David Lynn Brummitt v. State of Tennessee, E2015-02452-CCA-R3-PC

Background

David Lynn Brummitt was convicted of robbery, burglary, and assault and sentenced to lengthy consecutive terms; on direct appeal one conviction was reduced and remanded for resentencing; resentencing produced a 12-year term and adjustments to concurrency/consecutivity that were later partially affirmed.
Underlying incident (Jan. 1, 2008): Brummitt was at victims' home when two armed assailants forced entry, assaulted victims, and stole property; victims identified Brummitt as present but not necessarily as a perpetrator.
Brummitt filed a pro se then amended post-conviction petition alleging multiple instances of ineffective assistance of trial counsel (eight discrete claims) and sought relief under Tenn. Code Ann. § 40-30-110.
At the post-conviction evidentiary hearing, trial counsel testified about strategy (focus on mere presence, not implicating victim), witness decisions (subpoenaed Casey Church but did not call her), and tactical choices (did not obtain preliminary transcript or phone records). Brummitt testified to limited meetings, counsel coercing him not to testify, and unperformed investigations.
The post-conviction court accredited defense counsel’s testimony, found Brummitt failed to prove deficient performance or prejudice by clear and convincing evidence, and denied relief. The Court of Criminal Appeals affirmed.

Issues

Issue	Brummitt's Argument	State's Argument	Held
Counsel met too infrequently / insufficiently prepared	Counsel met only ~3 times <30 min each; inadequate review of law/evidence	Counsel met sufficiently, discussed strategy, and petitioner participated	No deficient performance; court credited counsel and denied relief
Counsel advised petitioner not to testify	Counsel coerced or improperly advised him not to testify	Decision not to testify was knowing, voluntary, and strategic; petitioner confirmed waiver at trial	No deficient performance or prejudice; waiver was knowing and voluntary
Failure to obtain preliminary hearing transcript for impeachment	Transcript would have allowed impeachment of victim and aided defense	Counsel listened to/prepared from hearing audio and strategically chose not to focus on impeaching a sympathetic victim	No deficient performance; no reasonable probability of different result
Failure to call Casey Church as witness	Church would corroborate petitioner’s presence/timing and phone calls; her evidence was omitted without justification	Church subpoenaed but was not called based on strategic assessment that her testimony risked harm	No deficient performance; decision was strategic and jointly made
Failure to obtain phone records	Phone records (petitioner, Church, Adams) would contradict victim testimony about calls	Counsel did not recall request and saw no reason to obtain records; petitioner offered no proof records would change outcome	No deficient performance; no showing of prejudice
Failure to investigate/identify alleged actual perpetrators	Counsel failed to follow up on names (e.g., Mike Arnold, Joel Gideon) petitioner provided	Counsel had no names pretrial and was surprised by petitioner’s in-trial proffer; no prior opportunity to investigate	No deficient performance; petitioner produced no proof investigation would alter verdict
Failure to request change of venue	Local victim was a Sullivan County attorney; publicity/partiality warranted venue change	No substantial pretrial publicity or demonstrated prejudice; no basis to request change	No deficient performance; no showing venue would change outcome
Opening statement promises not fulfilled	Counsel told jury certain evidence/witnesses would be presented but did not follow through	Omissions flowed from strategic choices and petitioner’s voluntary decision not to testify; relevant facts (calls) were in record via victim testimony	No deficient performance; no reasonable probability of different verdict

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two‑prong ineffective assistance standard: deficiency and prejudice)
Goad v. State, 938 S.W.2d 363 (Tenn. 1996) (counsel performance judged by objective reasonableness under prevailing norms)
Tidwell v. State, 922 S.W.2d 497 (Tenn. 1996) (post‑conviction factual findings by the court are conclusive unless preponderated against)
Henley v. State, 960 S.W.2d 572 (Tenn. 1997) (appellate court should not reweigh factual issues from hearings)
Ruff v. State, 978 S.W.2d 95 (Tenn. 1998) (de novo review of post‑conviction court’s application of law to facts)
Fields v. State, 40 S.W.3d 450 (Tenn. 2001) (ineffective assistance claims are mixed questions; factual findings receive deference)
Burns v. State, 6 S.W.3d 453 (Tenn. 1999) (same)
State v. Taylor, 968 S.W.2d 900 (Tenn. Crim. App. 1997) (federal Strickland standard applies in Tennessee)
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) (professional norms guide assessment of counsel performance)