Tarrence Parham v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 3, 2014

TARRENCE PARHAM v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 06-00017 Paula Skahan, Judge

No. W2013-01437-CCA-R3-PC - Filed December 17, 2014

The petitioner, Tarrence Parham, appeals the post-conviction court’s denial of his petition

for post-conviction relief from his convictions for attempted second degree murder and

reckless aggravated assault. On appeal, he argues that he received ineffective assistance of

counsel. After review, we affirm the denial of the petition.

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 R OBERT W. W EDEMEYER

and R OBERT L. H OLLOWAY, J R., JJ., joined.

Rosalind Elizabeth Brown, Memphis, Tennessee, for the appellant, Tarrence Parham.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;

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

General, for the appellee, State of Tennessee.

OPINION

FACTS

The petitioner was convicted of the attempted second degree murder and reckless

aggravated assault of an eight-year-old girl and sentenced to an effective term of twenty years

in the Department of Correction. State v. Tarrence Parham, No. W2009-00709-CCA-R3-

CD, 2010 WL 2898785, at *1 (Tenn. Crim. App. July 26, 2010), perm. app. denied (Tenn.

Nov. 10, 2010). On direct appeal, this court affirmed the judgments of the trial court after

modifying to reflect that the petitioner’s conviction for reckless aggravated assault was

merged into his conviction for attempted second degree murder. Id. The Tennessee Supreme

Court denied his application for permission to appeal. Id.

The underlying facts were recited by this court on direct appeal as follows:

Shamika Nabors testified that on September 5, 2005, Labor Day, she

was among a group of people congregating outside their apartments at the

Barron Brook Apartments in the Orange Mound neighborhood of Memphis,

Tennessee. The [petitioner], whom she called “Black,” was also outside, and

she heard him say that he was going to kill “these weak ho’s and b----es[.]”

At first she thought he was speaking to himself, but as she watched him, she

realized that he was looking at a man named Philemon, who was sitting in a

windowsill in the breezeway. Ms. Nabors pulled Philemon into her apartment

and told him what the [petitioner] had said. Then, they returned outside, and

Philemon resumed his seat on the windowsill. Five to ten minutes after she

and Philemon returned, the [petitioner] walked away and then returned. He

raised a silver revolver and fired one shot down the breezeway and two shots

in the park area nearby. Ms. Nabors saw Philemon run down the breezeway

towards the laundromat and leave the apartments. Ms. Nabors testified that the

[petitioner] fired the first shot toward a utility box. She later learned that her

two-year-old daughter had been near the box when the [petitioner] began

shooting. Ms. Nabors testified that she froze when the [petitioner] began

shooting. After the last shot, the [petitioner] left the apartments, and [the

victim] ran for her mother. Ms. Nabors saw that the [petitioner] had shot [the

victim] in the leg. She did not know where [the victim] was when she was

shot, but she identified pictures of the green box with blood on it. She

identified the [petitioner] as the shooter in a photographic lineup when she

gave her statement to police and in the courtroom during her testimony.

Ms. Nabors testified that she did not see or hear anyone threaten or fight

with the [petitioner] prior to the shooting. She did not see anyone else with a

gun nor did she see anyone “raise up their shirt at [the petitioner].” Ms.

Nabors said that Philemon was neither facing the [petitioner] nor did he have

his back to the [petitioner] when the [petitioner] began firing, but after the first

shot, Philemon ran away. She did not see a young man give the [petitioner] a

gun. Ms. Nabors testified that no one shot back at the [petitioner]. She

recalled that several of the men in the group were smoking marijuana,

including Philemon, but she did not hear the [petitioner] say anything about the

marijuana.

On cross-examination, Ms. Nabors testified that there were

approximately fifteen people outside that day. She said that she had seen the

[petitioner] and Philemon together before. She saw the [petitioner] in a

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wheelchair several days before the shooting, but she said he was not in a

wheelchair that day. His leg was bandaged, and it was difficult for him to run.

Ms. Nabors testified that the [petitioner] ran in the same direction as Philemon.

She said that Philemon did not live in the apartment complex.

On re-direct examination, Ms. Nabors testified that she believed the

[petitioner] was shooting at Philemon.

Tosha Keller testified that on September 5, 2005, she and her family

and friends were gathered outside of her apartment preparing for a barbecue.

A man named Philemon was sitting in the window of an apartment unit, rolling

a marijuana cigarette, when the [petitioner] approached him. Ms. Keller said

that the [petitioner] “said some things to Philemon. Philemon just kept on

doing what he was doing.” She heard another man tell the [petitioner] “that

he couldn’t smoke the marijuana cigar.” Ms. Keller did not see anyone

threaten or yell at the [petitioner]. The [petitioner] walked down to the end of

the apartment unit, but three to five seconds later, he returned and began

shooting. Ms. Keller was standing five feet away from Philemon, and she

believed that the [petitioner] aimed at him. She testified that the [petitioner]

fired one shot before Philemon began running away. The [petitioner] chased

after him and fired two more shots. After Philemon and the [petitioner] ran

out of her sight, she heard two more shots. Ms. Keller testified that the

[petitioner] fired a total of five shots, three that she saw and two that she heard.

Ms. Keller assumed that the [petitioner] fired the shots that she heard because

no one was returning fire. She said that she did not see anyone else with a gun

that day. Ms. Keller testified that she remembered the gun being black, but she

agreed that her memory was better on the day of the shooting when she gave

a statement to the police that the gun was a chrome revolver.

Ms. Keller testified that after the shooting, she and her neighbors were

trying to find the children that had been playing near the laundromat. She had

seen [the victim] running when the shooting began, but [the victim] went back

to get Ms. Nabors’s two-year-old daughter, with whom she had been playing.

When the shooting was over, Ms. Keller saw [the victim] walking towards her

carrying the two-year-old. [The victim] said that she was hurting, and Ms.

Keller realized that she had been shot in the leg.

Ms. Keller testified that the [petitioner] moved into the apartment

complex two to three months prior to the shooting. She said that “it was

chaos” after he moved in. She recalled seeing him in a wheelchair, with casts

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on his legs, for a period of approximately two weeks. Ms. Keller testified that

on September 5, the [petitioner] did not have casts and appeared able-bodied.

She said that she knew that someone had shot at the [petitioner]’s apartment

because she saw the bullet holes in the door the next day, but she did not

testify as to what exact day she saw the bullet holes.

On cross-examination, Ms. Keller testified that she could not remember

the color of the gun. She remembered telling the police that she saw the

[petitioner] shoot once and then heard another shot, but she believed that he

shot more than twice. Ms. Keller said that she saw another man walking with

the [petitioner], but she did not know him. She said that the man was not [the

victim]’s uncle. Ms. Keller clarified that she saw the bullet holes in the

[petitioner]’s apartment door on September 6, 2005, the day after the shooting.

She recalled that there were seven to eight adults outside on September 5, and

she did not remember how many children were on the playground nearby.

Sharon Williams testified that the [petitioner], whose nickname was

“Black,” moved into the Barron Brook apartment complex two to three months

before the shooting on September 5, 2005. On that day, she was outside with

her neighbors when she heard the [petitioner] say “he [was tired] of them and

he [was] going to kill him a mother f---ing n----r” as he was walking towards

the end of the apartment unit. Less than a minute later, the [petitioner] turned

around and began shooting. Ms. Williams testified that he fired once, chased

after a young man, and fired twice more. She said the gun was a silver

revolver. Ms. Williams did not see anyone threaten the [petitioner] nor did she

see the young man who the [petitioner] chased ever lift up his shirt or draw a

weapon.

Ms. Williams said that someone shot at the apartment where the

[petitioner] was staying one to two weeks before September 5, 2005. She

heard him say that “[h]e had got into it with some guys over there[,] and they

had shot somebody else’s apartment up looking for him.” A couple of nights

before the September 5 shooting, the [petitioner] was in a wheelchair with soft

casts on his feet. Ms. Williams had heard that the [petitioner] was injured

when he jumped from a second story. Ms. Williams testified that the

[petitioner] said that he did not care who he shot, “[h]e [would] kill your

momma, your grandmomma, babies and kids, because they don’t even have no

[sic] business in the way whatsoever.” Ms. Williams testified that on

September 5, there were five to six people outside. She said that if Philemon

had drawn a weapon, she would have seen it.

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Kathy Smith testified that on September 5, 2005, she was standing in

her doorway while her neighbors were barbecuing outside. The [petitioner]

asked her for a cigarette. She gave him one, which he lit. As he walked away,

he said, “I’m sick of these b---h a---ed n-----s. I’m going to kill me somebody

today.” The [petitioner] turned around and started shooting as he walked by

her. Ms. Smith told him to stop shooting because of all the children outside.

She started calling for her daughter. When she saw [the victim], she was

bleeding. [The victim] said, “[M]omma, I don’t want to die.”

Ms. Smith testified that her brother, Travis, was not at the apartment

complex when the [petitioner] began shooting. He came later that day, after

[the victim] was in an ambulance. She said that she did not see anyone

threaten the [petitioner], raise up their shirts, or shoot back at the [petitioner].

Ms. Smith went to the hospital with [the victim], where the doctors performed

surgery to remove a bullet from her left leg.

On cross-examination, Ms. Smith testified that she did not know where

the [petitioner] had gotten the gun. She said that he did not go into an

apartment when he was walking away from the crowd nor was he walking with

anyone else. She saw the [petitioner] fire two shots before he went out of her

sight. Ms. Smith said that he was limping.

[The victim] testified that she was eleven years old at the time of trial.

On September 5, 2005, she had been playing with Ms. Nabors’s two-year-old

daughter. They were sitting on “the green box” when she heard the shooting.

She ran into the laundromat but then went back to the green box and moved

her friend out of the way. At that point, [the victim] thought that she had a

seizure, which she defined as what happens when people are shaking. She

began walking towards her mother when she looked down and saw that she

was bleeding. She went to the hospital where doctors removed the bullet.

[The victim] said that she could run and play at the time of trial.

On cross-examination, [the victim] said that she saw the shooter but did

not see him well.

Officer Parz Boyce, of the Memphis Police Department, testified that

he was one of the first officers to make the scene at the Barron Brook

Apartments on September 5, 2005. When he arrived, he saw a five or

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six-year-old girl1 lying on the steps with a bloody towel. Officer Boyce said

the girl told him that “Black” had shot her. He knew who “Black” was based

on his experience working in the neighborhood. Two other individuals also

told him that “Black” was the shooter and gave him descriptions of his

clothing. Officer Boyce put out a broadcast giving the name and description

of the shooter. He and another officer taped off the crime scene.

On cross-examination, Officer Boyce testified that he knew the

[petitioner] as “Black,” and the [petitioner] was the only person he knew that

went by that nickname. In the course of gathering information, he learned that

[the victim] was not the intended victim, but he was unable to ascertain who

the intended victim was.

The parties stipulated to the admission into evidence of a bloody towel,

[the victim]’s sandal, and a pair of sunglasses collected by a crime scene

officer at the Barron Brook Apartments. They further stipulated to the

admission into evidence of the bullet recovered from [the victim]’s leg.

Officer Ravell Slayton, of the Memphis Police Department, testified

that he made the scene at the Barron Brook Apartments on September 5, 2005.

He received information that the shooter had fled on foot, wearing a red shirt

and white shorts, and he left the scene to search for the shooter. Officer

Slayton learned that the shooter had jumped into a black pickup truck. He

located a suspicious black truck and pulled it over. The driver admitted that

he had dropped the shooter off at a laundromat at Lamar Avenue and Semmes

Street. Officer Slayton remained with the driver while his partner went to the

laundromat. When his partner returned, the [petitioner] was in the backseat of

the patrol car. Officer Slayton identified a picture of the [petitioner] wearing

a red shirt and white shorts, with “old cast[s]” around his ankles.

Sergeant Vernon Vanburen, of the Memphis Police Department,

testified that he processed the crime scene at the Barron Brook Apartments.

He did not find a weapon.

The [petitioner] testified that he had prior convictions for reckless

homicide, theft over $500, and aggravated burglary. He said that he moved to

the Barron Brook Apartments one and a half months before September 5,

2005. He moved there because he had “kin folks” in the neighborhood, but

1

The record indicates that [the victim] was eight years old at the time.

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some of the men in the apartment “had words” with him about staying there

when he was not from the neighborhood. The [petitioner] testified that on

either August 26 or 28, 2005, he broke both of his feet. The personnel at the

Regional Medical Center gave him temporary casts and pain medication. He

had to use a wheelchair to get around. On August 31, someone fired shots at

his apartment. He filed a police report, but the police did not find who did it.

By September 5, 2005, he could walk but not run.

The [petitioner] testified that on that day, he was walking to his

apartment when he saw Philemon, one of the men with whom he had

previously “had words” and who he believed was responsible for shooting his

apartment. The [petitioner] said he “was already paranoid” because of the

August 31 incident. He claimed that he did not say anything about killing

anyone, but Philemon said that he “was going to kill one of these ‘B’s or H’s’

or something like that.” The [petitioner] asked him to whom was he speaking,

and Philemon “jumped up” and reached under his shirt. The [petitioner]

believed that Philemon was reaching for a weapon, so he fired one shot

towards him. The [petitioner] said that he was not trying to kill Philemon, but

he was protecting himself. He explained that he immediately reacted, contrary

to the other witnesses’ testimony that several minutes passed. When Philemon

ran away, the [petitioner] was afraid he would return, so he went to the

laundromat at Lamar Avenue and Semmes Street because he knew the owners.

He did not realize that he had shot anyone until the police officer picked him

up at the laundromat. The [petitioner] admitted that he told the police that he

had thrown the gun into a garbage can on Semmes Street. He said that he

actually returned the gun to the person from whom he had gotten it, Kathy

Smith’s brother, Travis.

On cross-examination, the [petitioner] testified that Travis Smith 2 gave

him the gun approximately two hours prior to the shooting, and the [petitioner]

returned it to him immediately after he fled from the scene. He said that he did

not call the police to report that he had shot at someone in self-defense because

the police did not help him when he called them about someone shooting at his

apartment.

The state called Travis Lloyd Alston as a rebuttal witness. Mr. Alston

testified that he was Kathy Smith’s brother. He said that he did not give the

[petitioner] a gun on September 5, 2005. He further said that he would not

2

We assume the [petitioner] was referring to Travis Alston.

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have allowed the [petitioner] to give him the gun with which the [petitioner]

had shot his niece. Mr. Alston said that “[he] would have retaliated” against

the [petitioner]. Mr. Alston knew the [petitioner] only as “Black.” He said

that if they had been friends, he would have known the [petitioner]’s full

name.

Id. at *1-5.

The petitioner filed a pro se petition for post-conviction relief and, after the

appointment of counsel, an amended petition was filed. Although the petitioner raised in his

petitions, among other things, numerous allegations of ineffective assistance of counsel, on

appeal he limits himself to arguing that counsel was ineffective for: (1) failing to investigate

and prepare his defense; (2) repeatedly referring to him by his street name instead of proper

name, telling the jurors in his opening statement that they probably would not like the

petitioner, and exhibiting inappropriate behavior toward a juror; and (3) failing to raise a

double jeopardy issue on appeal about his being convicted of attempted second degree

murder and reckless aggravated assault. We will, thus, confine our summary of the

evidentiary hearing to testimony that is relevant to these issues.

At the hearing, the petitioner testified that he was first represented by original counsel

whose representation was terminated when the petitioner filed a complaint against him with

the Board of Professional Responsibility. Thereafter, trial counsel was assigned to the

petitioner’s case.

The petitioner testified that he was not prepared for trial because he and trial counsel

only met one time when he came to court. He claimed that he tried to get trial counsel to visit

him at the jail so they could review the case, but counsel never would. He acknowledged that

original counsel obtained a private investigator on his behalf, but he said that he only met

with her one time. He claimed that he gave the investigator specific names of people he

wanted her to investigate, but he did not hear from her again or see any products of her

investigation. He later found out that the investigator had taken photographs of the crime

scene, but he did not see those prior to trial. Had he known about the photographs

beforehand, he would have wanted some taken at different angles that would have better

allowed him to show that there was no way that the bullet he fired could have been the one

that hit the victim. He stated that there were fifteen to twenty people around the scene at the

time of the incident, but the investigator only talked to the people identified as witnesses by

the State. He claimed that the State’s witnesses testified inconsistently with what they had

told the police.

The petitioner stated that he never saw the defense file, which included witness

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statements, until his post-conviction counsel showed it to him. The petitioner alleged that

trial counsel did not do any additional investigation after he took over the case from original

counsel.

The petitioner testified that, at the time of the shooting, he had a broken ankle and heel

and was wearing casts. He learned from post-conviction counsel that one of the State’s

witnesses, Sharon Williams, had given a statement to the investigator in which she said that

she saw the petitioner running behind the victim and that he did not have a cast on.

However, the petitioner said that he was unable to run on that date due to his injuries and

cast. He explained that his feet were injured when he was intoxicated and attempted to

intervene in a situation with one of the victim’s mother’s other children and was pushed over

the railing at the apartments. He said that early the next morning, after he had returned from

the hospital, shots were fired at his apartment. He wanted the investigator to obtain the 911

recording from that incident and take pictures of the bullet holes in his apartment. He wanted

this information in order to establish that his actions on the night of the incident were the

result of his fearing for his life.

The petitioner testified that trial counsel referred to him by his nickname, “Black,”

during his opening statement. However, he did not tell counsel of his displeasure with his

doing so until later. He acknowledged that the witnesses brought up the name “Black”

during the trial.

The petitioner also complained of an incident after jury selection when trial counsel

confronted a juror about discussing the case outside the courtroom. The petitioner felt that

counsel’s actions could have had an impact on the outcome of the case. He recalled that the

juror “turned red” and denied that trial counsel had seen him talking to anyone.

The petitioner claimed that trial counsel told him that he should testify to show his

sympathy for the victim’s family. However, counsel did not prepare him to testify and then

brought up the petitioner’s prior criminal history on the stand.

The petitioner testified that he felt trial counsel did not represent him properly, so he

filed a complaint against him. The trial court appointed appellate counsel to represent him

in post-trial proceedings and on appeal. The petitioner claimed that appellate counsel filed

the same motion for new trial that trial counsel had drawn up, but the petitioner had wanted

appellate counsel to raise other issues, like a double jeopardy claim. The petitioner believed

he had a double jeopardy claim because he was convicted of attempted second degree murder

and reckless aggravated assault, which had the same elements, but appellate counsel did not

raise the issue. On cross-examination, he acknowledged that the appellate court fixed the

double jeopardy problem.

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Trial counsel testified that he undertook representation of the petitioner in October

2007. The petitioner’s case had been set for trial on one prior occasion, so counsel

anticipated a February 2008 trial date when he took over the case. Counsel met with the

petitioner the day of his appointment and made arrangements to meet with the petitioner at

the jail, which he did. Counsel had a lengthy discussion with the petitioner concerning what

original counsel had developed as far as the evidence and availability of witnesses. Counsel

also conferred with original counsel regarding “the discovery, the state of the case, the state

of the investigation, whether or not there was anything left to be done.” He further met with

the hired investigator to determine whether there was anything left that she could do to assist

in preparing for the case.

Trial counsel testified that the petitioner provided a list of possible witnesses, and

counsel reviewed the previous attempts that had been made to try to locate those witnesses.

Counsel recalled discussing one particular witness with the petitioner whose testimony the

petitioner thought was important to the defense. However, neither counsel, original counsel,

nor the investigator was able to locate that witness. Counsel stated that he discussed the facts

and circumstances of the petitioner’s case with him, the possible defenses and how the

evidence would apply to the defenses, and what would be in the petitioner’s best interest.

Trial counsel testified that he filed a motion to suppress the petitioner’s statement, but

his motion was denied. He was prepared for a February trial date, but the case was

eventually reset to July at the request of the State. Counsel recalled that the petitioner

received an offer from the State but did not want to take it and was, instead, “adamant in his

defense of self-defense.”

Trial counsel testified that he was aware the petitioner’s house had been shot at prior

to the incident in this case. Counsel reviewed the police report from that incident, and

information concerning that incident came out at trial. Counsel recalled that police

photographs showed that the petitioner had casts on his feet at the time he was questioned

by the police. With regard to his alleged interaction with a juror during voir dire, counsel

elaborated:

[A]s part of my voir dire, there is a time in which we want to discuss with the

jury the effects of -- well, the problem with the jury in a trial [is] that you can’t

prove a negative. And it’s done quite frequently here in Shelby County, Mr.

So-and-so on the jury, we were outside talking a few minutes ago and I told

you my middle name and you laughed at it and said it’s similar to someone in

your family. Can you please tell the jury what my middle name is? We didn’t

talk out in the hallway is the response. No, we did. We talked out in the

hallway. . . . It goes on until you say, well, then, prove it. It’s only you and I.

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You and I are the only ones that can say what happened between us, and I’m

accusing you -- who should have to bear the burden of proving it? Should you

have to defend yourself or should I have to prove it? And we go down through

that and expand on that and it helps the jury understand that the State’s the one

that’s accusing. The State has the burden of proving their case and that a

defendant on most cases can’t prove that they didn’t do something. And that’s

why -- that’s why in the criminal justice system, in the Tennessee Constitution

and the Federal Constitution, we require and place the burden on the [S]tate.

Trial counsel testified that he discussed with the petitioner the ramifications of

testifying and, although unable to remember specifically, believed that he advised the

petitioner not to testify. Counsel recalled feeling comfortable about having established self-

defense through the use of the State’s witnesses.

On cross-examination, trial counsel noted that there was a letter in the case file

between original counsel and the petitioner discussing that they were having difficulty with

locating a particular witness whom the petitioner felt was crucial to his defense. Counsel

stated that it was probably true that the only witnesses the investigator interviewed were

witnesses also interviewed by the police because “they wouldn’t know about those witnesses

if they’re unknown, they would have had to have had some way to discover those witnesses.”

Trial counsel said that he was aware the petitioner had lived at the apartment complex where

the incident occurred for only a short time, but all the witnesses who testified at trial had a

long history at the complex.

Trial counsel testified that he reviewed the witness statements obtained by the

investigator and the police in preparation for trial. He said that the defense made an

extensive investigation to try to locate the witness whom the petitioner claimed would

support his story but was unsuccessful. Counsel noted that his billing records indicated that

he started the process to obtain additional funding for the investigative service but did not

recall whether that was to re-interview a witness or to be available to testify at trial.

Regardless, he knew that “there was a continued conversation[] between [the investigative

service and him] about the investigation funding and . . . how the case was proceeding.”

However, he reiterated that “the case for all practical purposes had been prepared for trial on

at least several occasions prior to [him] coming on.”

Trial counsel testified that the name Robert Phillips sounded “vaguely familiar” as the

name of the witness the petitioner specifically wanted to be interviewed. Trial counsel was

not the petitioner’s attorney at the time the search for Phillips took place. Counsel said that

he would not have personally looked for Phillips other than to have possibly “done some

research on the computer through databases” because locating witnesses was typically left

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to the investigators. Counsel admitted that he did not know that Robert Phillips was listed

on Wikipedia as a member of the rap group, Three 6 Mafia, and that Phillips was

incarcerated at the time the investigator was supposed to be looking for him.

The petitioner’s appellate counsel testified that he was appointed to represent the

petitioner in the motion for new trial and appeal. Appellate counsel said that he reviewed the

transcripts and discussed possible issues with trial counsel before determining the best issues

to raise. Appellate counsel recalled considering a possible argument that the petitioner’s

convictions for reckless aggravated assault and second degree murder violated double

jeopardy but concluded that the concurrent sentences resulted in no prejudice to the

petitioner. Counsel elaborated:

I think under the Denton test, you can look and if it’s one incident, you look,

and if there are multiple victims, I think you look at the legislative purpose and

the elements of the crime and double jeopardy, it’s kind of -- back at that time

it was kind of a complex area, cases were going different directions on that.

But I concluded that . . . the fact of the matter was the judge ran the attempted

second degree murder concurrently with the reckless aggravated assault. So

even if I would have won on a double jeopardy argument, it would not have

changed his ultimate sentence, which was twenty years. And so, I just decided

it would be better to focus on that allowing his prior conviction to come in and

really focus the court’s attention on that and narrow the brief as much as

possible when he wouldn’t have even gotten a different sentence, they would

have just merged the two convictions if I raised double jeopardy.

On cross-examination, appellate counsel again explained his rationale for not raising

the double jeopardy issue:

I thought I had a strong issue on [the petitioner’s being impeached with

a reckless homicide conviction which was similar to the convictions for which

he was on trial] and I thought I wanted to focus the Court’s attention on that

because that would have set aside both convictions. The double jeopardy

argument simply merges them and the sentence is still the same. It doesn’t

really help him in the end as far as any relief on this case. So at the time, I

decided just to focus on what I thought was a strong issue that would help him

actually get a new trial.

After the hearing, the post-conviction court entered an order denying the petition.

This appeal followed.

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ANALYSIS

On appeal, the petitioner argues that he received ineffective assistance of counsel

because: (1) trial counsel failed to investigate and prepare his defense; (2) trial counsel

repeatedly referred to him by his street name instead of proper name, told the jurors in his

opening statement that they probably would not like the petitioner, and exhibited

inappropriate behavior toward a juror; and (3) appellate counsel failed to raise a double

jeopardy issue on appeal about his being convicted of attempted second degree murder and

reckless aggravated assault.

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

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

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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.

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”).

I. Investigation and Preparation of Defense

The petitioner first argues that he received ineffective assistance of counsel because

trial counsel failed to investigate and prepare his defense of self-defense, including locating

a particular witness who would support his claim. With regard to this issue, the post-

conviction court found that counsel made reasonable efforts to investigate the petitioner’s

claims and that the petitioner did not present the testimony of the witness at the hearing

whom he claimed counsel failed to locate. The record supports the post-conviction court’s

determinations. Trial counsel testified that “the case for all practical purposes had been

prepared for trial on at least several occasions prior to [his] coming on [the case].” Even so,

counsel testified to his actions upon undertaking representation of the petitioner’s case and

discussed how a particular witness deemed important by the petitioner was unable to be

located. Although we discern no deficiency in counsel’s performance, more importantly, the

petitioner has failed to prove prejudice. The petitioner has not shown how any additional

investigation on the part of counsel would have benefitted his case and did not present the

testimony of the “crucial” witness at the evidentiary hearing whom he claimed would have

supported his defense. In order to succeed on a claim that counsel did not properly

investigate or call favorable witnesses at trial, a petitioner must generally elicit favorable

testimony from those witnesses at the evidentiary hearing, as a post-conviction court may not

speculate “on the question of . . . what a witness’s testimony might have been if introduced”

at trial. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

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II. Conduct at Trial

The petitioner next asserts that he received ineffective assistance of counsel because

trial counsel repeatedly referred to him by his street name instead of proper name, told the

jurors in his opening statement that they probably would not like the petitioner, and exhibited

inappropriate behavior toward a juror. The petitioner elaborates that counsel behaved

inappropriately toward a juror by “accusing [the juror] of discussing the case with someone

else.” With regard to this issue, the post-conviction court found that counsel’s use of the

petitioner’s street name and comment during opening statement fell within the realm of trial

strategy. The court also found that it was within trial strategy for counsel to use the exchange

with the juror as a way to help the jury understand that the State had the burden of proving

the petitioner’s guilt and that the petitioner could not prove something that he did not do.

The court determined that there was no evidence that counsel’s actions prejudiced the jury.

The record supports the post-conviction court’s determinations. At the hearing,

counsel explained that the exchange with the juror was to try to illustrate that, in most cases,

“a defendant . . . can’t prove that they didn’t do something.” In addition, we have reviewed

counsel’s opening statement, in which counsel said, “I’m going to tell you, you don’t have

to like [the petitioner], I don’t think you are going to like [the petitioner]. It’s not your role,

not your job,” as well as his referring to the petitioner at times during the trial by his

nickname, “Black,” as did some of the witnesses. We determine that counsel’s actions fell

within the realm of trial strategy, and there is no evidence that those actions caused the

petitioner prejudice at trial.

III. Double Jeopardy

The petitioner lastly argues that he received ineffective assistance of counsel because

appellate counsel failed to challenge his convictions for reckless aggravated assault and

attempted second degree murder as being in violation of double jeopardy. With regard to this

issue, the post-conviction court found that the petitioner failed to establish how the outcome

of his appeal would have been different had appellate counsel raised the issue. Upon review,

there is no need to determine whether appellate counsel performed deficiently because the

petitioner cannot show prejudice. On direct appeal, this court, on its own initiative,

determined that the petitioner’s convictions for attempted second degree murder and reckless

aggravated assault were the same for double jeopardy purposes and, therefore, merged the

petitioner’s conviction for reckless aggravated assault into his conviction for attempted

second degree murder. Therefore, the petitioner cannot show that a different course of action

by appellate counsel would have achieved a different result.

CONCLUSION

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Based on the foregoing authorities and reasoning, we conclude that the petitioner

has not met his burden of showing that he was denied the effective assistance of counsel.

Accordingly, we affirm the denial of the petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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