The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MARCH SESSION , 1998
GREGORY JONES, ) C.C.A. NO. 01C01-9706-CR-00226
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FILED
April 16, 1998
FOR THE APPELLANT: FOR THE APPELLEE: W. Crowson
Cecil
Appellate Court Clerk
PAUL J. BRUNO JOHN KNOX WALKUP
Washington Square Bldg. Attorney General and Reporter
222 Se cond A venue, N orth
Suite 350M TIMOTHY F. BEHAN
Nashville, TN 37201 Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
VICTOR S. JOHNSON
District Attorney General
KATRIN MILLER
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Petitioner, Gregory Jones, appeals as of right pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure from the trial court’s denial of his
petition for pos t-conv iction relief. He was co nvicted by a Da vidson Cou nty jury
of felony murder and attem pted espec ially aggravated rob bery. 1 The trial court
sentenced him to co nsecu tive terms of life imprisonment and fifteen ye ars. H is
convictions and sentences were affirmed on app eal to this C ourt. 2 Our supreme
court denie d perm ission to app eal on April 22, 1996. He filed a pro se petition for
post-conviction relief on May 20, 1996, which was amended with the assistance
of counsel on August 19 , 1996. In his petition for post-conviction relief, the
Petitioner argues that he was denie d effec tive ass istanc e of co unse l at his tria l.
The trial court conducted an evidentiary hearing on December 18, 1996, and after
considering the evidence, issued an order denying the petition on January 10,
1997. W e affirm the judgm ent of the tria l court.
The record contains little information concerning the circumstances of the
offenses. From the opinion of this Court on direct appea l, it appears that the
offenses occurred in the early morning hours of May 6, 1991. Craig Alexan der,
the manager of a Steak and Ale restaurant in Nashville was leaving the
restaurant with his wife, the ir child, a nd the assistant manage r. They were
confronted by a you ng bla ck m ale with a gun. Alexander lunged for the gun and
was killed by a single shot.
1
Tenn. Code Ann. §§ 39-13-202, 39-12-101, 39-13-403.
2
State v. Gregory K. Jones, C.C.A. No. 01C01-9406-CR-00185, Davidson County
(Tenn. Crim. App., Nashville, Dec. 19, 1995), perm. to appeal denied (Tenn. 1996).
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Police officers developed information leading them to David Shelton.
Shelton eventually pleaded guilty to the murder and received a sixty-year
sentence. As part o f the plea, Shelton agreed to testify against the Petitione r.
At the Petitioner’s trial, however, Shelton refused to testify for fear of retaliation
by other prison ers an d was held in conte mpt o f court. P ursua nt to R ule 804(b)(1)
of the Ten nesse e Rules of Eviden ce, She lton’s prior tes timony a t a pretrial
hearin g was adm itted at th e Petitio ner’s trial. That testimony indicated that the
Petitioner was with Shelton when the latter killed Craig Alexander, that the
Petitioner had planned the robbery from his personal knowledge as a former
employee of the restaurant, and that the Petitioner had provided the gun.
To corroborate S helton’s implication o f the Petitioner, the State offered the
testimony of two individuals who were near the scene of the crime at the time of
the crime. One of these individuals saw two black males standing near the front
door of the Ste ak an d Ale restaurant immediately prior to the commission of the
offenses. The other individual testified that he witnessed two black males
running away from the Steak and Ale restaurant immediately after he heard a
gunsh ot. Neithe r of thes e individ uals co uld identify the Petitioner as having been
one of the men they had seen.
The State also offered proof that a duffel bag found in a wooded area
behind the Steak and Ale restaurant had been in the Petitioner’s bedroom closet
appro ximate ly one m onth prio r to the com mission of the offen ses. The bag
contained a brown glove, a pair of black jogging pants, and scissors. The
Petitioner adm itted in a police interview that the scissors belonged to him. Also
located in the wooded area was a .32 caliber handgun. Testimony was
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presented that the .32 caliber handgun was the source of the bullet which killed
Craig Alexander. The wooded area itself lay between the Steak and Ale
restaurant and the apa rtment com plex where the Petitioner and Shelton shared
a unit. A traine d police d og tracke d a hum an sce nt from th e Steak and Ale
restaurant through the wooded area to the parking lot of the apartment complex.
In addition, the State offered the testimony of police officers who had
conducted interviews with the Petitioner. In those interviews, the Petitioner stated
that Shelton had told him about committing the crime. The Petitioner’s
statem ents about how he had first learned of the crime we re, however,
inconsis tent.
In all, the State presented testimony from ten to fifteen witnesses. The
Petitioner offered no proof. After considering the evidence, the jury found the
Petitioner guilty of felony murd er and attem pted e spec ially aggravated robbery.
The convic tions w ere affir med on dire ct app eal. See State v. Grego ry K. Jones,
C.C.A. No. 01C01-9406-CR-00185, Davidson Coun ty (Tenn . Crim. A pp.,
Nash ville, Dec. 19 , 1995), perm. to appeal denied (Tenn. 199 6).
On May 20, 1996, the Petitioner filed a pro se petition for post-conviction
relief, arguin g that d efens e cou nsel a t his trial w as ineffective. Counsel was
appointed and amended the petition on August 19, 1996. Through the amended
petition, the Pe titioner argued that his trial attorney, Michael Thompson, rendered
ineffective assistance of counsel in two primary ways: (1) that defense counsel
failed to call available witnesses to rebut the State’s proof of motive, and (2) that
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defense counsel failed to cross -exam ine Da vid Shelton effectively regarding the
plea agreem ent made in exchange for his testimony ag ainst the Petitioner.
The trial court conducted an evidentiary hearing on the petition for pos t-
conviction relief on D ecem ber 18, 1996. At the hearing, the Petitioner testified
that he recalled meeting with defense counsel, Michael Thompson, only once, but
they discussed the case several times by telephone. From these discussions,
the Petitioner beca me a ware th at the S tate’s a lleged theory of his motivation for
committing the crime was that he had been terminated from his employment at
Steak and Ale and that he needed money to support his drug habit. The
Petitioner stated that he informed Thompson of severa l witnes ses, in cludin g his
girlfriend, Tammy Donnelly, who could testify on his behalf to rebu t the Sta te’s
theory of motive . Accord ing to the P etitioner, T homp son state d that these
witnesses were unnecessary because the State’s case against him was weak.
In addition, t o the best of his recollection, the Petitioner did not believe that
Thompson cross-examined David Shelton concerning the deal he had received
in exchange for his testimony. On cross-examination, the Petitioner admitted that
Tho mps on’s examination of David Shelton was c ut sho rt by Sh elton’s refusal to
answer further questions.
The Petitioner also offered the tes timony of his girlfriend, Ta mmy D onnelly.
Don nelly testified that she had informed Thompson prior to trial that she was
willing to testify on the Petitioner’s behalf. In particular, she stated that she could
have testified at trial that the Petitioner’s financial situation was fine, that he did
not use drugs, and that he had not been terminated by Steak and Ale. On cross-
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examination, Donnelly adm itted that she had c alled Crime S toppers 3 with
information implicating David Shelton in the shooting of Craig Alexander and that
she had re ceived a one thous and d ollar ($1000) reward. She further admitted
that the information she reported to Crime S toppers cam e from the P etitioner.
The only other witness to testify at the post-conviction hearing was the
Petition er’s trial attorney, M ichael Thompson. Thompson testified that he was
licensed as an attorney in 1972 and that his practice consisted of app roxim ately
thirty percent (30%) criminal work. For the Petitioner’s trial, he discussed the
case with the Petitioner by telephone on a number of occasions. He also met
with the Petitioner twice at the jail, during one of which times he also interviewed
David Shelton . In addition, he discussed the case with the Petitioner at hearings
prior to trial. One of these hearings was a parole revocation hearing which
Thompson requested specifically in hopes of gaining information about the
State ’s case for th e Alexan der killing. Thompson also filed the ordinary disco very
motions to ga in information ab out the State’s ca se against the Petitioner.
From these sources of informatio n, Th omp son d iscove red tha t the on ly
witness for the Sta te who c ould iden tify the Petitioner as having been at the
scene of the crime was David Shelton. Thompson also discovered that the State
had circum stantia l evidence supporting Shelton’s implication of the Petitioner, but
Thompson believed th at this evide nce wa s relatively we ak. Accord ingly, the
princip al defense strategy was to attack Shelton’s credibility. Of course,
Thompson was prevented from cross-examining Shelton fully, including
3
Crime Stoppers is a local program which offers reward money for information
leading to the development and arrest of suspects of certain crimes.
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questioning him about the plea bargain he had received from the State, when
Shelton attempted to invoke his Fifth Amendment privilege and refused to answer
further ques tions. T hom pson testified that ha d he b een a ble to question Shelton
about his plea agreement, he would certainly have done so.
With regard to Tammy Donnelly, Thompson testified that he spoke with her
prior to the Petitioner’s trial. Thompson elected not to call Donnelly as a witness
for the Petition er for two re asons . First and foremost, the information which
Don nelly had related to Crime Stoppers ha d com e from th e Defe ndant.
According to Thom pson, th e nature of this inform ation was suc h that the jury
could have concluded that the only way the Petitioner knew of these facts was
because he had been involved in the offenses. Second, Donn elly’s testimony
about the Petitioner’s personal and financial circumstances seemed to have been
related to her b y the P etitioner himself rather than acquired by independent
knowledge. Thom pson testified that ha d the P etitioner given him the name of
any other witnesses whose testimony would have attacked the credibility of the
State’s witnesses, he would have called them.
On cross-examination, Thompson admitted that he was a ble to ask David
Shelton several questions before Shelton refused to testif y further. Thompson
also stated that the Petitioner suggested no possible witnesses, character or
otherwise, othe r than Tam my Don nelly.
After considering the evidence presented at the post-conviction hearing,
the trial court entered a detailed order denying the petition. In short, the trial
court d id not find the Petitioner’s proof to be persuasive and instead accredited
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Michael Tho mps on’s testimony. The trial court found that Thompson’s decision
not to call Tammy Donnelly was a tactical decision supported by the fact that
Don nelly’s Crime Stoppers information would likely have caused the jury to infer
that the Petitioner had been involved in the offens es. Moreove r, the trial court
found that the information Donn elly had rec eived with respec t to the Pe titioner’s
personal and financial status originated “second-hand” through the Petitioner
himse lf. The trial court found further that the Petitioner had not suggested any
other p otentia l witnes ses fo r Tho mps on to c all at trial.
With regard to the failure of Thompson to cross-examine David Shelton
about his plea barga in with th e State , the trial c ourt fou nd tha t Tho mps on’s
opportu nity to impeach Shelton’s cred ibility was cut short by She lton’s refus al to
testify. The trial court noted that this unforseen event did not indicate any
ineffectiveness on the part of T hom pson . As a re sult, the trial court concluded
that T hom pson ’s repre senta tion fell within the range of competence demanded
of attorneys in criminal cases and therefore denied the petition for post-conviction
relief. It is from the order of denial that the Petitioner now appeals.
In determining w hether or not co unsel provided effective assista nce a t trial,
the court mus t decid e whe ther or not co unse l’s perfo rman ce wa s within the range
of competence demanded of attorneys in crim inal cases . Baxter v. Rose, 523
S.W.2d 930 (Te nn. 19 75). T o suc ceed on a cla im tha t his cou nsel was
ineffective at trial, a petitioner bears the burden of showing that his counsel made
errors so serious that he was not functioning as counsel as guaranteed under the
Sixth Amendment and that the deficient representation prejudiced the petitioner
resulting in a failure to produ ce a reliab le result. Strickland v. Washington, 466
-8-
U.S. 668, 68 7, reh’g denied, 467 U.S. 12 67 (198 4); Coop er v. State , 849 S.W.2d
744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90). To
satisfy this second prong the pe titioner m ust sh ow a re ason able probab ility that,
but for counsel’s un reasonab le error, the fac t finder w ould have h ad rea sona ble
doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble
probab ility must be “su fficient to undermine confidence in the outcome .” Harris
v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
When reviewing trial counsel’s actions, th is cour t shou ld not u se the bene fit
of hindsight to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard
v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be
judged at the time they were made in light of all facts and circumstances.
Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.
W e note th at in post-conviction relief proceedings, the petitioner bears the
burden of proving the allegations in his or her petition by clear and convincing
evidence. Tenn. Code Ann. § 40-30-210(f) (Supp. 1996). Furthermore, the
factual findings of the trial court in post-conviction hearings are conclusive on
appeal unless the evidence preponderates against them. See State v. Buford ,
666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).
Applying the above standards to the case sub judice, we believe that the
Petitioner has failed to establish that Thompson’s representation was
cons titutiona lly deficient. The Petitioner testified at the post-conviction hearing
that defense coun sel wa s ineffe ctive in that he failed to call any witnes ses o n his
behalf, in particular Tammy Donnelly, who could have rebutted the State’s theory
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of the case . In contras t, Michael Thompson testified that the Petitioner provided
him with no potential witnesses other than Tammy Donnelly. After evaluating the
credibility of the witnesses at the post-conviction hearing , the trial court
accredited Thompson’s testimony on this point. The trial court was in a much
better position to evaluate credibility than this Court, and the evidence in the
record does not preponderate against the trial court’s finding. Furthermore, we
agree with the trial court that the decision not to call Donnelly was a tactical
choice supported by the proof in the re cord. W hile Do nnelly m ay hav e bee n able
to attack the Sta te’s the ory of th e Petitio ner’s motive for committing the offenses,
she would have been vulnerable to cross-examination regarding information from
which the jury could infer that the Petitioner had, in fact, been involved in the
crime. We believe that the decision no t to call D onne lly was a soun d strate gic
choice given the circumstances confronting Thompson.
With regard to Tho mps on’s cross-examination of David Shelton, we agree
with the trial court that the record ind icates tha t Thom pson’s o pportun ity to cross-
examine Shelton was cut short b y Shelton ’s attemp t to invoke h is Fifth
Amendment privilege. The Petitioner seems to imply that Thompson was
ineffective for failing to cross-examine Shelton about his plea agreement during
the few questions asked w hich Sh elton did a nswer b efore refu sing to tes tify
further. We believe, howeve r, that Thompson’s failure to ask Shelto n abo ut his
plea agreement during the questions which Shelton did answer does not reveal
any ineffectiveness given Shelton’s unforseen refusal to answer further
questions. In fact, it appears that the trial court found Shelton’s Fifth Amendment
privilege inapplicable and ordered him to answer further questions. Shelton
refused to do so and was found in contempt of court. Moreover, Thompson
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testified that had he been able to do so, he would indeed have cross-examined
Shelto n about his plea a greeme nt in an attemp t to attack Shelton’s c redibility.
Under these circumstances, we cannot conclu de that T homp son’s ina bility to
cross-examine Shelton about his plea agreement constituted deficient
representation.
For the reas ons se t forth in the d iscussio n above , we con clude tha t the
Petitioner has failed to demonstrate that the trial court erred in denying the
petition for post-conviction relief. We therefore affirm the judgment of the trial
court.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOSEPH M. TIPTON, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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