that the petitioner admitted that during his Momon hearing he told the trial court that he
knowingly and voluntarily gave his written statement to police. Officer Eldridge testified that the
petitioner was calm and collected after the crime and that he did not appear to be under the influence
of an intoxicant at the time he gave his statement. Moreover, the petitioner repeatedly told counsel
that he was not intoxicated. Further, the post-conviction court stated that the petitioner’s post-
conviction testimony was not credible. Based upon this evidence, the post-conviction court found
that trial counsel was not ineffective for failing to move to suppress the written statement. We agree.
Thus, we conclude that the petitioner has failed to prove his allegations of ineffective assistance of
counsel.

                                           III. Conclusion

        Finding no reversible error, we affirm the judgment of the post-conviction court.



                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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