Bryant Jackson Harris v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
November 16, 2022 Session

BRYANT JACKSON HARRIS v. STATE OF TENNESSEE

 

 

 

 

 

Appeal from the Criminal Court for Hawkins County FILED
No. CC-18-CR-37 John F. Dugger, Jr., Judge DEC 16 2022
Clerk of the ellate Gourts
No. E2022-00446-CCA-R3-PC fece nie ebayal

 

The Petitioner, Bryant Jackson Harris, appeals the Hawkins County Criminal Court’s
denial of his post-conviction petition, seeking relief from his convictions of first degree
premeditated murder, first degree felony murder, and aggravated burglary and resulting
effective sentence of life in confinement. On appeal, the Petitioner contends that he
received the ineffective assistance of trial counsel. Based upon the oral arguments, the
record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Gregory P. Isaacs and Ashlee B. Mathis (on appeal) and J. Franklin Ammons (at hearing),
Knoxville, Tennessee, for the appellant, Bryant Jackson Harris.

Jonathan Skrmetti, Attorney General and Reporter; Courtney N. Orr, Senior Assistant
Attorney General; Dan E. Armstrong, District Attorney General; and Ritchie Collins and
Cecil C. Mills, Jr., Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION
FACTS
This case relates to the Petitioner’s shooting Jeffrey Smith, who was the Petitioner’s

wife’s half-brother, on July 21, 2011.' The next day, the Petitioner was charged in general
sessions court with attempted first degree premeditated murder. The victim died from his

 

' On August 8, 2022, this court entered an order taking judicial notice of the appellate record in the
Petitioner’s direct appeal of his convictions.
injuries on January 1, 2012, more than five months after the shooting. Consequently, the
charge was amended to first degree premeditated murder on June 8, 2012. On December
10, 2012, the Hawkins County Grand Jury indicted the Petitioner for first degree
premeditated murder. On June 3, 2013, the grand jury also charged him by presentment
with one count of first degree felony murder committed during the perpetration of any
burglary and one count of aggravated burglary. The Petitioner went to trial for the three
offenses in October 2014.

The evidence at trial showed that on the day of the shooting, the Petitioner went to
Chuck Myers’s house, where the victim was staying. See State v. Bryant Jackson Harris,
No. E2015-01724-CCA-R3-CD, 

, at *3 (Tenn. Crim. App. Nov. 4,
2016), perm. app. denied (Tenn. Feb. 23, 2017). Mr. Myers testified that he let the
Petitioner into his home and that the Petitioner went downstairs to the victim’s bedroom.

 Mr. Myers heard the Petitioner yell, ““[Y]ou low down S.O.B. I’m going to kill your
a--.”” 

 Mr. Myers followed the Petitioner downstairs, saw the victim lying in bed, and
saw the victim stand up in front of the Petitioner. Jd. The Petitioner and the victim were
four or five steps apart, and the Petitioner had a gun by his side. /d. The Petitioner raised
the gun and shot the victim in the abdomen, and the victim fell onto the bed. /d. The
Petitioner fired a second shot that struck the victim in the left elbow and arm. Jd. The
Petitioner tried to fire a third shot, but the gun did not fire. Jd. Mr. Myers saw cartridge
casings fall to the floor, told the Petitioner to leave, and called 911. Jd.

The State played the 911 call for the jury. /d. at *1. During the call, Mr. Myers
reported that a man with ‘“‘a long brown pistol” had shot the victim twice. Jd. Mr. Myers
told the 911 operator that the man went outside after the shooting but that he had re-entered
the house and was holding a knife. Jd. At the end of the call, Mr. Myers said the man was
back outside and was standing in the driveway. Jd.

On cross-examination, Mr. Myers testified that he experienced serious health issues
prior to the Petitioner’s trial and that he suffered some memory loss. /d. at *3. Mr. Myers
spoke with an officer at the scene of the shooting but could not remember at trial what he
told the officer. Jd. He agreed that his statement to the officer was more accurate than his
trial testimony. Jd.

A police officer testified that when he arrived at Mr. Myers’s home, the Petitioner
was sitting outside on a large rock next to the driveway. Jd. at *2. The officer took the
Petitioner into custody but did not find any weapons on his person. Jd. The officer did not
see any bloodstains on the Petitioner’s clothing, the Petitioner did not appear to be injured,
and the Petitioner did not complain of any injuries. Jd. A .22-caliber single-action revolver
and a knife were on the tailgate of the Petitioner’s truck, which was parked in the driveway.

 The victim was inside the house. Jd. He had blood on his face, was holding his
abdomen, and was gasping for air. Jd. A second officer at the scene spoke with Mr. Myers.

 The officer testified that Mr. Myers told him that the Petitioner “‘pushed his way past

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[Mr. Myers] and went down the steps and started yelling at the victim, and then he heard
gunshots . .. and went down there and actually saw the last two.’” Jd. The officer identified
photographs, showing blood spatter on the floor in the downstairs hallway and on the
victim’s bed. /d. at *1.

The victim sustained multiple injuries and had surgery to close several holes in his
colon and duodenum. Jd. at *3. He developed complications, and his condition
deteriorated. Jd. He eventually went into cardiac arrest and died several days later. Jd.
The forensic pathologist who performed the victim’s autopsy concluded that he died of
complications from a gunshot wound to the abdomen and that his manner of death was
homicide. Jd. at *4.

The Petitioner testified that he had known the victim since the victim was seven
years old, that he and the victim worked together for more than twenty years, and that he
treated the victim like his son. Jd. at *5. The Petitioner claimed that he went to Mr. Myers’s
residence on the day of the shooting to check on the victim because the Petitioner’s wife
could not contact the victim by telephone and was concerned about the victim. Jd. When
the Petitioner arrived at Mr. Myers’s home, Mr. Myers let him inside. Jd. The Petitioner
turned to go downstairs to the victim’s bedroom, and Mr. Myers kicked him in the back,
causing him to fall down the stairs. Jd. The victim then beat the Petitioner with a cane or
pipe. Jd. The Petitioner grabbed the object, so the victim reached under a pillowcase,
pulled out a revolver, and tried to shoot the Petitioner. Jd. The Petitioner and the victim
struggled over the gun. Jd. The victim “held the gun,” and the gun fired three times. Jd.
The Petitioner said that he was on the floor when the gun fired and that the gun was pointed
upward. Jd.

The Petitioner testified that the gun was on the bedroom floor and that he picked up
the gun because he did not want the victim to shoot at him again. /d. The Petitioner went
outside, placed the gun and his pocketknife on the tailgate of his truck, and waited for the
police. Jd. The Petitioner denied owning the gun, going to the residence to harm the victim,
or intending to shoot the victim. Jd.

On cross-examination, the Petitioner testified that his wife and the victim shared the
same mother. Jd. at *6. The Petitioner’s wife filed a lawsuit on her mother’s behalf in
2008 and ended up receiving a $210,000 settlement in 2009. Jd. The State asked the
Petitioner if the victim was upset about the settlement and if the victim had threatened to
sue the Petitioner’s wife for part of the money. See 

 The Petitioner denied that he went
to Mr. Myers’s home because the victim was “‘raising a stink’” about the settlement and
was harassing the Petitioner’s wife. Jd. at *7.

The Petitioner testified that he hit his elbow, shoulders, and knees when Mr. Myers
kicked him down the stairs. Jd. at *6. The Petitioner was released from jail the day after
the shooting and went to the emergency room on July 26, 2011. See 

=3-
On redirect examination, the Petitioner acknowledged that his emergency room
records stated that he had bruises on his forearm, humerus, and back and that he had sprains
and strains on his back and neck. Jd. at *7. He also acknowledged that he went to the
hospital on the advice of trial counsel to document the injuries he received during his
struggle with the victim. Jd The defense introduced into evidence sixteen photographs
taken by the Petitioner’s daughter the day after he was released from jail. Jd. The Petitioner
said the photographs showed his injuries. 

The Petitioner’s wife testified that she had a good relationship with the victim and
that they never argued about the lawsuit settlement. Jd. at *8. On the day of the shooting,
the Petitioner’s wife asked the Petitioner to check on the victim. /d. The Petitioner did not
own a gun and did not have a gun when he left their home. /d. On cross-examination, the
Petitioner’s wife testified that the Petitioner went to the hospital after he was released from
jail because he was ““black and blue.’” Jd.

The Petitioner’s son-in-law testified that the victim used to live with him and
identified the revolver in a crime scene photograph as the victim’s gun. Jd. at *9.
Numerous witnesses, including the Petitioner’s church pastor, testified on his behalf
regarding his character for truthfulness. See 

 Nevertheless, the jury convicted him as
charged of first degree premeditated murder, first degree felony murder, and aggravated
burglary. Jd. After a sentencing hearing, he received concurrent sentences of life for the
murder convictions and six years for the aggravated burglary conviction, a Class C felony.

On direct appeal of his convictions, the Petitioner claimed that the evidence was
insufficient to support the convictions, that Mr. Myers’s testimony should have been
stricken due to his memory loss, and that the trial court should have declared a mistrial
when the prosecutor asked the Petitioner whether he told police officers at the crime scene
““any of this.” See id. at *9-13. This court affirmed the Petitioner’s convictions but
remanded the case for merger of the murder convictions. Jd. at *13.

After our supreme court denied the Petitioner’s application for permission to appeal,
retained counsel filed a timely petition for post-conviction relief in which the Petitioner
alleged that he received the ineffective assistance of trial counsel. Relevant to this appeal,
the Petitioner claimed that trial counsel was ineffective for failing to request a speedy trial;
failing to interview Mr. Myers before trial; failing to object to the prosecutor’s improper
commentary during closing arguments; failing to retain experts in fingerprint, blood-spatter
analysis and forensic firearms analysis; and making improper gestures during the
Petitioner’s cross-examination testimony. The Petitioner also asserted that even if trial
counsel’s individual errors did not amount to ineffective assistance, the cumulative effect
of the errors warranted relief.
The post-conviction court held an evidentiary hearing on February 18, 2022. At the
hearing, trial counsel testified for the Petitioner that he was licensed to practice law in
Alabama in 1976 and Tennessee in 1978 and that he had been in private practice his entire
career, focusing mainly on criminal defense. Trial counsel’s law firm was comprised of
four lawyers, five support staff, a private investigator, an intern, and an employee who
worked two days per week. Trial counsel said that he had participated in “hundreds” of
trials, that eighty-five to ninety-five percent of those trials were criminal trials, and that ten
to twelve of the criminal trials were first degree murder cases. All of the first degree murder
cases involved a self-defense claim.

Trial counsel testified that the Petitioner was “a good man.” The Petitioner retained
trial counsel to represent him in general sessions court for attempted first degree murder,
and trial counsel met with the Petitioner. Trial counsel’s investigator also met with the
Petitioner and reviewed the Petitioner’s case file with trial counsel.

Trial counsel testified that he attended high school with Chuck Myers. He described
Mr. Myers as “an acquaintance” and said their relationship was “[p]leasant.” Trial counsel
told the Petitioner that he knew Mr. Myers and that he thought he would be able to talk
with Mr. Myers “easily.” The Petitioner “was comfortable with that” and was present in
trial counsel’s office two or three times when trial counsel spoke with Mr. Myers on the
telephone. Post-conviction counsel showed a document to trial counsel, and trial counsel
identified it as a letter Mr. Wynne wrote to trial counsel. In the letter, which was dated
August 23, 2011, Mr. Wynn stated, “I asked you before about trying to talk to Myers (the
owner of the house) and you told me not to. I would like to try and get a statement if
possible.” Trial counsel said his investigator “eventually interview[ed] Mr. Myers after
the preliminary hearing.”

Trial counsel testified that he told the Petitioner that the Petitioner was going to be
charged with first degree murder if the victim died. Trial counsel and the Petitioner talked
about the Petitioner’s right to a speedy trial, but trial counsel and the Petitioner did not talk
about requesting a speedy trial because the case for attempted first degree murder had not
been “set” in criminal court. Moreover, the Petitioner “was not in any hurry to get to
court.” Trial counsel “check[ed] on” the victim but did not foresee him dying. The victim’s
wound “would not heal for whatever reason,” and he stayed in the hospital for an extended
period of time. However, the Petitioner and the Petitioner’s wife told trial counsel that the
victim was in the hospital because the victim was addicted to pain pills. Trial counsel
acknowledged that it would have been “beneficial” for the Petitioner to have gone to trial
prior to the victim’s death.

Trial counsel testified that the Petitioner was indicted in criminal court for first
degree premeditated murder on December 10, 2012. On June 3, 2013, the Petitioner was
charged by presentment in criminal court with first degree felony murder and aggravated
burglary. Trial counsel received discovery and reviewed the discovery materials with the

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Petitioner. Trial counsel met with the Petitioner “numerous” times, and the Petitioner came
to trial counsel’s office “regularly.” At some point, the State offered to accept the
Petitioner’s guilty plea to a lesser charge in exchange for one year in confinement and
fourteen years on probation. Trial counsel said that he did not remember the plea offense
but that “[i]t was not a murder charge. It was some type of offense outside the range of the
offense.” Trial counsel stated that he “did everything but get down on [his] knees” to try
to convince the Petitioner to accept the offer but that the Petitioner would not listen to trial
counsel. The Petitioner never denied shooting the victim but thought he did so in self-
defense.

Trial counsel testified that he did not hire an expert to review the blood spatter at
the crime scene because the revolver “had to be cocked back and shot before it would go
off on each occasion.” Trial counsel also did not hire an expert to conduct fingerprint
analysis on the revolver because the Petitioner told trial counsel that the victim never
touched the gun.

Trial counsel acknowledged that during the prosecutor’s cross-examination of the
Petitioner at trial, the following exchange occurred in front of the jury:

[THE STATE]: Your Honor, he is being coached over here.

THE COURT: Don’t be nodding your head yes or no. I have watched
you do that, too. Don’t nod your head while he is answering.

[TRIAL COUNSEL]: Judge, I’m not coaching anybody.
THE COURT: Just let him answer, your client answer. Go ahead.
[THE STATE]: Just one second, Your Honor.

[TRIAL COUNSEL]: Coached, I object to that statement, Your
Honor. It is grossly untrue.

[THE STATE]: Your Honor, I asked the question. He says yes and
he says yes. That’s what happened.

[TRIAL COUNSEL]: I am a human being, Your Honor, I have
emotions, too, but I am not coaching anybody.

THE COURT: You do have emotions but you were nodding your
head in an affirmative motion when he was asking a question and your client
says yes.
Trial counsel explained that he sometimes nodded after the Petitioner said yes but that the
jury could not see trial counsel because “I was completely blocked off from the jury.” Trial
counsel said that although he was nodding, he was not telling the Petitioner to say yes and
was not coaching the Petitioner. Trial counsel stated that the prosecutor should have
approached the bench to accuse trial counsel of coaching the Petitioner and that the
prosecutor’s raising the issue in front of the jury “was totally improper.” Trial counsel said
that he “could see how someone might think” he was coaching the Petitioner and that the
prosecutor’s actions made him “extremely angry.” Trial counsel reiterated that the jury
did not see him nodding his head.

Trial counsel acknowledged that during the State’s closing arguments, the
prosecutor stated, “‘I don’t think any one of us would think that Chuck Myers kicked [the
Petitioner] down the stairs.’” Although the statement could have been construed as the
prosecutor’s personal opinion, trial counsel did not object because he did not want to call
attention to the statement.

On cross-examination, trial counsel testified that the Petitioner never asked that his
trial proceed more quickly. Trial counsel acknowledged that it often took the State one
year to indict a defendant and that trial counsel had never been successful in forcing the
State to proceed to trial before a.defendant had been indicted in criminal court. Trial
counsel said that he talked with Mr. Myers about the case at least five times on the
telephone and that Mr. Myers would not change his story “one iota.” The last time trial
counsel telephoned Mr. Myers, Mr. Myers “got irate” with trial counsel.

Trial counsel acknowledged that blood was in the bedroom where the shooting
occurred. However, there was no blood on the Petitioner. Therefore, trial counsel thought
that he would have been unsuccessful in saying that a fight occurred and that a blood-
spatter expert “without a doubt” could have hurt the defense. Trial counsel also thought
that hiring a fingerprint expert could have hurt the defense because the revolver had to be
cocked every time it was fired. Trial counsel acknowledged that he did not object to the
prosecutor’s statement during the State’s closing argument but said that he was “bitter”
about the State’s raising the coaching issue in front of the jury. Trial counsel maintained
that he was not trying to coach the Petitioner and explained, “If [the Petitioner] would
answer a question I might nod my head yes. I never nodded my head no. It was just a
response to what he said, not an attempt to coach him.” Trial counsel said that although
the jury could not see him nodding, “it was not beneficial to [the Petitioner] the way that
was done, I’Il tell you that.”

The seventy-one-year old Petitioner testified that he was about sixty-two years old
at the time of the shooting. The Petitioner and trial counsel talked about “several things,”
but the Petitioner did not remember if they talked about his right to a speedy trial prior to
the victim’s death. The Petitioner said that if they had done so, he would have requested a
speedy trial. The Petitioner thought he was innocent.

7
On cross-examination, the Petitioner testified that after the shooting, his son-in-law
contacted trial counsel. The Petitioner had never met trial counsel previously but retained
trial counsel because he thought, at the time, that trial counsel was a good attorney. The
Petitioner said he did not know how many hours trial counsel worked on his case. On
redirect examination, post-conviction counsel asked the Petitioner if he was “pleased” with
trial counsel’s services. The Petitioner answered, “Not really but yeah.”

On March 14, 2022, the post-conviction court entered an order denying the petition
for post-conviction relief. Regarding the Petitioner’s claim that trial counsel was
ineffective for failing to request a speedy trial, the post-conviction court noted that the
Petitioner was “objecting” to the length of the delay between the offense date and the date
of the victim’s death, which was about five months, and concluded that trial counsel was
not ineffective. As to the issue of whether trial counsel was ineffective for failing to
interview Mr. Myers, the post-conviction court accredited trial counsel’s testimony that he
spoke with Mr. Myers several times on the telephone. The post-conviction court addressed
trial counsel’s failure to object to the prosecutor’s statement during closing arguments and
concluded that trial counsel made a tactical decision not to object so as not to draw attention
to the statement. Regarding trial counsel’s nodding his head during the Petitioner’s cross-
examination testimony, the post-conviction court concluded that the Petitioner failed to
show by clear and convincing evidence that trial counsel’s actions affected the Petitioner’s
credibility with the jury. As to the Petitioner’s claim that trial counsel was ineffective for
failing to hire blood-spatter and fingerprint experts, the post-conviction court concluded
that trial counsel made tactical decisions not to hire the experts because trial counsel
thought they could harm the Petitioner’s self-defense claim. Finally, the post-conviction
court concluded that the Petitioner’s claims did not individually or collectively warrant
relief.

ANALYSIS

Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” 

. The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Tenn. Crim. App. § 40-30-110(f). When an evidentiary hearing is held in the post-
conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. See Wiley v. State, 

 (Tenn.
2006). When reviewing factual issues, the appellate court will not reweigh the evidence
and will instead defer to the post-conviction court’s findings as to the credibility of
witnesses or the weight of their testimony. Jd. However, review of a post-conviction
court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 

 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo,
with a presumption of correctness given only to the post-conviction court’s findings of fact.

_8-
See Fields v. State, 40 $.W.3d 450, 458 (Tenn. 2001); Burns v. State, 

(Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 

 (1984); see State v. Taylor, 

 (Tenn.
Crim. App. 1997) (noting that the same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland standard
is a two-prong test:

First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.

466 US. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 

 (Tenn. 1996)
(citing Strickland, 

; Baxter v. Rose, 

 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 

, and
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. see Hellard v. State, 

 (Tenn. 1982).

The prejudice prong of the test is satisfied by showing a reasonable probability, i.e.,
a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 US. at 694.

Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”

; see Goad, 

 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”’).
I. Speedy Trial

The Petitioner claims that the post-conviction court erred by determining that trial
counsel was not ineffective for failing to request a speedy trial for attempted first degree
murder. He argues that if trial counsel had done so before the victim died or before the
State amended the charge to first degree murder, the Petitioner would have received a
sentence of fifteen to twenty-five years if convicted instead of a life sentence. The State
argues that trial counsel made a reasoned, strategic decision not to request a speedy trial.
The State also argues that the Petitioner cannot demonstrate prejudice because even if trial
counsel had made the request, it is unlikely the Petitioner would have gone to trial before
the victim died. We agree with the State.

The right to a speedy trial, which is guaranteed by the Sixth Amendment to the
United States Constitution and by article I, section 9 of the Tennessee Constitution,
“attaches at the time of arrest or indictment, whichever comes first, and continues until the
date of the trial.” State v. Vickers, 

 (Tenn. Crim. App. 1997). To determine
whether a defendant’s constitutional right to a speedy trial has been violated, this court
must conduct the balancing test set forth in Barker v. Wingo, 

 (1972). See
State v. Wood, 

 (Tenn. 1996); State v. Baker, 614 8.W.2d 352, 353
(Tenn. 1981). Under the Barker analysis, the following four factors must be considered:
(1) the length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of the
right to a speedy trial; and (4) the prejudice resulting from the delay. 

. The
most important consideration is the prejudice factor. State v. Simmons, 

 (Tenn. 2001). As noted by the State, a delay generally must approach one year to
trigger a Barker analysis. Doggett v. United States, 

 (1992).

Here, trial counsel testified that a request for a speedy trial would have been
premature because the Petitioner had not been indicted in criminal court. Moreover, trial
counsel testified while it would have been beneficial for the Petitioner to have gone to trial
for attempted first degree murder before the victim died, trial counsel did not foresee the
victim’s death because the Petitioner and the Petitioner’s wife told him that the victim was
in the hospital for an addiction to pain pills. We conclude that the record supports the post-
conviction court’s determination that trial counsel was not deficient for not filing a request
for speedy trial in general sessions court. Therefore, we agree with the State that the
Petitioner has failed to demonstrate that trial counsel was deficient or that he was
prejudiced by any deficiency.

II. Mr. Myers

The Petitioner claims that the post-conviction court erred by ruling that trial counsel
was not ineffective for failing to interview Mr. Myers. The Petitioner asserts that although
trial counsel may have spoken with Mr. Myers several times on the telephone, trial counsel
should have allowed his investigator to interview Mr. Myers close in time to the shooting

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in order to preserve Mr. Myers’s eyewitness account of the event. The State argues that
the Petitioner is not entitled to relief because trial counsel testified that Mr. Myers did not
change his story. We agree with the State that the Petitioner is not entitled to relief.

Trial counsel testified that he and his investigator talked with Mr. Myers and that
Mr. Myers’s story did not change “one iota.” Our review of the trial record confirms that
Mr. Myers told the 911 operator, a police officer at the scene, and the jury that he let the
Petitioner into his home and that the Petitioner immediately went downstairs and shot the
victim. We note that during trial counsel’s cross-examination of Mr. Myers, Mr. Myers
acknowledged that he was having memory issues and that his statement to the police officer
was more reliable than his trial testimony. However, the Petitioner has not explained or
offered any evidence as to how the investigator’s failure to interview Mr. Myers close in
time to the shooting prejudiced his case. Therefore, we conclude that the Petitioner has
failed to show that trial counsel was deficient or that he was prejudiced by any deficiency.
The record supports the post-conviction court’s determination that the Petitioner failed to
establish this claim.

Ii. Experts

The Petitioner contends that the post-conviction court erred by determining that
trial counsel was not ineffective for failing to consult with experts in fingerprint, firearms,
and blood-spatter analysis. He argues that the experts could have corroborated his self-
defense claim and his claim that the victim was the first aggressor. The State argues that
the Petitioner is not entitled to relief because trial counsel made a reasonable, strategic
decision not to hire expert witnesses. We agree with the State.

At trial, the Petitioner claimed that the victim hit him with an object and that the
victim was shot accidentally while they were struggling over the victim’s gun. However,
according to the evidence presented by the State, no blood was on the Petitioner, and the
gun had to be cocked three times in order to fire three shots. Trial counsel testified at the
evidentiary hearing that experts in blood-spatter and fingerprint analysis could have hurt
the Petitioner’s claims. The record supports the post-conviction court’s findings that trial
counsel’s decision not to consult with the experts was a reasonable trial strategy in light of
the evidence. Additionally, as noted by the State, the Petitioner did not have any experts
testify at the evidentiary hearing. In order “[t]o succeed on a claim of ineffective assistance
of counsel for failure to call a witness at trial, a post-conviction petitioner should present
that witness at the post-conviction hearing.” Pylant v. State, 

 (Tenn.
2008) (citing Black v. State, 

 (Tenn. Crim. App. 1990)). “As a general
rule, this is the only way the petitioner can establish that . . . the failure to have a known
witness present or call the witness to the stand resulted in the denial of critical evidence
which inured to the prejudice of the petitioner.” Jd. (quoting Black, 

)
Therefore, the Petitioner has failed to show that he received the ineffective assistance of
trial counsel.

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IV. Trial Counsel’s Actions on Cross-Examination

The Petitioner claims that the post-conviction court erred by determining that trial
counsel was not ineffective when trial counsel nodded his head while the Petitioner was
testifying on cross-examination at trial. The record supports the post-conviction court’s
determination that the Petitioner failed to demonstrate prejudice. Trial counsel testified
that the jury could not see him nodding his head, and trial counsel vehemently denied in
front of the jury that he was coaching the Petitioner. In any event, the State’s proof against
the Petitioner was strong. Specifically, the evidence showed that the Petitioner went to Mr.
Myers’s home with a gun and a knife to confront the victim about a dispute between the
victim and the Petitioner’s wife over a lawsuit settlement. Mr. Myers testified that he
followed the Petitioner downstairs, that he saw the Petitioner and the victim standing
several steps apart, and that he saw the Petitioner shoot the victim. Moreover, Mr. Myers
told the 911 operator and a police officer that he saw the Petitioner shoot the victim.
Although the Petitioner claimed that Mr. Myers kicked him down the stairs, the Petitioner
did not appear to be injured or report any injuries when the police arrived. Additionally,
although the Petitioner claimed that the victim was shot accidentally while they were
struggling over the gun, there was no blood on the Petitioner and the gun had to be cocked
each time it was fired, which rebutted the Petitioner’s self-defense claim. Therefore, we
agree with the post-conviction court that the Petitioner is not entitled to relief.

V. Closing Argument

The Petitioner asserts that the post-conviction court erred in determining that trial
counsel was not ineffective for failing to object to an improper comment made by the
prosecutor during closing arguments. The State argues that the Petitioner is not entitled to
relief because trial counsel made a strategic decision not to object. We agree with the State.

At the evidentiary hearing, trial counsel acknowledged that he did not object when
the prosecutor stated, “‘I don’t think any one of us would think that Chuck Myers kicked
[the Petitioner] down the stairs.’” Trial counsel also acknowledged that the statement could
have been construed as the prosecutor’s improperly stating his opinion about witness
credibility. However, trial counsel explained that he did not object because he did not want
to draw the jury’s attention to the statement.

As this court has recognized, “The decisions of a trial attorney as to whether to
object to opposing counsel’s arguments are often primarily tactical decisions.” Derek T.
Payne y. State, No. W2008-02784-CCA-R3-PC, 

, at *15 (Tenn. Crim.
App. Jan. 15, 2010). The post-conviction court determined that the Petitioner was not
entitled to relief because trial counsel made a strategic decision not to object to the
prosecutor’s statement. The record supports the post-conviction court’s determination that
trial counsel’s failure to object does not constitute deficient performance.

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VI. Cumulative Error

Finally, the Petitioner contends that even if trial counsel’s individual errors do not
amount to ineffective assistance, the cumulative effect of the errors warrants relief. “To
warrant assessment under the cumulative error doctrine, there must have been more than
one actual error committed in the trial proceedings.” State v. Hester, 

(Tenn. 2010). Moreover, in the context of an ineffective assistance of counsel claim,
cumulative error “examines the prejudicial effect of multiple instances of deficient
performance.” Tommy Dale Adams v. State, No. M2018-00470-CCA-R3-PC, 

, at *31 (Tenn. Crim. App. Dec. 20, 2019); see Demetrius Grimes v. State, No.
E2021-00120-CCA-R3-PC, 

, at *8 (Tenn. Crim. App. Feb. 24, 2022),
perm. app. denied, (Tenn. June 8, 2022); Thomas Edward Clardy v. State, No. M2017-
01193-CCA-R3-PC, 

, at *7 (Tenn. Crim. App. Oct. 17, 2018). In this
case, the Petitioner has not demonstrated there were multiple instances of deficient
performance so he is not entitled to relief under the cumulative error doctrine.

CONCLUSION

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the post-conviction court.

 

YOM,
fs W. CAMPBELL, SR., JUDGE

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