Michael Terrell McKissack v. State of Tennessee ( 2017 )

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
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No. M2016-02113-CCA-R3-PC
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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.
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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
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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
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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
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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. . . .
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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.
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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.
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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.
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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
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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
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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
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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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