        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 10, 2012

                    JOSEPH MAY V. STATE OF TENNESSEE

                  Appeal from the Criminal Court of Shelby County
                      No. 04-03616    J. Robert Carter, Judge


                 No. W2011-01183-CCA-R3-PC - Filed August 1, 2012


Joseph May (“the Petitioner”) filed for post-conviction relief from his conviction of first
degree premeditated murder. The Petitioner contends that his trial lawyer provided
ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court
denied relief. This appeal followed. Upon our careful review of the record and applicable
law, we affirm the judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

R. Todd Mosley, Memphis, Tennessee, for the appellant, Joseph May.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Betsy Weintraub, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

       In September 2006, a jury convicted the Petitioner of one count of first degree
premeditated murder, committed in January 2004. The trial court subsequently sentenced the
Petitioner to life imprisonment. This Court affirmed the Petitioner’s conviction and sentence
on direct appeal. See State v. Joseph May, No. W2006-02479-CCA-R3-CD, 2009 WL
1585810, at *10 (Tenn. Crim. App. June 8, 2009). In addressing the Petitioner’s direct
appeal, this Court summarized the proof adduced at trial as follows:
        The evidence presented at the trial established that the victim, Tonya
Turnage, died after having been hit over the head with a glass bottle and
stabbed multiple times by the defendant. On the morning of January 14, 2004,
the victim’s body was discovered by Ursula Leflore. Ms. Leflore testified that
while she was delivering newspapers, she discovered a body, which was later
identified as the victim, lying face down in the street at the intersection of
Dunn and Dearing. Ms. Leflore immediately left the intersection and called
the police to report the body. At the trial, Ms. Leflore identified photographs
of the victim’s body taken at the location where she was found.

         Michael Rawlins with the Memphis Police Department testified that at
approximately five o’clock in the morning on January 14, 2004, he responded
to “a man down call.” Upon arriving at the intersection of Dunn and Dearing,
he “observed a female body in the middle of the street . . . and a lot of blood
. . . around the body.” Officer Rawlins checked the body and found it was cold
and had no pulse. Photographs depicting the scene and the body surrounded
by blood were identified by Officer Rawlins and made exhibits at the trial.

       David Galloway with the Memphis Police Department Crime Scene
Unit stated that on January 14, 2004, he responded to a crime scene call at the
intersection of Dunn and Dearing in Memphis, Shelby County. His duties as
a crime scene officer were to capture the scene through photographs and
sketches and to collect evidence. He recalled that when he arrived at the
scene, a clothed body was lying in the street and “what appeared to be blood
was coming from different parts of her body.” Officer Galloway identified his
sketch of the scene which was made an exhibit at the trial. The body was
found without shoes, a purse, or identification. Photographs depicting clothing
and jewelry worn by the victim and injuries to the victim’s arm, side, and hand
were taken by Officer Galloway and identified by him at the trial. On
cross-examination, Officer Galloway described the neighborhood where the
body was found as residential with mostly single family houses.

        Sergeant T.J. Helldorfer with the Homicide Bureau of the Memphis
Police Department testified that on January 18, 2004, he was assigned to
advise Joseph May of his Miranda rights before he gave a statement. Sergeant
Helldorfer identified the defendant at trial as Joseph May and also identified
an advice of rights form signed by the defendant. Sergeant Helldorfer stated
that the form was executed during an interview of the defendant conducted by
himself and Sergeant J.R. Howell. After the defendant was advised of his
rights, he signed consent forms for the searches of 1318 Briarwood, the


                                      -2-
defendant’s home, and a 1978 Chevy pickup truck, the defendant’s vehicle.
Sergeant Berryman then took a statement from the defendant while Sergeant
Helldorfer interviewed the defendant’s mother. Sergeant Helldorfer stated that
the defendant and his mother came into the homicide office of their own
accord. He recalled that the defendant was calm and reserved.

        Nathan Berryman with the Homicide Squad of the Memphis Police
Department testified that he assisted Sergeant Helldorfer with the investigation
of the victim’s death. Lieutenant Berryman stated that the defendant was
brought to the homicide office by his stepfather and mother because “he
wanted to confess the killing of this victim.” After the defendant waived his
rights, Lieutenant Berryman spoke with the defendant. Lieutenant Berryman
identified a four page written statement signed by the defendant which was
made an exhibit and read aloud to the jury. The statement reads in pertinent
part:

       Sergeant Helldorfer: Do you wish to make a statement now?

       The Defendant: Yes.

       Sergeant Helldorfer: Are you aware that we are investigating
       the death of Tonya Turnage?

       The Defendant: Yes.

       Sergeant Helldorfer:    Joe, are you responsible for Tonya’s
       death?

       The Defendant: Yes, sir.

       Sergeant Helldorfer: Could you tell me in as much detail as
       possible what occurred before, during and after, Tonya and it
       says Trudge’s-death. Should that be Turnage?

       The Defendant: Yes. That should be. Answer: I like to get
       high and pick up women[,] on Tuesday night [ ] I went out. I
       picked up a woman around the Barron and Semmes area.

       ....



                                      -3-
       I picked her up on the way back to the house and asked her if
       she liked to get high? So we came to the conclusion that we
       were going to smoke dope . . . and have sex. We get back to the
       house. The first thing we do is get high together. Then we have
       sex, . . . . After that, we continue to get high. About an hour
       and a half later we got done smoking. She got upset with me.
       She thought that . . . I [was] going to get her some money for the
       sex we had. Once I told her that I didn’t have any money, she
       threw a tantrum with me. At this time, we were sitting on the
       couch in my living room, . . . . At this time she told me that she
       want[ed] some f* * *ing money. At this time I told her, I didn’t
       have any money to give her. Now, she’s getting really hostile
       with me. She’s screaming at me. I have a knife on my coffee
       table. She grabbed the knife and begins to up the blade [ ]. And
       she is to the left of me. I grabbed a bottle and hit her in the head
       with the bottle. At this time, when I hit her in the head, she fell
       over. Then she fell over on the knife. I think that she pulled the
       knife out or it fell out. I’m not really for sure. Then she [got]
       up and [is] coming at me. She lunges at me and I hit her two
       more times with the bottle. The third time the bottle broke. Due
       to us-both of us being high, it’s [sic] nothing slowing her down.
       She gets back up and [is] wrestling around, there was another
       knife under the cushions of my couch. I believe at this time I
       stabbed her in the throat with the knife. After that time, I am
       scared. I try to put her in the truck. I pull the truck in the
       garage. I brought her out through the window. I drove around
       two miles down the street. I think it was Dunn Street. I put her
       out on the street . . . [b]y the curb. I wipe down my truck and
       put my clothes in the washing machine. I put a drop cloth over
       the carpet. When I get back to the house, it is about two a.m.

       According to Lieutenant Berryman, the defendant reported that when
he picked up the victim he had “about six rocks” of crack cocaine. The
defendant described the knife that the victim grabbed as “a folding knife” and
the knife that he pulled from under the couch as “[a] knife with a sheath.” The
defendant told Lieutenant Berryman that he was unsure how many times he
stabbed the victim because they “were scuffling.” When asked what he did
with the wine bottle that he used to hit the victim, the defendant said that he
“threw it in the trash.” The defendant was photographed and asked if he had
injuries and he indicated that he did not. Lieutenant Berryman described the


                                       -4-
defendant’s demeanor during his interview as calm. On cross-examination,
Lieutenant Berryman agreed that if the defendant had not turned himself in, the
case would have been very difficult to solve.

        Memphis Police Department Officers Merritt, Sousoulas, and Jacobs
testified regarding the search of the defendant’s residence and vehicle and the
recording and custody of the evidence found. Officer Merritt testified that
after the defendant signed a consent form for the search of his residence, he
went to 1318 Briarwood to conduct the search. Upon entering the house,
Officer Merritt noticed that a paint drop cloth covered the entire floor of the
living room. The living room furniture was sitting on top of the drop cloth.
A substance believed to be blood was found on the living room carpet, items
of clothing, shoes, boots, the arm of a love seat, and underneath the middle
cushion of the couch. Photographs of the living room included one of a knife
in a sheath. Officer Merritt stated that the photograph showed the knife
exactly as it was found under the middle cushion of the couch. Officer Merritt
stated that samples were taken from the carpet, the couch, a comforter on the
couch, and a table. Items were collected from the house including the knife in
the sheath and the defendant’s shoes. Officer Merritt stated that the
defendant’s vehicle was taken to a storage lot for a later search. Police did not
find the victim’s shoes, purse, or identification inside the house.

        Officer Sousoulas identified the evidence taken from the house
including a knife in a sheath, which was made a trial exhibit. Officer Jacobs
testified that he processed and photographed a truck that had been towed from
1318 Briarwood. He stated that in the bed of the truck he found a hatchet with
a wooden handle and what appeared to be blood on the tailgate. The hatchet
was tagged as evidence and the tailgate was swabbed to be tested for the
presence of the victim’s blood. On cross-examination, Officer Jacobs stated
that there was also a toolbox, assorted oil bottles, a glass bottle, and a spare tire
in the bed of the defendant’s truck which were not inventoried.

       Doreen Shelton with the Memphis Police Department assigned to the
Homicide Bureau testified that she was present when a nurse obtained a blood
sample from the defendant to compare with the samples found at his residence.
Lieutenant Shelton also received samples taken from the victim at the Regional
Medical Forensic Center. Blood samples from both the defendant and the
victim were identified by Lieutenant Shelton and admitted as trial exhibits.
Ernestine Davison with the Memphis Police Department testified that she



                                         -5-
delivered the blood samples from the victim and the defendant along with
other evidence to the Tennessee Bureau of Investigation for analysis.

        Sergeant J.M. Oliver with the Memphis Police Department testified that
he retrieved a pocket knife contained in a plastic bag from the residence of the
defendant’s parents in Olive Branch, Mississippi. According to Sergeant
Oliver, the defendant’s parents told him that “they had handled the knife.” The
pocket knife was made an exhibit at the trial.

        Donna Nelson, a forensic scientist with the Tennessee Bureau of
Investigation, testified that the defendant’s DNA was identified on rectal
swabs taken from the victim. Tests further identified the victim’s blood on
three living room carpet samples, the fabric sample from the arm of the couch,
and a large knife. Tests revealed a partial verification of the victim’s blood on
samples taken from the defendant’s truck. Agent Nelson explained that the
partial verification indicated the sample was degraded. Tests failed to reveal
the victim’s blood on the pocket knife or the hatchet.

        Dr. O.C. Smith, Shelby County Medical Examiner, testified that in
January of 2004 he performed an autopsy on an individual identified as the
victim, Tonya Turnage, a thirty-four year old woman. The autopsy revealed
that the victim sustained injuries including multiple stab wounds and cutting
wounds to the neck and torso, tears to the scalp, underlying fractures, and
bleeding about the brain. The cause of the victim’s death was officially listed
as “multiple injuries.” Dr. Smith stated that there were two tears on the
victim’s scalp indicating blunt force injuries including a large tear of three and
three quarter inches above and behind her left ear, and smaller tears involving
the top of the ear. There was another tear on the back of the victim’s head
caused by a blunt force. The victim’s blood was tested for both cocaine and
metabolite, a breakdown product of cocaine. Tests revealed that the victim’s
blood levels of both cocaine and its metabolite were in the upper range for
recreational use of cocaine. Dr. Smith testified that “[n]ormal recreational use
would be .1, sometimes .2 and [the victim’s level was] .255.”

        According to Dr. Smith, there were scrapes and tears from the victim’s
lip to her right check and the bridge of her nose consistent with “road rash.”
Dr. Smith explained that “road rash” was most often seen when a body had
suffered forced contact with pavement, gravel, or concrete. Sharp force
injuries of two types were present on the victim’s neck. The first type of
wound was superficial, going down only to the protective layer covering the


                                       -6-
neck muscles and was inflicted using a slicing motion. The second type of
sharp force injury was a stab wound caused by the insertion of a sharp object
“into the neck and in an upward direction . . . causing damage to the carotid
artery and the jugular vein, cutting across the windpipe.” Dr. Smith explained
that this injury would have “cause[d] brisk bleeding” and would also have
caused the victim “to breathe blood into her lungs.” Dr. Smith estimated that
there were two passes with a knife on the right side of the victim’s neck and
three passes with a knife on the left side of her neck. There was also a shallow
stab wound with skin scraping and bruising found on the victim’s right
forearm and two incised wounds on the victim’s right middle finger. Dr.
Smith stated that there were five stab wounds to the victim’s abdomen and
chest which resulted in damage to her lungs and liver.

        Without knowing the exact sequence of events, it was difficult for Dr.
Smith to determine the order that the injuries were received. However, he
stated, with the exception of some tears inside the victim’s lip, all of the
injuries appeared to have occurred while the victim was alive. Dr. Smith
specifically testified that the scraping injuries on the victim’s head and face
occurred while the victim was still alive. Dr. Smith agreed that the wounds on
the victim’s arm and finger were consistent with “defensive wounds.”
However, he clarified that the term “defensive wound” evolved as “a term of
art in forensics” from seeing injuries that had occurred in an attempt to deflect
a sharp edge. Dr. Smith stated the term was not a diagnostic criterion.
Photographs taken during the autopsy of the victim were entered into evidence
as trial exhibits.

        On cross-examination, Dr. Smith stated that an examination of the
victim indicated that there was not any trauma or forced entry during sex. He
stated that he believed that the wounds to the torso were “more likely to have
been inflicted by the smaller knife[.]” The area of the brain that would have
been affected by blunt trauma injuries to the victim’s head “were not those
areas that would require a person to either lose consciousness or lose control
of their body.” Dr. Smith agreed that the use of cocaine affected everyone
differently “within certain guidelines.” He further agreed that the use of
cocaine could affect a person’s judgment, temperament and overall personality
and could cause agitation and create a drive to get more cocaine. On redirect
examination, Dr. Smith agreed that the wounds to the torso could not have
been caused by the victim falling on a knife, nor could the injuries to the neck
have been caused by only one stabbing.



                                       -7-
        Carol Turnmire, the defendant’s mother, testified that she and her
husband owned the house on Briarwood and that the family had lived there
until they moved to Mississippi. After she and her husband moved, the
defendant and Ms. Turnmire’s daughter continued to live in the house on
Briarwood. Ms. Turnmire recalled that in 1998, she discovered that the
defendant was on crack and “taking Oxycotin and several other things.” The
defendant entered a drug rehabilitation center in Mississippi. After the
defendant left the rehabilitation center, he moved to New Albany with his wife
in an effort to reconcile their marriage. However, in 2000, the defendant and
his wife separated and he moved back into the Briarwood house with his
girlfriend and lived there intermittently from 2000 to 2004. Ms. Turnmire
stated that the last time that the defendant moved back into the house on
Briarwood, he had been living with his girlfriend who “kicked him out of the
house because of drug use.” Ms. Turnmire knew that the defendant was still
having a drug problem and spent his entire weekly paycheck of five to six
hundred dollars on crack cocaine. She and her husband had allowed the
defendant to move back into the house on Briarwood and the defendant had
agreed to help get the house ready to sell.

        Ms. Turnmire spoke with the defendant on the telephone on Monday
night, January 12th or 13th, 2004. On the following Thursday, after Ms.
Turmire had not been able to reach the defendant, she drove by the house on
Briarwood, but she did not see his truck. On Friday, Ms. Turmire and her
husband went to the house and knocked for a long time, and the defendant
finally came to the door. As Ms. Turmire stepped into the house, she saw a
drop cloth on the living room floor and she thought that the defendant had
started doing work to sell the house. The defendant did not look well and Ms.
Turnmire told him she was taking him to her house in Mississippi. She and
her husband then picked up the defendant’s son, who lived around the corner,
and they spent Saturday in Mississippi. On Sunday, the defendant told Ms.
Turnmire that “he killed the girl that they found on Dearing.” The defendant
told her that he “picked [the victim] up and I took her back to the house and
we were smoking crack and we got into a fight over the crack and it was crazy
and things were crazy and I stabbed her.” The defendant agreed to go to the
police and Ms. Turnmire, her husband and her daughter took him to the police
station where he gave a statement. Ms. Turmire also gave a statement and
asked the police to put the defendant on suicide watch because he was so
upset. On cross-examination, Ms. Turnmire stated that she first became aware
that the defendant kept a large knife at the house about three years ago when
someone tried to break into the house.


                                     -8-
        The defendant testified that he was twenty-nine years old, had two
children, and had been employed doing residential fire and water damage
repair work. He first used crack cocaine when he was eighteen years old, and
by the end of 2002 to 2003, he “got really strung out on crack.” In June of
2003, he spent “five days in detox” followed by “thirty days in rehab.”
However, within four or five months, he “was back on it again.” According
to the defendant, he started picking up prostitutes in 1998, and since then, he
had been using prostitutes on a weekly basis. The defendant moved back into
the house on Briarwood on December 26, 2003, after a fight with his
girlfriend. At that time, he was using crack cocaine on a daily basis. The
defendant bought the crack cocaine from a “guy that [the defendant] had
known, [and] had been dealing with since 2000.”

          The defendant stated that on the night of his encounter with the victim,
he was at his house by himself, had some dope and was lonely. He went to an
area where he knew there to be prostitutes and “picked up one prostitute but
. . . she didn’t want to go back to the house and smoke dope[.]” The defendant
then saw the victim. He claimed that the victim flagged him down and he
propositioned the victim and told her “there wasn’t no money involved.”
According to the defendant, “the stipulation was [they] would go back to the
house, smoke the dope, and have a little fun sex, and [he] would bring her
back.” The defendant stated that the victim agreed and they went to his house
and “got a little high. And [they] had sex. Then [they] started getting high
again[.]” At about eleven thirty that evening, the victim became agitated when
the defendant “ran out of dope.” The defendant stated that “at that point, she
had asked [him] for some money.” He told the victim that he did not have any
money, and “she reached down to the coffee table and grabbed the pocket
knife.” The defendant said that when “she went for that pocket knife . . . [he]
struck her with the bottle[,]” hitting her two or three times before the bottle
broke. He recalled that the victim fell to the floor and got up and they were
“squalling” when he fell and she fell on top of him. The defendant stated that
he then “grabbed the knife from the cushion and [he] stabbed her with it.” The
defendant stated that the knife was from his knife collection, and that it had
been under the cushion since he moved back into the house. The defendant
could not recall how long the fight lasted. His testimony regarding what
happened after stabbing the victim continued as follows:

       Defendant: I didn’t have no phone in the house. I didn’t have
       no cell phone. It wasn’t an option for me to pickup 9-1-1 and
       call them. Really, I freaked out . . . . I’m seeing Tonya there.


                                       -9-
She’s lifeless, I didn’t . . . check for a pulse. I didn’t check to see
if she was dead.

....

Counsel: Did she look dead to you . . . . [Y]ou didn’t check for
a pulse[?]

The Defendant: No, she was actually . . . turned away from me
on the floor. She wasn’t moving . . . . I suppose she was lifeless.
I didn’t check. I couldn’t tell you.

Counsel: Were you still high on crack cocaine at this point?

The Defendant: Yes, ma’am. I was still coming down off the
aftermath[ ] of crack.

Counsel: And what did you do next?

The Defendant: Like I said, I got scared. I didn’t know what to
do. So I made a decision, I mean it wasn’t a logical decision, I
just made a decision that I was going to place her in the truck
and place her somewhere where somebody could find her and
that’s what I did. I didn’t even drive that far from the house. It
wasn’t even-less than two miles from where I lived at and I
placed her there in the street. I mean, you know, that I jumped
out the truck and I ran and yanked her out and bawled off, you
know, I mean-I wasn’t trying to hide her. I didn’t-you know, I
didn’t think about putting her in a dumpster. It was a logical
place for me to do it so somebody would find her and maybe get
medical attention if she was still alive or what-you know, it was
just-

Counsel: Do you have any idea what time it was at this point?

The Defendant: I had no clock at the house. I got an alarm
clock, but I believe it wasn’t set right. I could tell you, it was
probably, give or take, one or two o’clock in the morning.




                                 -10-
       Counsel: And so the street lights were on in that area. Was it a
       well lit area or dimly lit or do you recall?

       The Defendant: As I recall, it was a lighted area. You know, I
       have lived on that street when I was a kid. I was familiar with
       the area and there was a church right there. But the church is
       right here across the street, and that’s the street there, and that’s
       where she was found. I-you know, I believe it was a very lit
       area, it wasn’t total darkness.

        The defendant stated that he then went home and lay down on the
couch. He recalled that he was supposed to be at work and his team leader
came by the house and knocked on his door. The defendant did not let his
team leader in the house because “of what was on the floor there, the blood.”
The defendant told the team leader he was not coming to work. After his team
leader left, the defendant put a tarp over the carpet and wiped off the knife. He
stated that he “got some dope that Thursday, and [he] got high,” and on Friday,
he went “to work to get [his] paycheck because [he] wanted to get high.” The
defendant recalled that later on Friday, his parents came by the house and told
him they were going to get his son and take them to Mississippi. On Sunday
morning while he was in the car with his mother, he told her that he was
“responsible for that woman they found on Dearing and Dunn.” The defendant
stated that although he was scared, he “came in voluntarily and [he] told them
what-what had happened.”

        On cross-examination, the defendant agreed that in his statement to the
police, he said nothing about wanting the victim to have medical attention, but
stated that he did not have an attorney present and just gave the police a
summary of what happened. The defendant stated that he hit the victim on the
side of the head with the bottle as she was coming toward him with a knife and
then hit her a second time on the back of the head as a reaction after the first
swing. The defendant agreed that he told the police that he did not have any
injuries. The defendant further agreed that he made the decision not to take
the victim out the front door, but instead, took her out the window into the
garage to avoid being seen. He conceded that he put the victim in the truck
and left her body in the street. When asked if the victim was still alive when
he left her body in the street, the defendant stated he “had no idea that she was
or was not,” but claimed it was his intention that someone find her and get her
medical attention. On redirect examination the defendant stated that he turned



                                       -11-
       himself in because he knew he was responsible for what happened to the
       victim and for his decisions, and stated he “couldn’t live with [himself].”

Id. at *1-8.

        On the basis of this proof, the State emphasized during closing argument the number
and severity of the wounds, contending that “[a] knife is an intimate weapon that requires you
to think and to act in a terrible way, but [sic] to take deliberate and intentional steps to use
it and to kill somebody.” The State also referred to the Petitioner’s conduct after he finished
stabbing the victim as trying to “get away” with the crime, and to his decision to dispose of
the victim while she was still alive and without calling for aid. However, the prosecutor
followed this latter argument with the following: “He wanted this woman dead so he left her
in the street. He thought she was dead probably, already, and he left her in the street.
Because what he intended to do, to kill her, was accomplished, and he dumped her off.” The
defense argued that the Petitioner had not committed premeditated murder but had been
defending himself against the victim and, at some point, the Petitioner’s actions crossed the
line from self-defense to voluntary manslaughter. The jury rejected the defense theory and
convicted the Petitioner of first degree premeditated murder. On appeal, the Petitioner
contended that the evidence was not sufficient to support the elements of intent and
premeditation. See Tenn. Code Ann. § 39-13-202(a)(1), (d) (2003) (setting forth the
elements of first degree premeditated murder). This Court concluded that the evidence was
sufficient to support the conviction on the basis of the number and nature of the victim’s
wounds, the Petitioner’s failure to render aid to the victim, and the Petitioner’s attempts “to
hide and destroy the evidence of his crime.” Joseph May, 2009 WL 1585810, at *9.
Accordingly, this Court affirmed the Petitioner’s conviction and sentence. Id. at *10.

       The Petitioner subsequently filed the instant petition for post-conviction relief,
alleging that he had received ineffective assistance of counsel at trial. The following proof
was adduced at the post-conviction hearing:

        Michael Scholl testified as an attorney with expertise in the field of criminal defense.
Scholl testified that he had been involved in “well over one hundred” murder cases and had
handled issues involving the victim’s time of death and whether particular injuries had been
inflicted before or after death. He stated that when the victim’s time of death was at issue
it was appropriate to obtain an expert opinion independent of the medical examiner’s office.
He explained that when the defendant is indigent state funds may be available to hire an
independent expert. Scholl briefly summarized the process for requesting such funds from
the trial court.




                                              -12-
         The Petitioner testified that he met with his trial lawyer (“Trial Counsel”) several
times before trial. He told her that the victim had started the fight. He wanted Trial Counsel
to call the victim’s sister as a witness because the sister previously had made statements that
the victim “carried a knife and was aggressive and a fighter.” At trial, however, the
prosecution called the sister as a witness and Trial Counsel conducted no cross-examination.
He also discussed with Trial Counsel a potential witness who previously had been the
victim’s boyfriend and who had told the police that he and the victim “used to get high
together and they had a conflict” and the victim “fought him over a crack pipe.” According
to the Petitioner, Trial Counsel “was supposed to talk to the witness and have him called as
a witness on my part” but that, at trial, Trial Counsel told him “she hadn’t had a chance to
speak with him, personally.”

       The Petitioner stated that he decided to testify on the last day of his trial. He claimed
that Trial Counsel had not prepared him to testify.

        The Petitioner also discussed the autopsy report with Trial Counsel and told her that
the report was incorrect in its identification of slash marks across the victim’s neck. He
testified:

       And O. C. Smith had stated that there were several slash marks, like a saw
       mark, going across her neck and I disputed that saying that never happened.
       There’s no way it could have been, because you know, because the events that
       happened it was just a knife mark up to the neck. But, there wasn’t slash
       marks.

He also testified that, prior to trial, he told Trial Counsel that he thought the victim was dead
when he disposed of her body. He did not remember testifying at trial that he had thought
she might still be alive when he disposed of her body. However, he recalled testifying at trial
that he left the victim in the street “in hopes it would get her some help.”

       The Petitioner stated that he told Trial Counsel that, in addition to disagreeing with
Dr. Smith’s findings of slash marks, he disagreed with his findings of “road rash” on the
victim’s face. The Petitioner stated that the “road rash” could have been carpet burns
resulting from the “wild sex” he and the victim had. Trial Counsel failed to explore this
possibility with a “second opinion.”

      The Petitioner also testified that Trial Counsel was not adequately prepared or
adequately focused during trial, blaming her pregnancy.




                                              -13-
        On cross-examination, the Petitioner stated that he wanted to rely on self-defense, but
Trial Counsel told him that Tennessee did not have a “self defense law.” Accordingly, they
focused on “first aggressor.” The Petitioner explained that the “first aggressor” defense
required hin to prove that the victim had been the first aggressor and that he had been
defending himself against her. In support of this defense, he wanted Trial Counsel to
introduce the victim’s sister’s statement and statements from “the eye witness” that “the
victim was known to carry knives and that the victim was known as being dangerous,
fighting all of the time.” The Petitioner reiterated that, at the time he disposed of the victim’s
body, he “presumed she was dead” because of the multiple stab wounds he had inflicted and
the blows he had inflicted to her head. She also was bleeding profusely. He did not think
that calling for aid would have helped the victim.

       Trial Counsel, a member of the Shelby County Public Defender’s Office, testified that
she represented the Petitioner at trial and that she was assisted by another lawyer. She was
also assisted by an investigator. Initially, she sought a mental evaluation on the Petitioner
in hopes of obtaining information helpful to their defense. She testified, however, that “some
information that would not be helpful for us came out in that and so [she] stopped with that
and [she] didn’t bother to explore that any further.”

        She described the Petitioner’s case as “hard,” but she thought that his confession was
“a plus” because the crime would likely have gone unsolved otherwise. She also thought the
evidence fit his description of the events and, accordingly, tried to plea bargain with the
prosecution for a second degree murder conviction. She thought she had eight witnesses who
would describe the victim’s aggressiveness and her reputation as “a crack user and a hooker
and somebody that carried weapons.” The State, however, refused to drop the charge to
second degree murder. Then, at trial, “nobody wanted to talk badly about [the victim].”
Trial Counsel intended to put Terry Austin on the stand “as the first aggressor witness” but
when she “got him in the hot seat he wouldn’t give the statement that he had given [her]
investigator and he was just kind of hemming and hawing around and [they] decided he
wouldn’t be good for [the defense] and so [they] decided not to call him.” Trial Counsel
stated that she had been “very frustrated” that the potential witnesses for the defense would
not “say the things that they had said to the police.”

        During her conversations with the Petitioner, he consistently told her that he thought
the victim was dead when he disposed of her body and that he had not called for medical
attention. She explained that the Petitioner “was kind of freaked out and he did some crack
and so he didn’t call 9-1-1.” At trial, however, he testified “that he left her alive in the ditch
to get medical attention.” She explained,




                                              -14-
       I don’t know specifically what I asked him, but I think I tried to -- his story
       never changed, so I didn’t anticipate that he was -- I don’t know why he said
       something like that, I was completely shocked. I think that I tried to gently
       lead in, without leading, back into that she was really dead, and I wasn’t able
       to do that, so I left it alone. And I knew that that would be bad for our case.
       But, he did a fairly decent job on the stand, but that was completely out of the
       blue.

When asked why she did not obtain an independent medical evaluation of the victim, Trial
Counsel testified,

       I didn’t see it as a critical issue, I mean, it really didn’t matter in actuality
       whether she was dead or alive. It mattered what was in [the Petitioner’s] head
       and what he perceived, because that to me went to his intent. And he
       perceived that there had been an argument and he stabbed her and he thought
       he killed her. And so, that was our defense.

       Trial Counsel testified that her pregnancy did not interfere with her representation of
the Petitioner.

        On cross-examination, Trial Counsel stated that, in her analysis of the case, the State
had no proof of premeditation. When asked if she was aware of case law setting forth the
proposition that failing to seek medical attention for the victim can be proof of premeditation,
Trial Counsel responded, “That’s only evidence of premeditation if you leave the victim
alive, you think they are alive. But, that wasn’t the case here.” She acknowledged that “it
became the case . . . when [the Petitioner] testified to something that he’d never told [her]
before.” Prior to that time, she explained, the State’s theory of premeditation rested on the
number and severity of the victim’s wounds.

       Trial Counsel stated that she met with Dr. Smith prior to trial. She did not consider
getting an independent medical evaluation of the victim because the Petitioner had
maintained consistently that he believed the victim to have been dead at the time he disposed
of her body. She added,

               I mean, had I thought about it, I don’t think I probably would have
       wanted one, because if another person said she was alive, then that is
       something else for the state to use that they probably wouldn’t have used
       before. And had they said she was dead, I don’t, I mean, that doesn’t. The
       risk of having them support O. C. Smith makes me not want to do that. I want
       to use the good stuff that I’ve got, which is his statement and the evidence, the


                                              -15-
       crime scene evidence that is supporting his statement of how the events
       happened.

        Trial Counsel could not remember whether she cross-examined the victim’s sister at
trial but stated that the witness “wasn’t going to say anything bad about her sister.” She
described her handling of this witness as a tactical decision based on her and/or her
investigator’s conversations with this witness.

        Trial Counsel testified that, in her opinion, this had been a second degree murder case
until the Petitioner testified that he left the victim alive so that she might receive medical
attention. When asked if, at that point, she “wish[ed]” that she had a competing medical
expert opinion to refute Dr. Smith’s, she responded, “I still don’t think it would have
mattered at that point, because he said he thought that she was alive. And that would show
to me that he thought she was alive and he left her there to die.”

        Dr. O’Brian C. Smith testified at the post-conviction hearing that upon conducting the
autopsy of the victim he concluded that a scrape on the victim’s forehead had been a “road
rash” injury. He testified to that effect at the Petitioner’s trial. Upon further review of the
photographs taken during the autopsy in preparation for the post-conviction hearing,
however, he determined that the scrape was also consistent with the victim having been
dragged through a window. He opined that the scrape to the forehead occurred while the
victim was still alive and that this injury preceded the injuries that occurred to the victim’s
lips and nose. Dr. Smith continued to believe that the lip and nose injuries were “road rash”
injuries. Contrary to his testimony at trial, however, he opined at the post-conviction hearing
that these road rash injuries had occurred after the victim’s death.

       Dr. Smith testified that the injuries to the victim’s neck were “non-survivable.” He
added that “[t]here were also multiple stab wounds to the liver which would be expected to
continue bleeding until the patient would die.” He stated that it was “highly unlikely” that
the victim would have survived even had the Petitioner sought medical help.

       On the basis of this proof, the post-conviction court denied relief, concluding (1) that
the Petitioner had failed to prove that Trial Counsel performed deficiently and (2) that he had
adduced “absolutely no proof that [Trial Counsel’s] conduct prejudiced the outcome of the
proceeding.”




                                             -16-
                                       Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                                             Analysis

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.1 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.


       1
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                -17-
        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our Supreme Court has explained
that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“That is, the petitioner must establish that his counsel’s deficient performance was of such
a degree that it deprived him of a fair trial and called into question the reliability of the
outcome.” Pylant, 263 S.W.3d at 869 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies the
second prong of Strickland.” Id.




                                             -18-
       In this case, the Petitioner alleges that Trial Counsel was ineffective in failing to
negate one aspect of the State’s proof of premeditation, i.e., that the Petitioner abandoned the
victim after inflicting life-threatening wounds and, while thinking that she might still survive,
nevertheless failed to seek medical aid for her. See State v. Lewis, 36 S.W.3d 88, 96 (Tenn.
Crim. App. 2000) (recognizing that a defendant’s failure to render aid to his or her murder
victim may be a fact indicative of premeditation); see also State v. Kiser, 284 S.W.3d 227,
268 (Tenn. 2009). The Petitioner claims that Trial Counsel should have obtained
independent medical proof that the victim was already dead at the time the Petitioner decided
to remove the victim from his residence and place her body in a public street in hopes that
someone else might come to her rescue. He argues that

       one cannot form the culpable intent to murder a victim after the victim is
       already deceased. Had trial counsel shown that the victim died soon after her
       injuries, she could have argued to the jury that [the Petitioner’s] failure to seek
       medical attention was not evidence of pre-meditation [sic]. Therefore, the jury
       would not have found [the Petitioner] guilty of first-degree murder.

        We agree with the post-conviction court that the Petitioner is not entitled to relief, for
several reasons. First, we are constrained to point out that Dr. Smith’s testimony does not
support the Petitioner’s theory. Dr. Smith testified at the post-conviction hearing that the
victim was still alive when she received the scrape to her forehead. He also opined that this
injury was consistent with having been dragged through a window. The Petitioner dragged
the victim through a window prior to placing her in his truck and driving her to the location
where he placed her body. However, the Petitioner testified at trial that, after he finished
stabbing the victim and she was lying on the floor, he “made a decision.” He continued: “I
mean it wasn’t a logical decision, I just made a decision that I was going to place her in the
truck and place her somewhere where somebody could find her and that’s what I did.” That
is, the Petitioner decided to remove the victim from his residence and place her in a public
location prior to pulling her through the window and into his truck. According to Dr.
Smith’s testimony at the post-conviction hearing, the victim was still alive at the time the
Petitioner made this decision. Thus, although Dr. Smith testified at the post-conviction
hearing that the “road rash” injuries were inflicted after the victim’s death, which was
contrary to Dr. Smith’s testimony at trial, Dr. Smith’s testimony about the forehead injury
nevertheless supports the State’s theory that the Petitioner engaged in conduct indicative of
premeditation at the time he decided to dispose of the victim without attempting to obtain
medical aid for her. Therefore, the Petitioner has failed to adduce proof that Trial Counsel
could have obtained a medical opinion that the victim was dead at the time the Petitioner
decided to abandon her without seeking medical attention for the numerous stab wounds he
had inflicted.



                                              -19-
        Second, the success of the Petitioner’s argument depends upon this Court concluding
that there is a reasonable probability that the jury would not have convicted him of
premeditated murder if Trial Counsel had elicited independent expert proof that the victim
was dead at the time the Defendant decided to remove her body from his residence and place
it on a public street. The record, however, does not support this conclusion. The jury had
adequate proof at trial to determine that the Petitioner formed the requisite culpable mental
states of intent and premeditation with respect to killing the victim during the attack itself,
as opposed to after he had inflicted the fatal wounds. As this Court set forth in its opinion
in the direct appeal of this case, failure to render aid is just one circumstance from which a
jury may infer premeditation. Other circumstances from which a jury may infer
premeditation include the particular cruelty of the killing, the infliction of multiple wounds,2
and the destruction or secretion of evidence after the killing. See State v. Nichols, 24 S.W.3d
297, 302 (Tenn. 2000). A defendant’s use of multiple weapons in succession may also
support an inference of premeditation. See State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).
All of these circumstances were present in this case.

        The defense theory, as argued by Trial Counsel during closing argument, was that the
killing occurred after the Petitioner crossed the line from self-defense to an intentional or
knowing killing while he was in a state of passion produced by the victim’s provocation such
that he acted in an irrational manner, i.e., voluntary manslaughter. See Tenn. Code Ann. §
39-13-211(a) (2003). The Petitioner testified that he was acting in self-defense when he
stabbed the victim and that he was under the influence of crack cocaine. The Petitioner
maintained, in essence, that he was not capable of premeditation at the time he was inflicting
the fatal injuries to the victim. The jury, however, was entitled to reject the defense theory
of self-defense/irrational behavior. The jury also could determine that he had formed the
requisite culpable mental states of intent and premeditation during the attack itself based
upon the type and extent of the injuries the Petitioner inflicted, his use of multiple weapons
on the victim, and his subsequent attempts to destroy or secret some of the evidence. Any
proof that the victim had been dead at the time he decided to dispose of her body would not
have countered this conclusion.

        Finally, even if such proof might have inured to the Petitioner’s benefit, the Petitioner
has failed to demonstrate that Trial Counsel was deficient in failing to pursue this theory of
defense. Prior to testifying at his trial, the Petitioner had led Trial Counsel to believe that he
thought the victim was already dead at the time he decided to dispose of her body.
Therefore, Trial Counsel had no reason to suspect that the Petitioner would suddenly
incriminate himself with another possible circumstance indicating premeditation in causing


        2
          However, proof of multiple wounds, in and of itself, is not sufficient to establish premeditation.
See State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

                                                    -20-
the victim’s death. Accordingly, Trial Counsel had no reason to gather additional proof that
the victim was dead at the time the Petitioner decided to dispose of her body. Moreover, the
Petitioner has failed to prove that such proof was available because Dr. Smith testified that
the victim was still alive when the Petitioner moved her to his truck.

        In sum, the Petitioner has failed to demonstrate by clear and convincing evidence that
Trial Counsel was deficient in failing to prove that the victim was dead when the Petitioner
decided to remove her body from his residence. The Petitioner further has failed to
demonstrate by clear and convincing evidence that, had Trial Counsel elicited such proof,
there is a reasonable probability that the jury would not have convicted him of first degree
premeditated murder. Accordingly, the Petitioner has failed to establish that he is entitled
to post-conviction relief.

                                        Conclusion

       For the foregoing reasons, we affirm the post-conviction court’s denial of the
Petitioner’s claim for relief.


                                           _________________________________
                                           JEFFREY S. BIVINS, JUDGE




                                             -21-
