Opinion

Michael Terrell McKissack v. State of Tennessee

Court
Court of Criminal Appeals of Tennessee
Filed
Aug 31, 2017
Status
Published
On the bench
Judge Norma McGee Ogle
Cited by
0 cases
Authority
More cited than 3.9%

The opinion

08/31/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 10, 2017

MICHAEL TERRELL MCKISSACK v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2010-B-1016 Mark J. Fishburn, Judge

___________________________________

No. M2016-02113-CCA-R3-PC

___________________________________

The Petitioner, Michael Terrell McKissack, filed a petition for post-conviction relief from

his convictions of especially aggravated robbery, aggravated robbery, and facilitation of

attempted carjacking. In the petition, the Petitioner argued that his trial counsel was

ineffective (1) by failing to call two of his co-defendants to testify on his behalf; (2) by

failing to inform him that his third co-defendant would testify against him; and (3) by

failing to adduce proof during the guilt phase regarding his lack of education and mental

health issues. The post-conviction court denied relief, and the Petitioner appeals. Upon

review, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN

and ROBERT H. MONTGOMERY, JR., JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Michael Terrell McKissack.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background

The Petitioner was charged with especially aggravated robbery, aggravated

robbery, and attempted carjacking. On direct appeal, this court summarized the proof

adduced at the Petitioner’s trial as follows:

After joining a group of four young men intent on

committing a robbery, the [Petitioner] participated in robbing

one victim and then robbing and shooting another. The five

men were apprehended as they drove away from the crimes,

and ski masks such as those used in the robberies, along with

property stolen from the shooting victim, were found in the

car. . . .

Officer Hoadley testified that at 6:20 a.m. on January

20, 2010, he received a call regarding a robbery at Lincoya

Bay Apartments . . . [, and the] dispatch informed Officer

Hoadley that the suspects were driving a light blue or light tan

Honda Civic hatchback with tinted windows. . . .

....

Officer Hoadley was about to turn into the entrance to

the apartments when he saw a vehicle generally matching the

description of the suspects’ car. The vehicle was a light-

colored silver, two-door Honda with tinted windows.

Because his siren was already on, he shut the siren off and

honked his horn, and the car stopped at the intersection. He

could see two men up front and could tell there were

passengers in the back. He could tell the occupants were

black. He stopped his patrol car with the nose pointing to the

driver’s side, and he walked behind the car to the passenger’s

side as another officer approached the driver. . . . At this

point, he could see that there were five black men in the car

and that at least one had dreadlocks. Officer Hoadley

testified that he was receiving dispatches contemporaneously

with the stop and that at some point, he was alerted there had

been a second robbery and shooting where the suspects were

black men with dreadlocks wearing dark clothing. The 911

recordings indicated that a bystander from a bus stop had

called regarding the shooting, describing a black man dressed

in white screaming and running from a black man wearing

black and with a gun. The bystander heard a gunshot after

escaping to his home. The second victim’s girlfriend also

described the shooting, telling the 911 operator that two very

young-looking black men wearing black had shot her

boyfriend, Roman Sanders, and that she had seen them run.

-2-

Officer Hoadley asked the passenger to open the

window, and the passenger rolled the window partially down.

Officer Hoadley could see that the majority of the men were

wearing all dark clothing. The men stated that they did not

live in the complex but were on their way to school. Officer

Hoadley elaborated that they said that they were picking up

someone to go to school, which did not make sense given that

the car was full and none of the occupants lived in the

complexes. They appeared nervous and were “not telling

[Officer Hoadley] a whole lot.”

Because he knew that the perpetrators of the crimes

were armed and because he could not keep an eye on all five

of the car’s occupants at once, Officer Hoadley asked the men

to get out of the car. They were immediately patted down and

handcuffed. . . . They were separated and placed in patrol

cars due to the rain. After they stepped out, he saw a brown

wallet on the floorboard behind the passenger’s seat, two ski

masks, and one dark bandana. He testified that one of the

dispatches had stated that masks were used. After an officer

told him that a wallet had been taken, Officer Hoadley picked

up the wallet and discovered it belonged to the second victim.

A cell phone was also recovered.

. . . Kevin Boone, a co-defendant, testified that in the

early morning hours of January 20, 2010, he, his twin brother

Keith Boone, Kortez Potter Woods, and Mr. Woods’s brother,

Keith Potter, had been socializing at a basketball game and at

clubs. He and Mr. Potter had court in the morning, so they

were planning to sleep at the same house. Around 1:00 or

2:00 a.m., they went to Mr. Potter’s house in Donelson, where

the [Petitioner], known as “Ratchett,” was apparently asleep.

The four men were in Kevin Boone’s car, which was a silver,

two-door Honda Civic with tinted windows. Mr. Boone’s

twin, Keith, was driving, and according to Mr. Boone’s

testimony, Mr. Potter decided to pick up the [Petitioner] and

go on a robbing spree.

When they pulled up to Mr. Potter’s house, three of the

men stayed in the car while Mr. Potter went to wake the

[Petitioner]. The two spoke at the front of the house, and the

[Petitioner] initially refused to participate in the robberies but

-3-

eventually relented to Mr. Potter’s pressure and went to

change clothes. According to Mr. Boone’s testimony and

photographs of the men at the time of their arrest, the twins

were wearing white tops and the other three men were

dressed in all black clothing. Mr. Boone’s twin had a .38

special pistol under the passenger’s seat, but Mr. Boone did

not see any other guns until after the first robbery. The men

chose to go to an apartment complex on the theory that there

would likely be someone walking around in the early morning

hours.

At the complex, the men saw a woman who would

become the first victim, and Mr. Potter instructed Mr.

Boone’s twin to stop the car. The [Petitioner], Mr. Potter, and

Mr. Woods got out, while the Boone twins remained in the

vehicle during both crimes. Mr. Woods had a zip-up ski

mask, and the [Petitioner] had a camouflage bandana.

Although it was still mostly dark, Mr. Boone could see that

someone had drawn a gun and aimed it at the first victim, but

he could not tell who had the gun. He then saw one of his

companions get into the woman’s car and start it.

Apparently, they could not operate the stick shift, and Mr.

Boone saw the car jerk as the attempt to drive it failed. Mr.

Woods returned to the car first and informed the twins that

they had not gotten anything from the victim.

The first victim, however, testified that the men took

her possessions. On January 20, 2010, she was preparing to

leave for work around 6:10 or 6:15 a.m. She had her school

bag, her keys, and her phone with her. The first victim

testified that her car had numerous aftermarket additions,

including a custom stick shift which would be difficult for

someone unfamiliar with the vehicle to drive. She was at the

door of her blue and white Honda Civic hatchback when she

saw three people running toward her. The men were dressed

in all black and at least two wore ski masks. The men were

not tall or heavyset. She estimated that they were around five

feet, four or five inches tall and weighed one hundred forty or

fifty pounds. She did not remember if one of the men was

five feet ten, as she had said in her statement to police. Two

were wearing hoodies, and she saw short dreadlocks coming

out of the hoodie of one man. She could tell that the men

-4-

were black because she could see their skin through the holes

in the masks.

One man pointed a gun between her eyes and

demanded her money. He then searched her pockets.

Another man took her backpack. The men also took her keys,

phone, cigarettes, gum, and lighter. Her wallet was in the car.

The men told her to run, and she did. As she ran, she saw the

car they had come in, a tan or light brown Honda Civic with

tinted windows. The robbery victim was able to write down

some of the numbers and letters from the car’s license plate

and convey these to the 911 operator. She was able to hear

the perpetrators start her car, which had an unusually loud

engine due to aftermarket additions. She ran to a friend’s

house and called police from there. Officer Brian Gant

testified he later found her backpack in the middle of the lane

in the parking lot.

Mr. Boone testified that after the first robbery, Mr.

Woods returned to the car. He sat in the front seat and did not

get out for the second robbery. Mr. Potter and the [Petitioner]

also walked back to the car; however, they did not want to

leave without having gained something of value, so they

“took off.” Mr. Boone at this point saw that the [Petitioner]

had a .357 silver revolver.

The victim of the second robbery and shooting

testified that he had left his work at around 6:00 a.m. and had

just stepped out of his car in front of his home when he saw

two men running towards him with guns. The men were

wearing dark clothing, hoodies, and ski masks. One had long

dreadlocks and carried a black gun, and the other had short

dreadlocks and carried a chrome gun. Testimony from the

co-defendant and photographs of the suspects at the time of

their arrest established that the [Petitioner] had short

dreadlocks, Mr. Potter and Mr. Woods had longer dreadlocks,

and the twins had short hair. The second victim testified that

the men were around five feet ten or eleven inches tall. The

second victim screamed as he ran from the armed men, and

the man with short dreadlocks said, “Get down you b-tch, I

should shoot your a-s for screaming like a little b-tch.” The

second victim lay face-down on the ground and remained that

-5-

way until after the men left. The man with longer dreadlocks

searched his bag. The man with shorter dreadlocks searched

his pockets and took his wallet and phone. The man with

short dreadlocks was agitated because there was nothing in

the victim’s wallet, and he demanded the victim’s personal

identification number (“PIN”). The victim gave him a fake

PIN. At some point prior to the shooting, the victim’s

girlfriend opened the door and witnessed the robbery. He told

her to shut the door.

After obtaining all the victim’s property and a fake

PIN, the man with short dreadlocks shot him from two to

three feet away as he lay on the ground. The bullet went

through his abdomen. The victim pretended to be dead until

he heard the men leave. In excruciating pain, the second

victim crawled up some steps to his door and tried to verify

his identity to his girlfriend, who was afraid to let the robbers

into the house where the children were. The second victim’s

girlfriend had called the police before he got into the house.

He testified that his stomach had swollen to the size of a

watermelon due to internal bleeding, that he had multiple

surgeries, that part of his intestines were removed, and that he

still had pain and difficulty with normal bowel functions two

years after the crime. He also had a large scar on his

stomach.

The second victim’s girlfriend confirmed that she

opened the door and witnessed the robbery. She testified that

she had heard the second victim scream and looked for him

out of the windows but could not see him. She heard him

speaking and initially thought he might be on the phone. She

shouted to him from inside, and when he did not respond, she

opened the door. She saw him lying on the ground with two

men standing over him. The men were relatively short and

skinny. They wore dark clothing, and the way they held their

arms indicated to her that they were armed. The victim’s

girlfriend testified initially that she was not sure if the men

were black or white, then said, “[T]hey were not white.” She

acknowledged having earlier testified that she could not

identify their race. . . .

-6-

Mr. Boone testified that he wanted to leave after the

first robbery, but they waited for the [Petitioner] and Mr.

Potter, in part because Mr. Potter’s brother was in the car.

When they heard a gunshot, they started driving and picked

the two up after about five minutes. When the two got in, Mr.

Potter sat in the passenger’s seat and was shouting, “What the

f-ck you shooting for?” They then saw the police coming

toward the road into the apartment complex. Mr. Potter asked

for the [Petitioner’s] gun and threw the gun out of the

window. Mr. Boone’s twin also gave Mr. Potter a gun which

Mr. Potter threw away.

Mr. Boone acknowledged that he was facing

significant jail time for the crimes and that he hoped to

receive a benefit by testifying. However, he testified that he

did not currently have any bargain with prosecutors for his

testimony. He also acknowledged having lied during his

January 20, 2010 interview with police, where he stated he

was asleep during the whole crime. He also asserted that his

prior statement that the [Petitioner] had said he shot the

victim because the victim was running was a lie and that, at

the time, the [Petitioner] gave no reason for shooting the

victim. He acknowledged that he did not come forward with

his current version of events until October 2011, and he

further acknowledged this was after he had received the

State’s discovery, which included witness statements.

....

The [Petitioner] did not testify. The jury proceeded to

convict him of especially aggravated robbery and aggravated

robbery as charged in the first two counts, and it convicted

him of the lesser-included offense of facilitation of attempted

carjacking in the third count. . . . The trial court sentenced the

[Petitioner] to twenty-two years for the especially aggravated

robbery, ten years for the aggravated robbery, and four years

for the facilitation of attempted ca[r]jacking. The sentence

for especially aggravated robbery was to run consecutively to

the others for an aggregate sentence of thirty-two years.

-7-

State v. Michael Terrell McKissack, No. M2013-00533-CCA-R3-CD, 2014 WL

2553438, at *1-6 (Tenn. Crim. App. at Nashville, June 4, 2014). This court affirmed the

Petitioner’s convictions and sentences on direct appeal. Id. at *1.

Thereafter, the Petitioner filed a pro se petition for post-conviction relief, raising

various claims of ineffective assistance of counsel.1 After the post-conviction court

appointed an attorney, an amended petition was filed, alleging in pertinent part (1) that

trial counsel was ineffective by failing to call Potter and Woods to testify on his behalf;

(2) that trial counsel was ineffective by failing to adduce proof during the guilt phase

regarding the Petitioner’s “lack of formal education and mental health issues”; and (3)

that the Petitioner would have pled guilty if trial counsel had informed him that Boone

would testify against him.

At the post-conviction hearing, the twenty-four-year-old Petitioner testified that

trial counsel was appointed to represent him. He was eighteen years old when he began

meeting with trial counsel. Trial counsel met with him only three times, once at the

criminal justice center and twice in court. The Petitioner said that he was “young, lost

and just didn’t know a lot” and that trial counsel did “[n]ot really” explain the nature of

the charges against him. However, he acknowledged that trial counsel provided him with

the discovery materials.

The Petitioner said he told trial counsel that he took medication for depression and

attention deficit hyperactivity disorder (ADHD) and that he had been treated by the

“Mental Health Co-op.” After a mental evaluation, the Petitioner was found to be

competent to stand trial. The Petitioner wanted trial counsel to call someone to testify at

trial regarding his mental health history, but trial counsel did not present any witnesses.

The Petitioner said that he had attended school through the tenth grade and that he had a

general equivalency diploma (GED) but that he was able to read and write only “a little

bit.”

The Petitioner said that he asked trial counsel to call members of his family to

testify about his “background.” Trial counsel told the Petitioner that he attempted to

contact the Petitioner’s family members but that no one answered his calls. The

Petitioner was “disappointed” that his family did not attend his trial.

The Petitioner said that Potter and Woods pled guilty prior to his trial. The

Petitioner did not think trial counsel spoke with Potter or Woods about testifying on his

behalf. The Petitioner said that trial counsel did not warn him that Boone would testify

against him. The Petitioner asserted that if he had known Boone would testify against

him, he would have chosen to plead guilty instead of going to trial.

1

The claims raised in the pro se petition have been abandoned on appeal.

-8-

The Petitioner believed that the trial strategy was to convince the jury to convict

him of lesser-included offenses instead of the charged offenses; however, trial counsel

did not explain to the Petitioner “that one of the victims was actually shot in the stomach

and that would not, probably would not have been a very likely outcome[.]”

The Petitioner recalled that trial counsel informed him of a plea offer which

included a sentence of fifteen years to be served at one hundred percent. The Petitioner

said that he and trial counsel did not discuss the plea offer.

The Petitioner said that he thought trial counsel “could have fought for [him]

more.” As an example, he noted that during trial, trial counsel confused the witness,

Kevin Boone, with his twin brother, Keith Boone.

On cross-examination, the State asked if the Petitioner would be surprised to learn

that “the jail management system” showed trial counsel attempted to visit the Petitioner

five times in 2011 and 2012 but that on two occasions, the Petitioner refused to meet with

him. The Petitioner said that he did not recall refusing to meet with counsel. The

Petitioner acknowledged that he had a “number” of court dates but asserted that he

discussed his case with trial counsel on only two of the court dates.

The Petitioner acknowledged that trial counsel introduced proof about the

Petitioner’s mental health issues at the sentencing hearing. However, the Petitioner also

wanted trial counsel to introduce proof of his mental health issues during the guilt phase.

He also wanted his friends and family to testify “about [his] past and what [he had] been

going through,” such as insomnia and difficulty dealing with his mother’s death. The

Petitioner conceded that trial counsel had Dr. Brown do a mental evaluation on the

Petitioner prior to trial. Dr. Brown found that the Petitioner was competent to stand trial

and that no evidence existed to support a diminished capacity defense. The Petitioner

said that trial counsel should have requested a second evaluation “because some people

don’t understand me, understand what I go through, my struggle[.]”

The Petitioner told trial counsel that his co-defendants said they would testify on

his behalf. The State asked the Petitioner if he knew that his co-defendants’ statements to

the police implicated him. The Petitioner responded that his co-defendants could testify

that the statements were false but acknowledged that he had not called them as witnesses

at the post-conviction hearing.

The Petitioner conceded that Boone testified at trial and identified the Petitioner as

one of the perpetrators. The Petitioner acknowledged that trial counsel cross-examined

Boone about whether he was testifying in order to get a deal from the State on his

pending charges.

-9-

The Petitioner said that he “thought [he] was gonna get a deal before [he] came

into trial.” The Petitioner acknowledged that he was aware the State made a plea offer a

couple of months prior to trial. The Petitioner asserted that trial counsel did not tell him

that Boone would testify against him and that if he had known, he would have chosen to

plead guilty instead of going to trial. The Petitioner said that he would have accepted the

plea offer “if [he] had known everybody was pointing a finger at [him], making [him] the

bad person out [of] the bunch, as Mr. Boone said, [the Petitioner] wasn’t the ring leader,

so [the Petitioner] don’t see how [he] got all this time.” The Petitioner said that he did

not know that his co-defendants acknowledged during their guilty plea hearings that the

State’s version of the events, which implicated the Petitioner, was true.

Trial counsel testified that he was licensed to practice law in 1994 and that he

practiced only criminal law. In early 2011, he was appointed to represent the Petitioner.

He met with the Petitioner at every court appearance and at least five times at the jail. He

filed a “number of pretrial motions,” including a motion to suppress.

Trial counsel said that due to his concern that the Petitioner might be unable to

understand the proceedings, he asked the trial court to order a mental evaluation.

Additionally, trial counsel “thought it was a viable defense that [the Petitioner] kind of

got persuaded by the other folks to participate in this, so it was to maybe negate the

mental element of the defense[.]” Dr. Brown, who performed the evaluation, determined

that the Petitioner had apparent mental health issues but that he was competent to stand

trial and that a diminished capacity defense could not be supported.

Trial counsel said that he provided the Petitioner with a copy of the discovery

materials and that they discussed the materials. Trial counsel knew Boone was

cooperating with the State, and he informed the Petitioner that Boone would testify

against him. Therefore, trial counsel surmised that the Petitioner was not surprised when

Boone testified at trial. Trial counsel believed the other two co-defendants would not

testify for the State because they had pled guilty prior to trial and could no longer

negotiate for favorable treatment from the State. Trial counsel said that the State’s

factual recitation at the co-defendants’ guilty plea hearing implicated the Petitioner. Trial

counsel said that he never thought any of the co-defendants would testify favorably for

the Petitioner, noting, “Every person in the case confessed and implicated each other in

the case, with the exception of [the Petitioner].” Trial counsel cross-examined Boone

about whether he was testifying in order to obtain a deal from the State. Trial counsel

acknowledged that he “might have in the heat of the moment confused [Boone] with his

brother” but “that wasn’t the sum total of [his] cross-examination of that witness[.]”

Trial counsel said that the prosecutor believed the Petitioner “was the most

culpable of the parties that were charged”; therefore, the State’s best plea offer was a

- 10 -

sentence of eighteen years at one hundred percent. Trial counsel denied that the State

ever offered a sentence of fifteen years. Trial counsel “begged” the Petitioner to accept

the eighteen-year sentence, noting that the State’s evidence was overwhelming. Trial

counsel acknowledged that the victims did not identify the perpetrators, “but they gave

identification of the mask, the weapons, close proximity, and then the mask and the

weapons found in the car as they were leaving kind of corroborated their story.” Trial

counsel recalled that his conversations with the Petitioner led him to believe that the

Petitioner was involved in the crimes.

Trial counsel said that his trial strategy was to persuade the jury to convict the

Petitioner of lesser-included offenses instead of the charged offenses. Trial counsel

stated that the Petitioner knew the charges and sentences he was facing. Trial counsel

attempted to contact the Petitioner’s family members but was unsuccessful in securing

their attendance at trial.

On cross-examination, trial counsel said that he did not recall the Petitioner’s

asking him to interview his co-defendants to see if they would testify on his behalf. Trial

counsel stated, “Sometimes I think [the Petitioner] did not appreciate the severity of the

charges he was facing and the outcome of the punishment that he was facing[;] I was

worried about him, still am.” He was “almost positive” he told the Petitioner that Boone

would testify for the State because he wanted the Petitioner to be well-informed. Trial

counsel acknowledged that he did not tell the Petitioner that he was certain Boone would

testify at trial, explaining that he could not “read D.A.’s minds,” but he maintained that

he “had a good idea of what was going to happen[.]”

The post-conviction court held that the Petitioner failed to prove that his trial

counsel was ineffective and denied the petition. On appeal, the Petitioner challenges the

post-conviction court’s ruling.

II. Analysis

To be successful in a claim for post-conviction relief, a petitioner must prove the

factual allegations contained in the post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.

Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.

1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded

their testimony, and the factual questions raised by the evidence adduced at trial are to be

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960

S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are

entitled to substantial deference on appeal unless the evidence preponderates against

- 11 -

those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact.

See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction

court’s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s

conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, “the petitioner bears the burden of proving both that counsel’s

performance was deficient and that the deficiency prejudiced the defense.” Goad v.

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). To establish deficient performance, the petitioner must show that counsel’s

performance was below “the range of competence demanded of attorneys in criminal

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, 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. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. Moreover,

[b]ecause a petitioner must establish both prongs of the

test, a failure to prove either deficiency or prejudice provides

a sufficient basis to deny relief on the ineffective assistance

claim. Indeed, a court need not address the components in

any particular order or even address both if the [petitioner]

makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

On appeal, the Petitioner first maintains that trial counsel was ineffective by

failing to call Potter and Woods to testify on his behalf. The Petitioner next maintains

that trial counsel was ineffective by failing to inform him that Boone would testify

against him, asserting that if he had known Boone would testify, he would have accepted

a guilty plea instead of proceeding to trial. Finally, the Petitioner maintains that trial

counsel was ineffective by failing to adduce proof during the guilt phase regarding his

“lack of formal education and mental health issues.” The State responds that the post-

conviction court correctly denied post-conviction relief. We agree with the State.

Regarding the Petitioner’s first claim, we note that the post-conviction court found

that the Petitioner failed to call Potter and Woods to testify at the post-conviction hearing.

Generally, “[w]hen a petitioner contends that trial counsel failed to discover, interview,

or present witnesses in support of his defense, these witnesses should be presented by the

- 12 -

petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

App. 1990). We may not speculate on what benefit these witnesses might have offered to

the Petitioner’s case, nor may we guess as to what evidence further investigation may

have uncovered. Id. We agree with the post-conviction court that the Petitioner has

failed to demonstrate prejudice in this regard.

Regarding the Petitioner’s second claim, we note that the post-conviction court

accredited trial counsel’s testimony that he advised the Petitioner that Boone would

testify against him. On appeal, this court generally defers “to a post-conviction court’s

findings with respect to witness credibility, the weight and value of witness testimony,

and the resolution of factual issues presented by the evidence.” Mobley v. State, 397

S.W.3d 70, 80 (Tenn. 2013). The post-conviction court further accredited trial counsel’s

testimony that because of the overwhelming evidence against the Petitioner and “the lack

of any defenses,” he advised the Petitioner to accept a plea agreement, but the Petitioner

refused and chose to go to trial. We agree with the post-conviction court that trial

counsel was not ineffective in this regard.

Regarding the Petitioner’s final claim, the post-conviction court found that the

Petitioner had failed to call his family members or a doctor to testify about his mental

health history. Again, we note that “[t]o succeed on a claim of ineffective assistance of

counsel for failure to call a witness at trial, a post-conviction petitioner should present

that witness at the post-conviction hearing.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn.

2008) (citing Black, 794 S.W.2d at 757). Moreover, the post-conviction court found that

“[e]ven if the court were to accept this as a true and accurate statement of what the family

testimony would have been it would have been inadmissible and immaterial.” The court

further found that “a claim of diminished capacity and incompetence were not supported

so [the] Petitioner’s mental state was not at issue.” We agree with the post-conviction

court that the Petitioner failed to prove ineffective assistance.

III. Conclusion

In sum, we conclude that the post-conviction court did not err by denying relief.

Therefore, the judgment of the post-conviction court is affirmed.

____________________________________

NORMA MCGEE OGLE, JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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