Tennessee appellate panel hears arguments that defense counsel wrongly advised client not to testify, and disputes over a social-media photo

Lance Chisholm, appointed counsel for petitioner Carlos Gonzales, told a Tennessee appellate panel that trial counsel was objectively unreasonable in advising Gonzales not to testify at his trial and that omission of a disputed photograph from the appellate record deprived the court of critical context.

Chisholm said trial counsel cited the lack of corroborating witnesses and damaging jail-call statements as reasons to keep Gonzales off the stand, but that these were not sufficient. "We are saying it was deficient performance," Chisholm argued, adding that Gonzales in jail calls admitted the shooting was in self-defense and could have explained apparent inconsistencies to a jury.

Chisholm framed the claim under the governing appellate standards, noting three Bates factors he said favored advising testimony: Gonzales was uniquely positioned to give a full account of events; the state had not filed a Rule 609 notice to introduce impeachment by prior convictions; and Gonzales could explain his relationship with the victim and the context of a reported rivalry. "He could have told why he shot ... He's the only one who knows why he shot," Chisholm said, arguing that the trial record showed counsel relied too heavily on a perceived inconsistency in jail calls.

On prejudice, Chisholm told the court that if Gonzales had testified there was a reasonable probability of a different result — an acquittal under a self-defense instruction or conviction on a lesser included offense. He disputed the post-conviction court’s credibility finding and urged the panel to find the trial record did not justify that credibility determination.

The state, through Benjamin Barker, urged the court to affirm the post-conviction denial. "This court should affirm the post conviction court's denial of relief, because the post conviction court properly concluded that petitioner did not receive the ineffective assistance to counsel," Barker said, arguing the decision not to call Gonzales fit a coherent identity-based defense strategy and was reasonable in light of the inconsistent and damaging jail-call statements and physical evidence the state emphasized. Barker added the state's proof included spent casings the state attributed to the petitioner and that testimony at the post-conviction hearing did not undo the trial proof.

Chisholm also pressed a separate claim about a photograph — described in the record as showing the victim among others with gang signs and the word "Polonys" airbrushed on the image — which he said appellate counsel failed to include with an amended motion for a new trial, resulting in waiver of the argument on appeal. Chisholm argued the photograph could be authenticated under evidentiary rules governing identification and distinctive characteristics and that it would have provided jurors context about the victim and the incident.

Barker conceded appellate counsel’s omission of the amended motion was deficient but said the photograph lacked admissible foundation and was largely irrelevant character evidence: "The photograph was irrelevant, really, just nothing more than a character attack on the victim," he said, arguing the post-conviction record did not support prejudice from the omission.

In rebuttal, Chisholm stressed that a witness at the post-conviction hearing, Ms. Hernandez, had testified she downloaded the photograph from Facebook and could identify the victim in the picture though she could not identify the other men or say when it was taken; Chisholm argued inclusion could have altered trial counsel's advice and sought reversal and remand for a new trial.

After brief panel questioning about whether credibility findings by the post-conviction court could be disturbed on appeal and about how social-media images are authenticated when the uploader is unknown, the court thanked counsel and took the matter under advisement.

The court did not announce a decision from the bench; the next action will be the panel’s written opinion.