Opinion

Tyree Robinson v. State of Tennessee

Court: Court of Criminal Appeals of Tennessee
Filed: Sep 16, 2014
Status: Published
On the bench: Judge Alan E. Glenn
Cited by: 0 cases
Authority: More cited than 33.2%

stating that “failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”

How later courts described this case

stating that “failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”

Written by the judges who cited it.

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 6, 2014

TYREE ROBINSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 01-13118 Paula Skahan, Judge

No. W2013-00848-CCA-R3-PC - Filed September 16, 2014

The petitioner was convicted of first degree premeditated murder, felony murder, and

especially aggravated robbery, for which he was sentenced to life imprisonment and twenty

years, to be served consecutively. He filed a timely petition for post-conviction relief,

asserting that trial counsel was ineffective in dealing with a State’s witness; in not objecting

to certain parts of the State’s closing argument; and in failing to conduct a proper

investigation. The post-conviction court found that each claim was without merit, and,

following our review, we conclude that the record supports that determination. Accordingly,

we affirm the order of the post-conviction court denying relief.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and

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

James E. Thomas, Memphis, Tennessee (on appeal); and James Arnold, Germantown,

Tennessee (at hearing), for the appellant, Tyree Robinson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Jennifer Morris, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

This court’s opinion on the petitioner’s second direct appeal provides the following

summary of the evidence introduced at his trial:

This case arises out of the April 2001 murder of the victim, O’Neil

Cornish, for which the [petitioner] was indicted and convicted of first degree

premeditated murder, felony murder, and especially aggravated robbery. On

direct appeal, this court reversed the judgments of the trial court and remanded

for a new trial, concluding that the trial court erred in failing to instruct the

jury, in response to its question, that accomplices cannot corroborate each

other. State v. Robinson, 239 S.W.3d 211 (Tenn. Crim. App. 2006). The

second trial was conducted from January 28 to February 1, 2008.

State’s Proof

Sergeant Eric Freeman with the Memphis Police Department testified

that he was working as a crime scene officer on April 10, 2001 and responded

to a “D O A unknown” call near Shepherds Tree Street and Kilarney Avenue.

The scene was a dead-end street that had been cleared for development, but

was being used as a dumping ground. At the scene, he found a young black

male with a gunshot wound lying in the street and a large amount of blood

around the body. He also found several .380 shell casings, a bullet fragment,

loose tobacco, a cigar tip, blood-stained tissue paper, a sales receipt, a

troweling or cutting wheel, and a Waffle House identification card with the

name Jennifer. Sergeant Freeman noted that the victim had twenty-five dollars

in his sock.

Percy Alexander, retired battalion chief with the Memphis Fire

Department, testified that he was driving around searching for his lost dog on

the morning of April 10, 2001, in the area of Shepherds Tree Street and

Kilarney Avenue. As he looked into a cove, Alexander saw the motionless

victim lying on the ground, got out of his car, and approached the victim. He

saw a stream of blood and noticed that the victim had a wound to his head and

was deceased. Alexander returned to his car, called 911, and waited for the

police to arrive.

Seku Teamer, the best friend of the victim, testified that he and the

victim were at Wing City, a nightclub, in the early morning hours of April 10,

2001, when the victim received a phone call. The voice on the phone appeared

to be that of a male. The two left the nightclub approximately fifteen minutes

after the victim received the phone call. The victim dropped Teamer off at the

home they shared, saying he was going to the Loft Apartments “to have

intercourse with Takisha Brown and he was going to join in with [the

petitioner].” The victim then drove away in his Blazer with relatively new,

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flashy rims.

Ilyas Morris, also known as “Big E,” testified that in April 2001 he

lived with the [petitioner], Cortney Perry,1 Takisha Brown, Terrance Scott, and

Willie Rosser at the Loft Apartments. On April 10, 2001, Morris was trying

to sleep downstairs in the apartment when he heard the [petitioner], Brown,

and Perry talking upstairs, but he could not recall the nature of their

conversation. He then heard the three leave the apartment.

Morris said that he subsequently was awakened by Mieko Saulsberry,

one of the [petitioner]’s friends, who wanted Morris to go with him to meet the

[petitioner] at Club on the Green, another apartment complex. The two drove

Morris’ van to Club on the Green, but the [petitioner] was not there so they

waited. As they were getting ready to leave, a green truck with custom rims

pulled in flashing its lights. Morris saw that the [petitioner] was driving the

truck and that Brown and Perry were with him. Morris had never seen the

truck before and knew it did not belong to the [petitioner]. Everyone got out

of the truck, and the [petitioner] removed all of his clothes except his

underwear. Morris looked inside the truck and saw “[a] lot” of blood on the

driver’s seat. He also saw a VCR on the passenger’s side, which he took and

put in his van.

Morris testified that they all left in his van and went back to the Loft

Apartments to look for a floor jack to remove the rims from the green truck,

but they were unable to find one. The [petitioner] then directed Morris to

where the victim’s body was located to make sure the victim was dead. When

they got to the body, the [petitioner] told Perry to shoot the victim again. Perry

grabbed a gun off the floorboard of Morris’ van, got out, and shot the victim

two to four times. Morris said the gun did not belong to him and described it

as a small silver .380. There was also another gun on the floorboard – a larger

.380 with the safety missing, which Morris knew belonged to the [petitioner].

After Perry shot the victim, the group returned to the Loft Apartments to look

again for a floor jack.

Morris recalled that he drove the group to a gas station, and they

purchased a gallon of gas in a Jungle Juice container. They drove back to the

victim’s truck at Club on the Green, and Saulsberry and Perry threw the gas on

Cortney Perry’s brother, Corey Perry, was mentioned during trial but did not testify. Hereinafter,

“Perry” will refer to Cortney Perry.

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the truck and burned it. Saulsberry received second degree burns in the

process. After burning the truck, everyone got back into the van and returned

to the Loft Apartments. Morris said that approximately a week later, the police

questioned him, the [petitioner], and Perry about Saulsberry’s burns. Morris

told the police that he did not know anything about the burns. Morris said he

met the [petitioner] and Perry afterwards to dispose of the guns and drove them

to the [petitioner]’s mother’s house where the [petitioner] retrieved the guns.

Morris then drove the [petitioner] and Perry to Coro Lake where they threw the

guns into the water. Morris was later arrested and told the police everything

that had happened and helped them locate the guns. Morris said he pled guilty

to accessory after the fact due to his involvement.

On cross-examination, Morris acknowledged that when he was arrested,

he was informed that he could be charged with murder. He admitted that in his

statement to police approximately two weeks after the murder, he said it was

the [petitioner], not Saulsberry, who awakened him and told him to go to Club

on the Green. He testified that he could not remember who it was that actually

woke him that night. Morris acknowledged that he overheard the [petitioner],

Brown, and Perry talking about robbing the victim, but said he did not think

the [petitioner] was serious. He admitted that by picking the [petitioner] up

afterwards, he was, in effect, acting as the getaway driver. On redirect, Morris

said that he was the only one in the household who had a vehicle, and he drove

where the [petitioner] told him.

Mieko Saulsberry testified that he, Cortney Perry, Ilyas Morris, and

others lived with the [petitioner] at the Loft Apartments in April 2001. At the

time, the [petitioner] had an entertainment company called “In Town

Entertainment,” and Saulsberry worked security and played instruments for

him. During the early morning hours of April 10, 2001, Saulsberry was asleep

in the [petitioner]’s room when the [petitioner] woke him and told him to get

in Morris’ van. Morris, Perry, and Brown were already in the van, and they

drove to a gas station and purchased gas in a milk or Jungle Juice jug.

Saulsberry stated that he asked the [petitioner] what was happening, and the

[petitioner] told him the less he knew the better. They then drove to the

location of the victim’s body.

Saulsberry said that when they arrived at the victim’s body, the

[petitioner] told Perry to get out of the van. Perry got out and shot the victim

twice. They then drove to Club on the Green Apartments and proceeded to the

back of the complex where a truck with “high profile . . . chrome rims” was

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parked. The [petitioner], Perry, and Brown “wip[ed] down the truck,” tried to

remove the rims and radio, and poured gasoline on the truck. Because they

had spilled gasoline on themselves, the [petitioner] asked Saulsberry to light

the fire, which he did. The truck exploded, and Saulsberry was severely

burned. Saulsberry’s girlfriend eventually took him to the hospital where he

was questioned by the police and told them a fabricated story. However, he

later told the police the truth and pled guilty to the offense of burning personal

property.

Takisha Brown testified that she was dating Cortney Perry’s brother,

Corey, at the time of the murder. At that time, Cortney, Corey, Mieko

Saulsberry, and the [petitioner] lived together at the Loft Apartments, and Ilyas

Morris stayed there occasionally. Brown said that she sometimes stayed there

with Corey but actually lived with her mother. On the evening of April 9 or

10, Brown returned to the Loft Apartments after seeing a movie with a friend

and recalled that the [petitioner], Cortney, Corey, Morris, and possibly

Saulsberry were there when she arrived. The [petitioner] and Cortney were

discussing “[w]hat was getting ready to happen,” and the [petitioner] asked

Brown if she would tell the victim that she would have sex with him in an

effort to get him to drive over quickly so the [petitioner] could rob him.

Brown agreed because she had been using drugs all day and was not

“thinking.”

Brown said that the [petitioner] called the victim and that she told the

victim she would go along with him and the [petitioner]. When the victim

arrived, Brown, Cortney Perry, and the [petitioner] went outside and got into

the victim’s vehicle. The victim was driving, Perry was in the passenger’s

seat, Brown was seated behind Perry, and the [petitioner] was seated behind

the victim. They went to a gas station to get a cigar to fill with marijuana, then

drove to an undeveloped area to smoke the marijuana. While they smoked, the

victim started talking about his .380 handgun and pulled it out of the glovebox

to show the [petitioner].

Brown recalled that the [petitioner] asked to see the victim’s gun and,

after denying that he owned a gun, pulled out his gun and shot the victim. The

[petitioner] got out and opened the driver’s door, causing the victim to fall out

on the ground. The [petitioner] then got in the driver’s seat and drove to the

Club on the Green Apartments where Saulsberry and Morris were waiting.

Brown got into Morris’ van, while the men donned gloves and searched the

victim’s truck. Brown saw the [petitioner] take off his clothes that were

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covered in blood, and everyone got into Morris’ van.

Brown testified that the [petitioner] directed Morris to drive back to the

victim’s body. The [petitioner] tried to shoot the victim, but his gun jammed

so he told Perry to shoot the victim with another gun. They drove back to the

Loft Apartments, and she went inside and told Corey what had happened. The

[petitioner], Perry, Saulsberry, and Morris left again, but returned later with

Saulsberry screaming that he had been burned. Brown admitted that she pled

guilty to facilitation of an aggravated robbery for her involvement.

Cortney Perry testified that at the time of the murder, he was living with

the [petitioner] at the Loft Apartments along with his brother, Ilyas Morris,

Mieko Saulsberry, and Terrance Scott. On April 9, 2001, Perry was asleep

when the [petitioner] woke him saying that they needed rent money and that

he had a plan to rob and kill the victim. According to Perry, the [petitioner]

was going to call the victim and offer to get him a hotel room so he could have

sex with Takisha Brown, and then the [petitioner] “was going to do him in.”

The [petitioner] received a phone call from the victim and then told Perry that

he was “just kidding” about doing anything to the victim. The [petitioner] told

Perry that he and the victim were going to smoke marijuana and have sex with

Brown. Perry decided to go along to see if Brown was going to cheat on his

brother, Corey.

Perry testified that he, the [petitioner], the victim, and Brown drove

around looking for an open gas station so they could purchase a cigar to use

to smoke marijuana. The [petitioner] directed the victim to drive to a cove

near Shepherds Tree and Kilarney, and the [petitioner] and the victim started

talking about guns. The victim reached under the radio and retrieved his gun

to show the [petitioner], and the [petitioner] asked to see it. The victim

obliged, and the [petitioner] began unloading and loading the bullets. Perry

noted that he had started to fall asleep when he heard a gunshot and

instinctively jumped out of the car. He heard a second shot as he ducked down

near the rear of the vehicle. At that point, the [petitioner] got out of the

vehicle, pulled the victim out, and got in the driver’s seat. Brown moved into

the passenger’s seat, and Perry started to walk off but ended up getting back

in the vehicle.

Perry recalled that the [petitioner] drove them to Club on the Green

Apartments where they met Morris and Saulsberry. The [petitioner] told him

and Brown to get into Morris’ van, and the [petitioner] proceeded to take off

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his clothes. Morris got out of his van, took something out of the victim’s

truck, got back in the van, and they started to drive toward the Loft

Apartments. On the way, the [petitioner] directed Morris back to the victim’s

location and, while waving his “big chrome gun,” told Perry that Perry was

going to shoot the victim to make sure he was dead. After telling the

[petitioner] he was not going to do it, Perry got out of the van and shot the

victim with the victim’s gun that the [petitioner] handed him. Then, they

drove to a gas station to purchase fuel to burn the victim’s truck, returned to

the truck, and set it on fire. Saulsberry was burned in the process.

Perry testified that he and the [petitioner] were questioned by the police

a few days after the murder, but they were not arrested. Sometime after talking

to the police, Perry, the [petitioner], and Morris went to the [petitioner]’s

mother’s house where the [petitioner] grabbed a bag containing the guns from

the back of the house. Perry stated that the [petitioner] “implied” that he

wanted to throw the guns into Coro Lake, so they went to the lake and threw

them in. Perry testified that he was arrested approximately a week later and

told the police everything. He admitted that he was currently serving a life

sentence as a result of his involvement in the murder. Perry recalled that the

[petitioner]’s gun was a Lorcin and that the [petitioner] and Brown had been

in a relationship but that was before he knew the [petitioner].

Dr. O.C. Smith, Shelby County Medical Examiner at the time of the

incident, testified that he performed the autopsy on the victim. Dr. Smith

noted that the victim sustained two contact gunshot wounds to the head, which

damaged the brain, and three gunshot wounds to the body. It was Dr. Smith’s

opinion that the gunshot wounds to the body occurred post-mortem. With

regard to the gunshot wounds to the head, Dr. Smith stated that both wounds

“went from up to down, went from right to left and went from back to front

slightly.” He recovered projectiles from both head wounds.

Officer Vennes Owens with the Memphis Police Department testified

that she assisted with the homicide investigation in this case. Officer Owens

recalled that Ilyas Morris led the officers to Coro Lake where two pistols were

recovered. Morris also led the officers to the Loft Apartments where a plastic

jug that had been used to transport gasoline was discarded.

Officer Reginald Morgan with the Memphis Police Department testified

that he was the case officer in the investigation of the victim’s murder. As part

of his investigation, Officer Morgan went to Club on the Green Apartments

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where the victim’s burned vehicle was found, and he also went to the morgue

to retrieve the bullets that were recovered from the victim’s body during

autopsy. He transported those bullets as well as the guns recovered from Coro

Lake to the Tennessee Bureau of Investigation (TBI) Crime Lab in Nashville

for comparison.

Cervinia Braswell, forensic scientist and firearms examiner with the

TBI, testified that the guns sent to the TBI for testing in this case were a .380

Lorcin pistol with the safety missing and a smaller gun – a .380 Davis. Both

guns were caked with mud and rust but were operable after being cleaned.

The TBI also received five bullets recovered from the victim’s body during

autopsy, one of which was unable to be examined due to damage caused when

it entered the body. Two of the bullets had the same class characteristics of the

Lorcin gun as well as similar individual characteristics, but not enough to say

with 100% certainty that the bullets were fired from that particular Lorcin gun.

The other two bullets had the same class characteristics of the Davis gun as

well as similar individual characteristics, again, but not enough to say with

100% certainty that the bullets were fired from that particular Davis gun.

Defense Proof

Lolita Kent stated that in April 2001 she was the manager of a gas

station near Airways Boulevard and Holmes Road and was working the

overnight shift on April 9, 2001. She recalled that a man purchased gas and

put it in a jug of some type around 2:00 a.m. She described the man who

bought the gas as heavyset, weighing approximately 207 pounds, and having

dreadlocks in his hair. She did not recognize the man who bought the gas as

anyone in the courtroom. She said that the man drove a lime green truck with

tinted windows and rims. Kent explained that she paid attention to the truck

because she had seen it before at the gas station, but the man who paid for the

gas was not the usual driver of that truck.

Shalando Madkins stated that the [petitioner] and Takisha Brown

“fooled around with each other” for about a month in 2000 or 2001. She

recalled that the [petitioner] and Brown argued often and said that one time

“probably [in] the summer of 2000,” Brown attacked the [petitioner] with a

knife.

Mark Williams, long-time friend of the [petitioner], testified that the

[petitioner] is left-handed. Williams stated that he also knew Mieko

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Saulsberry and did not consider him to have a good reputation for truthfulness

in the community.

After the conclusion of the proof, the jury found the [petitioner] guilty

of felony murder, premeditated murder, and especially aggravated robbery.

The felony murder conviction was merged into the premeditated murder

conviction, and the jury sentenced him to life imprisonment. The [petitioner]

was sentenced to twenty years for the especially aggravated robbery

conviction, to be served consecutively to the life sentence. The [petitioner]

appealed.

State v. Tyree Robinson, No. W2008-01001-CCA-R3-CD, 2009 WL 1741401, at *1-6 (Tenn.

Crim. App. June 16, 2009), perm. app. denied (Tenn. Nov. 23, 2009).

Testifying at the evidentiary hearing in this matter were the petitioner’s former trial

and appellate lawyers, as well as the petitioner himself. We will review their testimony.

Trial counsel explained how he had proceeded in preparing the petitioner’s defense:

The same way I prepare for all my trials. I hire an investigator. I

review the discovery. I review the memos and I consult with my client. And

I proceed forward with the best theory I feel like is in the best interest of my

client, both on the facts presented in the investigation and as presented to me.

He said that because he was called into the evidentiary hearing at “the last minute,”

he had not reviewed his file in the matter and was “going off whatever [he] ha[d] in [his]

head.” He recalled that there was “some issue about a jailhouse letter” but that the name

“Seku Teamer” did not “ring a bell.” He said he did not object to the portions of the State’s

closing argument quoted in the post-conviction petition or raise it as an issue in the motion

for new trial, as best he recalled.

Trial counsel explained how he determined what issues should be in that motion:

I raised those issues or did not raise them after consulting with my

appellate counsel, . . ., because I don’t do appellate work. I do my trial work

and then I go to my appellate lawyer before I construct my motion for new

trial. I show him what my issues I think they are, and they tell me whether or

not they have viable grounds at the court of appeals [sic]. If my appellate

counsel tells me they do not have viable grounds at the court of appeals [sic],

I do not waste the time in a motion for new trial. That may be something you

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can address with [appellate counsel].

In his pretrial preparation, trial counsel said that he “saw no alternative theories.” He

explained his investigation regarding the petitioner’s claim that he was not at the scene when

the crimes were committed:

Yes, [the petitioner] told me that he was not there. Yes, he led my

investigators down numerous paths to try to prove that he wasn’t there or at

least bring me a witness to say that he wasn’t there. Without evidence, I don’t

present a defense. I had no evidence other than what [the petitioner] told me.

In his testimony, the petitioner explained his reasons for filing the petition:2

“Ineffective assistance of counsel on many reasons. I mean, I don’t believe that I had a fair

hearing because . . . there was just no adversarial test to the State’s proof, period. I mean,

it was like he just left me . . . with no defense whatsoever.”

The petitioner explained that he was at home when he heard “all the noise,” and

Mieko Saulsberry came into his room and said, “I got burned, I got burned.” Saulsberry said

he had been “playing with – messing with some fire with a barbecue grill.” The petitioner

said that the prosecution theory was that he was “the one who was hiding all the evidence,”

while, in fact, he was the one who consented to a search of the house and gave a statement

to the police, none of which was told to the jury. He told counsel that he was not involved

in the crimes. He characterized the State’s closing argument as:

It basically was like . . . that what [the prosecutor] wanted [the jurors] to do

was about their conscience and this that, this that, and not about the evidence.

You know, [the prosecutor] wasn’t talking about the evidence. [The

prosecutor] was basically like I said, trying to inflame the passion of the jury.

Trying to make them feel sad. You know, trying to make them feel a certain

way instead of focusing on the evidence of the trial.

The petitioner claimed that appellate counsel “[n]ever” contacted him, although the

petitioner “sent him letters.” He said that he received the appellate brief written by his

counsel only after it had been filed and that none of the issues raised were in his motion for

new trial. Further, he said that the testimony of Seku Teamer was “hearsay and the appeal

courts had already ruled that Seku Teamer being with the victim when the victim supposedly

Although, during his testimony at the evidentiary hearing, the petitioner raised a number of claims

of ineffective trial and appellate counsel, we will consider only those which have been continued on appeal.

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received the call.” At the second trial, Seku Teamer again was “allowed . . . to get on the

stand and say that the victim was going to meet with [the petitioner].” In closing argument,

“the prosecution used this evidence . . . three or four times.” Further, the petitioner said that

Ilyas Morris “admitted that he knew about the crime before it happened” and “that made him

a co-defendant,” not an accessory after the fact, as he was charged.

Appellate counsel testified that he did not discuss the appeal with the petitioner but

based it upon the trial record. He explained the process he followed when writing an

appellate brief:

Typically . . . when I write a brief, I go through those issues and

determine if any of them are viable. You know you can preserve issues all day

long. If it’s not an issue that’s a[n] issue that you could possibly prevail on,

you’ve wasted your time writing. . . .

So, yes, I went through the motion for new trial. I eliminated what

issues weren’t good issues and I did the brief with what we had left which I

believe in this case was sufficiency of the evidence.

Counsel felt that any claims that the prosecution’s final arguments entitled the petitioner to

relief were “not viable.”

ANALYSIS

I. Ineffective Assistance of Counsel

We will review the claims which the post-conviction court gleaned from the

petitioner’s testimony at the evidentiary hearing, for it is somewhat difficult to divine

whether he has proceeded with all of these claims on appeal.

The post-conviction petitioner bears the burden of proving his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing is

held in the post-conviction setting, the findings of fact made by the court are conclusive on

appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d

497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate

court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572,

578 (Tenn. 1997). However, review of a trial court’s application of the law to the facts of

the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,

96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed

questions of fact and law, is reviewed de novo, with a presumption of correctness given only

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to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s acts

or omissions were so serious as to fall below an objective standard of reasonableness under

prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing

Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). Moreover,

the reviewing court must indulge a strong presumption that the conduct of counsel falls within

the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not

second-guess the tactical and strategic choices made by trial counsel unless those choices were

uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn.

1982). The prejudice prong of the test is satisfied by showing a reasonable probability, i.e.,

a “probability sufficient to undermine confidence in the outcome,” that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. The same principles apply in determining the effectiveness of trial and

appellate counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995).

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.

at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or

prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

A. Not Objecting to Testimony of Seku Teamer

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The petitioner argues that trial counsel was ineffective in not objecting to the

testimony of this witness as hearsay and not impeaching Teamer with a prior inconsistent

statement.

In brief, at the first trial, Teamer testified that, earlier that evening, he had been with

the victim, who told him that he was speaking on the telephone with the petitioner, who had

arranged for him to have sex with Brown. On appeal, this court explained that Teamer’s

statements should not have been allowed because they were hearsay but “that in light of the

other evidence adduced at trial, the error in admitting the identification was harmless.” State

v. Robinson, 239 S.W.3d 211, 224 (Tenn. Crim. App. 2006). The court then explained that

Teamer was properly allowed to “testify that the victim received a telephone call, the voice

on the other end of the line was male, and the victim made arrangements to meet that male

at the Loft Apartments for a rendezvous with a girl.” Id.

At the retrial of this matter, the State proceeded with Teamer as this court earlier had

concluded was allowable: