Ambreco Shaw v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 5, 2009

AMBRECO SHAW V. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 02-05450 John T. Fowlkes, Jr., Judge

No. W2008-02064-CCA-R3-PC - Filed June 30, 2010

Petitioner, Ambreco Shaw, appeals the dismissal of his petition for post-conviction relief in

which he alleged that he received ineffective assistance of counsel at trial. Specifically,

Petitioner contends that (1) counsel failed to fully investigate all possible defenses; (2)

counsel failed to adequately meet with Petitioner and allow him to be involved in his defense;

(3) counsel failed to properly convey and explain settlement offers; (4) counsel failed to

properly advise Petitioner concerning his right to testify; (5) counsel improperly allowed

Petitioner to appear at trial in prison clothing; (6) counsel failed to request a mental

evaluation in a timely manner; and (7) counsel failed to cross-examine witnesses and provide

proof at the sentencing hearing. After a thorough review of the record, we conclude that

Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel

and affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J. C. M CL IN and

C AMILLE R. M CM ULLEN, JJ., joined.

R. Andrew Hutchinson and Matthew S. Lyons, Memphis, Tennessee, for the appellant,

Ambreco Shaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant

District Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Background

Following a jury trial, Petitioner was convicted of second degree murder, a Class A

felony, and was sentenced to twenty-four years in the Department of Correction. On appeal,

this Court affirmed the conviction and sentence. State v. Ambreco Shaw, No. W2003-02822-

CCA-R3-CD, 2004 WL 2191044 (Tenn. Crim. App. Sept. 28, 2004)(app. denied May 23,

2005). The facts surrounding Petitioner’s conviction were summarized by this Court on

direct appeal as follows:

The victim’s mother, Mary Carter, testified that the victim left her home on the

morning of October 10, 2001, to go to an apartment in the Dixie Homes, a

Memphis public housing development where his girlfriend lived with their

five-year-old son. She stated that she received word later that day that the

victim had been shot and was at the hospital. Upon her arrival at the Regional

Medical Center, the hospital chaplain informed her that the victim was dead.

The victim’s fiancée, Kenia White, testified she and the victim were returning

to her second story apartment after dropping their son off at school when they

encountered the defendant, whom she knew as “B,” lounging beside the

balcony in front of “Renee’s” apartment, located a few doors down from her

home. The victim spoke to the defendant, telling him he would see him that

afternoon, and she and the victim retired to her apartment to sleep. At about

2 p.m., the victim’s friend, Brian, and a man she did not know stopped by her

apartment. The men asked the victim if he knew where they could get some

drugs, and he replied that he did not but would check with some men at

Renee’s apartment. Ten or fifteen minutes after the victim returned from

Renee’s apartment, the defendant came to White’s end of the porch and “in

broad daylight showed Brian the dope in his hand.”

The victim chastised the defendant, telling him that he could have asked to

step inside the doorway rather than conducting his transaction in front of their

apartment door. White explained that her apartment building, which was

commonly known as “the dope track,” was constantly patrolled by the police.

Although she could not hear the defendant’s response, it caused the defendant

and the victim to “hav[e] words with each other” and to exchange curses. She

calmed the men down, and the victim told the defendant to keep the drugs on

his end of the porch. The defendant left, and the victim resumed drinking his

beer and talking and laughing with his friends.

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White estimated it was ten to fifteen minutes later when the frowning

defendant, whose t-shirt was “cocked up in the air” as if he had “stuck

something in [his] pants and ... forgot to put [his] t-shirt down,” met her and

her son as they were headed down the stairs to the store. Thinking nothing of

it at the time, she continued past him and down the stairs. However, when she

heard the victim curse again in response to something the defendant said, she

stopped at the bottom of the stairs and called up to the defendant, “Dog, boy,

you that mad because he told you we don’t want you in front of our door? We

don’t care how many drugs you sell. Just keep it away from in front of our

door.” The defendant cursed her in reply, and the victim told her to stop

arguing with him and to continue on her way.

Hearing no further argument between the men, White walked to her car, which

was parked in front of the stairs to her apartment building. At about the time

she inserted her key in the car door, she heard gunshots, looked up, and saw

the defendant with his arm extended shooting at the victim. The victim fell

backwards in an attempt to flee, while the defendant, who was “skipping

backwards” toward the stairs, continued firing his gun. White testified she

heard multiple gunshots and saw the defendant’s arm extended, but was unable

to see the defendant’s gun because of the balcony guardrail. She said the

victim was also hidden from her view after his fall. However, based on seeing

her apartment door open and then shut, she assumed he ran in a crouching

“duck walk” into her apartment to escape the defendant.

White testified she ran with her son to the apartment building and started up

the steps, only to encounter the defendant, gun in hand, on his way down. The

defendant stopped two to three feet from her and pointed his pistol directly at

her face. She grabbed her son, fell to the ground, and “covered up.” Next, she

heard a “click,” which she interpreted as the defendant’s attempt to shoot her

with his pistol, which was out of bullets. When she sat up, she saw the

defendant running toward the corner of the apartment building where he

disappeared from view.

When White reached her apartment, the victim unlocked and opened the door

from the inside and instructed her to call 9-1-1, telling her he had been shot in

the leg. Although she saw no blood and he initially appeared to be all right,

he soon broke out in a sweat, sat down, and began foaming at the mouth. A

police officer arrived as she was on the telephone with the 9-1-1 dispatcher,

and remained with the victim while she took a second police officer to the

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defendant’s mother’s residence a few streets away. By the time she returned

to the apartment, the paramedics had already taken the victim to the hospital.

White testified she went from her apartment to the police station, where she

gave a statement and identified the defendant from a photographic lineup, and

then to the hospital, where she learned that the victim was dead. She made a

positive courtroom identification of the defendant and testified she was certain

the victim was holding a beer in his hand at the time of the shooting.

However, she acknowledged on cross-examination that she did not know what

had transpired between the men immediately before the shooting.

Sergeant Marlon Tabor of the Memphis Police Department testified he was

assigned to the Memphis Public Housing Bureau in October 2001, and was

patrolling in the Dixie Homes development on October 10 when he heard what

sounded like gunshots and someone told him a shooting was taking place

around the corner. There, he saw a group of people standing in front of an

apartment building pointing up to a second story apartment. He went up the

stairs, where he was met by Kenia White, who informed him her boyfriend had

been shot. The victim, who was lying on his back in a hallway inside the

apartment, had “small trickles of blood coming out of him,” was laboring to

breathe, and appeared to Sergeant Tabor to be “in [a] pretty serious condition.”

Nonetheless, he was able to reveal the identity of his assailant and to indicate

what led to the shooting:

I asked him several times who shot him and he finally said someone named B.

And he told me kind of what happened to him. He said that him and B or

someone got into an argument and he was shot. It was something dealing with

drugs. He was kind of saying it in a lot of broken English. I had to get down

really to hear what he was saying.

Sergeant Tabor testified White informed him that “B” lived around the corner

and took him to the defendant’s mother’s apartment, located about a block

away in the same housing development. The defendant was not there, and he

was unable to locate him at that address despite returning to the apartment “on

multiple occasions” over “multiple days.” On cross-examination, Sergeant

Tabor testified that the Dixie Homes development was a high crime area “[a]t

one time,” but that “the crime rate [was] fairly low i[n] that area now.”

Memphis Police Officer Katie Ward, who was assigned to the Dixie Homes

area in October 2001 and was one of the officers who responded to the

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shooting, testified the victim was lying in the hallway of the apartment when

she arrived, was sweating, and was not moving. The victim told her and other

officers that “B” shot him. A young woman informed them where “B” lived,

and she and several fellow officers went to that location but were unable to

find him. On cross-examination, Officer Ward readily acknowledged that the

Dixie Homes development was a “high crime area.”

Memphis Police Officer Mike Schafer testified he and fellow officers went to

the Oak Manor Apartments on March 3, 2002, in response to a Crime Stoppers

tip that the defendant was outside one of the apartment buildings. The

defendant fled at sight of the officers, but was captured after running

approximately fifty yards.

Dr. Theresa Allen Campbell, the Shelby County medical examiner who

performed the autopsy of the victim’s body, testified the victim’s cause of

death was multiple gunshot wounds, consisting of a fatal gunshot wound to the

left lower abdomen in which the bullet perforated the left common iliac artery

and the left common iliac vein, causing the victim to bleed to death, and a

gunshot wound to the right thigh in which the bullet lodged in the muscle but

did not hit any vital structures. The victim’s drug test was negative. His blood

alcohol level was .02, which was consistent with his having consumed a beer

at or near his time of death. In addition to the gunshot wounds, the victim had

abrasions on his left hand, an abrasion on his forearm, and red linear

contusions on his chest. Dr. Campbell agreed the abrasions to the hand and

arm were consistent with the victim’s having fallen on concrete, and testified

that the patterned linear contusions on his chest were more consistent with

medical intervention than with a punch. On cross-examination, Dr. Campbell

testified that the victim was five feet, ten inches tall.

Following the trial court’s denial of his motion for judgment of acquittal, the

nineteen-year-old defendant took the stand in his own defense. He began his

testimony by admitting he shot the victim, supported himself until the time of

his March 3, 2002, arrest by selling crack cocaine, and had prior convictions

for theft of property under $500, theft of property over $500, and theft of

property over $1000. He claimed, however, that the shooting occurred during

a physical altercation in which the victim made a move as if to reach for a

weapon. According to the defendant’s account, he was leaning against the

balcony rail talking to Renee when the victim’s friend Brian and Brian’s

associate approached the victim outside White’s apartment. The victim called

to him, and he walked down to the victim with the intention of telling the

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victim’s friends where they could find some drugs. The defendant testified he

had no drugs with him at that time, but if he had, he would have sold them to

the victim’s friends.

The defendant testified a verbal confrontation ensued between him and the

victim, which was immediately followed by the victim’s punching him in the

chest. The defendant stated he was 5'6" or 5'7" and stumbled backwards after

the victim punched him. As he did so, he saw the victim reach down toward

his pants pocket. Believing the victim was going for a gun, he pulled the .22

revolver he constantly carried for self-protection out of his rear pocket, fired

two or three shots at the victim, and then fled. The defendant insisted he had

no intention of killing the victim. He said he fired downwards and thought he

had shot the victim in the leg.

The defendant testified he dropped his gun on the apartment stairs as he fled.

He said he ran to a nearby wooded area, where he hid for approximately an

hour and a half until “the commotion had died down.” Afterwards, he went

first to a girlfriend’s house, and then stayed in a series of motels, where he

supported himself by selling drugs, until he was ultimately captured. He

explained his failure to turn himself in by stating that he was afraid of what

would happen to him and his March 3, 2002, flight from the police by stating

he overreacted out of fear that the officers would shoot him. He said he was

“very sorry” about what had happened, “never intended for things to get that

far,” and would never again carry a gun.

On cross-examination, the defendant testified the victim initiated the argument

and physical altercation. He claimed not to have known what the fight was

about and to have merely reacted to what he had perceived as a threat. He

admitted he never saw the victim with a gun. He denied he pointed his gun at

White or her son, testifying he no longer had his weapon at the point he passed

them on the stairs. He acknowledged he hid from the police from the time of

the shooting until his capture, but also claimed he had tried to turn himself in.

According to his testimony, he telephoned the “homicide squad”in January

2002, spoke to someone to whom he provided his name, the name of the

victim, and the date of the shooting, and was told by that person that he was

not wanted for anything.

State v. Shaw, 2004 WL 2191044, at *1-5.

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II. Post-Conviction Hearing

Petitioner testified that he wanted to proceed at trial on a theory of self-defense, which

he communicated to trial counsel. He said that he also gave trial counsel the names and

phone numbers of several individuals to call as witnesses at trial, including Larry Wilson and

Renee Manning. He did not know the “real names” of the others that he wished to call.

Petitioner testified that he told trial counsel that he was being attacked at the time of the

shooting, and the victim appeared to be pulling a weapon from his pants. Petitioner then

opened fire. He told trial counsel that Mr. Wilson broke up the initial fight between

Petitioner and the victim, and Ms. Manning was standing beside Petitioner when the victim

attacked and punched him. Petitioner testified that trial counsel spoke with the two

witnesses, but they were never called to testify at trial. Petitioner claimed that trial counsel

told him that their story was unbelievable and that it would be hard to prove self-defense.

He said that he and the victim began fighting because he had words with the victim’s

girlfriend. Petitioner testified that he knew the victim because they all lived on Pauline

Circle, and the victim was always around. He also said that the victim was known to carry

a gun. Petitioner felt that his trial would have had a different outcome if Ms. Manning and

Mr. Wilson had testified on his behalf.

Petitioner testified that trial counsel did not really meet with him, and counsel did not

respond to his letters. He then wrote letters to the trial judge and the Board of Professional

Responsibility requesting new counsel because it was difficult to communicate with trial

counsel, and counsel did not raise the issues that he wanted raised. He said that the trial court

refused to appoint him new counsel because the trial was too far advanced. Petitioner

testified that on the trial date, counsel informed him of the State’s plea offer of thirteen and

a half years. He did not accept the offer because he assumed that Renee Manning and Larry

Wilson would testify that he acted in self-defense. When they were not called as witnesses,

he took the stand to testify because trial counsel advised him that it was the only way to

prove self-defense. Petitioner admitted that trial counsel told him what to “look for” when

testifying on his own behalf; however, he said that he did not understand “it would be as

harsh and as crucial as it was.” He knew that he would be cross-examined about his prior

drug offenses. Petitioner said that he did not hear Kenia White testify that he pointed a gun

at her when she encountered him in the hallway. Petitioner testified that trial counsel showed

him a copy of the investigator’s report, but he did not understand it. He said that his family

delivered “civilian clothes” to the jail for him to wear at trial; however, Petitioner was not

allowed to change. He appeared at trial in his prison clothing.

Petitioner testified that he has a history of mental illness. He said: “For a long time

when I was younger I had some behavior issues, and I had a lot of issues with you know just

me being uncontrollable behavior and just down spouts of depression or whatever.”

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Petitioner testified that he first received medication in 1998. He said that he was on

medication at the time of trial, which affected his ability to understand what was going on

around him. Petitioner testified that he was taking Paxil, Geodine [sic], and Moxitine [sic].

He said,

It was a lot of - - I was on some for depression and some for psychotic

distemper and mental behavior or whatever. I really can’t remember all of

them, but I was switched from different medications often. They was [sic]

raising my dosage higher and higher almost every month that I was being

evaluated.

Petitioner testified that he received a mental health evaluation prior to his sentencing hearing.

He said that no one testified on his behalf at the sentencing hearing, and he received a

twenty-four-year sentence. He later learned that his encounter with Kenia White in the

stairwell was used as an enhancement factor.

On cross-examination, Petitioner did not remember telling trial counsel that the victim

had a knife. He also did not remember telling counsel several different accounts of how the

offense occurred. Petitioner was not aware that Larry Wilson and Renee Manning would

have testified that Petitioner had a verbal argument with the victim and that Petitioner left

the scene and returned brandishing a gun. Petitioner claimed that he was standing on “the

rail” the entire time. He said that the argument never stopped, but it escalated when he said

something to Ms. White. Petitioner testified that he did not leave the scene until after shots

were fired. He said that he did not hide out after the shooting and that trial counsel told him

to testify that he went from hotel to hotel over the course of months hiding out and watching

out for police. Petitioner claimed that instead of hiding, he was living here and there “mainly

adrift.” He further claimed that trial counsel told him to testify that he and the victim were

arguing because of a drug transaction; however, Petitioner claimed that he was not a drug

dealer. He said that he “[s]omewhat” lied during the trial when he testified that he carried

a gun because he was a drug dealer and had been robbed. He said that he had been robbed,

but he was not a drug dealer, and trial counsel told him to testify that he was a drug dealer.

Petitioner denied refusing to cooperate with the doctors during his mental health

evaluation. He claimed that he completed the tests, but the doctors asked for a

“postponement.” He did not have any idea why they prepared a report stating that he refused

to cooperate. Petitioner testified that he did not fully understand the State’s thirteen and a

half year offer, so he rejected it. He said:

Well, I asked how long would I have to have to stay incarcerated, and I asked

under what conditions would I have to stay in jail under, and I asked several

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things that I really didn’t know about. I asked him about the sentence, and he

said he really couldn’t explain that he would come back in the courtroom to

[sic] under what percentage or whatsoever.

So, when he came in the courtroom, Mr. Hall he came back out, and he told me

I needed to dress out for trial, asked me did I have any trial clothes. It never

was said or spoken of again.

Petitioner testified that he then assumed it was a “dead” issue. He admitted that he had prior

theft convictions.

Kathy Byrd is a criminal investigator for the public defender’s office, and she

investigated Petitioner’s case. She interviewed Larry Wilson, Renee Manning, and Kenia

White. There were other potential witnesses who she was unable to locate. Ms. Byrd

testified that she first interviewed Kenia White, the victim’s girlfriend, on January 8, 2003.

Ms. White said that she encountered Petitioner in the stairwell, and he pointed a gun in her

face and pulled the trigger. However, the gun was out of live ammunition. Ms. Byrd next

interviewed Renee Manning, who was an eyewitness to the shooting. Ms. Manning said that

she heard four to five gunshots, but she never saw a gun. She had no doubt that Petitioner

shot the victim, but she thought that the victim also had a gun that was not recovered.

Ms. Bryd next interviewed Larry Wilson. Mr. Wilson said that he heard the victim

threaten to kill Petitioner the morning of the shooting. He also saw the victim carrying a

“chrome .38 with a brown handle.” He did not see Petitioner with a gun. Concerning the

shooting, Ms. Bryd took the following statement from Mr. Wilson:

“They got out and heard arguing, and he heard victim say, ‘I’ll get your punk

ass now,’ and he saw the victim bum rush the door like he was going to do

something to somebody.”

***

“He saw the victim, defendant and two other guys upstairs. He has no idea

who the other two guys were. [Kenia] told Larry, ‘You get Ambreco and I’ll

get Michael.’ They ran upstairs. Before they got there they heard gunshots

four or five in a row. When they did get upstairs, everybody was gone. They

had run down the end stairs not the stairs in the middle because they did not

pass anyone on the way up. I asked if Ambreco put a gun to [Kenia]’s neck

and threatened to kill her, and he said, ‘No. Ambreco also went down the end

stairs.”

-9-

Mr. Wilson told Ms. Byrd that Kenia White could not see who shot the victim from where

she was standing, and she was lying if she said that she witnessed the shooting. Ms. Byrd

testified that she gave trial counsel her reports from the investigation.

On cross-examination, Ms. Byrd testified that she is not a police officer, and the

witnesses were not under oath during the interviews. She was aware that Renee Manning

knew Petitioner through her boyfriend, Larry Wilson. Ms. Byrd was aware that Ms. Manning

had spoken with police and told them that she did not see the victim with a gun on the day

of the shooting. She could not say if she knew that Petitioner and Larry Wilson were friends;

however, she was aware that Wilson knew of the victim and Petitioner. Ms. Byrd knew that

Mr. Wilson was a five-time convicted felon, and she was also aware that he told police that

he did not see the victim with a gun on the day of the shooting. Mr. Wilson had also told

police that the altercation occurred because the victim did not want Petitioner selling drugs

in front his apartment. The victim had threatened to turn Petitioner in to police for selling

drugs there. Ms. Bryd said that Mr. Wilson told her and the police that the victim had been

using drugs and was high at the time of the shooting; however, the medical examiner’s report

revealed no drugs in the victim’s system.

Trial counsel testified that he began representing Petitioner in general sessions court,

where Petitioner had a preliminary hearing, and counsel represented Petitioner in criminal

court. Trial counsel testified that he met with Petitioner on multiple occasions. At trial,

during the Momon hearing, Petitioner acknowledged that he and counsel had discussed the

facts and circumstances of the case on “numerous occasions.” Trial counsel did not feel that

there was any lack of communication between Petitioner and himself.

Trial counsel testified that Petitioner talked of self-defense, but his version of the facts

varied. Counsel testified, “Well, on one occasion he told me that Mr. Carter, the deceased

Mr. Carter, had a knife [,] another occasion he had a gun, another occasion he told me not

only did Mr. Carter pull a gun but he fired the gun twice.” Petitioner also wanted him to find

out if a “[g]unshot residue kit” was performed on the victim. Concerning the facts of the

case, trial counsel testified:

And fact pattern-wise something that is hinted at during the earlier testimony

was that Ms. Manning was, of course, was in fact a friend of Mr. Shaw’s who

lived a few doors down, second floor [of] this particular building at Dixie

Homes from Ms. [Kenia] White where Mr. Carter stayed at occasionally, and

it was high crime area. I believe that came out during the trial.

And that two people that Mr. Shaw’s [sic] testified to apparently one of them

had approached Mr. Carter, and Mr. Carter apparently facilitated what was

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going to be a drug transaction between Mr. Shaw and somebody named Brian.

Nobody knew who [sic] that last name was.

And so there was initial verbal exchange about both [Kenia] and [Kenia]

quoted Mr. Carter as stating this conversation he was having with Mr. Shaw

was he didn’t care how Mr. Shaw made his living just don’t make his

transactions in front of their door because it was a high crime area, and I

believe Mr. Carter had told Larry White (sic) that’s been referred to that he’s

going to start video taping all of this that again don’t care where you sell it just

don’t do it in front of my place, turn you in.

And that [sic] Mr. Shaw left that immediate area, went back to Ms. Manning’s

home. Ms. Manning told - - I’m [sic] make sure I have this correct. That Mr.

Shaw returned to her apartment two or three doors down to retrieve his jacket

then returned. Then was going back toward Mr. Carter and the conversation

began again and escalated.

And the theory of the government, as you well know, was that Mr. Shaw left

came back from Ms. Manning’s apartment at that time with [a] jacket. He’d

gone to get his jacket. He came back and he finished what started out as a one-

sided fistfight with a gun. Ms. Shaw as I said told me on one occasion knife

pulled on him, another occasion a gun is pulled on him, another occasion Mr. -

- the Late Mr. Carter shot at him.

Trial Counsel said that when Petitioner testified at trial, he did not say anything about a knife

or shots fired. Petitioner, like Mr. Wilson, told him that the victim was highly intoxicated

and appeared to be high on narcotics. However, the autopsy report showed no narcotics, and

the victim’s alcohol level was .02.

Trial counsel said that he would never advise a client to lie under oath. He said that

the jury heard evidence of Petitioner’s drug dealing through Ms. White who testified that the

argument between Petitioner and the victim began over the fact that the victim did not want

Petitioner making “hand-to-hand transactions” in front of his door. Trial counsel testified

that he did not tell petitioner to lie about where he had been living for the five months after

the shooting. He said:

When I told him he had to tell the truth about where he had been during those

five months, and he testified I believe that he hid out in some woods near the

what used to be near Dixie Homes for an hour, hour and a half until the

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commotion died down, and then he went to a friend girl’s house and never told

me who that was.

So I asked him where did you live during that time. He said motel to motel,

on the street stay, stay here, say [sic] there. So then you’ll just have to testify

to that, but you’re going to have to explain why you didn’t turn yourself in. If

it was truly self-defense, then it’s going to be a lot easier for a jury to believe

that if you turn yourself in quickly, maybe even the next day with some kind

of reflection, but five months later is not going to help him.

I told him he’d just have to be truthful about where he’d been living, and what

he’d been doing. He had to support himself somehow.

Trial counsel testified that there was a pretrial Morgan hearing about Petitioner’s prior

convictions, two of which were felonies, and the trial judge allowed them because they

involved dishonesty.

Trial counsel testified that he received open-file discovery in Petitioner’s case, which

included copies of statements by Ms. White, Ms. Manning, and Mr. Wilson. He made

copies of the statements and forwarded them to Petitioner. Trial counsel testified that he

asked the investigator, Ms. Byrd, to interview the witnesses. He gave her a copy of the entire

file. Trial counsel said that if either Ms. Manning or Mr. Wilson had placed a gun in the

victim’s hand, he would have called them to testify at trial. He was reluctant to call either

of them to testify because their statements to Ms. Byrd were in some instances at odds with

what they told police and with each other. Trial counsel testified that Mr. Wilson was not

available for police to talk to about the incident until he was under arrest for marijuana

charges. He said that Mr. Wilson told police that he did not see the victim with a gun on the

day of the shooting; however, he told Ms. Byrd that he had seen the victim with a gun earlier

in the day. Trial counsel further noted that Mr. Wilson said that the victim was drunk and

high and that his speech was slurred; however, the autopsy did not support the claim. Trial

counsel also noted that Mr. Wilson had four or five felony convictions. Trial counsel

testified that Petitioner and Ms. Manning were close friends, and “Renee’s is where he made

his money.” He said that Ms. Manning told police that on the day of the shooting, only

Petitioner had a gun. However, she told Ms. Byrd that Petitioner never had a gun. She also

said that Petitioner had returned to her apartment after the initial altercation to retrieve his

jacket. Trial counsel felt that this was going to bolster the State’s theory that Petitioner left

and returned with a gun. He noted that Kenia White’s statements were consistent throughout

the case. Trial counsel did not recall if Ms. Manning or Mr. Wilson was outside the

courtroom during trial.

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Trial counsel testified that Petitioner’s clothing was delivered to the jail before trial;

however, it was lost. Concerning this issue, trial counsel said:

Now, let me tell you this while I’m thinking about it if I could. A couple of

things, the clothes I can’t remember whether I brought him clothes or whether

I directed his family to bring clothes as the Sheriff requests us to do. I cannot

recall, but they were lost in the jail, and so that’s the business about the

clothes.

I did talk to his mother, and she advised - - I talked to his mother by telephone.

She advised me clothes had been delivered, came up, didn’t have them on, and

I thought, well, he’s been in jail this long. Self-defense, [p]articularly, if a jury

finds - - if the proof develops that self-defense is a possibility for them to

consider, then perhaps if they saw he’s been in jail this amount of time for this,

kind of a subterfuge I suppose.

The State then asked the following question: “Strategically you thought that maybe the jury

knowing he’d been in jail [sic] year or two may incur to his benefit?” To which trial counsel

replied: “Sympathize. Sympathize a little bit.”

Trial counsel testified that Petitioner received a plea offer to plead guilty and receive

a sentence of thirteen and one-half years. The offer began as twenty years with no parole and

went to fifteen years. Counsel said, “I advised him thirteen and a half. All I did not [sic]

have to come check on the percentages, and I told him that - - I didn’t have to come check

the percentages. I told him what all that was.” Trial counsel testified that he told Petitioner

that if he lost at trial, “he could very conceivably get close to double that thirteen and a half.”

Petitioner ultimately received a twenty-four-year sentence. Trial counsel testified that

Petitioner made the decision to testify, as was stated in the “jury-out Momon hearing.”

On cross-examination, trial counsel was sure that he explained the nature of the

charges to Petitioner, including the difference between second degree murder and voluntary

manslaughter, and that with Petitioner’s theory of the case, they would try for voluntary

manslaughter. They also discussed the content of the statements obtained by Ms. Byrd. He

did not recall attempting to contact Ms. Manning or Mr. Wilson after receiving Ms. Byrd’s

report. Trial counsel said that he pointed out inconsistencies to Petitioner and the fact that

Mr. Wilson did not come forward until he was arrested for possession of more than one

hundred grams of marijuana. He told Petitioner that he did not know if Mr. Wilson’s and

Ms. Manning’s statements would be helpful to Petitioner. Trial counsel said:

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I told him that that was a gamble I didn’t think we needed to take, and that it

was a judgment call on my part. I never ever heard that these folks were

outside this courtroom during the trial. If I had, not only would I have talked

to them, I would have demanded they wait outside since I called for the rule.

He advised Petitioner to take the stand in his own defense because he was claiming

self-defense, and no one, other than Petitioner, placed a gun in the victim’s hand at the time

of the shooting.

Concerning evidence of adequate provocation, trial counsel testified that the proof at

trial indicated that Petitioner left and returned with a gun to finish a physical altercation. He

said:

The adequate provocation a slap in the face and shooting him, finishing [sic]

fistfight with a gun and a fistfight - - I wouldn’t call it a fistfight. I don’t think

there was ever any testimony about Mr. Shaw striking him but this gentleman

had struck him I believe Mr. Shaw testified once, and that he reacted by

shooting him.

And the way I tried to argue the knowing element to the jury, Your Honor, was

all the testimony, everybody, Mr. Shaw’s testimony, Ms. [Kenia] White’s

testimony was they were only a couple or three feet apart, and that if he was

knowingly trying to kill this gentleman, he would not have shot him in the

stomach. He would have shot him in the head. He was close enough I think

even I could have hit somebody in the head from that distance.

And so if he was really trying to kill him, knowingly kill him, his testimony

and the medical examiner’s testimony that the shot was near the navel

somewhere, and I believe a shot to the leg was consistent with his testimony,

at least his direct testimony. Cross-examination didn’t help him very much,

but was that he was trying to protect himself to what was at least a perceived

danger, and if he was really wanting to kill him, he would have shot him in the

head or chest.

Trial counsel testified that he obtained the victim’s arrest history and knew that he had a prior

conviction for carrying a dangerous weapon. He also had a pending weapons charge. Trial

counsel testified that he considered asking Ms. Byrd to go out into the neighborhood to ask

about the victim’s propensity for violence; however, he did not feel that anyone would be

forthcoming with information.

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III. Standard of Review

A petitioner seeking post-conviction relief must establish his allegations by clear and

convincing evidence. T.C.A. 40-30-210(f). The trial court’s application of the law to the

facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d

450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed

question of fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6

S.W.3d 453, 461 (Tenn. 1999).

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, he must establish that counsel’s performance fell below the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

In addition, he must show that counsel’s ineffective performance actually adversely impacted

his defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed.

2d 674 (1984). In reviewing counsel’s performance, the distortions of hindsight must be

avoided, and this Court will not second-guess counsel’s decisions regarding trial strategies

and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore,

should not conclude that a particular act or omission by counsel is unreasonable merely

because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Rather, counsel’s alleged errors should be judged from counsel’s perspective at the point of

time they were made in light of all the facts and circumstances at that time. Id. at 690, 104

S. Ct. at 2066.

A petitioner must satisfy both prongs of the Strickland test before he or she may

prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,

580 (Tenn. 1997). That is, a petitioner must not only show that his counsel’s performance fell

below acceptable standards, but that such performance was prejudicial to the petitioner. Id.

Failure to satisfy either prong will result in the denial of relief. Id. Accordingly, this Court

need not address one of the components if the petitioner fails to establish the other.

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. In cases involving a guilty plea, the petitioner

must show prejudice by demonstrating that, but for counsel’s errors, he or she would not

have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S.

52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Bankston v. State, 815 S.W.2d 213, 215

(Tenn. Crim. App. 1991).

IV. Failure to Investigate and Call Witnesses

Petitioner contends that he received the ineffective assistance of counsel because trial

counsel did not fully investigate his theory of self-defense and adequate provocation. He

argues that counsel failed to call Renee Manning and Larry Wilson to testify that he was

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acting in self-defense at the time of the shooting because the victim had a gun. He also felt

that they should have been called to refute testimony by the State’s witnesses. Petitioner

further contends that counsel should have presented evidence that the victim had a reputation

for being armed and aggressive.

Initially, we note that Petitioner did not call Ms. Manning and Mr. Wilson to testify

at the post-conviction hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.

1990)(concluding that failure to present a material witness at the post-conviction hearing

generally results in the failure to establish ineffective assistance of counsel). At the post-

conviction hearing, trial counsel testified that Petitioner talked of self-defense, but his

version of the facts varied. He had open-file discovery in Petitioner’s case, which included

copies of statements by Ms. Manning and Mr. Wilson. He made copies of the statements

and forwarded them to Petitioner. Trial counsel testified that he asked the investigator, Ms.

Byrd, to interview the witnesses, and he gave her a copy of the entire file.

Trial counsel said that if either Ms. Manning or Mr. Wilson had placed a gun in the

victim’s hand at the time of the shooting, he would have called them to testify at trial. He was

reluctant to call either of them to testify because their statements to Ms. Byrd varied with

each other and with what they had previously told police. Trial counsel pointed out that Mr.

Wilson was not available for police to talk to about the incident until he was under arrest for

marijuana charges. He also noted that Mr. Wilson had four or five felony convictions. Trial

counsel said Mr. Wilson told police that he did not see the victim with a gun on the day of

the shooting; however, he told Ms. Byrd that he had seen the victim with a gun earlier in the

day. He testified that Petitioner and Ms. Manning were close friends, and “Renee’s is where

he made his money.” He said that Ms. Manning told police that on the day of the shooting,

only Petitioner had a gun. However, she told Ms. Byrd that Petitioner never had a gun. She

also said that Petitioner had returned to her apartment after the initial altercation to retrieve

his jacket. Trial counsel felt that this was going to bolster the State’s theory that Petitioner

left and returned with a gun. Trial counsel said that he pointed out inconsistencies in the

statements by Ms. Manning and Mr. Wilson to Petitioner, and he told Petitioner that he did

not know if the statements would be helpful. He then made a strategic decision not to call

Ms. Manning or Mr. Wilson to testify, and Petitioner was aware that he did not intend to call

them.

Concerning evidence of adequate provocation, trial counsel testified that the proof at

trial indicated that Petitioner left and returned with a gun to finish a physical altercation. He

obtained the victim’s arrest history and knew that he had a prior conviction for carrying a

dangerous weapon and a pending weapons charge. Trial counsel testified that he considered

asking Ms. Byrd to go out into the neighborhood to ask about the victim’s propensity for

violence; however, he did not feel that anyone would be forthcoming with information.

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The post-conviction court found that counsel made a tactical decision not to call Ms.

Manning and Mr. Wilson at trial. Counsel’s trial strategies and tactics will not be second-

guessed by this Court. Hellard, 629 S.W.2d at 9. The court also noted that Petitioner could

not show prejudice because he did not call the witnesses to testify at the post-conviction

hearing. The post-conviction court further held that counsel was not deficient nor was

Petitioner prejudiced by trial counsel’s failure to present evidence of the victim’s criminal

history and propensity for violence. The evidence presented shows that the victim and

Petitioner had an altercation. Petitioner then left, returned with a gun, and shot the victim.

Petitioner did not present any proof that the victim was armed at the time of the shooting.

The record does not preponderate against the post-conviction court’s findings. Petitioner is

not entitled to relief on this issue.

V. Lack of Communication

Petitioner argues that trial counsel failed to adequately meet with him and allow him

to be involved in his defense. At the post-conviction hearing, Petitioner claimed that trial

counsel did not meet with him or respond to his letters until he contacted the Board of

Professional Responsibility and the trial judge. Trial counsel testified that he met with

Petitioner on multiple occasions and did not feel that there was any lack of communication.

He noted that at trial, during the Momon hearing, Petitioner acknowledged that he and

counsel had discussed the facts and circumstances of the case on “numerous occasions.”

Trial counsel testified that he made copies of statements made by Kenia White, Renee

Manning, and Larry Wilson and forwarded them to Petitioner prior to trial, and they

discussed the content of the statements. He informed Petitioner that the statements by Ms.

Manning and Mr. Wilson would not be helpful to Petitioner’s case, and he informed

Petitioner that it was not worth calling them at trial.

The post-conviction court accredited trial counsel’s testimony that he met with

Petitioner on multiple occasions, and the court noted that Petitioner acknowledged this fact

when he was “Momonized.” The court also noted that Petitioner did not offer proof that

“additional pretrial communications would have affected the outcome.” Petitioner has not

shown by clear and convincing evidence that there was any lack of communication by trial

counsel. Petitioner is not entitled to relief on this issue.

VI. Failure to Sufficiently Explain the State’s Plea Offer

Petitioner argues that trial counsel failed to adequately advise him concerning the

State’s plea offer. He was aware that prior to trial, the State made an offer that would have

resulted in a sentence of thirteen and one-half years. However, Petitioner claims that he

rejected the offer because did not understand why he was being offered that amount of time

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for defending himself. He was also under the impression that Renee Manning and Larry

Wilson would testify on his behalf. At the post-conviction hearing, trial counsel testified that

he advised Petitioner of the State’s thirteen and one-half year offer, and he told Petitioner that

he might be sentenced to double that amount if he lost at trial. He advised Petitioner that he

would not call Mr. Wilson and Ms. Manning to testify at trial because of the inconsistencies

in their statements and the fact that Mr. Wilson was a five-time convicted felon.

The post-conviction court found that trial counsel clearly explained the plea offer to

Petitioner. The court found:

Petitioner also testified that he would not take the State’s plea offer because

he wanted to proceed on his self-defense claim. Transcript, p. 12, lines 8-16.

The fact that the Petitioner made a conscious decision to reject the offer and

proceed down a different course of action proves he understood the State’s

plea offer.

The record does not preponderate against the post-conviction court’s findings. The plea offer

was adequately explained to Petitioner, and he chose to reject it. Petitioner is not entitled to

relief on this issue.

VII. Failure to Advise Petitioner Concerning His Right to Testify

Petitioner argues that he was “unexpectedly” required to take the stand at trial and

testify on his own behalf because trial counsel failed to call Mr. Wilson and Ms. Manning

as witnesses. As a result, he claims that he was “unnecessarily” subjected to cross-

examination. However, the record belies this claim. At the post-conviction hearing,

Petitioner admitted that trial counsel told him what to “look for” when testifying in his own

behalf, and he knew that he would be cross-examined about his prior drug offenses. There

was a pretrial hearing to determine if Petitioner’s prior convictions would be used to impeach

Petitioner’s credibility if he chose to testify, and the trial court ruled that the two felony

convictions were admissible for that purpose if Petitioner chose to testify. Trial counsel

testified that he advised Petitioner to take the stand in his own defense because he was

claiming self-defense, and no one, other than Petitioner, placed a gun in the victim’s hand

at the time of the shooing. He said that Petitioner made the decision to testify, and “he

testified to that before in the jury-out Momon hearing.” Also, as previously noted, Petitioner

was aware before trial that Ms. Manning and Mr. Wilson would not be called as witnesses.

The post-conviction court held that trial counsel called Petitioner to the witness stand

“to specifically obtain an answer regarding whether or not the Petitioner was going to testify

at trial.” The court also noted that Petitioner testified that trial counsel “discussed his

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testimony and what would happen during his cross-examination.” The court concluded that

Petitioner failed to “prove that trial counsel deficiently informed him regarding his right to

testify or that he would have chosen to not testify on his own behalf with additional

information.” We conclude that Petitioner has failed to show that trial counsel’s assistance

fell below acceptable standards or that Petitioner was prejudiced by any aspect of his trial

counsel’s assistance. Petitioner is not entitled to relief on this issue.

VIII. Appearance at Trial in Prison Clothing

Petitioner contends that trial counsel’s performance was deficient for not providing

him the opportunity to appear at trial in civilian clothing rather than prison attire. At the

post-conviction hearing, trial counsel testified that Petitioner’s clothing was delivered to the

jail before trial; however, it was lost. Trial counsel’s testimony essentially shows that he then

made a strategic decision for Petitioner to appear at trial in prison attire in hopes that the

proof would show a close case on whether Petitioner acted in self-defense. Then, if the

jurors knew that Petitioner had been in jail awaiting trial, they might give Petitioner some

equitable relief and conclude that he had been punished enough.

Every defendant is entitled to a fair and impartial trial. Willocks v. State, 546 S.W.2d

819, 820 (Tenn. Crim. App. 1976). The guilt or innocence of a defendant should be decided

upon the evidence introduced at trial and not because the defendant, for example, is in

custody. Taylor v. Kentucky, 436 U.S. 478, 485, 99 S. Ct. 1930, 1934, 56 L. Ed. 2d 468

(1978). Certain practices during a trial may “pose such a threat to the fairness of the fact

finding process that they must be subjected to ‘close judicial scrutiny.’ “State v. Braden, 874

S.W.2d 624, 626 (Tenn. Crim. App. 1994), citing Estelle v. Williams, 425 US 501, 504

(1976). A defendant, for example, should not be compelled by the State to stand trial dressed

in prison clothing. Estelle, 425 U.S. at 504, 96 S. Ct. at 1693. As the Estelle court noted,

“the constant reminder of the accused’s condition implicit in such distinctive, identifiable

attire may affect a juror’s judgment.” Id., at 504-05.

However, a defendant may choose for tactical purposes to place his custodial status

before the jury. See Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 1345, 89 L. Ed.

2d 525 (1986). A defendant may hope to appeal to the jury’s sympathy through his prison

attire. Id., at 508, (citing Andern v. Watt, 475 F.2d 881, 882 (10th Cir. 1973); Watt v. Page,

452 F. 2d 1174, 1176 (10th Cir. 1972)). “[J]urors are quite aware that the defendant

appearing before them did not arrive there by choice or happenstance.” Holbrook, 475 U.S.

at 567, 106 S. Ct. at 1345; Carroll v. State, 532 S.W.2d 934, 937 (Tenn. Crim. App. 1975).

The trial court did not address this specific issue in the order dismissing the petition,

but the court found that the Petitioner lacked credibility, and “where there are conflicts in

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testimony, the Court credits the testimony of Trial Counsel.” This necessarily includes

counsel’s testimony that he made the strategic decision for Petitioner to appear at trial in his

prison attire in an attempt to gain sympathy from the jury. Trial counsel’s decision to reveal

that Petitioner was in custody was prompted by legitimate trial strategy, and the record does

not preponderate against this finding. See Hellard, 629 S.W.2d at 9, citing United States ex

rel. Burton v. Cuyler, 439 F.Supp. 1173, 1187 (E.D.Pa.1977). Petitioner is not entitled to

relief on this issue.

IX. Failure to Request a Timely Mental Evaluation

Petitioner argues that trial counsel was ineffective for failing to request a mental

evaluation prior to trial. He claims that he was heavily medicated at the time of the State’s

plea offer and during trial and that he was unable to “competently and meaningfully”

participate in decisions concerning his defense. However, Petitioner presented no proof at

the post-conviction hearing, other than his own testimony, to support his claim. In fact, trial

counsel requested a mental evaluation prior to the sentencing hearing. However, as noted

by the post-conviction court, Petitioner refused to cooperate with the examiner, and the

overall results of Petitioner’s psychological testing were not viewed as “valid or reliable.”

Petitioner has failed to show by clear and convincing evidence how counsel’s failure to

request a mental evaluation prior to trial constitutes deficient performance. Petitioner

presented no expert testimony at the post-conviction hearing or any other evidence to show

than an evaluation was necessary before trial. Black v. State, 794 S.W.2d at 757. Petitioner

is not entitled to relief on this issue.

X. Failure to Present Proof and Cross-Examine Witnesses at the Sentencing Hearing

Petitioner argues that trial counsel was deficient for failing to cross-examine the

State’s witnesses at the sentencing hearing or present any proof on his behalf. However,

Petitioner has failed to support this claim with argument. In his brief, Petitioner merely

alleges: “During the sentencing phase of the trial, Trial Counsel failed to cross examine State

witnesses and put on no proof for the Defendant.” Petitioner then makes reference to the

sentencing hearing transcript in a footnote. The transcript was not included in the record on

appeal. An appellant is required to support his or her contentions with argument, references

to the record, and citation to authorities. Tenn. R. App. P. 24(b); Ct. Crim. App. R. 10(b).

Additionally, “when a party seeks appellate review there is a duty to prepare a record which

conveys a fair, accurate and complete account of what transpired with respect to the issues

forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).

Therefore, this Court is precluded from considering the issue. Id. at 560-61.

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In any event, as noted by the post-conviction court and by the State in its brief,

Petitioner also failed to present any proof concerning this issue at the post-conviction

hearing. He has not shown or even alleged how counsel’s performance in this area was

deficient or that he was in any way prejudiced by counsel’s performance. The Petitioner

bears the burden of proving his or her allegations by clear and convincing evidence. Tenn.

Code Ann. § 40-30-110(f). This issue is without merit.

CONCLUSION

After a thorough review, we affirm the judgment of the post-conviction court.

___________________________________

THOMAS T. WOODALL, JUDGE

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