The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 24, 2013
MICHAEL D. GREEN V. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Hamilton County
No. 231307 Don W. Poole, Judge
No. E2012-01875-CCA-R3-PC - Filed December 11, 2013
The petitioner, Michael D. Green, appeals the dismissal of his petition for post-conviction
relief. The petitioner was convicted of multiple crimes, including first degree felony murder,
and received a sentence of life plus twenty-four years. That sentence was ordered to be
served concurrently to a federal sentence of life plus twenty-five years. On appeal, the
petitioner contends that he was denied his right to the effective assistance of counsel.
Specifically, he contends that trial counsel was ineffective by: (1) failing to request
sequestration of the jury; (2) failing to utilize all available preemptory challenges or to
challenge potential jurors for cause; and (3) failing to limit testimony concerning the prior
federal trial. Following review of the record, we conclude no error occurred and affirm the
denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and R OBERT W. W EDEMEYER, JJ., joined.
John Allen Brooks, Chattanooga, Tennessee, for the appellant, Michael D. Green.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Bill
Cox, District Attorney General; and Neal Pinkston, Exec. Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Procedural History
The convictions for which the petitioner is currently incarcerated arose from his
involvement in a crime spree committed on three separate days in July 1993. This court, on
direct appeal, summarized the facts of the events as follows:
Proof at the trial showed that on July 6, 1993, [the petitioner], along
with four other young men, stole Ms. Davidson’s car, then stopped a
pedestrian, Mr. Guilmenot, and forced him to disrobe, robbing him of his
clothes at gunpoint. They then forced Ms. Morgan’s car off the road into a
ditch, and robbed her of her purse. Next they forced Ms. Brown and Ms.
Wilson off the road, taking money from Ms. Wilson and the car from Ms.
Brown, abandoning Ms. Davidson’s car. Shortly after midnight, they pulled
in front of Mr. Peace’s car and robbed him at gunpoint of his wallet, some
money and a radio. [The petitioner] next approached Mr. Wolfe and his wife,
who were stopped at a red light, put a gun to Mr. Wolfe’s head and demanded
that they get out of the car. The gun went off, killing Mr. Wolfe. [The
petitioner] and the other young men then fled. Three days later, on July 11,
1993, [the petitioner] and some of the same young men stole another car
belonging to Ms. Hewlett, and in the process of driving it around, pointed guns
at two pedestrians, forcing Ms. Acklin to disrobe and beating Mr. Suttles
unconscious. They then forced Mr. Townsend off his porch and robbed him
at gunpoint of $50 in cash and $200 in food stamps. The police soon pulled
in behind them, and apprehended them after a chase. [The petitioner] was the
leader, always displayed a firearm, and was the driver of all the cars used in
the crimes.
State v. Michael Deangelo Green, No. 03C01-9610-CR-00379, 1998 Tenn. Crim. App.
LEXIS 388, *2-3 (Tenn. Crim. App., at Knoxville, Mar. 27, 1998). The petitioner was first
tried in the United States District Court for the Eastern District of Tennessee on a six-count
indictment, which charged him with, among other offenses, conspiracy to commit armed
carjacking resulting in death, based upon the death of Mr. Wolfe. Id. at *3. He was
convicted in federal court in September 1994 and sentenced to life plus twenty-five years in
the penitentiary for those offenses. Id. at *4.
Thereafter, the petitioner was subsequently indicted in state court for his actions.
Pursuant to multiple indictments, which the State later consolidated, the petitioner was
convicted of first degree felony murder, six counts of aggravated robbery, two counts of
aggravated assault, attempt to commit especially aggravated robbery, theft of property over
$1000, and theft of property over $500. Id. at *1. The petitioner was later sentenced to a
term of life plus twenty-four years, which was to be served concurrently with his federal
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sentence. Following the denial of his motion for new trial, the petitioner timely appealed to
this court challenging: (1) whether it was constitutionally permissible to try him in state court
following his federal trial on the same facts; (2) whether the trial court erred in denying a
change of venue based upon extensive pretrial publicity; (3) whether the trial court erred in
failing to strike the testimony of a witness or grant a mistrial when the State failed to turn
over a prior statement of that witness upon request; and (4) whether the trial court erred in
failing to grant the motion for judgment of acquittal with respect to three counts of the
indictment. Id. at *3. This court affirmed the petitioner’s convictions and sentence, and
permission to appeal was denied by the Tennessee Supreme Court on January 25, 1999.
Thereafter, on January 21, 2000, the petitioner filed a timely pro se petition for post-
conviction relief alleging ineffective assistance of counsel. The post-conviction court
concluded that the petitioner had presented a colorable claim, and counsel was appointed on
February 17, 2000. The amended petition asserted ineffective assistance of counsel based
upon: failure to properly issue subpoenas in time to ensure witnesses presence at trial; failure
to request a continuance until the witnesses could be produced; failure to request a
sequestered jury; failure to request the services of an investigator; failure to file a motion in
limine to keep information regarding the prior federal trial from the jury; and failure to call
a certain witness. Several years later, on July 12, 2012, a hearing was held on the matter
before the post-conviction court at which trial counsel and the petitioner testified. The
petitioner, who was in federal custody, was not physically present in the courtroom, but he
participated through the use of video conferencing.
Trial counsel testified and readily admitted that he did not recollect all the details of
his representation of the petitioner over seventeen years earlier. Trial counsel stated that the
record would have to speak for itself on many issues. He testified that he was licensed to
practice law in 1987 and that his practice, at the time, consisted primarily of criminal defense
work in both the federal and state courts.
Trial counsel testified that, while he did not recall specifically, he would not be
surprised that he did not request the services of an investigator in this case. He testified that
he conducted his own investigation, that he received discovery, and that he spoke with
available witnesses. Further, he had the opportunity to watch the petitioner’s prior federal
trial, which was based upon the same facts. He also shared and discussed information with
the lawyer representing the petitioner in the federal case. Trial counsel testified that the
proof did not actually present complicated factual issues.
Trial counsel stated that he met with the petitioner numerous times during the course
of his representation of the petitioner. He testified that all issues were discussed at length
with the petitioner, including the decision not to request sequestration of the jury. Trial
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counsel stated that he did file for a change of venue because of the amount of publicity which
was garnered by the case. He recalled that over half the potential jurors in the pool indicated
some prior knowledge of the case. Further, he recalled that individual voir dire was
conducted on those with knowledge. Afterwards, trial counsel felt that sequestration would
not be beneficial to his client. He recalled no indication of any outside influence affecting
the jury in the case which would have required further action on his part. Trial counsel
testified that he felt that venue had been a legitimate issue, but he did not believe
sequestration would have had an effect on the verdict.
Trial counsel also deferred to the record and did not dispute the fact that he had
utilized only six of his peremptory challenges. He recalled that the petitioner had been
involved in jury selection as well. Although he could not recall his exact reasoning at the
time, he reasoned that the decision was a trial strategy because “when you like a juror, you
like a juror . . . at that time, you have a feeling.” He stated that if he had felt they had been
needed, he would have exercised the remaining challenges. Trial counsel stated that he was
satisfied with the jury and that he did not believe that the use of additional peremptory
challenges would have affected the outcome of the case.
Trial counsel testified that he did subpoena numerous witnesses in the case, although
he was unable to recall why he had subpoenaed them or if he had spoken with them. He
stated that his practice was often to place multiple witnesses under subpoena and only later
made a determination if the would be called. However, he was clear that he would not have
called a witness to the stand without first speaking with them. He recalled at least one
witness in the case with whom he was unable to speak because the witness was represented
by counsel. He acknowledged that he only called three witnesses for the defense. However,
he testified that he elected not to call certain witnesses, whom the State had also subpoenaed,
so he would have the benefit of being able to cross-examine them.
Trial counsel testified that he did not seek to exclude knowledge of the petitioner’s
prior federal trial from the jury. Rather, he utilized certain witnesses’ testimony at the federal
trial to impeach them on cross-examination in the state case. Trial counsel testified that, had
he moved to exclude that evidence, some of the material he used on cross-examination would
have been eliminated.
Trial counsel noted that the issue of whether the petitioner should testify at the state
trial was also discussed. The petitioner had testified at the federal trial and presented
evidence of an alibi: however, the State was able to present proof which completely
contradicted the testimony. Trial counsel acknowledged that he advised the petitioner
strongly against testifying in the case.
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The petitioner testified that he was currently incarcerated in a federal prison serving
a sentence of life plus twenty-five years. He also acknowledged that he had exhausted all
federal appeals. The petitioner stated that, during his representation, he and trial counsel had
met together frequently. Trial counsel consulted with the petitioner regarding witnesses
which he would have called. The petitioner reviewed a list of numerous possible witnesses,
some who did in fact testify at trial, whom he believed that trial counsel should have called.
For some, but not all, of those witnesses, the petitioner noted what he believed they would
have testified to had they been called. The petitioner was aware that some of the witnesses
were under subpoena, and he believed that trial counsel should have called them or asked for
a continuance if they were unavailable to testify at trial.
With regard to his testifying, the petitioner testified that trial counsel strongly advised
him that he should not testify in his own defense. The petitioner acknowledged that he was
aware that he had the right to testify, but stated he relied upon trial counsel’s advice. He
testified that if trial counsel had not been so strong in his recommendation that he would have
testified even though his prior federal trial testimony could have been used to impeach him.
The petitioner denied that trial counsel had explained the concept of sequestration to
him or that it was possible to even ask for such. He stated that he now believed it would
have been beneficial to his case had the jury been sequestered. The petitioner also testified
that he and trial counsel never discussed the issue of hiring an investigator or challenging
jurors. The petitioner testified that he was aware that a certain number of potential jurors
could be struck without reason, but he claimed that trial counsel failed to consult with him
when picking the jury. He did acknowledge that he did not request any specific juror be
stricken from the panel.
After hearing the evidence presented, the post-conviction court took the matter under
advisement and later issued a written order denying post-conviction relief.
Analysis
On appeal, the petitioner challenges the dismissal of his petition for post-conviction
relief. Specifically, he contends that the dismissal was in error because trial counsel was
ineffective by failing to request that the jury be sequestered, failing to utilize all the available
peremptory challenges or to challenge jurors for cause, and failing to limit testimony
concerning the prior federal trial.
In order to obtain post-conviction relief, a petitioner must prove that his or her
conviction or sentence is void or voidable because of the abridgement of a right guaranteed
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by the United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103 (2010);
Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner must prove
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct.
R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “‘Evidence is
clear and convincing when there is no serious or substantial doubt about the correctness of
the conclusions drawn from the evidence.’” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an appeal
of a court’s decision resolving a petition for post-conviction relief, the court’s findings of
fact “will not be disturbed unless the evidence contained in the record preponderates against
them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).
A criminal defendant has a right to “reasonably effective” assistance of counsel under
both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington, 466
U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of
counsel, a petitioner must prove both deficient performance and prejudice to the defense.
Strickland, 466 U.S. at 687-88. Failure to satisfy either prong results in the denial of relief.
Id. at 697.
For deficient performance, the petitioner must show that “counsel’s representation fell
below an objective standard of reasonableness” under prevailing professional norms, despite
a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 688-89. “In other words, the services rendered or the advice
given must have been below ‘the range of competence demanded of attorneys in criminal
cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). The petitioner must prove that counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687.
When reviewing trial counsel’s performance for deficiency, this court has held that a
“petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful, tactical
decision made during the course of the proceedings.” Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994). The reviewing court “must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). However, “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Prejudice in turn requires proof of “a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by counsel, even
if professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691. The court clarified that
prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687. “The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the
trial court’s factual findings de novo with a presumption of correctness, unless the evidence
preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But
the trial court’s conclusions of law on the claim are reviewed under a purely de novo
standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).
I. Request for Sequestration
First, the petitioner contends that trial counsel was ineffective for failing to request
sequestration of the jury in light of the overwhelming publicity generated by the crime, as
well as the prior federal trial. The law regarding this issue is that “[i]n all criminal
prosecutions, except those in which a death sentence may be rendered, jurors shall only be
sequestered at the sound discretion of the trial judge, which shall prohibit the jurors from
separating at times when they are not engaged upon actual trial or deliberation of the case.”
T.C.A. § 40-18-116. Further, the Sixth Circuit has held that “the failure to sequester a jury
standing alone could rarely, if ever, constitute reversible error. A defendant would have to
demonstrate actual prejudice or at least substantial likelihood thereof flowing from the failure
to sequester in order to warrant a new trial.” United States v. Johnson, 584 F.2d 148, 155
(6th Cir. 1978).
In the memorandum in support of the order denying relief, the post-conviction court
made the following findings:
The Court understands the petitioner to try to prove that counsel was
ineffective in not requesting sequestration of the jury. It is true that there was
pre-trial publicity and, as an apparent result, almost half of the potential jurors
were aware of the petitioner’s case or, at least, the offenses. Considering,
however, counsel’s satisfaction with the jury after exhaustive, individual voir
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dire, the lack of evidence of any outside influence on the jury, and the
possibility that a sequestered jury may be more likely than a non-sequestered
jury to rush deliberations in eagerness to go home, the Court finds no
deficiency in counsel’s performance in this respect.
After review, we conclude that nothing in the record preponderates against the post-
conviction court’s findings. As noted by the State, there was little proof presented at the
post-conviction hearing on this issue. Trial counsel testified that he and the petitioner
discussed the issue of sequestration, but, after consideration, he did not believe it would be
beneficial to the petitioner’s case. He noted that he saw no evidence of any outside influence
on the jury and noted that, had he seen such, he would have acted accordingly. The petitioner
merely testified that he was not aware that he could ask for sequestration, that he and trial
counsel did not discuss it, and that he now believed the request should have been made.
We also note the following colloquy from the trial transcript:
[Trial Counsel]: Your Honor, one matter more. I’ve spoken at length
with [the petitioner] about sequestration of the jury and
we have determined that that is not necessary.
I was looking through the update to the rules regarding
trial jurors, peremptory challenges. Judge, what I would
ask you for, and I would so move - - it sets out what the
admonition is, and I’m familiar with your standard one.
I would ask that it be as strong an admonition as
possible. I believe we’re going to have some individual
voir dire to see if there are any problems with pre-trial
publicity. So I think that’s going to cure any problems.
But whatever you say to them that’s strong, I would like
you to say.
The Court: Of course, the Court is sort of concerned about the fact
. . . that the defense has moved for a change of venue
because of the excessive publicity.
[Trial Counsel]: Yes, sir.
The Court: And I don’t know how that fits in with now saying that
you’re satisfied with the jury not being sequestered,
because there will be - - if there’s been excessive
publicity before, I would think that there will be quite an
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amount of publicity surrounding this case at this time.
[Trial Counsel]: Well, Your Honor, that’s - -
The Court: Are you waiving your motion for change of venue?
[Trial Counsel]: No, Your Honor, because again what we were going to
do was put that over to see what sort of response we got
from - - the publicity that’s going to be detrimental to
this [petitioner] and prejudicial to him has already come,
and, as I pointed out the other day, it has not to do just
with these events, but with - -
The Court: I understand that.
[Trial Counsel]: - - his conviction for these events.
The Court: I understand that, but - -
[Trial Counsel]: And I don’t know that any more of it could be more
prejudicial.
The Court: Once this case starts though and the jury is selected, they
are going to be - - I would think the press is going to be
somewhat extensive in covering not only what’s
happened as far as these incidents, but as far as any other
action that’s been taken against [the petitioner]. And I
can instruct the jury in that regard, but whether or not the
jury is going to inadvertently see something, I don’t
know.
[Trial Counsel]: Judge, I understand that. I guess what I’m asking for is -
- and again, we’ve reasoned our way through this the best
we can. And I believe any prejudicial matters - -
The Court: All right.
[Trial Counsel]: - - that are going to be before them have already been
before them.
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The Court: All right, I will - - of course, I will - - in light of that fact,
I think it would be wise to select three alternate jurors.
[Trial Counsel]: Very well.
The Court: And I will heavily instruct them as far as avoiding any
news coverage with reference to this case. And I will - -
at the beginning of each day, I will question them to see
if any of them have seen anything regarding this case.
[Trial Counsel]: Your Honor, that will be satisfactory.
The record further establishes that the jury was strongly admonished about avoiding possible
exposure and was questioned upon their return to the courtroom each time.
From this, it is clear that trial counsel was aware of the issue and its possible effect
on the jury. It was discussed and “reasoned,” and the conclusion was reached that
sequestration would not benefit the petitioner’s defense. As found by the post-conviction
court, it was a reasonable strategic decision made by trial counsel after adequate research and
preparation. See Adkins, 911 S.W.2d at 347. Trial counsel reasoned that the publicity that
would be generated by the trial would likely only be a repeat of that already generated by the
crime and the prior federal trial. On these facts, the petitioner has failed to show that trial
counsel’s decision was unreasonable or deficient.
Moreover, the petitioner has failed to put forth any evidence which would establish
that the jury was subject to any outside influence whatsoever in the case. Thus, he is
precluded from establishing the prejudice prong of an ineffective assistance of counsel claim.
Nothing in the record established that the result of the trial would have been different had the
jury been sequestered. The petitioner is not entitled to relief on this issue.
II. Exercise of Juror Challenges
Next, the petitioner contends that trial counsel was ineffective in that he failed to
utilize all available peremptory challenges, as well as challenges for cause, to remove jurors
who had extensive knowledge of the crime and the prior federal trial. He further alleges that
trial counsel’s failure to utilize these challenges “effectively negated any potential favorable
ruling by an Appellate Court in the Court’s denial of the Change of Venue Motion.” The
State responds that the petitioner has failed to show how trial counsel was deficient in this
regard or how the exercise of additional challenges could have changed the result of the case.
In addressing this issue, the post-conviction court stated:
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The Court understands the petitioner to try to prove that counsel was
ineffective in not using all his peremptory challenges, thereby prejudicing his
appeal from the denial of his motion for a change of venue. Considering the
exhaustiveness of the individual voir dire and counsel’s satisfaction with the
jury, the Court finds no deficiency in counsel’s performance in this respect.
We agree.
The selection of a fair and impartial jury is left to the sound and wide discretion of the
trial court. State v. Bowers, 77 S.W.3d 776, 783 (Tenn. Crim. App. 2001). Absent an abuse
of that discretion prejudicing the defense, this court will not overturn the trial court’s method
of selection. State v. Simon, 635 S.W.2d 498, 506 (Tenn. 1982). Moreover, we know of no
requirement that an attorney utilize all granted peremptory challenges. Rather, that is a
strategic decision assigned to the attorney in order to ensure the best possible jury for his
client.
There is no dispute in this case that there was a great deal of publicity generated by
both the crime itself, as well as by the federal trial. Trial counsel filed a motion for a change
of venue, to which he attached multiple articles involving the case. The decision on the
motion was reserved until after individual, and very thorough, voir dire was conducted with
the potential jurors who indicated they had some knowledge of the case. Trial counsel
testified at the post-conviction hearing that, after the voir dire process, he was satisfied with
the jury that had been selected. He testified that the decision was trial strategy and that, had
he felt additional challenges would have benefitted his client, he would have exercised them.
He further stated that he did not believe the use of additional challenges would have
impacted the outcome the case.
Based upon this record, we conclude nothing has been presented which preponderates
against the findings of the post-conviction court. We cannot conclude that trial counsel was
deficient because he made a strategic decision not to exercise more challenges during the
selection process.
Moreover, contrary to the petitioner’s argument, the failure to utilize all challenges
did not preclude review of or determine this issue on appeal. This court stated that in the
petitioner’s direct appeal:
[The petitioner] filed a motion for change of venue due to the pretrial
publicity given the murder and the subsequent federal trial. At the hearing on
the motion, [the petitioner] requested that the trial judge reserve the motion for
change of venue until the day of trial, to see whether or not [the petitioner]
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could get an untainted jury. During the voir dire, forty eight of the jurors,
approximately half, indicated they had heard something about the murder, and
they were then individually voir dired by the trial judge and attorneys
concerning their knowledge of the case, and their ability to be fair. Only two
jurors had to be excused because they indicated that they had followed the
case, were familiar with the details, and had formed an opinion of [the
petitioner’s] guilt. Two jurors were also excused for other reasons, one
because he knew the victims, and another because he had been a witness in a
trial concerning his neighbor’s murder. All the other jurors examined
indicated that they remembered no details other than that a man had been
killed during an attempted car theft, and all indicated that they could give [the
petitioner] a fair trial. None of the jurors had any knowledge of [the
petitioner’s] federal trial or conviction. The trial judge therefore found that
[the petitioner] could get a fair jury without a change of venue, and denied the
motion. . . .
[The petitioner] has not established that his jury was tainted by the pre-
trial publicity. . . . Here, the petitioner failed to demonstrate the kind of bias
or prejudice that would have precluded a fair trial.
Michael Deangelo Green, No. 03C01-9610-CR-00379, 1998 Tenn. Crim. App. LEXIS 388,
at *6-9. Review of the issue was not determined by the exercise, or lack thereof, of
challenges to potential jurors. Additionally, the petitioner has proffered no evidence how the
use of all the peremptory challenges, or challenges for cause, would have made a difference
in the outcome of the case. The petitioner has failed to establish his entitlement to relief.
III. Evidence of the Petitioner’s Federal Trial
The petitioner further contends that trial counsel was ineffective because he failed “to
limit testimony concerning the Federal Trial concerning the same incident.” The petitioner
asserts that reference to the prior trial prejudiced the outcome of his case.
In denying relief on this issue, the post-conviction court found as follows:
The Court understands the petitioner to allege that counsel was
ineffective in not requesting exclusion of evidence of the federal trial.
Apparently, the only reference to the federal trial was during counsel’s cross
examination of Mr. Daniels about his prior, inconsistent testimony at the
federal trial. Considering that, because the alibi defense in the federal trial was
completely unsuccessful and there was no apparent reason to anticipate any
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more success with the same defense in the state trial, the petitioner did not
have much alternative to impeaching prosecution witnesses, especially Mr.
Daniels, whose descriptions of the petitioner’s role as leader and actions were
important, the Court finds no deficiency in counsel’s performance in this
respect.
Again, nothing in the record preponderates against the post-conviction court’s
findings. Trial counsel was aware of the evidence in the case from both his own
investigation and the evidence presented in the federal trial. He testified at the hearing that
he gained information from the federal trial which was useful to him at trial for impeachment
purposes. Clearly, trial counsel made the strategic decision that the benefits from utilizing
the information, from the federal trial outweighed the danger of prejudicing the jury. That
does not equate to deficient performance, and the petitioner is entitled to no relief.
In summary, the petitioner has wholly failed to establish that trial counsel’s strategic
decisions in this case constituted deficient performance. As previously noted, the petitioner
is not entitled to the benefit of hindsight to challenge decisions made by trial counsel during
the representation, even if they result in a non-desired outcome. See Adkins, 911 S.W.2d at
347. Moreover, the petitioner has failed to put forth any evidence, other that his own
testimony, to establish his claims. As pointed out by the State, the failure to present evidence
to support the claims at the post-conviction hearing most often precludes relief. See Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The dismissal of the petition was
proper.
CONCLUSION
Based upon the foregoing, the denial of post-conviction relief is affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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