Christopher Jones v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 04, 2014

CHRISTOPHER JONES v. STATE OF TENNESSEE

Appeal from the Circuit Court for Gibson County

No. H8857 Clayburn Peeples, Judge

No. W2014-00447-CCA-R3-PC - Filed January 30, 2015

Petitioner, Christopher Jones, was convicted of one count of first degree premeditated murder

and sentenced to life imprisonment. State v. Christopher Alexander Jones, No. W2011-

01990-CCA-R3-CD, 2012 WL 4049175 (Tenn. Crim. App., Sept. 14, 2012), perm. app.

denied (Tenn., Feb. 19, 2013). A panel of this court affirmed Petitioner’s conviction on

appeal. Id. Petitioner filed a petition seeking post-conviction relief, alleging that he was

denied the effective assistance of counsel at trial. Following an evidentiary hearing, the post-

conviction court denied relief. Having carefully reviewed the record before us, we affirm

the judgment of the trial court.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN and

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

Patrick Dollar, Jackson, Tennessee, for the appellant, Christopher A. Jones.

Herbert H. Slatery, III, Attorney General and Reporter; Meredith Devault, Senior Counsel;

Garry Brown, District Attorney General; and Hillary Lawler Barham, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Trial

The facts underlying Petitioner’s conviction are recited in this court’s opinion in State

v. Christopher Allen Jones, 2012 WL 4049175, at *1-13. In summary, Petitioner and the

victim were both patrons of the Kitty Kat Lounge, a nightclub in Humboldt, Tennessee,

during the early morning hours of December 6, 2008. Petitioner and the victim were dancing

together, and Petitioner confronted the victim about taking some money that he had

apparently dropped on the floor. Petitioner and the victim argued, and the victim pushed

Petitioner. Petitioner exited the nightclub, and the victim exited shortly thereafter. Patrons

outside of the nightclub saw the victim confront Petitioner and “g[e]t in his face.” The other

patrons attempted to restrain Petitioner, but Petitioner removed his shirt to free himself.

When he removed his shirt, a gun fell to the ground. Petitioner picked it up and pointed it

at the victim. Petitioner shot the victim in the chest. The victim turned away from Petitioner

to go back inside the nightclub. The nightclub owner’s husband saw the victim running

towards the front door of the nightclub, and Petitioner was following behind her and firing

shots at her. When the victim got inside the door, she fell to the floor. The victim died from

multiple gunshot wounds to her chest, back and arm.

The owner of the nightclub testified that Petitioner drank beer that night, but she did

not know if Petitioner was intoxicated. She testified that she had never before seen Petitioner

as upset as he was that night about the money. Another witness testified that Petitioner acted

as if he was under the influence of “more than alcohol because [she had] never seen anybody

act like that . . . .” Another witness testified that he saw Petitioner drink most of a bottle of

vodka while he was at the nightclub and that Petitioner was highly intoxicated. Petitioner

testified in his own defense at trial. Petitioner left work at 2:30 p.m. on December 5, 2008,

and began drinking. He could not recall how many quarts of beer he drank. He also smoked

marijuana “blunts” with friends, but he could not recall how many. On the way to the Kitty

Kat Lounge, he shared a “fifth” of alcohol with the three people he was riding with, and he

drank a pint of vodka by himself. Petitioner also took five Xanax pills that he got from his

cousin. Petitioner purchased a quart of beer at the nightclub, and he testified that he did not

remember anything that happened after that.

On direct appeal from Petitioner’s conviction, a panel of this court concluded that the

evidence was sufficient to support the jury’s finding of premeditation and that Petitioner’s

voluntary intoxication did not negate his specific intent to commit first degree murder. Id.,

2012 WL 4049175, at *17.

Post-conviction hearing

Petitioner testified that he advised trial counsel of his intoxication on the night of the

offense. He discussed with his attorneys that his level of intoxication would have prevented

him from forming the intent to commit first degree murder. He testified that his attorneys

did not take any action to obtain an expert to testify on his behalf. When presented with a

motion for forensic evaluation filed by his trial counsel and an order directing a forensic

evaluation, Petitioner acknowledged that he had seen the motion and order. Petitioner

-2-

testified that he was evaluated by a psychiatrist prior to his trial. Petitioner also

acknowledged that his trial counsel discussed with him a letter which stated the conclusions

of the forensic evaluator, and based on his conversations with counsel, he decided to go

forward with his trial. The following documents were admitted as exhibits to the post-

conviction hearing: a motion for forensic evaluation; an order directing a forensic evaluation;

a letter from Pathways Behavioral Health Services (“Pathways”) stating that Petitioner was

competent to stand trial and that, at the time of the offense, he was able to appreciate the

nature and wrongfulness of his acts; as well as an ex parte motion for state funded expert

services.

Only one of Petitioner’s two trial counsel testified at the hearing. Trial counsel

testified that after he received the letter from Pathways, he discussed the letter with Petitioner

and determined that it was in Petitioner’s best interest to present a defense of intoxication.

He discussed “at length” with Petitioner his level of intoxication on the night of the offense

and spoke to several State’s witnesses, who corroborated Petitioner’s level of intoxication.

Trial counsel attempted to locate individuals whose names or nicknames Petitioner provided

him, who Petitioner stated would testify as to his intoxication, but trial counsel was unable

to contact them. Trial counsel did not seek further expert opinions because he did not believe

the expert testimony was necessary in order to prove Petitioner’s intoxication.

Petitioner presented his own testimony and the testimony of one of his trial counsel

at the post-conviction hearing. The entire direct examination of Petitioner regarding his sole

argument of ineffective assistance of counsel is as follows:

Q. And you advised [both trial counsel] of your intoxication on the

night in quesiton?

A. Yes, sir.

Q. And you told them roughly how much you had consumed that night?

A. Yes, sir.

Q. Did you have any conversations with them concerning whether that

level of intoxication would have prevented you from forming the

intent necessary to basically commit a first degree murder?

A. Yes, sir.

-3-

Q. And as a consequence did [trial counsel] take any action to obtain an

expert on your behalf?

A. No, sir.

Q. Did they have any conversations with you about telling you what

they did?

A. No, sir.

Q. They didn’t talk to you about that at all?

A. No, sir.

The one trial counsel presented by Petitioner testified as follows, after direct

examination, in response to questions from the post-conviction hearing court:

EXAMINATION BY THE COURT:

Q. [Trial counsel], is it permissible to say what your expert told you?

A. Your Honor, we didn’t consult after we got the forensic back –

Q. You never actually consulted?

A. We did not. We discussed with [Petitioner] his level of intoxication

and we did introduce that.

Q. Would you state for the record what your thinking was in that

regard?

A. Our thinking was that [Petitioner] got off work that day about 3 or

3:30 and then he showed up at the Kitty Kat Lounge about 11,

maybe later that night and all during that afternoon he was drinking

and drugging and we realized that the State probably wouldn’t be

able to contradict that and before trial we talked to, I know two of

the State’s witnesses, and I think more, and they corroborated that

[Petitioner] was very intoxicated and we just didn’t –

-4-

Q. So in your professional opinion what did you think the result of an

expert being consulted might have been?

A. We didn’t think that it was necessary because we thought we would

be able to prove his intoxication from the factual witnesses.

Totally absent from the proof at the post-conviction hearing was any evidence, even

in the form of an offer of proof, of what any actual or potential expert witness would state

in his or her testimony.

At the conclusion of the post-conviction hearing, the post-conviction court found as

follows:

The Court finds that with regard to the two prongs – the Court finds

there was no deficiency. The Court finds that [both of Petitioner’s trial

counsel], if they were acting in concert at this time, made a strategic

decision that was logical and that was professionally made within the

standards that are required of criminal defense attorneys and the Court

further finds that there is no indication presented at all that the use of an

expert in this case would have changed anything, so I’m going to

respectfully deny your Motion, [Petitioner].

Analysis

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

convincing evidence. See T.C.A. § 40-30-110(f). On appeal, the appellate court accords to

the post-conviction court’s findings of fact the weight of a jury verdict, and these findings

are conclusive on appeal unless the evidence preponderates against them. Henley v. State,

960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim.

App. 1997). By contrast, the post-conviction court’s conclusions of law receive no deference

or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

As a mixed question of law and fact, this court’s review of a petitioner’s ineffective

assistance of counsel claim is de novo with no presumption of correctness. Felts v. State,

354 S.W.3d 266, 276 (Tenn. 2011).

To establish entitlement to post-conviction relief via a claim of ineffective assistance

of counsel, the post-conviction petitioner must affirmatively establish first that “the advice

given, or the services rendered by the attorney, are [not] within the range of competence

demanded of attorneys in criminal cases[,]” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975), and second that his counsel’s deficient performance “actually had an adverse effect

-5-

on the defense[,]” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). In other words, the petitioner must “show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. Should the petitioner fail to establish either deficient

performance or prejudice, he is not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d

363, 370 (Tenn. 1996).

When reviewing a claim of ineffective assistance of counsel, we will not grant the

petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or provide

relief on the basis of 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). Such

deference to the tactical decisions of counsel, however, applies only if the choices are made

after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992).

In a written order denying post-conviction relief, the trial court found that Petitioner’s

trial counsel “mad[e] a strategic, logical[,] and profession[al] decision as to whether to hire

an expert, which was well within the standard of a criminal defense attorney” and that “no

indication was presented at all that an[ ] expert would have changed the outcome of the

trial[.]” The record does not preponderate against the trial court’s findings. As noted above,

Petitioner failed to present any evidence of what an expert witness would have stated.

Defendant has failed to show that an expert, if called to testify, would have testified

favorably in his defense. See Black v. State, 794 S.W.2d 552, 757-58 (Tenn. Crim. App.

1990).

Because Petitioner has failed to establish prejudice, we need not address whether trial

counsel’s performance was deficient. Nevertheless, we agree with the post-conviction court

that counsel’s decision not to call an expert was not deficient. The decision to call a witness

is a tactical or strategic decision. “[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable.” Felts, 354 S.W.3d

at 277; see also Strickland, 466 U.S. at 669 (judicial scrutiny of trial counsel’s performance

must be “highly deferential”).

Petitioner argues on appeal that he was unable to “fully appreciate the impact of

counsel’s ‘tactical’ decision” not to obtain an expert witness to testify regarding Petitioner’s

intoxication at the time of the offense. According to the independent expert, obtained as a

result of Petitioner’s trial counsel’s motion for a forensic evaluation, Petitioner had

“sufficient present ability to consult with his attorney with a reasonable degree of rational

understanding and a rational, as well as factual understanding of the proceedings against

him.” Petitioner presented no proof at the post-conviction hearing that he did not understand

-6-

or appreciate the decision of his attorney not to call an expert witness. Petitioner did not

testify that he did not understand. Although Petitioner initially testified at the post-conviction

hearing that he was unaware that trial counsel had filed a motion for forensic evaluation on

his behalf, he ultimately acknowledged that he had discussions with trial counsel about the

motion, order and letter from Pathways, and that he chose to go forward with his trial based

on conversations he had with his attorneys about those documents.

Petitioner also asserts in his brief that trial counsel’s reliance on State’s witnesses and

Petitioner’s own testimony to establish intoxication at trial was insufficient. The fact that a

particular strategy or tactical decision was unsuccessful does not by itself establish

deficiency. Goad, 938 S.W.2d at 369.

Petitioner has failed to show that counsel’s performance was deficient or that he was

prejudiced by counsel’s alleged deficiency. Petitioner is not entitled to relief. Accordingly,

the judgment of the post-conviction court is affirmed.

_______________________________________

THOMAS T. WOODALL, PRESIDING JUDGE

-7-