Jeffrey Walton v. State of Tennessee

05/10/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 7, 2017 Session

JEFFREY WALTON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 11-02773 Lee V. Coffee, Judge

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No. W2016-01395-CCA-R3-PC

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Jeffrey Walton (“the Petitioner”) was convicted of vandalism over the value of $10,000

and burglary of a building and received an effective sentence of twenty-seven years. He

filed a petition for post-conviction relief, which the post-conviction court denied. On

appeal, the Petitioner argues that second and third trial counsel’s performance was

deficient because they (1) failed to prepare a trial strategy; (2) failed to investigate the

background of Barrow-Agee Laboratories and discover a fatal variance in the indictment;

(3) failed to properly cross-examine witnesses; and (4) failed to request jury instructions

on the defenses of duress and necessity. The Petitioner asserts that he was prejudiced

because absent these deficiencies, he would have likely been convicted of a lesser-

included offense or acquitted of the offenses. After a thorough review of the record and

applicable case law, we affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Josie S. Holland, Memphis, Tennessee, for the appellant, Jeffrey Walton.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

Jury Trial

In our opinion on the Petitioner’s direct appeal of his convictions, this court

summarized the testimony at trial as the following:

This case involves the [Petitioner]’s unlawful entry into and

vandalism of Barrow-Agee Laboratories (“Barrow-Agee”), a food and drug

testing laboratory in Memphis, the evening of January 13, 2011.

Brenda Banks, a chemist and twenty-two-year employee of Barrow-

Agee, testified that she closed the building at 6:15 p.m. on January 13,

2011. She said that no one was in the building when she left that evening

and that she secured the premises by setting an alarm. When she left, the

building was in good condition and none of the damage shown in the

photograph exhibits was present.

Thomas Bradberry, a security guard for Barrow-Agee, testified that

he received a call around 11:20 p.m. on January 13 that the alarm at the

laboratory had been triggered. When he arrived and assessed the scene, he

heard some noise coming from the back of the building that sounded like

someone running. He observed a hole in the wall where the venting system

was located. Bradberry explained that the venting system had been

“busted” out and a light was shining outward through the hole. He saw a

pair of legs emerge from the hole, and he ordered the person to raise his

hands. However, the person went back inside the building. Bradberry was

unable to see the person’s face, but he saw that the person was wearing an

army fatigue jacket and tennis shoes.

Bradberry testified that the building had plate glass windows,

making it possible for him to see inside while the officers were searching

for the intruder. Through the windows, he saw the intruder’s feet partially

fall through the ceiling of three separate offices or rooms in the building.

He saw the police bring the intruder out of the building in handcuffs and

noted that the intruder was wearing the same clothing as the person he had

seen earlier trying to exit the hole at the back of the building. He heard the

intruder tell the officers that he was homeless and had entered the building

looking for something to eat. Bradberry entered the building after the

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intruder was arrested, and he observed that the ceiling tiles were “tore up”

and the doors to several refrigerators and incubators were ajar.

Officer Pierce Hayden with the Memphis Police Department

testified that he answered the call at Barrow-Agee. He observed a hole in

the south wall of the building and set up a perimeter outside. While the

perimeter was being set up, Officer Hayden saw a man wearing a black and

white skull cap stick his head out of the hole. Officer Hayden ordered the

man to come out of the hole and attempted to grab him, but the man

retreated back inside the building.

Officer Hayden testified that he called for a K9 unit to come to the

scene, and police maintained the perimeter while the K9 unit searched the

building. No one was seen leaving the building while the K9 unit was

searching. After the K9 unit emerged unsuccessfully, Officer Hayden and

other officers went inside to search. Officer Hayden entered an attic area

and began checking the beams and rafters, where he found the intruder in

the northeast corner of the building. He ordered the man to come toward

them, but the man lost his balance and fell through the ceiling. Officer

Hayden followed the man through the hole in the ceiling and took him into

custody. At trial, Officer Hayden identified the [Petitioner] as the man he

saw trying to exit from the hole in the back of the building and ultimately

arrested after the man fell through the hole in the ceiling.

Officer James Oliver with the Memphis Police Department testified

that he responded to the scene with a K9 unit. Officer Oliver announced

his presence and informed the intruder that he was going to release a dog

into the building. When he got no reply, Officer Oliver entered the

building with the K9 unit. The dog went to one specific room and indicated

on an odor in the room by moving in a circle. The dog’s movement

indicated that he smelled something but could not determine its precise

location. The dog then looked toward the ceiling. Officer Oliver

announced his presence again and ordered the person to exit the ceiling, but

he received no immediate response. After a minute, he heard someone

moving in the ceiling. Officer Oliver exited the building and told the other

officers where he heard a noise and an odor was detected by the K9 unit.

Officer Oliver thereafter assisted in searching for the suspect, and he

observed the suspect fall out of the ceiling from the attic. He identified the

[Petitioner] as the man he saw fall from the ceiling.

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Officer James Smith, a crime scene investigator with the Memphis

Police Department, processed and photographed the scene. Officer Smith

stated that a black and white skull cap, a pair of brown gloves, and a yellow

flashlight were recovered from the ceiling inside the building.

Edgar Tenent, one of the owners of Barrow-Agee, testified that the

laboratory was a freestanding building with thirty to forty rooms and was

not open to the public. Tenent was called to the scene in regards to the

break-in and, when he arrived, saw the police leading the [Petitioner] away

from the building. He had never seen the [Petitioner] before, and the

[Petitioner] did not have permission to enter the laboratory. Inside the

laboratory, Tenent observed that many ceiling tiles were damaged and

insulation had dropped down; wires were hanging through the ceiling in

different parts of the building; and cabinet, refrigerator, and incubator doors

were opened. He said it was “[j]ust a total mess in a large part of the

building.” It was determined that entry had been gained into the laboratory

through an exhaust fan on the back of the building. Tenent explained that a

safety cage covering the exhaust fan had been removed and the concrete

around it had been knocked away, allowing entry. Tenent identified

numerous photographs of the damage.

Brad Staples, an insurance adjust[e]r, inspected the building on

January 14, 2011, the day after the break-in. He observed damage to

multiple rooms in the building, stemming from someone crawling around in

the heating and air conditioning system located above the acoustical drop

tile ceiling. In addition, there was damage to the alarm system, the building

had to be repainted, and the insulation had to be replaced. The total value

of the damage was $23,654.74. Staples said that he negotiated for the

lowest bids and, although it was possible someone could have done the

work for less, no one could have done it for less than $10,000. He testified

that the photographs of the damage exhibited to the jury were accurate

representations of the damage he observed in the building.

Following the conclusion of the proof, the jury convicted the

[Petitioner], as charged, of vandalism over $10,000 and burglary of a

building.

State v. Jeffrey Walton, No. W2012-01609-CCA-MR3-CD, 2014 WL 465725, at *1-3

(Tenn. Crim. App. Jan. 31, 2014), perm. app. denied (Tenn. May 14, 2014). The trial

court sentenced the Petitioner to an effective sentence of twenty-seven years. Id. at *1.

On appeal, this court affirmed the Petitioner’s convictions. Id. at *4-5.

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Post-Conviction Proceedings

The Petitioner filed a pro se petition for post-conviction relief on June 12, 2014;

after post-conviction counsel was appointed to represent the Petitioner, the petition was

amended. At an evidentiary hearing, Edgar Tenent testified that he was an owner of

Barrow-Agee Laboratories, which owned the property at 1555 Three Place. He explained

that Laboratory Systems, Inc. owned one hundred percent of Barrow-Agee Laboratories.

On cross-examination, Mr. Tenent stated that the names of the controlling company,

Laboratory Systems, Inc., and its subsidiary, Barrow-Agee Laboratories, were

occasionally used interchangeably.

First trial counsel1 testified that she had been a practicing attorney for twenty-six

years and had practiced criminal defense for almost twenty-five years. She stated that for

thirteen years, she had worked as a head of the Felony Preliminary Hearing Team at the

Shelby County Public Defender’s Office, which handled over three thousand felony cases

per year. At the Petitioner’s preliminary hearing, the vandalism charge was bound over

to the Shelby County Grand Jury, but the burglary charge was dismissed because the trial

court determined that, based on the facts, the State “had not presented enough proof that

there was an intent to commit a felony theft or assault therein.” First trial counsel also

noted that the Affidavit of Complaint listed an incorrect address; however, she did not

believe that this error was the reason that the burglary charge was dismissed.

Second trial counsel testified that he had been an attorney for thirty-one years and

that he had practiced criminal defense in the Shelby County Public Defender’s Office for

twenty-one years. He stated that he was currently assigned cases set in the Shelby

County Criminal Court and that he worked on between sixty and seventy cases a year.

However, during his representation of the Petitioner, he was assigned to the Shelby

County Special Prosecution Unit, where he “had many more cases [and] many more

trials.” He recalled that the Petitioner’s case was assigned to the Special Prosecution

Unit because he “had at least five or six felonies, at the very least.” Second trial counsel

stated that the Petitioner made the decision to proceed to trial. He recalled that the State

had offered a plea agreement with a four-year sentence with release eligibility after

service of thirty percent of the sentence. Second and third trial counsel “begged and

pleaded” for the Petitioner to accept the State’s plea agreement because based on the

facts, the Petitioner was most likely going to be convicted if he proceeded to trial.

Second trial counsel could not recall whether the Petitioner insisted that he was innocent

of the vandalism and burglary charges. He also did not recall discussing a trial strategy

1

It appears from the record that three different attorneys represented the Petitioner. For purposes

of clarity, we have designated the three attorneys as “first,” “second,” and “third” based on their

chronological order of representation.

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with the Petitioner, but he explained that he “spen[t] more time discussing with [the

Petitioner] the fact that [the Petitioner] needed to take the offer, rather than having a trial

strategy.” He stated that, in his opinion, the Petitioner had “no trial strategy.” He

testified that he did not discuss possible affirmative defenses with the Petitioner.

Second trial counsel did not recall how often he met with the Petitioner or whether

he specifically gave the Petitioner discovery from the State; however, he stated that it was

his practice to give discovery to his clients. He did not recall how the Petitioner’s

indictment was phrased, and he did not research the victim named in the indictment. He

also did not recall how many hours he spent preparing for the Petitioner’s trial, and he did

not investigate any potential witnesses. Second trial counsel stated that he was not aware

of a federal civil suit against the victim in the Petitioner’s case and that he did not

investigate that issue. He stated that, if he had been aware that the victim had recently

agreed to pay a settlement to resolve the civil suit, he would have attempted to introduce

the settlement into evidence at the Petitioner’s trial. He did not recall that the Petitioner

was taken to the hospital after the offense, but he stated that he and third trial counsel

“attempted to introduce some medical records[]” at trial. He explained that he “went to

the Med personally and served subpoenas[.]” He stated that he never considered

retaining an expert witness to testify at trial regarding the Petitioner’s injuries. Although

he attempted to introduce the Petitioner’s medical records into evidence, second trial

counsel stated that he did not see the records as “being a defense to either a burglary or

vandalism charge[.]”

Second trial counsel recalled that several witnesses testified that they saw the

Petitioner in the building that was vandalized and that witnesses heard the Petitioner

“upstairs[.]” When asked if he introduced the Petitioner’s medical records in support of a

defense that the Petitioner lacked the physical ability to crawl into the rafters of the

building, second trial counsel explained that the medical records were not helpful to the

Petitioner’s case and that “[t]he main reason [that he] was trying to enter those records

[was] because [the Petitioner] wanted them entered[.]” Second trial counsel did not recall

whether he introduced any proof at the Petitioner’s sentencing hearing. He stated that he

did not contact any of the Petitioner’s family members about testifying for the Petitioner

at the sentencing hearing because he “wasn’t aware of any possible mitigation.” He

explained that the only issue at the sentencing hearing was whether the trial court would

align the sentences concurrently or consecutively.

On cross-examination, second trial counsel recalled that, on the day of trial, the

State made a second plea offer that was “just a ridiculously good offer.” He explained

that he “got frustrated” because the Petitioner declined the State’s plea offer; therefore,

second trial counsel asked third trial counsel to “talk with [the Petitioner] alone” to see if

third trial counsel could convince the Petitioner to plead guilty. He agreed that it was his

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practice to meet with his clients before trial and to determine the best approach for each

case. Second trial counsel stated that the Petitioner understood the evidence against him

and that he “tried to convey to [the Petitioner] as best [he] could what [he] thought the

outcome would be.” He explained that he conducted the voir dire during the Petitioner’s

trial, but third trial counsel handled the remainder of the trial under second trial counsel’s

supervision. Second trial counsel stated that he discussed trial strategy more with third

trial counsel than he did with the Petitioner. He was not aware of anything he would

have done differently than third trial counsel in the Petitioner’s trial. He stated that even

if he had presented evidence pertaining to the “peripheral issues,” such as the Petitioner’s

medical records or the correct name of the victim business, the evidence would not have

affected the jury’s verdict.

On redirect examination, second trial counsel explained that “peripheral issues”

were issues that did not directly defend the charges against the Petitioner. He stated that

even if there was evidence that the Petitioner did not have the ability to crawl into the

attic of the building, it was “indefensible” that the Petitioner fell through the attic. In

second trial counsel’s opinion, all the “peripheral issues” in the aggregate would not have

affected the Petitioner’s case. Second trial counsel stated that he “failed [the Petitioner]

because [he] didn’t get [the Petitioner] to plead to that four years.” On recross-

examination, second trial counsel stated that the Petitioner never informed him that it was

another individual that fell out of the attic of Barrow-Agee Laboratories.

Third trial counsel testified that, prior to the Petitioner’s trial, he had worked on

trials as second chair, but the Petitioner’s trial was his first trial as first chair. Before

third trial counsel began representing the Petitioner, second trial counsel had already

obtained the preliminary hearing transcripts, medical records, and the discovery packet.

Third trial counsel specifically remembered that, while the Petitioner’s case was in

general sessions court, the State offered a sentence of three years, and the Petitioner

rejected this offer. After the Petitioner’s case was bound over to the Shelby County

Grand Jury, the State offered the Petitioner a sentence of six years. However, third trial

counsel explained that the State later offered the Petitioner a four-year sentence, “which

was still good, even up until the morning of trial.” Third trial counsel recalled that

second trial counsel became “frustrated” when the Petitioner continued to decline the

State’s plea offer, so third trial counsel informed the Petitioner that he did not “see a

strong defense argument that [he] would have felt comfortable presenting to the jury[.]”

He also informed the Petitioner that it was the Petitioner’s decision to plead guilty or

proceed to trial. Third trial counsel stated that “based on how much time [the Petitioner]

had already served, he would have been essentially parole-eligible on a four[-]year at

thirty percent . . . offer,” so third trial counsel advised the Petitioner that it was in his best

interest to take the offer.

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Third trial counsel recalled that he discussed the possible range of punishment for

the vandalism and burglary charges with the Petitioner; he stated that the Petitioner had

ten or eleven prior felonies and that the Petitioner would be sentenced as a career

offender on the Class D burglary charge and as a Range III offender on the Class C

vandalism charge. Third trial counsel informed the Petitioner that the trial court could

order his sentences for the vandalism and burglary charges to run consecutively to each

other. Third trial counsel explained that he “did all the arguing” at the Petitioner’s trial,

but he deferred to second trial counsel for strategic decisions, such as objections and voir

dire.

On cross-examination, third trial counsel stated that he met with the Petitioner

“multiple times” before trial. When third trial counsel advised the Petitioner regarding

the State’s plea offer, the Petitioner “took some time to think about it[,]” but the

Petitioner asserted that he was innocent of the charges and that he wanted to proceed to

trial. He recalled that the Petitioner declined the State’s plea offers because the Petitioner

was on probation or parole when he committed the instant offense, and the Petitioner

knew that any sentence he received for the current offense could be served consecutively

to the sentence for which he was on probation or parole. He explained that the

Petitioner’s version of the offense “changed a couple of times[]”; the Petitioner initially

informed third trial counsel that he had been staying in a hotel room but the water had

been shut off so “he went out looking for shelter or a place to stay.” Based on this

information, third trial counsel “explored possibly making a necessity argument,” but

third trial counsel was unable to corroborate the Petitioner’s story. Next, the Petitioner

informed third trial counsel that “the police had essentially beat [the Petitioner] up on the

sidewalk as he was walking around. And they dragged him inside this business that had

been burglarized and tried to frame him for the burglary[.]” Third trial counsel informed

the Petitioner that the State would call independent, non-police witnesses to testify about

the Petitioner’s involvement in the vandalism and burglary. Third trial counsel stated that

he and second trial counsel “started out preparing to argue that it was a frame job because

[the Petitioner] was considering taking the stand and testifying to that effect.” However,

the Petitioner chose not to testify after the Momon hearing, so third trial counsel “had no

basis for making that argument” and “instead[] tried to argue insufficiency of the

evidence and a lack of intent.” Third trial counsel advised the Petitioner about the

decision of whether to testify and informed the Petitioner that the trial court would likely

admit evidence of his previous convictions for impeachment purposes.

Third trial counsel stated that he prepared cross-examination questions for each of

the State’s witnesses, and he believed that there was no other way that he could have

better prepared. Third trial counsel agreed that the indictment listed “Barrow-Agee, Inc.”

as the victim. He recalled that he conducted an Internet search on the business’s name

and noted that it appeared to be “a legitimate business at the address in question . . . .”

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He explained that he “had no reason to believe that it was not a corporate entity, a

functioning business, and [based on] all the paperwork [that he had] seen since, [he] still

believe[d] [that] it was a legitimate corporate entity that had ownership over the

property.” Third trial counsel stated that there was no testimony at trial regarding the

name or location of Barrow-Agee Laboratories that he was not aware of prior to trial, but

if there had been, he would have explored the issue at trial.

Third trial counsel stated that, since the Petitioner’s trial, he had served as first

chair on over a dozen jury trials, and he “almost never argue[d] in the alternative”

because he believed that presenting multiple theories or defenses to the jury was not

persuasive and that it reduces the credibility of defense counsel. Third trial counsel noted

that, while he could have presented other arguments to the jury in the Petitioner’s case, he

did not believe that different arguments would have affected the jury’s verdict. On

redirect examination, third trial counsel agreed that the Petitioner “express[ed] his

dissatisfaction with his representation during trial.” He stated that he met with the

Petitioner several times during the week before trial, and that during trial, he spoke with

the Petitioner at every opportunity and asked the Petitioner if “there [was] anything [the

Petitioner] wanted [him] to say, ask, [or] do.” He explained that the strategy at the

Petitioner’s trial “was to argue that someone else caused the damage[]”; therefore, he

stated that questioning Mr. Tenent about the financial condition of the business at the

time of the offense would not have been helpful because “that would be a strategy based

around arguing that the business was lying for some reason.” Third trial counsel testified

that the indictment gave the Petitioner adequate notice of the charges against him.

Bobbie Holmes testified that she is the Petitioner’s sister and that the Petitioner

had never been homeless. She stated that the Shelby County Public Defender’s Office

never contacted her regarding the Petitioner’s sentencing hearing. She explained that, if

the Shelby County Public Defender’s Office had contacted her, she would have testified

for the Petitioner. She also stated that other family members would have testified in

support of the Petitioner. On cross-examination, Ms. Holmes agreed that she was not an

eyewitness to the offense.

The Petitioner testified that on the offense date he left his hotel room because the

water was not running in his room. He noted that he had his probation officer’s

permission to stay at the hotel. The Petitioner walked to a near-by gas station to purchase

some water and observed Officer Hayden sitting in a vehicle and speaking to an

individual standing in the gas station doorway. The Petitioner asked Officer Hayden

where he could purchase some water, and Officer Hayden informed him that the area was

under an inclement weather advisory and that the Petitioner should return to his hotel

room. The Petitioner began walking back to his room, but instead, he returned to the gas

station. The gas station was closed, but the Petitioner noticed “blue lights behind the

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store.” As the Petitioner walked behind the gas station, he noticed that a police car was

driving behind him. He observed “a lot of officers outside in a group somewhere.” The

Petitioner stated that he attempted to greet the officers, but no one would respond to him.

He testified that the officers circled him and attacked him. He stated that one officer hit

him in the head with a flashlight and that the next thing that he remembered was that a

fire truck and an ambulance arrived. The Petitioner explained that he asked first and

second trial counsel to subpoena the video recording from any nearby cameras to

corroborate this attack.

The Petitioner stated that second trial counsel was “extremely abusive, verbally

abusive” from the beginning of the representation. He explained that second trial counsel

was so abusive that he mentioned it to the trial court. However, the trial court informed

him that second trial counsel was a good attorney and set the Petitioner’s case for trial.

He stated that he filed a complaint against second trial counsel with the Tennessee Board

of Professional Responsibility after his trial. He informed second trial counsel that he did

not burglarize the building, but second trial counsel wanted the Petitioner to accept the

State’s plea offer. The Petitioner stated that the State’s first plea offer included a

sentence of eight years with release eligibility after service of sixty percent of the

sentence. He stated that he was never informed that the State offered any other plea

agreements until the State offered a three-year sentence before trial. However, the

Petitioner stated that he “wouldn’t have t[aken] thirty minutes because [he] didn’t

burglarize the place.” The Petitioner stated that he had been handicapped since 2003

when he was injured in a car wreck; his right foot was crushed and his back was broken.

He explained that his injuries prohibited him from lifting heavy objects or climbing. The

Petitioner testified that “practically everything that [third trial counsel] said was a lie.”

He stated that he met with third trial counsel “one time for approximately ten minutes,

three days before [his] trial[]” and that third trial counsel never discussed the State’s final

plea offer with him.

On cross-examination, the Petitioner testified that, after the State rested its case at

trial, second trial counsel informed him that there was no need for him to testify because

second trial counsel believed that the Petitioner had not committed burglary. He agreed

that during the Momon hearing the trial court discussed with him the decision to testify

and informed the Petitioner that, if he testified, the State could ask the Petitioner about

his prior felony convictions. He agreed that the trial court asked him whether anyone had

forced or coerced him to testify or not testify and that he said it was his decision to not

testify. However, the Petitioner stated that he wanted to testify at trial, but he believed at

the time that his prior convictions “would be held against [him].” He agreed that he had

previously broken into other businesses, but he stated that he “never targeted a place

intentionally.” The Petitioner agreed that most of his prior convictions were for burglary

or theft. He agreed that he was on probation at the time of the current offense.

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When the post-conviction court asked the Petitioner what he believed first and

second trial counsel should have done for his case, the Petitioner stated that they should

have investigated the case and called the ambulance drivers to testify at trial. He also

stated that first and second trial counsel should have spoken with his family and that they

should have objected when the State mentioned in its opening statement that the

Petitioner was “homeless and hungry.” The Petitioner asserted that he never made a

statement to the police after the offense. He also stated that second and third trial counsel

should have requested medical records regarding the ambulance and fire truck that

arrived at the scene after the police assaulted him, which would have shown that the

Petitioner never entered the building, and they should have subpoenaed his parole and

probation officers to show that he had successfully completed alternative sentencing.

The post-conviction court found that the Petitioner decided to proceed to trial and

found that the Petitioner’s testimony at the post-conviction hearing was inconsistent with

“everything that every witness testified to that took that stand during the course of th[e]

trial.” The post-conviction court noted that all the witnesses at trial testified that the

name of the company that owned the building was “Barrow-Agee” and found that

“whether or not the business is incorporated under a different name, the business in

Shelby County, Tennessee, is, in fact, Barrow-Agee.” The post-conviction court found

that third trial counsel researched the victim named in the indictment, and “the name and

the address did correspond with the business that was located.” The post-conviction

court found:

[t]here has not been anything presented in [c]ourt today that would allow

the [post-conviction c]ourt to guess, speculate as to what other investigation

could have been done, what other discovery could have been done, what

other witnesses should have been interviewed that should have been

presented at trial that were not presented at th[e] [post-conviction] hearing.

The post-conviction court concluded that the Petitioner “failed to demonstrate how he

was prejudiced because he . . . presented no witnesses [at the post-conviction hearing]

other than a sister, who says that he [has] never [been] homeless.” The post-conviction

court found that, while the Petitioner asserted that second and third trial counsel should

have obtained the Petitioner’s additional medical records, the Petitioner did not present

the records as evidence at the post-conviction hearing. The post-conviction court

declined to “speculate as to what value [the medical records] may have had.” Regarding

the Petitioner’s assertion that second and third trial counsel should have subpoenaed his

records from the parole board, the post-conviction court found that the records were not

relevant to the charges against the Petitioner.

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The post-conviction court also found that the indictment “put [the Petitioner] on

notice as to exactly what conduct the State of Tennessee had accused him of. He was

provided with discovery that identified the place of business as being Barrow-Agee,

Inc[.], [that] g[ave] an address, [and] g[ave] a location in Shelby County, Tennessee.”

The post-conviction court found that Mr. Tenent testified that the name of the business

was Barrow-Agee and that “[a]ll the witnesses that testified indicated that they worked

for Barrow-Agee.” The post-conviction court also found that “[t]here [wa]s absolutely

nothing that would indicate that counsel erred by not asking for any other jury charges

that could have or should have been asked for[]” and that “[t]here [was] no indication that

necessity or duress or any other requested charges should have been made in this case.”

The post-conviction court noted that the Petitioner testified at the post-conviction hearing

that “he was not suffering from duress, and that he, in fact, was in a hotel and did not, in

fact, enter that building and did not commit a crime.” The post-conviction court

concluded that second and third trial counsel’s decision against requesting jury

instructions on duress or necessity was not deficient. The post-conviction court

concluded that “[t]here [was] absolutely nothing that . . . indicate[d] that [second trial

counsel] and [third trial counsel] were ineffective in representing [the Petitioner].” The

post-conviction court did not credit the testimony of the Petitioner and concluded that

second and third trial counsel “more than adequately represented [the Petitioner].” The

post-conviction court denied the Petitioner’s request for relief.

II. Analysis

The Petitioner argues that second and third trial counsel’s performance was

deficient because they: (1) failed to prepare a trial strategy; (2) failed to properly

investigate the case; (3) failed to effectively cross-examine witnesses; and (4) failed to

request jury instructions on the defenses of necessity and duress. The Petitioner asserts

that he was prejudiced because absent these deficiencies, he would have likely been

convicted of a lesser-included offense or acquitted of the offenses.

Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound

by the post-conviction court’s factual findings unless the evidence preponderates against

such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing

the post-conviction court’s factual findings, this court does not reweigh the evidence or

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,

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“questions concerning the credibility of the witnesses, the weight and value to be given

their testimony, and the factual issues raised by the evidence are to be resolved by the

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);

see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law

and application of the law to factual findings are reviewed de novo with no presumption

of correctness. Kendrick, 454 S.W.3d at 457.

Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,

a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same

standard for ineffective assistance of counsel applies in both federal and Tennessee

cases). Both factors must be proven in order for the court to grant post-conviction relief.

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of

counsel’s performance “requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.

at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,

tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions

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

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong

of the Strickland analysis, 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

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different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks

omitted).

Failure to prepare a trial strategy

The Petitioner contends that second and third trial counsel failed to prepare a trial

strategy. The Petitioner points out that second trial counsel stated at the post-conviction

hearing that he spent more time discussing the State’s plea offers with the Petitioner than

preparing a trial strategy and that second trial counsel stated that “there was no trial

strategy.” The Petitioner argues that second trial counsel was “overburdened” and “just

let the trial happen without a plan.”

At the post-conviction hearing, second trial counsel had the following exchange

with the Petitioner’s counsel:

[PETITIONER’S COUNSEL]: Do you remember ever discussing a

trial strategy with [the Petitioner]?

[SECOND TRIAL COUNSEL]: No, I don’t. That’s not to say I

didn’t. I just can’t remember specifically because we’re looking back, I’m

having -- it’s been a few years, and as far as what a strategy would have

been, I was more concerned about -- because the offer was open until even

the day of trial.

I’ll be honest with you. I was spending more time discussing with

him the fact that he needed to take the offer, rather than having a trial

strategy. It’s just there -- in all honesty, there was no trial strategy. There

still isn’t, in my opinion.

However, second trial counsel also stated that he discussed trial strategy with third

trial counsel. Third trial counsel testified that, after learning of the Petitioner’s version of

the events, he considered pursuing a necessity or duress argument, but he was unable to

corroborate the Petitioner’s version of the events. He explained that the strategy at the

Petitioner’s trial “was to argue that someone else caused the damage.” The post-

conviction court implicitly credited the testimony of second and third trial counsel at the

post-conviction hearing.

We conclude that the Petitioner has failed to establish that second and third trial

counsel’s performance was deficient for lack of a trial strategy. While second trial

counsel stated at the post-conviction hearing that “there was no trial strategy[,]” third trial

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counsel testified about the efforts he made to craft a trial strategy for the Petitioner, first

based on a necessity or duress defense, and later on an argument that “someone else

caused the damage.” Because the Petitioner has failed to establish that second and third

trial counsel’s representation in this aspect was deficient, we will not address whether the

Petitioner was prejudiced by their performance. See Finch, 226 S.W.3d at 316. The

Petitioner is not entitled to relief on this ground.

Failure to investigate the case

The Petitioner contends that second and third trial counsel failed to properly

investigate his case. More specifically, the Petitioner contends that second and third trial

counsel failed to discover that “the name[d] victim in the indictment did not exist at the

time of the incident.” The Petitioner asserts that “Barrow-Agee, Inc. did not own the

building at 1555 Three Place[]” and that “Barrow-Agee[,] Inc. is a nonexistent entity that

merged with another company called Geo Construction Testing of Tennessee, Inc. in

1982.” The Petitioner argues he was prejudiced by this deficient performance because

the indictment listed “Barrow-Agee, Inc.” as the victim; he asserts that this created a fatal

variance in the indictment, leaving him unprotected from double jeopardy. The Petitioner

additionally argues that second and third trial counsel failed to investigate the background

of Barrow-Agee Laboratories, specifically the federal employment lawsuit that Barrow-

Agee Laboratories was defending against at the time of the offense. He argues that he

was prejudiced by this deficiency because if this evidence had been discovered he could

have argued at trial that the company inflated the value of the damages because of the

company’s poor financial condition.

Both the United States and Tennessee Constitutions require that a charging

instrument inform the accused of “the nature and cause of the accusation.” U.S. Const.

amend. VI; Tenn. Const. art. I, § 9; see also State v. Hammonds, 30 S.W.3d 294, 297

(Tenn. 2000). Our supreme court has held that the charging instrument must “contain a

complete description of such facts and circumstances as will constitute the crime.”

Tipton v. State, 28 S.W.2d 635, 636 (Tenn. 1930). Generally, “an indictment is valid if it

provides sufficient information (1) to enable the accused to know the accusation to which

answer is required, (2) to furnish the court adequate basis for the entry of a proper

judgment, and (3) to protect the accused from double jeopardy.” State v. Hill, 954

S.W.2d 725, 727 (Tenn. 1997).

Additionally, the form of indictments is prescribed by Tennessee Code Annotated

section 40-13-202, which states in part:

The indictment must state the facts constituting the offense in ordinary and

concise language, without prolixity or repetition, in a manner so as to

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enable a person of common understanding to know what is intended and

with that degree of certainty which will enable the court, on conviction, to

pronounce the proper judgment.

Tenn. Code Ann. § 40-13-202.

At common law, indictments were subject to strict pleading requirements because

the elements of the offenses were not easily ascertained by reference to a statute. Hill,

954 S.W.2d at 728. However, today courts approach challenges to charging documents

“‘from the broad and enlightened standpoint of common sense and right reason rather

than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair

splitting fault finding.’” Id. (quoting United States v. Purvis, 580 F.2d 853, 857 (5th Cir.

1978)). Generally, charging documents must allege the material elements of the offense,

and the “touchstone for constitutionality is adequate notice to the accused.” Id. at 729.

Specific reference to the statute defining the offense may be sufficient to place a

defendant on notice of the offense with which he is charged. Ruff v. State, 978 S.W.2d

95, 97 (Tenn. 1998). A variance between the indictment and the proof submitted at trial

is fatal when it is “deemed to be material and prejudicial.” State v. Moss, 662 S.W.2d

590, 592 (Tenn. 1984). “A variance between an indictment and the proof in a criminal

case is not material where the allegations and proof substantially correspond, the variance

is not of a character which could have misled the defendant at trial and is not such as to

deprive the accused of his right to be protected against another prosecution for the same

offense.” Id. (internal citations omitted).

Tennessee Code Annotated section 39-14-401, which applies to the vandalism and

burglary statutes, defines “owner” as “a person in lawful possession of property whether

the possession is actual or constructive.” Tenn. Code Ann. § 39-14-401(3). A person, as

defined by the Tennessee Code Annotated, includes “the singular and the plural and

means and includes any individual, firm, partnership, co[-]partnership, association,

corporation, governmental subdivision or agency, or other organization or other legal

entity, or any agent or servant thereof[.]” Tenn. Code Ann. § 39-11-106(27).

In State v. March, this court examined a variance in an indictment that the

defendant alleged was fatal; the indictment “allege[d] that the defendant stole ‘the

property of [the law firm], without the effective consent of [the law firm][,]’” but the

defendant “argue[d] that the evidence showed that the owners of the [stolen client fee

payments] were Greenberg and Eichel, the clients.” State v. March, 293 S.W.3d 576, 591

(Tenn. Crim. App. 2008). This court noted that “one could view the charging language

as alleging the ownership element by referring to an owner who did not consent to the

taking of the property and that the specification of [the law firm] as that owner was mere

surplusage.” Id. at 591. This court determined that the defendant failed to establish that

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the variance was material because the law firm could have also been considered an owner

of the stolen property at the time of the offense because the law firm’s contractual claim

against the clients for unpaid fees “may have survived their payments to the defendant.”

Id. at 592. This court concluded that “the terms of the indictment and the evidence at

trial substantially correspond[ed], and based upon the record, [the court] f[ou]nd no

indication that the defendant was hampered in the preparation and presentation of his

defense.” Id. at 593. The court additionally noted that, even if the variance in the

indictment had been material, the defendant was protected from double jeopardy because

“th[e] record on appeal, including this opinion, bears witness to the identity of the bases

of a theft offense[.]” Id. (citing State v. Gordon Scott Katz, No. E1999-01220-CCA-R3-

CD, 2000 WL 1460227, at *5 (Tenn. Crim. App., Oct. 2, 2000)).

In this case, the Petitioner’s indictment for count 1 alleged that the Petitioner “did

unlawfully and knowingly cause damage in the amount of $10,000 or more but less than

$60,000 to the real or personal property, to wit: a wall, ceiling tiles, venting system and

computers, of BARROW AGEE INC. without their effective consent . . . .” The

indictment for count 2 alleged that the Petitioner “did unlawfully and knowingly enter a

building other than a habitation of BARROW AGEE INC., not open to the public,

without the effective consent of the said BARROW AGEE INC., with intent to commit

theft . . . .” At the post-conviction hearing, Mr. Tenent testified that he was an owner of

Barrow-Agee Laboratories located at 1555 Three Place and that Laboratory Systems, Inc.

owned 100% of Barrow-Agee Laboratories. Mr. Tenent also testified that the names

Barrow-Agee Laboratories and Laboratory Systems, Inc. are occasionally used

interchangeably. Third trial counsel conducted an Internet search on Barrow-Agee and

noted that it appeared to be “a legitimate business at the address in question . . . .” He

explained that he “had no reason to believe that it was not a corporate entity, a

functioning business, and all the paperwork [that he had] seen since, [he] still believe[d]

[that] it was a legitimate corporate entity that had ownership over the property.” He also

stated that there was no testimony or evidence presented at trial regarding the name or

location of the burglarized and vandalized building that surprised him. At the post-

conviction hearing, the post-conviction court admitted into evidence records from the

Shelby County Register of Deeds Office.2 These records show that on December 26,

2001, Barrow-Agee Laboratories, Inc. executed a deed of trust for the property at 1555

Three Place. On December 21, 2006, Barrow-Agee Laboratories, Inc.’s name was

amended in its charter to Laboratory Systems, Inc. On August 23, 2011, Barrow-Agee

Laboratories, Inc. filed an amended financing statement to continue First Tennessee

2

The post-conviction court admitted the documents “for the purposes of review by the Court of

Criminal Appeals . . .” and found that the documents were not relevant to the issue of whether the

Petitioner received ineffective assistance of counsel from second and third trial counsel.

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Bank’s security interest in real property.3 Additionally, the Petitioner attached to his

petition records from the Tennessee Secretary of State’s Office; the filing information for

Barrow-Agee Laboratories, LLC, lists its principal address as 1555 Three Place. The

certificate of existence for Laboratory Systems, Inc. does not list an address.

The post-conviction court noted that all the witnesses at trial testified that the

name of the company that owned the building was “Barrow-Agee” and found that

“whether or not the business is incorporated under a different name, the business in

Shelby County, Tennessee, is, in fact, Barrow-Agee.” The post-conviction court found

that third trial counsel researched the victim named in the indictment, and “the name and

the address did correspond with the business that was located.” The post-conviction

court also found that the indictment put the Petitioner on notice of the charges against

him and noted that the Petitioner “was provided with discovery that identified the place

of business as being Barrow-Agee, Inc[.], [that] g[ave] an address, [and] g[ave] a location

in Shelby County, Tennessee.”

The evidence in the record does not preponderate against the post-conviction

court’s findings. Much like this court concluded in State v. March, we conclude that both

Barrow-Agee Laboratories and Laboratory Systems, Inc. could be considered owners of

the building that the Petitioner burglarized and vandalized. As the Petitioner noted in his

brief, ownership is not a material element of either the vandalism or burglary offenses.

Thus, the addition of “Barrow Agee Inc.” to the language of the indictment could be

considered surplusage. See March, 293 S.W.3d at 591. Additionally, the indictment

listed the statute of the offenses for which the Petitioner was indicted, giving the

Petitioner sufficient notice of the charges against him. See Ruff, 978 S.W.2d at 97. The

evidence introduced at trial did not substantially vary from the information on the

indictment, and there is no evidence that the Defendant’s efforts at defending against

these charges were hampered by the notice given by the indictment. Further, if second or

third trial counsel had successfully challenged the indictment, the State would have likely

obtained a superseding indictment that included the address of the property or also listed

Laboratory Systems, Inc. The Petitioner has not established that he was prejudiced by

second and third trial counsel’s failure to investigate Barrow-Agee Laboratories and to

challenge the indictment.

Regarding the Petitioner’s allegation that second and third trial counsel should

have investigated the financial background of Barrow-Agee Laboratories, we conclude

that even if the indictment had listed both Barrow-Agee Laboratories and Laboratory

3

The amended financing statement does not specify an address for the real property serving as

collateral, but the statement lists the same property legal description as the description used in the 2002

deed of trust executed by Barrow-Agee Laboratories, Inc. for 1555 Three Place.

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Systems, Inc., the trial court would have likely found that any evidence of a civil suit

brought against Barrow-Agee Laboratories and Laboratory Systems, Inc. was not relevant

to the Petitioner’s case. Thus, the Petitioner would have been precluded from using this

information to argue that the companies inflated the value of damage to the building

because the companies were in poor financial condition, and he cannot establish that he

was prejudiced by second and third trial counsel’s failure to investigate the financial

background of Barrow-Agee Laboratories.

Because we have determined that the Petitioner was not prejudiced by second and

third trial counsel’s alleged failure to investigate Barrow-Agee Laboratories, we will not

address whether their performance was deficient. See Finch, 226 S.W.3d at 316. The

Petitioner is not entitled to relief on this ground.

Failure to properly cross-examine witnesses

The Petitioner asserts that second and third trial counsel failed to properly cross-

examine Mr. Staples regarding the estimated losses that the building sustained. More

specifically, the Petitioner notes that the damages included the cost of repainting the

building and repairing the insulation, which “had nothing to do with [the Petitioner].” He

asserts he was prejudiced by this deficiency because with this knowledge, second and

third trial counsel “could have argued that the value of the damage done to the walls

could [have] be[en] subtracted from the personal property that was owned by Barrow[-

]Agee.”

The Petitioner additionally asserts that if second and third trial counsel had

properly cross-examined Mr. Tenent, they would have discovered that Mr. Tenent “owns

Barrow-Agee Laboratories, through the shell corporation Laboratory Systems, Inc[.] and

acts as the company’s Chief Financial Officer[]” and that “around or about the time of the

break-in, [Barrow-Agee Laboratories] was being sued in federal court[.]” He argues that

he was prejudiced by this deficiency because second and third trial counsel could have

“established the personal bias and interest of [Mr.] Tenent in Barrow[-]Agee

[Laboratories] and Laboratory Systems, Inc[.], brought to the jury’s attention the

financial pressures [that] the business was facing, and provided the jury with a reason to

not believe that the damages were as high as twenty thousand dollars ($20,000).”

At trial, Mr. Staples testified that the cost of repairing the building was

$23,654.74; this included damage to “multiple rooms in the building, stemming from

someone crawling around in the heating and air conditioning system located above the

acoustical drop tile ceiling. In addition, there was damage to the alarm system, the

building had to be repainted, and the insulation had to be replaced.” Jeffrey Walton, 2014

WL 465725, at *3. The post-conviction court noted that all the witnesses at trial testified

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that the name of the company that owned the building was “Barrow-Agee” and found that

“whether or not the business is incorporated under a different name, the business in

Shelby County, Tennessee, is, in fact, Barrow-Agee.” As noted above, the filing

information for Barrow-Agee Laboratories, LLC, lists its principal address as 1555 Three

Place. At the post-conviction hearing, the Petitioner failed to establish how much of the

cost of repairs could be attributed to the ownership interests of Laboratory Systems, Inc.

versus the ownership interests of Barrow-Agee Laboratories, besides arguing that he was

not responsible for the cost incurred for repainting the building and replacing insulation.

Because the Petitioner has failed to prove how much of the damage could be attributed to

the ownership of Barrow-Agee Laboratories, he has failed to establish that he was

prejudiced by second and third trial counsel’s cross-examination of Mr. Staples.

At the post-conviction hearing, Mr. Tenent testified that he was an owner of

Barrow-Agee Laboratories, which owned the property at 1555 Three Place, and that

Laboratory Systems, Inc. owned one hundred percent of Barrow-Agee Laboratories. The

post-conviction court admitted evidence of a civil suit that a former employee filed

against Barrow-Agee Laboratories and the resulting settlement. However, the post-

conviction court noted that if second or third trial counsel had attempted to admit the

evidence of the civil suit at the Petitioner’s trial, the trial court would not have admitted

the evidence because it was not relevant to the current offenses. Noting that the cost of

damages was evaluated by an independent insurance adjuster, Mr. Staples, the post-

conviction court found that:

[i]t [wa]s not relevant to any issues at all to allow a jury to speculate that

perhaps, because [Mr. Tenent’s] business ha[d] been sued, that Mr. Staples,

who has nothing to do with Barrow-Agee, may have given you a figure of

twenty-three thousand, six hundred fifty-four dollars and seventy-four cents

($23,654.74), and somehow that is influenced by the fact that this business

has been sued before.

We agree with the post-conviction court that any evidence of a civil suit filed against

Barrow-Agee Laboratories would not have been admitted into evidence at the Petitioner’s

trial. Therefore, the Petitioner cannot prove that he was prejudiced by second and third

trial counsel’s failure to cross-examine Mr. Tenent regarding the civil suit or his role in

the management of Barrow-Agee Laboratories or Laboratory Systems, Inc. Because the

Petitioner has failed to establish that he was prejudiced by second and third trial counsel’s

performance in this aspect, we will not address whether their performance was deficient.

See Finch, 226 S.W.3d at 316. He is not entitled to relief on this ground.

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Failure to request jury instructions

Lastly, the Petitioner argues that second and third trial counsel failed to request

jury instructions on the affirmative defenses of duress and necessity. The Petitioner

asserts that “[i]f trial counsel had asserted the affirmative defenses of [d]uress and

[n]ecessity, the jury would have had two reasons to find [the Petitioner] not guilty.”

In Tennessee, a defendant has a right to a correct and complete charge of the law,

so that each issue of fact raised by the evidence will be submitted to the jury on proper

instructions. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel,

793 S.W.2d 236, 249 (Tenn. 1990)). Additionally, trial courts have a duty to give “a

complete charge of the law applicable to the facts of the case.” State v. Davenport, 973

S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314,

319 (Tenn. 1986)). “The issue of the existence of a defense is not submitted to the jury

unless it is fairly raised by the proof.” Tenn. Code Ann. § 39-11-203(c).

Tennessee Code Annotated section 39-11-504 defines the defense of duress as the

following:

. . . a defense to prosecution where the person or a third person is threatened

with harm that is present, imminent, impending and of such a nature to

induce a well-grounded apprehension of death or serious bodily injury if

the act is not done. The threatened harm must be continuous throughout the

time the act is being committed, and must be one from which the person

cannot withdraw in safety. Further, the desirability and urgency of

avoiding the harm must clearly outweigh the harm sought to be prevented

by the law proscribing the conduct, according to ordinary standards of

reasonableness.

Tenn. Code Ann. § 39-11-504(a). Tennessee Code Annotated section 39-11-609 defines

the defense of necessity as the following:

Except as provided in §§ 39-11-611--39-11-616, 39-11-620 and 39-11-621,

conduct is justified, if:

(1) The person reasonably believes the conduct is immediately necessary to

avoid imminent harm; and

(2) The desirability and urgency of avoiding the harm clearly outweigh the

harm sought to be prevented by the law proscribing the conduct, according

to ordinary standards of reasonableness.

Tenn. Code Ann. § 39-11-609.

At the post-conviction hearing, third trial counsel testified that the Petitioner’s

version of the offense “changed a couple of times[]”; the Petitioner initially informed

third trial counsel that he had been staying in a hotel room but the water had been shut off

so “he went out looking for shelter or a place to stay.” Based on this information, third

trial counsel “explored possibly making a necessity argument,” but third trial counsel was

unable to corroborate the Petitioner’s story. Next, the Petitioner informed third trial

counsel he had been assaulted by police officers and was being framed for the burglary

and vandalism of the building. Ms. Holmes testified that the Petitioner had never been

homeless. The Petitioner testified that he was living in a hotel at the time of the offenses.

However, the post-conviction court did not credit the Petitioner’s testimony.

The post-conviction court found that “[t]here [wa]s absolutely nothing that would

indicate that counsel erred by not asking for any other jury charges that could have or

should have been asked for[]” and that “[t]here [was] no indication that necessity or

duress or any other requested charges should have been made in this case.” The post-

conviction court noted that the Petitioner testified at the post-conviction hearing that “he

was not suffering from duress, and that he, in fact, was in a hotel and did not, in fact,

enter that building and did not commit a crime.” The post-conviction court concluded

that second and third trial counsel “did not ineffectively represent the [Petitioner] because

they chose not to ask for a jury instruction on ‘duress’ or ‘necessity.’”

We agree with the post-conviction court’s conclusion that the Petitioner failed to

establish that second and third trial counsel’s performance was deficient for failing to

request jury instructions on duress or necessity. Third trial counsel researched the

possibility of arguing the defenses of necessity or duress at trial, but he was unable to

corroborate the Petitioner’s story. Further, the Petitioner abandoned this theory of the

case when he informed third trial counsel that he had never entered the building and by

testifying at the post-conviction hearing that he was living in a hotel at the time of the

offense. The defenses of duress and necessity were not fairly raised by the proof at trial,

and therefore, second and third trial counsel’s performance was not deficient by failing to

request jury instructions on these defenses. The Petitioner is not entitled to relief on this

ground.

III. Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is

affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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