                                                                                            09/07/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 19, 2018 Session

              CHRISTOPHER LEWIS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Putnam County
                    No. 10-0875    David Alan Patterson, Judge


                             No. M2017-01386-CCA-R3-PC


The Petitioner, Christopher Lewis, appeals from the Putnam County Criminal Court’s
denial of his petition for post-conviction relief. The Petitioner contends that he received
ineffective assistance from his trial counsel because trial counsel (1) failed to call several
witnesses at trial; and (2) failed to introduce evidence “of the weather during the
weekend” of the victim’s death and “additional evidence . . . regarding . . . a large hole”
in the backyard of the Petitioner and victim’s home. Following our review, we affirm the
judgment of the post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Loretta G. Cravens, Knoxville, Tennessee (on appeal); and Robert L. Sirianni, Jr., Winter
Park, Florida (at post-conviction hearing), for the appellant, Christopher Lewis.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Beth Elana Willis, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                              FACTUAL BACKGROUND

                                   I. Trial Proceedings

       The Petitioner was convicted of second degree murder for the killing of his wife,
Amy Lewis, “whose body was found inside the couple’s home on August 1, 2010.” State
v. Christopher Lewis, No. M2013-00212-CCA-R3-CD, 2013 WL 6199278, at *1 (Tenn.
Crim. App. Nov. 27, 2013), perm. app. denied (Tenn. Apr. 10, 2014). The trial court
imposed a fifteen-year sentence for the conviction. Id. A panel of this court affirmed the
Petitioner’s conviction on direct appeal.1 Id. Our supreme court declined to review this
court’s opinion on April 10, 2014.

       The evidence at trial established that the Petitioner and the victim had been
married for seventeen years and had four children together. Lewis, 2013 WL 6199278, at
*2. On July 31, 2010, the victim was “scheduled to be at work at 7:00 a.m.” Id. at *5.
She typically “was at work fifteen to thirty minutes early,” but “she did not show up at
work at all” that day. Id. A concerned co-worker “called the victim approximately ten
times and never received an answer.” Id. The Petitioner’s mother, Margaret Lewis, lived
a short distance from the Petitioner and the victim’s trailer and testified that she heard the
victim “‘yelling for the dogs’” on the morning of July 31, 2010.2 Id. at *3.

       What happened next was contested at trial. Margaret testified that the Petitioner
came to her house that morning “to ‘get a couple of drinks’ on his way to work.” Lewis,
2013 WL 6199278, at *2. Margaret testified at trial that the Petitioner did not say
anything to her about having an altercation with the victim and that she did not see any
injuries to the Petitioner. Id. However, Margaret told the investigators on three separate
occasions that when the Petitioner arrived at her house that morning, he said that “the
victim was mad at him” and “had hit him with a beer bottle.” Id. Margaret also told the
investigators that she “observed injuries to both of the [Petitioner’s] arms and his neck.”
Id. Additionally, Margaret made similar statements to a 911 operator when she called to
report the victim’s death. Id. at *4.

       Margaret insisted that her testimony at trial was truthful and that her statements to
the investigators were lies. Lewis, 2013 WL 6199278, at *2. Margaret could not explain
why she had lied to the investigators other than to say that “the situation was ‘stressful.’”
Id. Margaret explained that “when things get bad and stressful,” her “mind [was] like a
tornado or a whirlwind” and she “just [does not] handle it well.” However, the
investigator who questioned Margaret described her as being “‘quite calm’” and that she
“did not seem at all ‘foggy’ or unclear about the details.” Id. at *7. On
cross-examination, Margaret was asked if she had ever been under psychiatric care.
Margaret responded “[n]ot for several years, but [she was] now.”

      Margaret testified that the Petitioner left for work and did not return until “after
dark” on the night of July 31, 2010. Lewis, 2013 WL 6199278, at *3. The Petitioner

1
  Judge James Curwood Witt, Jr., filed a dissenting opinion asserting that the evidence was insufficient to
sustain the Petitioner’s conviction for second degree murder. Lewis, 2013 WL 6199278, at *20-24.
2
  We will refer to some witnesses by their first names because several witnesses share the same surname.
No disrespect is intended.
                                                   -2-
stayed the night at Margaret’s home. Id. During the 911 call, Margaret told the 911
operator that the Petitioner stayed the night at her home to “‘cool off’” from his earlier
altercation with the victim. Id. at *4. The Petitioner spent the next day, August 1, 2010,
at Margaret’s home. Id. at *3. Late in the afternoon, the Petitioner went “home to check
on the dogs and to get a Powerade.” Id. The Petitioner returned a short time later “upset
and crying.” Id. The Petitioner told Margaret that “there was ‘something wrong’ with
the victim and he thought she was dead.” Id.

        Margaret testified that the Petitioner asked her to go and check on the victim.
Lewis, 2013 WL 6199278, at *3. Margaret found the victim’s body lying on the floor of
the bedroom. Id. Margaret was inconsistent in her testimony about the position of the
victim’s body when she discovered it. Margaret testified that the victim’s body was lying
on its back. She also testified that the victim’s body was lying on its left side and that she
“‘pulled [it] over onto [its] back’” to see if the victim was alive. Id. at *3-4. Margaret
returned to her home, told the Petitioner that the victim was dead, and called 911. Id. at
*3. The Petitioner responded to Margaret by saying, “Mamma, they’re probably going to
think that I did it” because the victim was lying “over there dead.” Id.

       Margaret testified that the Petitioner stayed at her home until “‘just . . . before’”
the investigators pulled up her driveway. Lewis, 2013 WL 6199278, at *3. Additionally,
Margaret stated on the 911 call that the Petitioner “had ‘left’ and she did not know where
he went.” Id. at *4. However, Margaret testified that the Petitioner “was not ‘running’
from [the] police, he ‘had just left.’” Id. at *3. Margaret told the investigators that if she
could have kept the Petitioner at her home “to talk to” them, she “sure would have.” Id.
When the first officers arrived, there was no one inside or “around the perimeter” of the
Petitioner’s trailer. Id. at *1. The officers entered the unlocked trailer and found the
victim’s body lying on its back “just inside the bedroom door.” Id. A “‘beer bottle [was]
stuck in the wall’ above where the victim was lying,” and the bedroom was described as
being “‘in disarray.’” Id. at *5-6.

       “[A]bout two hundred yards behind the [Petitioner’s] trailer,” the investigators
discovered “a hole that was approximately four feet wide, ten feet long[,] and two and [a]
half to three feet deep.” Lewis, 2013 WL 6199278, at *6. Inside the hole was “a pile of
dirt with a shovel lying on the pile.” Id. A “front-end loader” was found in the front yard
with “mud on the loader and . . . on the tires.” Id. Investigators believed that the mud on
the loader was “‘fresh’” and that the mud on the tires appeared to be “‘wet.’” Id. at *7.
Based upon the appearance of the hole, the investigators believed it “to be a grave.” Id.
There were no animal bones found “anywhere in the area” of the hole. Id.

       The Petitioner’s cousin, Jason Beaty, testified that he was asked to help locate the
Petitioner on the afternoon of August 1, 2010. Lewis, 2013 WL 6199278, at *10. Mr.
Beaty “called the [Petitioner’s] cellular phone approximately five times but received no
                                             -3-
answer.” Id. Around 10:00 or 11:00 p.m. that night, the Petitioner called Mr. Beaty
“‘crying and distraught.’” Id. According to Mr. Beaty, the Petitioner stated that “he and
the victim were in an argument, the victim hit the [Petitioner], and then the [Petitioner]
hit the victim before leaving.” Id. Mr. Beaty testified that the Petitioner spent that night
at Mr. Beaty’s mother’s house and that he went to see the Petitioner the next morning.
Id. According to Mr. Beaty, the Petitioner again stated that he had an altercation with the
victim before leaving the house on July 31, 2010. Id. Mr. Beaty “did not recall seeing
any injuries on the [Petitioner] when he spoke with him.” Id.

       Evidence was also introduced at trial about a $400,000 life insurance policy on the
victim. Lewis, 2013 WL 6199278, at *10. The Petitioner told the insurance agent, Chad
Ownby, that “an argument had occurred between the [Petitioner] and [the] victim[,] . . .
that the [Petitioner] stayed at his mother’s house that night to ‘cool off[,]’” and that the
Petitioner found the victim dead when he returned to their home the next day. Id. Mr.
Ownby testified that when payment of the policy was delayed due to the investigation of
the victim’s death, the Petitioner became “‘increasingly frustrated and irate.’” Id. at *11.
The Petitioner ultimately threatened Mr. Ownby saying, “‘[Y]ou had better pay my
f--king money tomorrow at this time at your location. If you don’t do it there, I’m going
to Brentwood to your corporate headquarters to get my f--king money.” Id.

        On August 2, 2010, an autopsy was performed on the victim’s body by Doctor
Thomas Deering. Lewis, 2013 WL 6199278, at *7-8. Dr. Deering “was unable to
determine a specific cause of death.” Id. at *8. Dr. Deering “was able to rule out
gunshot, stabbing, blunt force trauma, strangulation, heart disease, lung disease, and
cancer.” Id. Dr. Deering testified that it was “possible [that the victim’s] heart was
enlarged” and that “a person with an enlarged heart ‘can suffer from hypertension’ and
are ‘at some risk’ for a fatal heart rhythm, however he could not conclude that this was
the cause of [the victim’s] death.” Id.

       Dr. Deering testified that he could not rule out suffocation as a possible cause of
death. Lewis, 2013 WL 6199278, at *9. Dr. Deering explained that suffocation was
“always a difficult cause of death because it’s something that can happen that leaves no
sign or very, very subtle signs.” Id. at *8. Dr. Deering noted that the victim’s body “was
moderately decomposed” and that the “subtle findings” that he would look for, such as
“‘petechiae eye,’” would have been “basically erased by the changes of decomposition.”
Id. However, Dr. Deering “confirmed that he did not find any medical proof that the
victim’s death was a homicide” and agreed that “a person who is heavier may experience
more health problems due to their weight.” Id. at *10.

       Dr. Deering estimated that “the victim had been deceased for two to three days” at
the time of the autopsy. Lewis, 2013 WL 6199278, at *9. Dr. Deering explained that “he
could not determine the exact time of death for the victim.” Id. Dr. Deering further
                                            -4-
explained that, generally, “heat can speed up the process of decomposition and that a
larger person retains body heat which accelerates the decomposition process.” Id.
Conversely, “a person in a cool environment may exhibit signs of slower decomposition.”
Id. Dr. Deering’s estimated time of death was based on his experience and “all the
circumstances of this case.” Id. Dr. Deering also opined that the victim’s body had been
moved. Id. at *9-10. Dr. Deering noted that lividity, the pooling of blood in a person’s
body after their death, had become fixed on the victim’s left side. Id. at *9. This
suggested to Dr. Deering that the victim’s body was “on her left side ‘for a number of
hours’ before she was moved.” Id.

       The Petitioner and the victim’s seventeen-year-old son testified on behalf of the
Petitioner at trial that the hole in the backyard “was dug approximately a month and a
half to two months before his mother’s death.” Lewis, 2013 WL 6199278, at *11. He
explained “that the hole had been dug to bury two or three dogs that had died,” that both
the Petitioner and the victim had dug the hole, and that “they did not fill the hole after
digging it because they planned to use the dirt to make a ‘berm’ on his dirt bike track.”
Id. He further stated that a stump had been removed from that area and “‘should be
around the grave somewhere.’” Id. at *12. He also stated that “his maternal grandparents
took his cellular telephone from him”; therefore, he was unsure if the Petitioner had tried
to contact him “on his cellular phone after his mother died.” Id.

       The Petitioner and the victim’s fourteen-year-old daughter testified that both of
her parents dug the hole in the backyard “‘a while before [the victim] died.’” Lewis,
2013 WL 6199278, at *11 (alteration in original). She explained that “there was a stump
in the bike path where the family rode four-wheelers” and estimated that the hole was
“dug two weeks before the weekend her mother died.” Id. She admitted that the
Petitioner “did not tell her of her mother’s death until ‘a couple of days before her
funeral.’” Id.

                            II. Post-Conviction Proceedings

       Linda Beaty testified that she was the Petitioner’s aunt and Mr. Beaty’s mother.
Ms. Beaty testified that after the victim’s body was discovered, the Petitioner got in the
victim’s van “and went riding around by himself.” Ms. Beaty did not find this behavior
to be unusual. Ms. Beaty explained that in 1994, the victim and the Petitioner’s “first
child was born premature and he passed away” at the hospital. According to Ms. Beaty,
the Petitioner responded to the baby’s death by “riding around for a while” “to get away.”
Ms. Beaty believed that the Petitioner’s behavior after the victim’s death was consistent
with his behavior after the death of his and the victim’s first child.

      According to Ms. Beaty, the Petitioner met her after the victim’s body was
discovered and wanted her to go with him to the Putnam County Sheriff’s Office “to give
                                            -5-
his statement.” Ms. Beaty testified that she called trial counsel and that trial counsel
advised the Petitioner not to go to the Sheriff’s Office or speak to the investigators
without him. So Ms. Beaty took the Petitioner to her home where he spent the night. Ms.
Beaty recalled that the Petitioner “was very upset” and crying when she met him on
August 1, 2010. Ms. Beaty also recalled that the Petitioner attempted to call his children,
but that he could not get ahold of them. Ms. Beaty did not recall seeing any injuries to
the Petitioner that day. Ms. Beaty testified that the next morning she took the Petitioner
to trial counsel’s office and that trial counsel said that he would take the Petitioner to the
Sheriff’s Office. Ms. Beaty recalled that the Petitioner stayed at her house for a total of
three nights.

        Ms. Beaty also testified about the Petitioner’s mother, Margaret. Ms. Beaty
admitted that she had been “estranged” from Margaret since 2003. Ms. Beaty claimed
that after the death of the Petitioner and the victim’s first child in 1994, she found
Margaret bathing the baby’s corpse. Ms. Beaty further claimed that Margaret dressed the
baby’s corpse and took it with her to run errands. Ms. Beaty was unsure how Margaret
got the baby’s corpse from the hospital. Ms. Beaty also claimed that Margaret had
threatened to remove their father from a hospital intensive care unit and take him home
with her in 2003. Ms. Beaty testified that she asked trial counsel to call her as a witness
at trial to testify about the Petitioner and Margaret’s behavior, but that trial counsel told
her that her testimony would be irrelevant and inadmissible.

        Kimmer Lodes testified that she was the Petitioner’s sister. Like Ms. Beaty, Ms.
Lodes testified that the Petitioner “dr[o]ve around” alone after the death of his first child
in 1994. Ms. Lodes also testified about Margaret’s behavior after the baby’s death.
According to Ms. Lodes, Margaret clothed the baby’s corpse and took it with her to run
errands. Ms. Lodes believed that the Petitioner and the victim had brought the baby’s
corpse home from the hospital and that Margaret was able to get access to it prior to the
baby’s funeral. Ms. Lodes claimed that Margaret “started screaming hysterically” and
tried to prevent dirt from being put in the baby’s grave during the burial. Ms. Lodes
further claimed that Margaret “hitchhiked” to the hospital in an attempt to see the baby
the day after his burial.

        Similarly, Ms. Lodes testified that Margaret “was very angry” and “erratic” after
the death of Margaret’s mother. Ms. Lodes explained that Margaret became fixated on
not letting a woman attend her mother’s funeral. Ms. Lodes admitted that she was not
present on the day that the victim’s body was discovered. However, Ms. Lodes claimed
that Margaret was “erratic” on the phone with her and that their conversation “left [her]
not even knowing if [the victim] was dead.” Ms. Lodes recalled that Margaret was
“distraught and upset” when she spoke with her the day after the victim’s body was
discovered.

                                             -6-
       Ms. Lodes testified that she provided trial counsel with a written list of Margaret’s
odd behavior over the years. Ms. Lodes also provided trial counsel with “weather
reports” for the weekend of the victim’s death. Ms. Lodes testified that she hired an
expert, Doctor Randall Pedigo, to review the autopsy report on the victim’s body. Ms.
Lodes also testified that she encouraged trial counsel to call the Petitioner’s cousin,
Charles Johnson, as a witness at trial to testify about the hole found in the Petitioner’s
backyard. Ms. Lodes further testified that she encouraged trial counsel to take additional
pictures of the hole.

        Mr. Johnson testified that he was the Petitioner’s cousin and that he lived
approximately a mile from the Petitioner and the victim’s trailer. Mr. Johnson admitted
that he did not see the hole in the Petitioner’s backyard being dug. However, Mr.
Johnson testified that he borrowed the front-end loader from the Petitioner. Mr. Johnson
testified that he saw the hole when he returned the front-end loader.

       According to Mr. Johnson, the hole was three feet deep and four feet wide. Mr.
Johnson was told that the hole was a grave for the Petitioner’s dogs. Mr. Johnson
recalled that there were “stumps around” the hole, but he also noted that the Petitioner
lived in “a wooded area.” Mr. Johnson estimated that he saw the hole approximately a
month before the victim died.

       Mr. Johnson testified that the temperature was around ninety-five degrees on the
day that the victim’s body was found. Mr. Johnson also testified that the Petitioner and
the victim’s trailer did not have any air conditioning. Mr. Johnson stated that trial
counsel never spoke to him and that he was not called as a witness at the Petitioner’s trial.

       Tommy Lewis testified that he was the Petitioner’s cousin and that, in 2005, he
was an insurance sales agent with “American General.” Tommy testified that he
contacted the Petitioner about purchasing life insurance and that the Petitioner and the
victim eventually purchased life insurance policies for themselves and their children. At
the time of the victim’s death, Tommy was no longer employed with American General.
Tommy did not know Mr. Ownby and did not know if the Petitioner ever received
payment from the victim’s insurance policy.

      Dr. Pedigo testified that he “was the Chief Medical Examiner for Knox County
from 1982 to about 1994,” but that he was no longer “in the active practice of medicine.”3
3
  Dr. Pedigo’s license to practice medicine in Tennessee was revoked in the mid-1990s after he pled
guilty “to multiple counts of illegal dispensing of a controlled substance and sexual battery.” Pedigo v.
UNUM Life Ins. Co. of Am., 145 F.3d 804, 806 n.1 (6th Cir. 1998). Dr. Pedigo was also “unable to
practice surgery” because he had been shot seven times by a law enforcement officer. Id. at 806. Dr.
Pedigo was shot after pointing a gun at the officer when law enforcement arrived at his home to question
Dr. Pedigo about the allegation that Dr. Pedigo “had drugged and molested a teenage boy at the doctor’s
                                                  -7-
At the time of the victim’s death in 2010, Dr. Pedigo “consulted with attorneys on a
regular basis, but [he] had to testify [in court] very rarely.” Dr. Pedigo recalled that he
was retained by either the Petitioner’s family or trial counsel to review the autopsy report
on the victim’s body. Dr. Pedigo testified that he discussed his findings with trial
counsel. However, Dr. Pedigo stated that “test[ifying] at trial was never discussed with
anyone,” and he “did not expect to be called” as a witness at trial. However, Dr. Pedigo
stated that he would have testified if he had been subpoenaed.

        Dr. Pedigo testified that Dr. Deering was “a well-trained[,] competent, [and]
conscientious forensic pathologist,” and he agreed with Dr. Deering’s finding that “it was
impossible in this case to determine the cause of death.” Dr. Pedigo continued, stating
that he believed that Dr. Deering’s findings in the autopsy report were “accurate,
complete[,] and correct.” Dr. Pedigo acknowledged that Dr. Deering had “a tremendous
advantage over” him because Dr. Deering conducted the autopsy and had actually viewed
the victim’s body. Overall, Dr. Pedigo did not “believe that there [was] any difference at
all in [his] opinions and those opined by Dr. Deering at trial.”

        Dr. Pedigo testified that he stated in his one-page “report” that the victim suffered
from sleep apnea and that sleep apnea could lead to sudden and unexplained death.
However, Dr. Pedigo admitted that the victim’s diagnosis of sleep apnea was provided to
him by the Petitioner’s family and not from any of the victim’s medical records. Dr.
Pedigo opined that the victim was not suffocated because he saw no physical evidence of
suffocation in the autopsy report and it would be difficult to suffocate someone lying on
their side like the victim was when she died. Dr. Pedigo denied ever telling trial counsel
that it was his opinion that the victim had been suffocated.

        The Petitioner testified that he wanted trial counsel to call Ms. Beaty as a witness
at trial to explain that he did not flee from the police. The Petitioner explained that the
police “knew where [he] was . . . the whole time” because they “followed [him]
everyplace [he] went.” The Petitioner further explained that he “like[d] to drive” and that
he “just drove around” after the victim’s body was discovered. The Petitioner testified
that he was going to go to the Sheriff’s Office to speak with the investigators, but that
Ms. Beaty told him not to based on trial counsel’s advice.

        The Petitioner testified that he wanted trial counsel to call Ms. Lodes as a witness
at trial to testify about “[h]ow [Margaret] does not act rationally.” The Petitioner
explained that he believed this testimony would discredit Margaret’s repeated statements
that he “was all scratched up and everything” when she saw him on July 31, 2010.



condominium.” Id.
                                             -8-
        The Petitioner testified that he wanted trial counsel to call Mr. Johnson to testify
about the hole in his backyard because “they said it was a freshly dug hole.” The
Petitioner asserted that Mr. Johnson knew the hole was a month old when the victim died.
The Petitioner testified that he started digging the hole to remove a stump and that the
victim finished digging the hole. The Petitioner admitted that trial counsel called two of
his children to testify about the hole and that he did not have an issue with the children
testifying at trial.

        The Petitioner testified that he wanted trial counsel to call Tommy as a witness to
testify about the life insurance policy because “they said [he did] it for a life insurance
policy.” The Petitioner wanted Tommy to testify to show that they had the life insurance
policy “a whole lot longer” than three years. The Petitioner claimed that he was never
told that there was a possibility the life insurance company would not pay out on the
victim’s policy and that he got angry at Mr. Ownby because “they raised [his] premiums
up.” The Petitioner testified that the life insurance company paid him the total amount of
the $400,000 policy on the victim despite his conviction.

        The Petitioner testified that he expected Dr. Pedigo to testify at trial. However,
trial counsel informed him at trial that Dr. Pedigo would not testify. The Petitioner
claimed that trial counsel never told him the reason why he did not call Dr. Pedigo as a
witness at trial.

        The Petitioner admitted that he met with trial counsel at least fifteen times prior to
trial. The Petitioner also admitted that he told the trial court during the trial proceedings
that he was satisfied with trial counsel’s representation. The Petitioner further admitted
that he did not complain to the trial court or trial counsel about the fact that none of these
witnesses were called at trial. The Petitioner explained that he did not complain because
he “thought [trial counsel] knew what he was doing.”

        Trial counsel testified, with respect to Ms. Beaty and Ms. Lodes, that Margaret
“just flat out lied and told two completely different stories” at trial in order to protect the
Petitioner. Trial counsel did not want the Petitioner’s family “up here trying to justify
what” Margaret had said to the police. Trial counsel explained that he was worried that
the jury would think that they were lying to protect the Petitioner like Margaret appeared
to be doing. He also did not want Ms. Beaty and Ms. Lodes to be subject to cross-
examination by the State. Additionally, trial counsel testified that he did not believe that
their testimony regarding Margaret was relevant or admissible because there were no
medical records or other evidence suggesting that Margaret had “ever been declared
incompetent.” Trial counsel asserted that he explained all of this to the Petitioner.

       Trial counsel did not recall being told about Mr. Johnson. However, trial counsel
believed that the Petitioner’s children were “very sympathetic and made pretty good
                                              -9-
witnesses.” Additionally, trial counsel testified that he would not have called Mr.
Johnson as a witness because he did not want Mr. Johnson to contradict the timeline
established by the children. Trial counsel feared that such a contradiction would make
the children look like liars to the jury. Trial counsel also worried about calling too many
of the Petitioner’s family members at trial. Trial counsel testified that he did not take any
additional pictures of the hole because the Petitioner told him that the State’s photographs
“accurately reflected what the hole looked like.” Trial counsel further testified that he
did not want to over emphasize the hole at trial.

       Trial counsel testified that he did not believe that introducing “weather reports” or
other testimony about the temperature on the day the victim’s body was discovered
would have changed the outcome of the Petitioner’s trial. Trial counsel noted that Dr.
Deering testified that heat could speed up the decomposition process and that
“[e]verybody testified it was blazing hot in the trailer and . . . outside.”

       Trial counsel testified that he did not think that Tommy’s testimony would have
changed the outcome of the Petitioner’s trial. Trial counsel noted that the insurance
policy was introduced into evidence at trial and that the jury could see that it had been
issued five years before the victim’s death rather than three years. Trial counsel did not
believe that the difference in time mattered “that much” anyway. Trial counsel stated
that “the issue . . . was [the Petitioner’s] erratic behavior after [the victim] had passed
away . . ., cussing [Mr. Ownby] and threatening [him].” Tommy could not testify about
the Petitioner’s interactions with Mr. Ownby.

       Trial counsel testified that Ms. Lodes hired Dr. Pedigo and put him in contact with
Dr. Pedigo. Trial counsel claimed that he researched Dr. Pedigo’s background, that Dr.
Pedigo’s “credentials were long and good,” and that he found nothing in Dr. Pedigo’s
background that concerned him other than “an issue about whether [Dr. Pedigo] was
actually practicing or doing whatever.” Trial counsel testified that he “was ecstatic”
when he got Dr. Pedigo’s “report.” Trial counsel initially believed that Dr. Pedigo’s
testimony would help the Petitioner’s case “even though he was going to agree with
everything that Dr. Deering said.”

        However, trial counsel claimed that he asked Dr. Pedigo what his response would
be if asked by the State how the victim died and that Dr. Pedigo responded that he would
“have to say she was smothered.” Trial counsel testified that he could not call Dr. Pedigo
as a witness if he was going to testify that the victim was smothered. Trial counsel
claimed that this was the sole reason why he did not call Dr. Pedigo as a witness at trial
and that he explained his reasoning to the Petitioner. Trial counsel testified that
ultimately he did not think Dr. Pedigo’s testimony “would have added anything to the
trial” because Dr. Pedigo’s testimony would have been the same as Dr. Deering’s. Trial

                                            -10-
counsel noted that Dr. Deering “made a great witness for” the defense because he
“couldn’t testify [that] it was a homicide.”

        At the conclusion of the evidentiary hearing, the post-conviction court stated that
it “put great confidence in the testimony of” trial counsel. The post-conviction court also
stated that trial counsel’s cross-examination of Dr. Deering “produced a very good result
for” the Petitioner and that it did not see how Dr. Pedigo’s testimony would have
benefited the Petitioner at trial. On June 1, 2017, the post-conviction court entered a
written order denying post-conviction relief. The post-conviction court concluded that
the testimony of each of the witnesses presented at the evidentiary hearing would not
have materially aided the Petitioner’s defense at trial. The post-conviction court also
concluded that trial counsel’s decision not to present further evidence regarding the hole
in the Petitioner’s backyard was based on his desire not to overemphasize the hole and
that this was a valid strategic decision. The post-conviction court further concluded that
the Petitioner failed to present any proof as to how the presentation of “weather reports”
for the weekend of the victim’s death would have changed the outcome of his trial.

                                       ANALYSIS

        The Petitioner contends that the post-conviction court erred in denying
post-conviction relief. The Petitioner argues that trial counsel was ineffective for failing
to call at trial Ms. Beaty and Ms. Lodes to explain the Petitioner’s “unusual behavior
following his wife’s death,” Ms. Beaty and Ms. Lodes to testify about Margaret’s “erratic
and irrational behavior in stressful situations,” Mr. Johnson to testify about “the origin”
of the hole in the Petitioner’s backyard, Tommy to testify about “the motivation and
timing of [the] life insurance policy,” and Dr. Pedigo to testify that the victim “may have
died of natural causes.” The Petitioner also argues that trial counsel was ineffective for
failing to “offer additional evidence” regarding the hole in the Petitioner’s backyard and
for failing to “introduce evidence of the weather during the weekend of the [victim’s]
death.” The State responds that the post-conviction court did not err in denying the
petition.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). On appeal, we are bound by the post-conviction court’s findings of fact unless we
conclude that the evidence in the record preponderates against those findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions concerning the
credibility of witnesses, the weight and value to be given their testimony, and the factual
issues raised by the evidence are to be resolved” by the post-conviction court. Id.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.
                                            -11-
       Post-conviction relief is available when a “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.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “Because 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.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

        When a petitioner alleges that trial counsel was ineffective for failing to call a
witness at trial and that witness has been presented at the post-conviction hearing, “the
post-conviction court must determine whether the testimony would have been (1)
admissible at trial and (2) material to the defense.” Plyant v. State, 263 S.W.3d 854, 869
(Tenn. 2008). A finding that “trial counsel was not deficient in failing to call [a] witness
at trial” is justified if “the post-conviction court determine[d] that the proffered testimony
would not have been admissible at trial or that . . . it would not have materially aided the
petitioner’s defense at trial.” Id. “[I]f the proffered testimony [was] both admissible and
material, the post-conviction court must assess whether the witness [was] credible.” Id.
at 869-70. However, the decision of what witnesses to call at trial is a strategic and
tactical decision to be made by trial counsel and which we “will not second-guess” if it
was an informed decision. Id. at 873-74.

       With respect to the testimony of Ms. Beaty and Ms. Lodes about the Petitioner’s
“unusual behavior following his wife’s death,” trial counsel testified that he was
concerned about calling too many of the Petitioner’s family members at trial because he
was afraid that the jury would believe that they were lying to protect the Petitioner.
Specifically, trial counsel worried that the jury would think Ms. Beaty and Ms. Lodes

                                            -12-
were lying to protect the Petitioner like Margaret had appeared to do during her
testimony. Trial counsel also did not want Ms. Beaty and Ms. Lodes to be subjected to
cross-examination by the State. Testimony about the Petitioner’s having “[driven]
around” after the death of his first child in 1994 would have “opened the door” for the
State to introduce possible evidence of the Petitioner’s bad character. See Tenn. R. Evid.
404(a)(1).

       Similarly, as the State notes in its brief, it was reasonable for trial counsel to avoid
presenting testimony that “the [P]etitioner chose to ‘lawyer up’” rather than speak to the
investigators after the victim’s body was discovered. Additionally, Margaret testified
that the Petitioner “was not ‘running’ from [the] police.” Lewis, 2013 WL 6199278, at
*3. Instead, she testified that the Petitioner “‘had just left.’” Id. Regarding the
Petitioner’s failure to contact his children, there was testimony that the children had their
cell phones confiscated by their maternal grandparents after the victim’s death. With
respect to Ms. Beaty’s testimony that she did not observe any injuries to the Petitioner,
Mr. Beaty already testified at trial that he did not observe any injuries to the Petitioner on
the morning of August 2, 2010. For these reasons, trial counsel made an informed
strategic and tactical decision not to call Ms. Beaty and Ms. Lodes to testify regarding the
Petitioner’s actions after the victim’s death.

        Regarding Ms. Beaty and Ms. Lodes’s testimony about Margaret’s “erratic and
irrational behavior in stressful situations,” “[a] party may offer evidence that a witness
suffered from impaired capacity at the time of an occurrence or testimony.” Tenn. R.
Evid. 617. However, “[o]nly impaired capacity at ‘occurrence or testimony’ will
impeach.” Tenn. R. Evid. 617, Advisory Comm’n cmt. As such, Ms. Beaty and Ms.
Lodes’s testimony about Margaret’s history of “erratic and irrational behavior in stressful
situations” would have been irrelevant and inadmissible at trial. Moreover, their
testimony would not have been material to the Petitioner’s defense at trial in light of the
fact that Margaret testified that she did not handle stressful situations well, that her “mind
[was] like a tornado or a whirlwind” when she spoke to the investigators, and that she
was under psychiatric care at the time of trial.

        Mr. Johnson’s testimony about the “origin” of the hole in the backyard would not
have been material to the Petitioner’s defense at trial. Mr. Johnson testified that the hole
was approximately a month old at the time of the victim’s death. Trial counsel called two
of the Petitioner and the victim’s children to testify about the hole. Trial counsel believed
that the children were “very sympathetic and made pretty good witnesses.” One child
testified that the hole “was dug approximately a month and a half to two months” and the
other testified that it was dug “a while before [the victim] died.” Lewis, 2013 WL
6199278, at *11-12. One of the children testified that the hole was “dug two weeks
before her mother died,” which was shorter than Mr. Johnson’s estimation of a month.

                                             -13-
Id. at *11. A timeframe of two weeks was still contrary to the State’s theory that the hole
was freshly dug and the testimony of the investigators that the mud on the front-end
loader was “‘fresh’” and “‘wet.’” Id. at * 7. Accordingly, trial counsel was not deficient
for failing to call Mr. Johnson at trial.

        Tommy’s testimony about the life insurance policy also would not have been
material to the Petitioner’s defense at trial. There was some confusion about the age of
the policy. This court’s opinion on direct appeal states that it was three years old at the
time of the victim’s death. Lewis, 2013 WL 6199278, at *11. Tommy testified that the
policy was five years old. However, trial counsel noted that the life insurance policy was
introduced into evidence at trial and that the jury could see on the policy itself the date
that it was issued. Moreover, as trial counsel pointed out, “the issue . . . was [the
Petitioner’s] erratic behavior after [the victim] had passed away . . ., cussing [Mr.
Ownby] and threatening [him].” Tommy was no longer employed with the insurance
company at the time of the victim’s death and could not testify about the Petitioner’s
interactions with Mr. Ownby. Accordingly, trial counsel was not deficient for failing to
call Tommy at trial.

       Dr. Pedigo’s testimony was likewise not material to the Petitioner’s defense at
trial. Trial counsel testified that he decided not to call Dr. Pedigo after Dr. Pedigo told
him that, if asked by the State how the victim died, that he would “have to say she was
smothered.” Dr. Pedigo denied making this statement, but the post-conviction court
accredited trial counsel’s testimony. Testimony by Dr. Pedigo that the victim “was
smothered” would have been extremely damaging to the Petitioner’s defense. More
importantly, trial counsel was not deficient for failing to call Dr. Pedigo at trial given Dr.
Pedigo’s background, the fact that Dr. Pedigo did not “believe that there [was] any
difference at all in [his] opinions and those opined by Dr. Deering at trial,” and the fact
that the statement that the victim suffered from sleep apnea found in Dr. Pedigo’s
one-page “report” was based on the medical history provided by the Petitioner’s family
and not on any of the victim’s medical records.

        Regarding the Petitioner’s argument that trial counsel was ineffective for failing to
“offer additional evidence” about the hole in the Petitioner’s backyard, trial counsel
testified that he did not take additional pictures of the hole because the Petitioner told him
that the State’s photographs “accurately reflected what the hole looked like.”
Additionally, two of the Petitioner’s children testified at trial about the reason the hole
was dug and that the victim participated in digging the hole. Trial counsel testified that
he did not want to put on further evidence about the hole for fear of over-emphasizing its
existence. The decision to limit the evidence about the hole was a tactical choice made
by trial counsel. When a trial counsel’s tactical choices are informed and made with
adequate preparation, this court does not measure them with “20-20 hindsight” or “sit to

                                            -14-
second guess . . . [those] choices made by trial counsel.” Hellard v. State, 629 S.W.2d 4,
10 (Tenn. 1982) (internal quotation marks omitted) (quoting United States v. DeCoster,
487 F.2d 1197, 1201 (D.C. Cir. 1973)).              Accordingly, we conclude that the
post-conviction court did not err in denying post-conviction relief on this issue.

       Finally, the Petitioner argues that trial counsel was ineffective for failing to
“introduce evidence of the weather during the weekend of the death.” Ms. Lodes testified
that she provided “weather reports” for the weekend of the victim’s death to trial counsel.
Mr. Johnson testified that the Petitioner and the victim’s trailer did not have air
conditioning and that it was approximately ninety-five degrees outside on the day the
victim’s body was discovered. However, the Petitioner presented no evidence at the
post-conviction hearing as to how this information would have changed or differed from
Dr. Deering’s estimated time of death for the victim.

       Trial counsel testified that during the trial “[e]verybody testified it was blazing hot
in the trailer and . . . outside.” Dr. Deering admitted that “he could not determine the
exact time of death for the victim.” Lewis, 2013 WL 6199278, at *9. He explained,
generally, that heat can accelerate the decomposition process while cold can slow the
process down. Id. Dr. Deering estimated that “the victim had been deceased for two or
three days” at the time of the autopsy based upon his expertise and “all the circumstances
of this case.” Id. This was consistent with the fact that the victim did not show up for
work on the morning of July 31, 2010. Id. at *5. As such, the Petitioner failed to
establish that he was prejudiced by trial counsel’s failure to “introduce evidence of the
weather during the weekend of the [victim’s] death.”

                                      CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.

                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




                                            -15-
