Richard Stanley Russell v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 21, 1999
• Docket: 01C01-9707-CR-00302
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JUNE 1998 SESSION April 21, 1999

Cecil W. Crowson RICHARD STANLEY RUSSELL, ) Appellate Court Clerk ) Appellant, ) No. 01C01-9707-CR-00302 ) ) Davidson County v. ) ) Honorable Seth Norman, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )

For the Appellant: For the Appellee:

Thomas F. Bloom John Knox Walkup 500 Church Street Attorney General of Tennessee Nashville, TN 37219 and Karen M. Yacuzzo Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493

Victor S. Johnson, III District Attorney General and Kymberly Haas Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The petitioner, Richard Stanley Russell, appeals as of right from the

Davidson County Criminal Court's denial of post-conviction relief. The petitioner was

convicted of first degree murder and sentenced to life in the Tennessee Department of

Correction. His conviction was affirmed on direct appeal to this court. State v. Richard

Stanley Russell, Sr., No. 01C01-9409-CR-00308, Davidson County (Tenn. Crim. App.

Oct. 31, 1995), app. denied, (Tenn. Mar. 25, 1996). The petitioner contends that the

trial court erred in concluding that he received the effective assistance of counsel at his

trial. We disagree.

Although the record does not contain the details of the petitioner's

charges or trial, this court’s opinion in the direct appeal outlines the essential events.

On February 25, 1993, the police responded to a 9-1-1 call and found the petitioner's

wife stabbed to death. The petitioner was at the scene and had blood covering his

hands and clothes.

Testimony at the trial indicated that the petitioner and his wife had an

argument about her sexual preferences. The petitioner testified that after arguing, he

went into the kitchen and started writing a note describing the details of the argument.

The petitioner testified that after the argument resumed, he picked up a knife his wife

kept with her, pointed it at his stomach and told her that he might as well kill himself and

save her the trouble. He stated that he did not remember what happened after that, but

eventually he found himself in the kitchen with the note and a bloody knife. He said that

he then called his daughter and asked her to call 9-1-1. He said that before he opened

the door for the police, he hugged his wife's bloody body.

2 With this evidence, the petitioner was convicted of first degree murder.

On appeal, the petitioner claimed that the evidence was not sufficient and that the trial

court erred in allowing a reference to a higher power during voir dire and in excluding

evidence of the victim's character. This court determined that the evidence supporting

the jury's finding that the appellant was guilty of first degree murder beyond a

reasonable doubt was overwhelming and that the petitioner's claims were without merit.

The petitioner filed a pro se petition for post-conviction relief. Appointed

counsel filed an amended petition, alleging that the petitioner received the ineffective

assistance of trial counsel because his trial attorneys (1) failed to consult adequately

with the petitioner before trial regarding the case theory, the petitioner's charges, the

state's plea offer, and the strength of the state's case, (2) failed to object to the

introduction of the victim's bloody T-shirt, which was highly prejudicial and misleading,

(3) failed to conduct an adequate investigation and to interview the petitioner properly,

(4) failed to employ experts such as a forensic pathologist, a mental health expert, or a

handwriting expert, and (5) failed to use the 9-1-1 tape to discredit a police officer's

testimony.

At the post-conviction hearing, the petitioner's daughter testified that she

met with the petitioner's trial attorneys before trial. She testified that she knew that the

state had made a plea offer, and one of the attorneys discussed it with her just before

the trial. She stated that she was not aware that the petitioner was indicted for first

degree murder until the day of the trial, but she admitted on cross-examination that

during a meeting before trial, the attorneys discussed first degree murder as a potential

outcome of the trial. She testified that a psychiatric examination of her father was never

made, but she believed that he needed one for the trial.

3 The petitioner testified that he was appointed an attorney, Barbara Futter,

who met with him almost daily until he posted bond. He said that he met his second

attorney, David Siegel, about nine months later. The petitioner said that after that

meeting, he rarely met with his attorneys other than for court hearings. He testified that

the weekend before the trial he met with both attorneys for trial preparation.

The petitioner testified that he told Ms. Futter about the events leading up

to his arrest for the murder of his wife. He said that he told his attorney that he argued

with his wife about her plan for him to help her kidnap her daughter. He said that he

told his wife that he did not want to hear any of it. He testified that he went to the

kitchen and started writing a note. He said that the victim called him into the living

room, and they started arguing again. He testified that there was a knife on the

footstool and that he picked it up and told the victim that she would not have to kill him,

that he would do it himself. He said that he remembered her coming toward him, but he

did not remember anything after that until he found himself in the kitchen continuing his

note. The petitioner testified that as he was writing the note, he saw the bloody knife.

He said that he then called his daughter and told her to call 9-1-1. He said that he held

his wife before he opened the door for the police.

The petitioner testified that he was trained in security and that the state’s

contention that he stabbed the victim three times in the chest and three times in the

back could not be true. He said that he did not agree with an autopsy report that the

victim was stabbed six times. The petitioner said that he believed that an autopsy was

not performed.

The petitioner testified that he thought his attorneys should have more

thoroughly investigated the victim's plan to kidnap her daughter. The petitioner did not

know of any accomplices to the kidnapping scheme, but he said that three others were

4 supposed to be involved. The petitioner testified that he was not aware of his attorneys

contacting anyone involved in the alleged scheme. He said that he was unaware of his

attorneys contacting any of the victim's friends or anyone the victim knew while in

prison.

The petitioner testified that his attorneys did not show him any

photographs of the crime scene before the trial started. He said that if they had, he

would have been able to analyze them and testify during trial that the photographs were

not accurate. He stated that one photograph showed a blanket wrapped around the

victim's legs as if the victim were helpless at the time of the offense. He testified that

the blanket was not in the house at the time of the offense and that it had to have been

brought in by either the police or the medical examiner. He further stated that the

photograph showed that the blanket had not been on the victim long because the

blanket had only spots of blood on it and was not soaked with blood.

The petitioner testified that the note introduced as evidence at trial was

not the original note that he was writing before and after the offense. He said that the

copy of the note that was entered into evidence was written on notebook paper, but the

note he wrote was written on a legal pad. He also said that the original note had a

bloodstain on it. The petitioner testified that although he had a cut on his hand, his

hands were not bloody when he returned to continue writing the note after he blacked

out. He said that it was not until he hugged the victim that he got blood on his hands

and clothes.

The petitioner testified that he did not have any psychological or

psychiatric evaluations. He said that at the time he was released from jail, his attorney

suggested that he see a doctor, but he thought that she was recommending this

because he was having a lot of trouble accepting what had happened. Additionally, the

5 petitioner stated he thought that a handwriting expert should have examined the note.

He said an expert would have identified two different writing styles indicating that the

note was written at two different times while he was in two very different emotional

states.

The petitioner testified that he thought an expert should have examined

the murder weapon, a kitchen knife. He said that even though he blacked out during

the offense, he knew that if he did strike the victim, he would have struck out with his

full force because he was afraid of her. He testified that the full length of the blade

would have penetrated the victim and caused an entry wound in her chest and an exit

wound in her back. He said that he did not stab the victim in the back and that an

expert examination of the knife would have shown blood and tissue up to the knife’s hilt.

He testified that the photographs show that the knife went all the way through the victim

because the photographs show the blood pooling underneath the victim as she lay on

her back and little blood on her chest.

The petitioner testified that the 9-1-1 tape made when his daughter called

the police should have been used to discredit the testimony of the responding police

officer. He said that the tape would have established the time of the call and that this

would have shown that the victim was dead when the police responded to the call. He

said that the officer testified that he saw blood bubbles coming out of the victim's nose

and mouth when he arrived, indicating that the victim was still alive and breathing. The

petitioner said that testimony at the trial showed that the victim would have died within

two to four minutes after being stabbed. He testified that the tapes would prove that

sufficient time had elapsed for the victim to die before the testifying officer made his

observation.

6 The petitioner testified that his attorneys discussed the penalties for first

degree murder, second degree murder, and manslaughter with him, but they did not

discuss the elements of these offenses. He said that he was given a copy of his

indictment after he was indicted.

The petitioner testified that he received an offer to plead guilty to second

degree murder with a fifteen-year sentence at thirty percent. He said that this plea offer

was made just after he was released on bond. He testified that after he rejected this

offer, his attorneys said nothing more about a plea bargain. He said that just before

trial, he asked his attorneys to ask if the state would accept a plea of manslaughter with

a six-year sentence, but they did not. The petitioner testified that he would have

considered the plea offer more seriously if he had known that the state was going to

claim that the victim was stabbed three times in the chest and three times in the back

and that the photographs and the victim's bloody T-shirt were going to be used as

evidence.

David Siegel testified that he was assigned to assist in the defense of the

petitioner because he was charged with handling the more complex, difficult, or serious

cases in the public defender’s office. He testified that he met and had telephone

conversations with the petitioner several times before trial.

Mr. Siegel testified that one theory of the case was that the petitioner

acted in self-defense. He said that the victim's history of violence was investigated,

including her institutional record from the Department of Correction. He said that he

was unsuccessful in getting everything that he wanted introduced into evidence during

trial. He testified that the other theory of the case was that the crime was one of

passion because the petitioner was overcome by the victim's admission of marital

infidelity.

7 Mr. Siegel testified that he discussed the theory of the case with

the petitioner on several occasions. He said that the petitioner's explanation of the

events surrounding his wife's murder remained consistent during the course of

representation and trial. He testified that he discussed with the petitioner the possibility

of a mental evaluation but that the petitioner was not receptive to the idea at the time.

He testified that he did not press the issue because he did not see any signs that the

petitioner was mentally disturbed, other than the petitioner's extreme attraction to the

victim. He said that it was not unusual for a defendant to say that he does not

remember what happened.

Mr. Siegel testified that he and the petitioner discussed the note that the

petitioner wrote. He said that he thought certain statements in the note could be used

to show either premeditation or a motive to kill the victim. He said that the petitioner

never questioned the authenticity of the note during consultation or during the trial.

Mr. Siegel testified that he thought the timing of when the petitioner wrote

the note was significant. He said that he questioned the petitioner at length about the

note. He said that the petitioner told him that the note was written before the offense.

On cross-examination, he testified that the petitioner maintained that the note was

written before the stabbing despite vigorous questioning. He testified that the physical

evidence suggested that the note was written before the offense because it had an

insignificant amount of blood on it.

Mr. Siegel testified that he showed many photographs to the petitioner.

He said that when he showed the more graphic photographs of the victim to the

petitioner, the petitioner became extremely upset and emotional. He said that in order

to continue working with the petitioner, he and Ms. Futter decided not to show the

petitioner the graphic photographs, but they described their contents to him.

8 Mr. Siegel testified that he spoke with the petitioner about the state's plea

offer. He said that he remembered explaining the possible outcomes of the trial to the

petitioner. He testified that he explained what the state would have to prove and the

consequences of each possible outcome to the petitioner. He stated that he and Ms.

Futter strongly encouraged the petitioner to accept the plea but that the petitioner would

not agree to any charge of murder. He said that he felt that the state was offering the

lowest level of punishment for what he and Ms. Futter thought would be the most likely

result of the trial.

Mr. Siegel testified that he examined the physical evidence before trial.

He said that he was unaware of an objection that could have prevented the introduction

of the victim's bloody T-shirt. He testified that the evidence supported the state's

contention that the victim was stabbed six times. He said that the petitioner's claim that

the petitioner stabbed the victim only three times, with the knife entering her chest and

extending through her back, would not have been a productive issue to raise during

trial.

Mr. Siegel testified that he and Ms. Futter obtained the 9-1-1 tape, even

though the trial court denied their motion requesting the state to produce it. He said

that the tape’s only value was to show that the petitioner's daughter, who made the

9-1-1 call, thought that the petitioner might have been suicidal. He testified that he did

not need the tape because other evidence showed that the petitioner was on a suicide

watch at the time of the murder.

Mr. Siegel testified that he did not remember interviewing any of the police

officers about the murder. He said that he did speak to the victim's mother to

corroborate the petitioner's claim of a kidnapping scheme and that he remembered

contacting the prison chaplain.

9 Barbara Futter testified that she represented the petitioner and that she

met with him the day after the murder and continued to meet with him almost daily while

he was in jail. She said that she saw him numerous times between the time he was

released and the trial.

Ms. Futter testified that she and David Siegel investigated the kidnapping

scheme but could not find any credible information to support it. Ms. Futter testified that

she discussed the theory of the case with the petitioner. She said that the theory of the

case was a mixture of self-defense and passion and that neither one, by itself, was

very strong.

Ms. Futter testified that she discussed the state's plea offer with the

petitioner before Mr. Siegel became involved with the case. She did not remember the

specific details of that conversation with the petitioner, but she said that it was her habit

to discuss the offense charged, the lesser offenses, and what the sentence would be,

including parole, good and honor time, and other sentence reductions. She testified

that the petitioner stated that he did not murder his wife and that he would not plead to

murder. She testified that before the trial, she attempted to get the prosecutor to

consider a lesser plea but had no success.

The trial court found that the petitioner failed to prove any grounds for

relief. It noted that all of the petitioner's issues related to the ineffective assistance of

counsel claim, but it found that none of the attorneys’ conduct prejudiced the petitioner.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

The petitioner contends that he received the ineffective assistance of trial

counsel because of trial counsel’s (1) failure to investigate adequately the petitioner's

mental health to establish the absence of the requisite mens rea for first degree murder,

10 (2) failure to investigate adequately the facts of the case, (3) failure to obtain necessary

experts, (4) failure to obtain information withheld by the state, (5) failure to call two

witnesses, (6) failure to communicate properly with the petitioner regarding the plea

negotiations, (7) failure to provide the petitioner with sufficient information to make an

informed decision on the plea offer, (8) failure to confer with the petitioner about the

evidence, (9) failure to conduct a reasonable investigation, (10) failure to object to the

admission of the victim's bloody T-shirt, and (11) failure to suppress the petitioner's

confession and admissions. Claims (4), (5), (7), (9), (10), and (11) were made by the

petitioner in a pro se supplemental brief included as an appendix to the petitioner's

brief. The petitioner asserts that the individual and the cumulative effect of trial

counsel’s failures caused him to receive the ineffective assistance of counsel.

The state initially notes that the petitioner failed to cite to the record in the

argument portion of his brief. The argument portion of an appellant's brief must set

forth the contentions with respect to the issues presented on appeal with appropriate

references to the record. T.R.A.P. 27(a)(7). Pursuant to Rule 10(b), Tenn. Ct. Crim.

App. R., the petitioner's failure to cite to the record in support of his argument

constitutes a waiver of the issue. However, despite this inadequacy, we will consider

the merits of the petitioner's issues.

Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is upon the petitioner to show (1) that counsel's

performance was deficient and (2) that the deficiency was prejudicial in terms of

rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, to the right to

11 counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772

S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). In

reviewing counsel's conduct, a "fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured

by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even

hurt the defense does not, alone, support a claim of ineffective assistance. Deference

is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201.

We note, as well, that the claim of ineffective assistance of counsel can be defeated by

the failure to make the required showing of either deficient performance or sufficient

prejudice. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

The burden is on the petitioner to prove his allegations by clear and

convincing evidence. T.C.A. § 40-30-210(f). On appeal, we are bound by the trial

court's findings unless we conclude that the evidence preponderates against those

findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The petitioner

has the burden of illustrating how the evidence preponderates against the judgment

entered. Id.

12 A.

We will consider the petitioner's first five claims together because they are

all resolved by the same analysis. In his first claim, the petitioner contends that he

received the ineffective assistance of counsel because his attorneys failed to

investigate adequately the petitioner's mental health to establish the absence of the

requisite mens rea for first degree murder. The petitioner argues that his attorneys

gave no credible explanation as to why a mental health expert was not retained to

examine the petitioner's obsession with the victim. The state responds that the

petitioner's attorneys testified that the petitioner had no history of mental illness, that he

was resistant to undergoing an examination, and that they had no reason to believe a

mental evaluation was necessary. The state further contends that the petitioner has not

presented any evidence regarding what a mental evaluation would have revealed. The

state argues that without such evidence, the petitioner cannot show that he was

prejudiced by the lack of an evaluation.

In his second claim, the petitioner contends that he received the

ineffective assistance of counsel when his attorneys failed to investigate adequately the

facts of the case. The petitioner argues that his attorneys only made a cursory

investigation of the victim’s kidnapping scheme. The state responds that the

petitioner's attorneys met with the petitioner on numerous occasions and interviewed

several others, including the investigating officer, the medical examiner, the prison

chaplain, and the victim's mother, grandmother and parole officer. The state further

contends that one of the petitioner's attorneys did investigate the claim of a kidnapping

scheme but could not find any evidence to support it. The state argues that the

petitioner has not demonstrated how this investigation could have been more thorough

or what more his attorneys could have done.

13 In his third claim, the petitioner contends that he received the ineffective

assistance of counsel because his attorneys failed to obtain necessary experts. The

petitioner argues that his attorneys should have had a forensic examination of the

bloodstain on the note. He also argues that a handwriting expert’s examination of the

note would have supported his claim that the murder was not premeditated. The

petitioner contends that portions of the note were written after the stabbing. The state

responds that before the trial, the petitioner maintained that the entire note was written

before the stabbing and that his attorneys therefore had no reason to have the note

examined. The state argues that because the petitioner did not have the note

examined or present any expert testimony at the post-conviction hearing, the petitioner

has not shown how he was prejudiced.

In his fourth claim, the petitioner contends that he received the ineffective

assistance of counsel because his attorneys failed to obtain information withheld by the

state. The petitioner argues that the 9-1-1 tape was withheld from his attorneys, and

the state used information on the tape to encourage perjury by the state's witnesses.

He argues that his attorneys could have used the tape to show his state of mind after

the stabbing and to show that he was writing the note when he called his daughter. The

state responds that testimony during the post-conviction hearing revealed that the trial

court denied the motion to provide the 9-1-1 tape but that the petitioner's attorneys did

obtain the tape. The state argues that the claim of perjured testimony based on the 9-

1-1 tape was not raised at the post-conviction hearing and is waived.

In his fifth claim, the petitioner contends that he received the ineffective

assistance of counsel because his attorneys failed to call the victim's parole officer and

the petitioner's ex-wife to testify. The petitioner asserts that he requested that the

victim's parole officer testify because she could testify to the victim's character. He

asserts that he requested that his ex-wife testify because she would testify as to his

14 good character. The state responds that this claim is waived because it was not raised

at the post-conviction hearing. The state also argues that the petitioner did not call

these two witnesses at the post-conviction hearing and without evidence of their

testimony, the petitioner cannot show prejudice.

We note that the approach to the issue of the ineffective assistance of

counsel does not have to start with an analysis of an attorney's conduct. If prejudice is

not shown, we need not seek to determine the validity of the allegations about deficient

performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

The potential experts and witnesses were not called to testify, and the

9-1-1 tape was not offered as evidence at the post-conviction evidentiary hearing. It is

imperative that the witnesses testify and the petitioner offer evidence at the evidentiary

hearing in order for the trial court to determine the potential merit of the evidence. See

Black, 794 S.W.2d at 755. Thus, even if the attorneys' failure to seek a mental

evaluation, investigate the kidnapping scheme further, call forensic and handwriting

experts, present the 9-1-1 tape and call certain character witnesses was deficient

performance, the petitioner has failed to show that he was prejudiced from such

deficiency.

B.

In his sixth claim, the petitioner contends that he received the ineffective

assistance of counsel when his attorneys failed to communicate properly with him

regarding the plea negotiations. The petitioner argues that if his attorneys had shared

the state's evidence with him, he would have accepted the second degree murder plea

offer. The state responds that the petitioner's attorneys had extensive settlement

discussions with the state and strongly encouraged the petitioner to accept the offer.

15 In his seventh claim, the petitioner contends that he received the

ineffective assistance of counsel when his attorneys failed to provide him with sufficient

information to make an informed decision on the plea offer. He contends that his

attorneys withheld evidence from him, failed to discuss potential defense strategies,

failed to conduct an appropriate investigation, and failed to advise him of the state's

plea offer. The petitioner asserts that with sufficient information, he could have

rebutted testimony that the victim was alive when police officers arrived, that there was

no struggle, that the wounds on the victim's hands were defensive wounds, and the

state's depiction of the crime scene.

In his eighth claim, the petitioner contends that he received the ineffective

assistance of counsel when his attorneys failed to confer with him about the evidence.

The petitioner argues that his attorneys consulted minimally with him and that they

withheld certain information from him because of their concern for his fragile mental

condition. The state responds that the petitioner's attorneys met with him frequently

and that his attorneys testified that they discussed every aspect of the case with the

petitioner. The state admits that some photographs were not shown to the petitioner,

but it notes that this occurred only when he became so emotional that he was unable to

aid in his defense because of them. The state argues that the petitioner has presented

no evidence other than his own testimony to show that he was prejudiced.

The petitioner, his daughter, and his trial attorneys were the only

witnesses to testify at the evidentiary hearing. The petitioner's daughter testified that

the trial attorneys discussed the case and the state's plea offer with her. Ms. Futter

testified that she met with the petitioner frequently, discussed the plea offer with the

petitioner when she first received it and again when Mr. Seigel became associated with

the case, and investigated the petitioner's claims but could not find any credible

information to support them. Mr. Seigel testified that he discussed the plea offer with

16 the petitioner when he started the case and again just before trial. He testified that the

weekend before the trial, both attorneys met extensively with the petitioner to prepare

him for trial.

In Lofton v. State, 898 S.W.2d 246 (Tenn. Crim. App. 1994), the petitioner

complained that his trial counsel was ineffective because counsel failed to explain the

elements of the crime to him and deprived him of his right to accept a guilty plea offer.

Id. at 248. However, the record showed that trial counsel discussed the case with both

the petitioner and his mother and discussed the state's plea offer with the petitioner. Id.

This court held that even though trial counsel did not take a position as to whether the

petitioner should have accepted the plea offer, trial counsel's conduct did not rise to the

level of ineffective assistance as set forth in Strickland and in Baxter. Id. at 249.

As in Lofton, the petitioner in this case refused to accept the plea offer

and "gambled and lost at trial." Id. His bald assertion that he would have accepted the

plea offer if he had full and complete information is insufficient to mandate post-

conviction relief. The petitioner has not shown by a preponderance of the evidence that

counsel's performance was deficient and that the deficiency was prejudicial.

C.

In his ninth claim, the petitioner contends that he received the ineffective

assistance of counsel because his attorneys failed to conduct a reasonable

investigation. The petitioner argues in his supplemental brief that if his attorneys had

properly investigated the case, they would have been able to impeach the police

officer's testimony about the petitioner’s note. The state responds that the petitioner's

attorneys thoroughly investigated the case and that nothing in the record indicates that

the officer perjured himself.

17 In the petitioner's supplemental brief, he complains that Exhibit 8, which

was used by the state at trial, was not authentic. Exhibit 8 is a two-page reproduction of

the note that the petitioner wrote on the night of the stabbing. At the evidentiary

hearing, the petitioner was shown Exhibit 8 and a photograph of the note taken at the

scene after the stabbing. He testified that Exhibit 8 was written on notebook paper, and

the note in the photograph was written on a legal pad. The petitioner testified that he

used only legal pads. He testified that the photograph of the note showed a blood spot

on the upper left corner. He testified that Exhibit 8 only had what appeared to be an

outline of a stain.

The petitioner asserts that if his trial attorneys had sufficiently investigated

his case, they would have been able to impeach the officer when he authenticated the

note during the trial. The petitioner contends that Exhibit 8 is not a copy of the note that

he wrote. However, Mr. Seigel testified that the petitioner never questioned the

authenticity of the note before or during the trial.

We note that neither Exhibit 8 nor the photograph were a part of the

record provided to this court. According to the petitioner's post-conviction attorney, the

photograph was never entered into evidence at the evidentiary hearing. As to this

claim, the petitioner has not offered evidence that preponderates against the trial

court's conclusion that the petitioner's trial counsel effectively represented the

petitioner.

D.

In his tenth claim, the petitioner contends that he received the ineffective

assistance of counsel because his attorneys failed to object to the admission of the

victim's bloody T-shirt. The petitioner argues that the introduction of the T-shirt was

unfairly prejudicial and that his attorneys should have objected to its admission. See

18 Tenn. R. Evid. 403. The state responds that the shirt was probative because it showed

the location of the knife holes and helped the jury to determine where the victim was

stabbed. The state argues that the fact that the petitioner found the T-shirt personally

upsetting does not render the evidence inadmissible.

During the evidentiary hearing, the petitioner testified that all the blood on

the T-shirt was not there when the police arrived the night of the stabbing. He also

testified that he would have pled guilty in order to prevent the prosecutor from using the

bloody T-shirt during the trial. Mr. Seigel testified that he did not know of any objection

that he could have made when the T-shirt was introduced.

Evidence is relevant if it has "any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." Tenn. R. Evid. 401. Relevant

evidence is admissible unless provided otherwise by constitution, evidentiary rule, or

other Tennessee rule or law. Tenn. R. Evid. 402. Relevant evidence, however, "may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence." Tenn. R. Evid.

403.

As the state claims, the T-shirt is probative because it shows the number

and placement of the holes made by the knife. Furthermore, the probative value is not

outweighed by the danger of unfair prejudice. See State v. Cribbs, 967 S.W.2d 773,

793-94 (Tenn. 1998) (holding that admission of a videotape showing "victim's brain

matter separated from her skull and scattered across the kitchen floor" and "the

shattered face and skull of the victim," was proper under Rule 403); State v. Cazes, 875

S.W.2d 253, 263 (Tenn. 1994) (holding that the victim's cleaned and reconstructed skull

19 was admissible pursuant to Rule 403). The record does not preponderate against the

trial court's conclusion that the petitioner's trial counsel effectively represented the

petitioner relative to this claim.

E.

In his eleventh claim, the petitioner contends that he received the

ineffective assistance of counsel because his attorneys failed to suppress his

confession and admissions. The petitioner argues that his “confession” was

inadmissible and that trial counsel did not prevent its admission or try to defend against

it. The petitioner asserts that he confessed when he responded to the officer's

question, "Did you kill your wife?" by saying, "I was the only one in the house." The

petitioner further asserts that a police officer's testimony of statements made by the

petitioner at the scene were fabricated and that his attorneys did not properly impeach

this testimony.

The state responds that these issues were not raised at the post-

conviction hearing and have been waived. We agree. In any event, we note that his

statements were admissible as admissions by a party opponent. Tenn. R. Evid.

803(1.2)(A).

II. CUMULATIVE ERROR

The petitioner asserts that the cumulative effect of all constitutional errors

at trial and on appeal warrant him relief. Because we have concluded that no individual

constitutional error exists, there is no improper cumulative impact upon the petitioner.

This issue is without merit.

20 In consideration of the foregoing and the record as a whole, we conclude

that the evidence does not preponderate against the trial court's denial of post-

conviction relief. The judgment of the trial court is affirmed.

____________________________ Joseph M. Tipton, Judge

CONCUR:

_______________________________ John H. Peay, Judge

_______________________________ David G. Hayes, Judge