Lavonte D. Simmons v. State of Tennessee

08/10/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 28, 2022

LAVONTE D. SIMMONS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 114182 Steven Wayne Sword, Judge

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No. E2021-00819-CCA-R3-PC

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The Petitioner, Lavonte D. Simmons, appeals the denial of his petition for post-conviction

relief, arguing that the post-conviction court erred in finding that he received effective

assistance of trial counsel. Based on our review, we affirm the judgment of the post-

conviction court.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the trial court affirmed

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and JILL BARTEE AYERS, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Lavonte Dominique

Simmons.

Herbert H. Slatery III, Attorney General and Reporter; Kayleigh Butterfield, Assistant

Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios,

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

OPINION

FACTS

In May 2015, the Petitioner was convicted by a Knox County Criminal Court jury

of first degree premeditated murder and two counts of aggravated assault. His convictions

were affirmed by this court on direct appeal, and our supreme court denied his application

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for permission to appeal. State v. Lavonte Dominique Simmon1, No. E2016-01582-CCA-

R3-CD, 2018 WL 1381786, at *1 (Tenn. Crim. App. Mar. 19, 2018), perm. app. denied

(Tenn. July 19, 2018).

The Petitioner’s convictions arose out of his role as the shooter in a June 7, 2013

drive-by shooting at the Knoxville home of Charles Maples and Uniqua Brown, which the

Petitioner carried out in retaliation for his younger brother’s having been robbed the

previous night. Id. at *1-4. At the time of the shooting, siblings Jasmine and Akeem

Hollingsworth were standing in the driveway of the Brown-Maples residence on Nolan

Avenue talking to Ms. Brown, who was in the passenger seat of Mr. Maples’ Chevrolet

Caprice. Id. at *1. As the Petitioner’s Co-Defendant, Shawn O’Neill, drove the

Petitioner’s green Toyota Camry past the home, the Petitioner, who was in the front

passenger seat, made eye contact with Mr. Hollingsworth, whom the Petitioner believed to

have played a role in the robbery. Id. “The Camry then stopped at ‘the neighbor’s

driveway,’ and the [Petitioner] ‘pulled out’ an AK-47 and ‘opened fire’ on the group.” Id.

The Hollingsworth siblings both dropped to the ground when the shooting started.

Id. Ms. Hollingsworth was uninjured and Mr. Hollingsworth suffered only a minor injury,

but Ms. Brown died as a result of a severe gunshot wound to her side. Id. Following a

“be-on-the-lookout” or “BOLO” issued for the Petitioner’s Camry, police officers located

and arrested the Petitioner and his co-defendant, who were hiding in the basement of the

Moses Avenue home of Ms. Teresa Williams and her three children: Braxton, Bronson,

and Blair Williams. Id. at *2. The Petitioner and Co-Defendant O’Neill were subsequently

indicted together for the first degree premediated murder of Ms. Brown and the aggravated

assaults of Mr. and Ms. Hollingsworth. Id. at *1. Their cases were later severed, and Co-

Defendant O’Neill testified against the Petitioner at the Petitioner’s trial. Id.at *3.-5.

According to Co-Defendant O’Neill’s testimony, the Petitioner, the Petitioner’s

younger brother, Daquawn Simmons, and Co-Defendant O’Neill had all lived together in

the same household in Memphis as children. Id. at *3. At the time of the shooting, Co-

Defendant O’Neill and Daquawn2 still lived in Memphis, but the Petitioner lived in

Knoxville. Id. During the late evening/early morning hours of June 5-6, 2013, Co-

Defendant O’Neill drove Daquawn to the Williams’ family residence on Moses Avenue.

Id. The Petitioner came to visit, and Co-Defendant O’Neill accompanied him when he left

and spent the night with the Petitioner at the Petitioner’s home. Id. The next morning, the

Petitioner awakened Co-Defendant O’Neill to tell him that Daquawn had been robbed. Id.

1

Consistent with the policy of this court, in our direct appeal opinion we used the spelling of the

Petitioner’s last name as it appeared in the indictment. See Simmon, 2018 WL 138176, at *1, n. 1.

“Simmons” is apparently the correct spelling of the Petitioner’s last name.

2

For simplicity’s sake, we will refer to Daquawn by his first name, as we did in our direct

appeal opinion. We intend no disrespect by doing so.

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The Petitioner then drove Co-Defendant O’Neill to the Moses Avenue residence, where a

group of people, including Daquawn and Ms. Hollingsworth, were talking about the

robbery. Id.

Co-Defendant O’Neill testified that Daquawn told them that he had had been forced

to walk back naked to the Moses Avenue residence after the robbery and that he thought

Tony Dixson had something to do with the robbery. Id. at *4. The Petitioner and Mr.

Braxton Williams then went inside the Moses Avenue residence and the Petitioner emerged

carrying an AK-47. Id. Ms. Hollingsworth, visibly frightened, left. Id. A short time later,

Ms. Blair Williams called Ms. Hollingsworth, and the Petitioner got up and, armed with

the AK-47, left alone in his Toyota Camry. Id. About five minutes later, the Petitioner

returned, telling them that he had not seen anybody. Id.

Later, Ms. Blair Williams was again talking with Ms. Hollingsworth over the phone

and put the conversation on speaker phone. Id. The Petitioner recognized voices in the

background and he and Co-Defendant O’Neill reacted by immediately driving to the

Brown-Maples residence, where the Petitioner opened fire with his AK-47. Id. Our direct

appeal opinion summarizes this portion of Co-Defendant O’Neill’s trial testimony as

follows:

After that, [Ms. Williams] was on the phone with [Ms. Hollingsworth]

again, and she put [Ms. Hollingsworth] on speaker phone. According to Mr.

O’Neill, “all of the sudden . . . there was [sic] voices heard over the speaker

phone[,] and somebody busted out and said, they’re over there, they’re over

there, because they’re telling [Ms. Hollingsworth] to hang up the phone, hang

up the phone.” Mr. O’Neill testified that, in response, he and the [Petitioner]

got in the Camry. Mr. O’Neill was driving. Mr. O’Neill said that Daquawn

tried to talk them out of going to find Mr. Dixson, saying, “[D]on’t worry

about it, I’ve already filled out a police report.” They went anyway.

The [Petitioner], who had brought the AK-47 with him, gave

directions to Mr. O’Neill as he drove because Mr. O’Neill did not “know

where to go” being unfamiliar with the area. After turning onto Nolan

Avenue, they spotted [Ms. Hollingsworth]’s car. The [Petitioner] instructed

Mr. O'Neill “to go slow[,]” and he “pulled the gun out the window.” Mr.

O’Neill said that he then saw “movement out of [his] peripheral, but [he]

never looked directly at the house.” The [Petitioner] “opened fire” just as

they passed the Brown-Maples residence, according to Mr. O’Neill. Mr.

O’Neill did not see anyone else shooting and did not hear any other shots

being fired. The [Petitioner] then said “go, go[.]” Mr. O’Neill “hit the gas,”

and the [Petitioner] directed him back to 1605 Moses.

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Id.

On cross-examination, Co-Defendant O’Neill testified that Daquawn mentioned

Mr. Hollingsworth’s name as another individual possibly involved in the robbery. Id. at

*5. Co-Defendant O’Neill saw “‘some movement in [the] area’” of a GMC Envoy that

was parked in the yard of the residence, but he did not think anyone other than the Petitioner

fired because “all he ‘heard was rapid fire’ from the [Petitioner’s] weapon.” Id. He

acknowledged, however, that he previously told the prosecutor that he believed someone

else fired a shot at some point. Id. On redirect examination, he said he also told the

prosecutor that it was possible that what he thought he heard was an initial shot fired by

the Petitioner “‘before he sprayed.’” Id.

Mr. Maples, who had given statements to the police and to the Petitioner’s trial

counsel, refused to testify at trial, invoking his Fifth Amendment right against self-

incrimination. Id. at *6. As a result, an agreed-upon stipulation as to what Mr. Maples’

trial testimony would have been was read to the jury and entered as an exhibit. Id. Mr.

Maples’ recorded police interview was also admitted as an exhibit and played for the jury.

According to the stipulation, Mr. Maples would have testified that Mr. Dixson took his car

sometime early on the morning of June 7, 2013. Id. When he returned the vehicle, Mr.

Dixson told Mr. Maples that he and Shaquan Andrews had robbed Daquawn. Id. Mr.

Maples did not know if Mr. Hollingsworth was involved in the robbery. Id. Later that day

when Mr. Maples was shopping with Ms. Brown for strollers for their twins, Ms.

Hollingsworth called Mr. Maples to warn him that “‘the Moses men were looking to shoot

them.’” Id.

When Mr. Maples and Ms. Brown returned home, Mr. Maples saw parked vehicles

at his house that belonged to Mr. Dixson, Mr. Andrews’ girlfriend, and Ms. Hollingsworth.

Id. As he was getting one of his twins out of the car, the Petitioner slowly drove past his

home, asking “What’s up?” and then continuing down the street. Id. Mr. Maples found

Mr. and Ms. Hollingsworth, Mr. Andrews, Mr. Dixson, and “Little Ty” inside his home,

and “told them they had to leave.” Id. At that time, Mr. Dixson was armed with a .45

caliber handgun and Mr. Andrews with a 9mm. Id.

Mr. Maples went outside again approximately five to seven minutes later after Mr.

and Ms. Hollingsworth, Mr. Dixson, and “Little Ty” had already exited the residence. Id.

Mr. Maples was on the screened-in porch with Mr. Andrews when the shooting occurred.

Id. According to Mr. Maples, Mr. Dixson had moved into the yard before the shooting

began. Id. Mr. Maples did not, however, see where he went. Id. Mr. Maples also did not

see either Mr. Dixson or Mr. Andrews holding a gun when they exited the house and was

unsure if anyone other than the passenger of the Camry fired a weapon. Id. He identified

Daquawn as the shooter but was not certain of his identification. Id.

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Other State’s witnesses included a neighbor who lived behind the Brown-Maples

residence, who reported hearing twenty-eight to thirty shots from the AK-47 and, in the

midst of those shots, “three or four more shots” that sounded as if they came from a

different gun “like an M-80 or something[.]” Id. at *8. The police investigation uncovered

multiple bullet strikes to the Brown-Maples residence, to the next-door residence, to Mr.

Maples’ vehicle, to a Chevrolet Trailblazer parked in the driveway of the next-door

residence, and to a maroon Buick Park Avenue parked in front of Mr. Maples’ vehicle. Id.

at * 2-3. “The damage to these vehicles and residences all came from an easterly direction.”

Id. at *3. Investigators found thirty-two spent 7.62 x 39mm shell casings in the road to the

east of the residence, a bullet hole in the right side of a GMC Envoy that was parked

diagonally across the Brown-Maples yard, four live 9mm rounds near the rear bumper of

the Envoy, and four spent .45 shell casings “‘to the right and around [a] little doghouse

area[.]’” Id.

Investigator Jason Booker of the Knoxville Police Department testified that he

learned during his investigation that Mr. Andrews’ aunt lived next-door to the Brown-

Maples residence. Id. at *9. “[D]uring a 9-1-1 call following the shooting, a female said

that she ‘saw someone carrying a gun from the scene of the shooting[,]’” and Mr. Maples

later admitted that he had hidden an SKS rifle at Mr. Andrews’ aunt’s house before the

police arrived at the scene. Id. Another neighbor told Investigator Booker that “‘[Mr.

Maples] ran with a bad group of folks, and he said there’s actually been shootings over

there at the house before.’” Id.

The Petitioner, whose statement to police in which he denied any involvement in

the shooting was played for the jury during the State’s case-in-chief, id. at *5, testified in

his own defense at trial. Id. at *10-11. The Petitioner admitted that he was angry about

his brother’s having been robbed and that he retrieved the AK-47 and drove alone to the

Brown-Maples residence to search for the robbers. Id. at *10. He claimed that his intention

was only to get his brother’s money returned. Id. He admitted that he and Co-Defendant

O’Neill returned to the residence after he heard voices in the background of Ms.

Hollingsworth’s phone conversation with Ms. Blair. Id. He said that when they reached

the residence, an African American man wearing a white shirt came out of nowhere and

pointed a gun at him. Id. The Petitioner stated that he grabbed his AK-47 from the

floorboard of his vehicle and yelled to Co-Defendant O’Neill to drive away, but Co-

Defendant O’Neill accidentally put the vehicle in neutral for a moment before getting it in

gear. Id. The Petitioner said that he started shooting at the gunman in the white shirt as

Co-Defendant O’Neill was driving away. He was not certain that the gunman fired at him,

but he believed that he did. Id. On cross-examination, the Petitioner “conceded that the

bullet th[at] killed Ms. Brown ‘must’ have come from his gun.” Id. at *11.

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Among the issues the Petitioner argued on appeal was “that the [Petitioner] was

deprived of his right to present a viable defense when the trial court permitted Charles

Maples to assert the privilege against self-incrimination and, thereafter, refused to allow

defense counsel to withdraw so that defense counsel could testify about Mr. Maples’ past

statements[.]” Id. at *1. In our direct appeal opinion, we found that “the [Petitioner’s]

issues surrounding Mr. Maples’ trial testimony [were] waived for a plethora of reasons[,]”

including the Petitioner’s failure to include a transcript of the multiple hearings at which

the parties apparently discussed the issue, defense counsel’s failure to challenge Mr.

Maples’ invocation of his Fifth Amendment privilege, and the fact that an agreed

stipulation as to Mr. Maples’ testimony was entered into evidence without objection by the

Petitioner until the motion for new trial. Id. at *16-17. After noting Mr. Maples’

conflicting accounts of the shooting, we concluded that the Petitioner “was able to present

his defense to the jury through Mr. Maples’ statements [contained in the stipulation]

without the possible detriment of questioning him at trial[.]” and that none of the

Petitioner’s issues surrounding Mr. Maples’ testimony rose to the level of plain error. Id.

at *18.

The Petitioner filed a pro se petition for post-conviction relief on November 2, 2018,

followed by two pro se amended petitions filed after the appointment of post-conviction

counsel. In his original and amended petitions, the Petitioner raised a number of claims,

including ineffective assistance of trial counsel. On appeal, the Petitioner confines himself

to arguing that his trial counsel provided ineffective assistance (1) for not raising as an

issue in the motion for new trial the trial court’s denial of trial counsel’s motion to withdraw

so that trial counsel could testify about Mr. Maples’ exculpatory statements, (2), for not

introducing exculpatory photographs to undermine the State’s ballistics evidence, and (3),

that he is entitled to post-conviction relief based on the cumulative effect of the multiple

errors of trial counsel.

At the June 23, 2001 evidentiary hearing, the Petitioner first complained about trial

counsel’s failure to cross-examine Mr. Maples about his refusal to testify. The Petitioner

stated that Mr. Maples was prepared to testify on the Petitioner’s behalf until February 26,

2014, when Mr. Maples and Mr. Dixson were transported to the same jail and housed in

neighboring cells, which gave Mr. Dixson the opportunity to threaten Mr. Maples. The

Petitioner testified that, had his trial counsel cross-examined Mr. Maples at the hearing in

which Mr. Maples invoked his Fifth Amendment right not to incriminate himself, counsel

could have elicited information from Mr. Maples about the threat.

The Petitioner acknowledged that trial counsel filed a motion to withdraw in the

hope that they would be allowed to testify about Mr. Dixson’s threats, but the trial court

denied their motion. He agreed that after the motion to withdraw was denied, trial counsel

entered into a stipulation with the State as to Mr. Maples’ testimony. The Petitioner

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expressed his belief that his right to confront witnesses was violated by the stipulated

testimony and that trial counsel “should have objected and conducted a hearing[.]” The

Petitioner testified that relevant and essential evidence left out of the stipulation was that

Mr. Maples identified someone other than the Petitioner as the individual who shot Ms.

Brown. In addition, the stipulation hurt his case because it included information that the

Petitioner was “there shooting and being in other criminal activities and things of that

nature.”

The Petitioner also complained about trial counsel’s failure to combat the ballistics

evidence introduced by the State. Specifically, he believed that trial counsel should have

presented a ballistics expert and introduced photographs that would have shown that the

bullet that killed Ms. Brown did not come from an AK-47. The Petitioner identified two

photographs of bullets that, according to the Petitioner, showed the difference between the

bullets fired by an AK-47 and the bullet that killed Ms. Brown. He said the bullets depicted

in the photographs appeared consistent with bullets fired by an AK-47 because they had a

coating, or jacket, on them, whereas, according to the Petitioner’s interpretation of the

medical examiner’s testimony, the bullet recovered from Ms. Brown’s body did not. The

Petitioner testified that he discussed with his trial counsel the potential exculpatory nature

of the photographs but counsel never introduced them or talked about the issue at trial.

On cross-examination, the Petitioner acknowledged that he told the trial court that

he was okay with the stipulation. However, “[t]he stipulation [he] agreed to was not the

stipulation that was actually presented at trial.” He said he attempted to tell trial counsel

that the stipulation was different from what he agreed, but they told him to wait until the

end of trial and that they would raise it in the motion for new trial. The Petitioner conceded

that he was not a firearms or ballistics expert but said he had some familiarity with AK-47

bullets, had conducted online research, and had discovered “that a 7.62 by 39mm is a full

metal jacket, FMJ, full metal jacket. It has a coating on it and it has a jacket on it.” The

Petitioner expressed his certainty that the bullet that killed Ms. Brown was not from an

AK-47 based on his online research about AK-47 bullets having a full metal jacket and the

medical examiner’s testimony that the bullet fragments recovered from the victim’s body

did not have any particular coating that was discernible under a microscope.

The Petitioner acknowledged that his senior trial counsel was a very experienced

attorney and that he had filed and argued numerous motions on his behalf, met with him a

number of times, hired an investigator, and assembled an entire team to work on his case.

He believed, nevertheless, that trial counsel made a mistake in not presenting what the

Petitioner was convinced was exculpatory ballistics evidence.

-7-

On redirect examination, the Petitioner explained his belief that photographs of the

bullet holes in Mr. Maples’ vehicle were exculpatory because they showed that the

trajectory of the bullet that killed Ms. Brown was from somewhere other than the street:

It says in the autopsy report that she was hit from left to right,

upwards. Like, it travelled going up. So, basically, she would have had to

have been shot with somebody moving, going like - - trying to duck and

dodge and shoot up.

Senior trial counsel testified that he had been practicing law for over forty-one years,

having been the Public Defender for the South Judicial District in Knoxville for

approximately twenty-nine and one-half years, a private criminal defense lawyer for eight

years, and a prosecutor for approximately two and one-half years. During that time, he had

tried approximately eighty cases, most of which were murder cases, and had handled

hundreds of other cases.

Senior trial counsel testified that his office was appointed to represent the Petitioner.

He said in a case of the Petitioner’s magnitude, an entire defense team was assigned that

would consist of two to four lawyers, a full-time investigator, a social worker, and a

secretary. If the case continued long enough, law clerks and summer externs would be

assigned as well. In the Petitioner’s case, the attorney who handled the appellate work in

their office became involved early on as a sort of “de facto” member of the defense team,

assisting senior trial counsel and co-counsel with pretrial motions and strategy decisions.

Senior trial counsel testified that their goal was to meet with the Petitioner at least

once a week, and he estimated that either he or co-counsel, or both of them together, met

with the Petitioner over a hundred times. Among other things, they kept the Petitioner

informed about what was happening in his case, retained the services of an expert to explore

the Petitioner’s mental status and possible diminished mental capacity, investigated the

background of the State’s witnesses, and retained their own ballistics expert to review the

crime scene evidence. Senior trial counsel testified that their ballistics expert ultimately

reached the same conclusion as the State’s expert - - that the fatal shot came from the AK-

47 fired from the street. Senior trial counsel said that he and his co-counsel attempted as

best they could to develop the proof at trial that there were other armed individuals at the

scene. However, it would have been very difficult for them to argue that the fatal shot

came from somewhere other than the AK-47 given their expert’s conclusions and senior

trial counsel’s own examination of the vehicle at the impound lot, which convinced counsel

“that the trajectory and the path came from back - - from the back and struck [Ms. Brown].”

Senior trial counsel stated that the Petitioner was aware that they had retained a ballistics

expert and was informed of the expert’s conclusions.

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Senior trial counsel testified that everyone at the residence at the time of the shooting

had pending criminal charges and was represented by counsel, which made the process of

interviewing witnesses more difficult. He said Mr. Andrews’ attorney denied permission

for counsel to talk to Mr. Andrews but they ultimately received permission from the other

individuals’ respective counsel. He and co-counsel were unable to locate Mr.

Hollingsworth, despite repeated attempts, but they spoke in the penitentiary with Mr.

Maples, who was cooperative and gave them a very favorable statement, and with Mr.

Dixson, who was hostile and threatening and “made it very clear that Mr. Maples was in

very grave danger if he . . . talked to [counsel] or cooperated or testified[.]” Senior trial

counsel recalled that Mr. Dixson went so far as to threaten co-counsel if co-counsel did not

relay Mr. Dixson’s threat to Mr. Maples.

Senior trial counsel testified that when they interviewed Mr. Maples at the

penitentiary, Mr. Maples told them that Mr. Dixson, Mr. Hollingsworth, and Mr. Andrews

all exited the house before Mr. Maples, that all three of the men were armed with, variously,

a .45, an SKS, and a 9mm, that Mr. Dixson was in the same position where spent .45 shell

casings were found, and that Mr. Maples believed Mr. Dixson was the one who killed Ms.

Brown. Mr. Maples additionally told them that the above three men were the ones who

fired first.

Senior trial counsel testified that Mr. Maples, although initially willing to testify for

the Petitioner, expressed grave concerns about his personal safety, informing counsel that

Mr. Dixson had numerous fellow gang members in prison who would be able to get to Mr.

Maples. Senior trial counsel said he assured Mr. Maples that counsel would go out of their

way to protect him and would seek an order from the trial court that Mr. Dixson and Mr.

Maples be transported separately and housed in different areas of the detention center.

Although trial counsel obtained the order, when it came time for trial, Mr. Maples and Mr.

Dixson were not only transported together on the same van, but also forced to sit beside

each other for a considerable length of time due to weather delays. To make matters worse,

they were then placed in side-by-side cells at the detention center. After that, Mr. Maples

adamantly refused to testify.

Senior trial counsel testified that Mr. Maples refused to even go to the courtroom

and that, short of dragging him, there was nothing they could do. Therefore, in a “Hail

Mary” move, he and co-counsel filed a motion to withdraw in the hopes that they would

be allowed to testify about Mr. Dixson’s threats and Mr. Maples’ statements to trial

counsel. When the trial court denied the motion, they came up with the agreed stipulation

that consisted of a combination of Mr. Maples’ statements to trial counsel and to the police.

On cross-examination, senior trial counsel testified that they did not learn of Mr.

Maples’ refusal to testify until they visited him in the detention center on the weekend

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before the Monday start of trial. He recalled that he and co-counsel visited Mr. Maples a

second time in an attempt to get him to change his mind about testifying, to no avail.

Therefore, after consulting with the appellate expert in their office, they came up with the

idea of withdrawing from representation in order to become witnesses at the trial. Senior

trial counsel testified that their office’s appellate expert served as counsel on their motion

to withdraw. He said the trial court denied the motion on the basis that the testimony they

sought to present constituted inadmissible hearsay.

Senior trial counsel testified that he did not prepare the motion for new trial and that

his guess was that it was prepared by their office’s appellate expert. He said a different

lawyer eventually took over the Petitioner’s appeal, and he assumed that appellate counsel

and his office’s appellate expert consulted with each other about which issues to include in

the motion for new trial or in an amended motion for new trial. Senior trial counsel

believed that the trial court’s denial of the motion to withdraw was included in the motion

for new trial but said that he was not certain and that the motion would speak for itself.

On June 24, 2021, the post-conviction court entered a written order denying the

petition on the basis that the Petitioner failed to meet his burden of demonstrating he was

entitled to post-conviction relief. Thereafter, the Petitioner filed a timely notice of appeal

to this court.

ANALYSIS

Post-conviction relief “shall be granted when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a post-conviction court’s application of the law

to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State,

978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which

presents mixed questions of fact and law, is reviewed de novo, with a presumption of

correctness given only to the post-conviction court’s findings of fact. See Fields v. State,

40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

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

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

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deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that the same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies in Tennessee). The Strickland standard

is a two-prong test:

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

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

466 U.S. at 687.

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

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

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

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

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

within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and

may not second-guess the tactical and strategic choices made by trial counsel unless those

choices were uninformed because of inadequate preparation. See Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982).

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

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

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

466 U.S. at 694.

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

both components of the inquiry if the defendant makes an insufficient showing on one.”

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

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim.”).

The Petitioner contends on appeal that the post-conviction court erred in finding that

he failed to meet his burden of demonstrating ineffective assistance of counsel. The

Petitioner asserts that he provided clear and convincing proof that trial counsel was

ineffective for, first, not raising the trial court’s denial of trial counsel’s motion to withdraw

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as an issue in the motion for new trial, and second, for not introducing “exculpatory

photographs relating to bullet holes and bullets from the scene of the shooting.” The

Petitioner argues that even if trial counsel’s deficiencies in performance cited above did

not individually result in prejudice to the case, “the cumulative effect of these errors met

the requisite standard of clear and convincing proof so as to merit a new trial.” The State

points out that the trial court’s denial of counsel’s motion to withdraw was, in fact, included

in the motion for new trial and argues that the post-conviction court properly denied the

petition on the basis that the Petitioner failed to meet his burden of demonstrating

ineffective assistance of counsel. We agree with the State.

In its order denying the petition, the post-conviction court found, among other

things, that senior trial counsel was one of the most experienced criminal defense attorneys

in the State, that senior trial counsel utilized an entire defense team that worked full-time

on the Petitioner’s case, and that senior trial counsel and his team fully investigated the

case and possible defenses. The court found that “the unfortunate events which led to Mr.

Maples’ refusal to testify were completely beyond the control of trial counsel” and noted

that the Petitioner appeared “to have a misunderstanding” about an attorney’s ability to

force testimony from someone who has asserted a Fifth Amendment right against self-

incrimination. The court further found that the Petitioner failed to show that there was any

ballistics evidence that trial counsel failed to present that would have contradicted the

findings of the State’s ballistics expert. Accordingly, the post-conviction court concluded

that the Petitioner failed to meet his burden of proving that he was denied the effective

assistance of counsel.

The record fully supports the findings and conclusions of the post-conviction court.

As the State points out, the record from the direct appeal reveals that the denial of trial

counsel’s motion to withdraw was specifically raised as an issue in the motion for new

trial, along with several other related issues surrounding Mr. Maples’ trial testimony.

Senior trial counsel’s testimony, which was implicitly accredited by the post-conviction

court, established that senior trial counsel and his defense team thoroughly investigated the

case, met regularly with the Petitioner to keep him informed, explored available defense

strategies and options, and made every effort to introduce evidence of Mr. Maples’

statements to counsel about the shooting, as well as Mr. Dixson’s threats to Mr. Maples.

Senior trial counsel’s testimony also established that he retained his own ballistics expert,

who reached the same conclusion as the State’s expert. The Petitioner has not met his

burden of proving that his trial counsel were deficient in their performance or that he was

prejudiced by any alleged deficiency on the part of trial counsel.

Finally, because he has not shown that counsel was deficient in their performance,

the Petitioner’s argument that he is entitled to post-conviction relief based on the

cumulative effect of counsel’s errors is without merit. Because we have concluded that the

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trial counsel did not commit any errors, the Petitioner is not entitled to relief under the

cumulative error doctrine.

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

CONCLUSION

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

____________________________________

JOHN W. CAMPBELL, SR., JUDGE

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