Tarrence Parham v. State of Tennessee ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 3, 2014
TARRENCE PARHAM v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 06-00017 Paula Skahan, Judge
No. W2013-01437-CCA-R3-PC - Filed December 17, 2014
The petitioner, Tarrence Parham, appeals the post-conviction court’s denial of his petition
for post-conviction relief from his convictions for attempted second degree murder and
reckless aggravated assault. On appeal, he argues that he received ineffective assistance of
counsel. After review, we affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OBERT L. H OLLOWAY, J R., JJ., joined.
Rosalind Elizabeth Brown, Memphis, Tennessee, for the appellant, Tarrence Parham.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Amy P. Weirich, District Attorney General; and Jennifer Morris, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
The petitioner was convicted of the attempted second degree murder and reckless
aggravated assault of an eight-year-old girl and sentenced to an effective term of twenty years
in the Department of Correction. State v. Tarrence Parham, No. W2009-00709-CCA-R3-
CD, 2010 WL 2898785, at *1 (Tenn. Crim. App. July 26, 2010), perm. app. denied (Tenn.
Nov. 10, 2010). On direct appeal, this court affirmed the judgments of the trial court after
modifying to reflect that the petitioner’s conviction for reckless aggravated assault was
merged into his conviction for attempted second degree murder. Id. The Tennessee Supreme
Court denied his application for permission to appeal. Id.The underlying facts were recited by this court on direct appeal as follows:
Shamika Nabors testified that on September 5, 2005, Labor Day, she
was among a group of people congregating outside their apartments at the
Barron Brook Apartments in the Orange Mound neighborhood of Memphis,
Tennessee. The [petitioner], whom she called “Black,” was also outside, and
she heard him say that he was going to kill “these weak ho’s and b----es[.]”
At first she thought he was speaking to himself, but as she watched him, she
realized that he was looking at a man named Philemon, who was sitting in a
windowsill in the breezeway. Ms. Nabors pulled Philemon into her apartment
and told him what the [petitioner] had said. Then, they returned outside, and
Philemon resumed his seat on the windowsill. Five to ten minutes after she
and Philemon returned, the [petitioner] walked away and then returned. He
raised a silver revolver and fired one shot down the breezeway and two shots
in the park area nearby. Ms. Nabors saw Philemon run down the breezeway
towards the laundromat and leave the apartments. Ms. Nabors testified that the
[petitioner] fired the first shot toward a utility box. She later learned that her
two-year-old daughter had been near the box when the [petitioner] began
shooting. Ms. Nabors testified that she froze when the [petitioner] began
shooting. After the last shot, the [petitioner] left the apartments, and [the
victim] ran for her mother. Ms. Nabors saw that the [petitioner] had shot [the
victim] in the leg. She did not know where [the victim] was when she was
shot, but she identified pictures of the green box with blood on it. She
identified the [petitioner] as the shooter in a photographic lineup when she
gave her statement to police and in the courtroom during her testimony.
Ms. Nabors testified that she did not see or hear anyone threaten or fight
with the [petitioner] prior to the shooting. She did not see anyone else with a
gun nor did she see anyone “raise up their shirt at [the petitioner].” Ms.
Nabors said that Philemon was neither facing the [petitioner] nor did he have
his back to the [petitioner] when the [petitioner] began firing, but after the first
shot, Philemon ran away. She did not see a young man give the [petitioner] a
gun. Ms. Nabors testified that no one shot back at the [petitioner]. She
recalled that several of the men in the group were smoking marijuana,
including Philemon, but she did not hear the [petitioner] say anything about the
marijuana.
On cross-examination, Ms. Nabors testified that there were
approximately fifteen people outside that day. She said that she had seen the
[petitioner] and Philemon together before. She saw the [petitioner] in a
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wheelchair several days before the shooting, but she said he was not in a
wheelchair that day. His leg was bandaged, and it was difficult for him to run.
Ms. Nabors testified that the [petitioner] ran in the same direction as Philemon.
She said that Philemon did not live in the apartment complex.
On re-direct examination, Ms. Nabors testified that she believed the
[petitioner] was shooting at Philemon.
Tosha Keller testified that on September 5, 2005, she and her family
and friends were gathered outside of her apartment preparing for a barbecue.
A man named Philemon was sitting in the window of an apartment unit, rolling
a marijuana cigarette, when the [petitioner] approached him. Ms. Keller said
that the [petitioner] “said some things to Philemon. Philemon just kept on
doing what he was doing.” She heard another man tell the [petitioner] “that
he couldn’t smoke the marijuana cigar.” Ms. Keller did not see anyone
threaten or yell at the [petitioner]. The [petitioner] walked down to the end of
the apartment unit, but three to five seconds later, he returned and began
shooting. Ms. Keller was standing five feet away from Philemon, and she
believed that the [petitioner] aimed at him. She testified that the [petitioner]
fired one shot before Philemon began running away. The [petitioner] chased
after him and fired two more shots. After Philemon and the [petitioner] ran
out of her sight, she heard two more shots. Ms. Keller testified that the
[petitioner] fired a total of five shots, three that she saw and two that she heard.
Ms. Keller assumed that the [petitioner] fired the shots that she heard because
no one was returning fire. She said that she did not see anyone else with a gun
that day. Ms. Keller testified that she remembered the gun being black, but she
agreed that her memory was better on the day of the shooting when she gave
a statement to the police that the gun was a chrome revolver.
Ms. Keller testified that after the shooting, she and her neighbors were
trying to find the children that had been playing near the laundromat. She had
seen [the victim] running when the shooting began, but [the victim] went back
to get Ms. Nabors’s two-year-old daughter, with whom she had been playing.
When the shooting was over, Ms. Keller saw [the victim] walking towards her
carrying the two-year-old. [The victim] said that she was hurting, and Ms.
Keller realized that she had been shot in the leg.
Ms. Keller testified that the [petitioner] moved into the apartment
complex two to three months prior to the shooting. She said that “it was
chaos” after he moved in. She recalled seeing him in a wheelchair, with casts
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on his legs, for a period of approximately two weeks. Ms. Keller testified that
on September 5, the [petitioner] did not have casts and appeared able-bodied.
She said that she knew that someone had shot at the [petitioner]’s apartment
because she saw the bullet holes in the door the next day, but she did not
testify as to what exact day she saw the bullet holes.
On cross-examination, Ms. Keller testified that she could not remember
the color of the gun. She remembered telling the police that she saw the
[petitioner] shoot once and then heard another shot, but she believed that he
shot more than twice. Ms. Keller said that she saw another man walking with
the [petitioner], but she did not know him. She said that the man was not [the
victim]’s uncle. Ms. Keller clarified that she saw the bullet holes in the
[petitioner]’s apartment door on September 6, 2005, the day after the shooting.
She recalled that there were seven to eight adults outside on September 5, and
she did not remember how many children were on the playground nearby.
Sharon Williams testified that the [petitioner], whose nickname was
“Black,” moved into the Barron Brook apartment complex two to three months
before the shooting on September 5, 2005. On that day, she was outside with
her neighbors when she heard the [petitioner] say “he [was tired] of them and
he [was] going to kill him a mother f---ing n----r” as he was walking towards
the end of the apartment unit. Less than a minute later, the [petitioner] turned
around and began shooting. Ms. Williams testified that he fired once, chased
after a young man, and fired twice more. She said the gun was a silver
revolver. Ms. Williams did not see anyone threaten the [petitioner] nor did she
see the young man who the [petitioner] chased ever lift up his shirt or draw a
weapon.
Ms. Williams said that someone shot at the apartment where the
[petitioner] was staying one to two weeks before September 5, 2005. She
heard him say that “[h]e had got into it with some guys over there[,] and they
had shot somebody else’s apartment up looking for him.” A couple of nights
before the September 5 shooting, the [petitioner] was in a wheelchair with soft
casts on his feet. Ms. Williams had heard that the [petitioner] was injured
when he jumped from a second story. Ms. Williams testified that the
[petitioner] said that he did not care who he shot, “[h]e [would] kill your
momma, your grandmomma, babies and kids, because they don’t even have no
[sic] business in the way whatsoever.” Ms. Williams testified that on
September 5, there were five to six people outside. She said that if Philemon
had drawn a weapon, she would have seen it.
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Kathy Smith testified that on September 5, 2005, she was standing in
her doorway while her neighbors were barbecuing outside. The [petitioner]
asked her for a cigarette. She gave him one, which he lit. As he walked away,
he said, “I’m sick of these b---h a---ed n-----s. I’m going to kill me somebody
today.” The [petitioner] turned around and started shooting as he walked by
her. Ms. Smith told him to stop shooting because of all the children outside.
She started calling for her daughter. When she saw [the victim], she was
bleeding. [The victim] said, “[M]omma, I don’t want to die.”
Ms. Smith testified that her brother, Travis, was not at the apartment
complex when the [petitioner] began shooting. He came later that day, after
[the victim] was in an ambulance. She said that she did not see anyone
threaten the [petitioner], raise up their shirts, or shoot back at the [petitioner].
Ms. Smith went to the hospital with [the victim], where the doctors performed
surgery to remove a bullet from her left leg.
On cross-examination, Ms. Smith testified that she did not know where
the [petitioner] had gotten the gun. She said that he did not go into an
apartment when he was walking away from the crowd nor was he walking with
anyone else. She saw the [petitioner] fire two shots before he went out of her
sight. Ms. Smith said that he was limping.
[The victim] testified that she was eleven years old at the time of trial.
On September 5, 2005, she had been playing with Ms. Nabors’s two-year-old
daughter. They were sitting on “the green box” when she heard the shooting.
She ran into the laundromat but then went back to the green box and moved
her friend out of the way. At that point, [the victim] thought that she had a
seizure, which she defined as what happens when people are shaking. She
began walking towards her mother when she looked down and saw that she
was bleeding. She went to the hospital where doctors removed the bullet.
[The victim] said that she could run and play at the time of trial.
On cross-examination, [the victim] said that she saw the shooter but did
not see him well.
Officer Parz Boyce, of the Memphis Police Department, testified that
he was one of the first officers to make the scene at the Barron Brook
Apartments on September 5, 2005. When he arrived, he saw a five or
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six-year-old girl1 lying on the steps with a bloody towel. Officer Boyce said
the girl told him that “Black” had shot her. He knew who “Black” was based
on his experience working in the neighborhood. Two other individuals also
told him that “Black” was the shooter and gave him descriptions of his
clothing. Officer Boyce put out a broadcast giving the name and description
of the shooter. He and another officer taped off the crime scene.
On cross-examination, Officer Boyce testified that he knew the
[petitioner] as “Black,” and the [petitioner] was the only person he knew that
went by that nickname. In the course of gathering information, he learned that
[the victim] was not the intended victim, but he was unable to ascertain who
the intended victim was.
The parties stipulated to the admission into evidence of a bloody towel,
[the victim]’s sandal, and a pair of sunglasses collected by a crime scene
officer at the Barron Brook Apartments. They further stipulated to the
admission into evidence of the bullet recovered from [the victim]’s leg.
Officer Ravell Slayton, of the Memphis Police Department, testified
that he made the scene at the Barron Brook Apartments on September 5, 2005.
He received information that the shooter had fled on foot, wearing a red shirt
and white shorts, and he left the scene to search for the shooter. Officer
Slayton learned that the shooter had jumped into a black pickup truck. He
located a suspicious black truck and pulled it over. The driver admitted that
he had dropped the shooter off at a laundromat at Lamar Avenue and Semmes
Street. Officer Slayton remained with the driver while his partner went to the
laundromat. When his partner returned, the [petitioner] was in the backseat of
the patrol car. Officer Slayton identified a picture of the [petitioner] wearing
a red shirt and white shorts, with “old cast[s]” around his ankles.
Sergeant Vernon Vanburen, of the Memphis Police Department,
testified that he processed the crime scene at the Barron Brook Apartments.
He did not find a weapon.
The [petitioner] testified that he had prior convictions for reckless
homicide, theft over $500, and aggravated burglary. He said that he moved to
the Barron Brook Apartments one and a half months before September 5,
2005. He moved there because he had “kin folks” in the neighborhood, but
1
The record indicates that [the victim] was eight years old at the time.
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some of the men in the apartment “had words” with him about staying there
when he was not from the neighborhood. The [petitioner] testified that on
either August 26 or 28, 2005, he broke both of his feet. The personnel at the
Regional Medical Center gave him temporary casts and pain medication. He
had to use a wheelchair to get around. On August 31, someone fired shots at
his apartment. He filed a police report, but the police did not find who did it.
By September 5, 2005, he could walk but not run.
The [petitioner] testified that on that day, he was walking to his
apartment when he saw Philemon, one of the men with whom he had
previously “had words” and who he believed was responsible for shooting his
apartment. The [petitioner] said he “was already paranoid” because of the
August 31 incident. He claimed that he did not say anything about killing
anyone, but Philemon said that he “was going to kill one of these ‘B’s or H’s’
or something like that.” The [petitioner] asked him to whom was he speaking,
and Philemon “jumped up” and reached under his shirt. The [petitioner]
believed that Philemon was reaching for a weapon, so he fired one shot
towards him. The [petitioner] said that he was not trying to kill Philemon, but
he was protecting himself. He explained that he immediately reacted, contrary
to the other witnesses’ testimony that several minutes passed. When Philemon
ran away, the [petitioner] was afraid he would return, so he went to the
laundromat at Lamar Avenue and Semmes Street because he knew the owners.
He did not realize that he had shot anyone until the police officer picked him
up at the laundromat. The [petitioner] admitted that he told the police that he
had thrown the gun into a garbage can on Semmes Street. He said that he
actually returned the gun to the person from whom he had gotten it, Kathy
Smith’s brother, Travis.
On cross-examination, the [petitioner] testified that Travis Smith 2 gave
him the gun approximately two hours prior to the shooting, and the [petitioner]
returned it to him immediately after he fled from the scene. He said that he did
not call the police to report that he had shot at someone in self-defense because
the police did not help him when he called them about someone shooting at his
apartment.
The state called Travis Lloyd Alston as a rebuttal witness. Mr. Alston
testified that he was Kathy Smith’s brother. He said that he did not give the
[petitioner] a gun on September 5, 2005. He further said that he would not
2
We assume the [petitioner] was referring to Travis Alston.
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have allowed the [petitioner] to give him the gun with which the [petitioner]
had shot his niece. Mr. Alston said that “[he] would have retaliated” against
the [petitioner]. Mr. Alston knew the [petitioner] only as “Black.” He said
that if they had been friends, he would have known the [petitioner]’s full
name.
Id. at *1-5.
The petitioner filed a pro se petition for post-conviction relief and, after the
appointment of counsel, an amended petition was filed. Although the petitioner raised in his
petitions, among other things, numerous allegations of ineffective assistance of counsel, on
appeal he limits himself to arguing that counsel was ineffective for: (1) failing to investigate
and prepare his defense; (2) repeatedly referring to him by his street name instead of proper
name, telling the jurors in his opening statement that they probably would not like the
petitioner, and exhibiting inappropriate behavior toward a juror; and (3) failing to raise a
double jeopardy issue on appeal about his being convicted of attempted second degree
murder and reckless aggravated assault. We will, thus, confine our summary of the
evidentiary hearing to testimony that is relevant to these issues.
At the hearing, the petitioner testified that he was first represented by original counsel
whose representation was terminated when the petitioner filed a complaint against him with
the Board of Professional Responsibility. Thereafter, trial counsel was assigned to the
petitioner’s case.
The petitioner testified that he was not prepared for trial because he and trial counsel
only met one time when he came to court. He claimed that he tried to get trial counsel to visit
him at the jail so they could review the case, but counsel never would. He acknowledged that
original counsel obtained a private investigator on his behalf, but he said that he only met
with her one time. He claimed that he gave the investigator specific names of people he
wanted her to investigate, but he did not hear from her again or see any products of her
investigation. He later found out that the investigator had taken photographs of the crime
scene, but he did not see those prior to trial. Had he known about the photographs
beforehand, he would have wanted some taken at different angles that would have better
allowed him to show that there was no way that the bullet he fired could have been the one
that hit the victim. He stated that there were fifteen to twenty people around the scene at the
time of the incident, but the investigator only talked to the people identified as witnesses by
the State. He claimed that the State’s witnesses testified inconsistently with what they had
told the police.
The petitioner stated that he never saw the defense file, which included witness
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statements, until his post-conviction counsel showed it to him. The petitioner alleged that
trial counsel did not do any additional investigation after he took over the case from original
counsel.
The petitioner testified that, at the time of the shooting, he had a broken ankle and heel
and was wearing casts. He learned from post-conviction counsel that one of the State’s
witnesses, Sharon Williams, had given a statement to the investigator in which she said that
she saw the petitioner running behind the victim and that he did not have a cast on.
However, the petitioner said that he was unable to run on that date due to his injuries and
cast. He explained that his feet were injured when he was intoxicated and attempted to
intervene in a situation with one of the victim’s mother’s other children and was pushed over
the railing at the apartments. He said that early the next morning, after he had returned from
the hospital, shots were fired at his apartment. He wanted the investigator to obtain the 911
recording from that incident and take pictures of the bullet holes in his apartment. He wanted
this information in order to establish that his actions on the night of the incident were the
result of his fearing for his life.
The petitioner testified that trial counsel referred to him by his nickname, “Black,”
during his opening statement. However, he did not tell counsel of his displeasure with his
doing so until later. He acknowledged that the witnesses brought up the name “Black”
during the trial.
The petitioner also complained of an incident after jury selection when trial counsel
confronted a juror about discussing the case outside the courtroom. The petitioner felt that
counsel’s actions could have had an impact on the outcome of the case. He recalled that the
juror “turned red” and denied that trial counsel had seen him talking to anyone.
The petitioner claimed that trial counsel told him that he should testify to show his
sympathy for the victim’s family. However, counsel did not prepare him to testify and then
brought up the petitioner’s prior criminal history on the stand.
The petitioner testified that he felt trial counsel did not represent him properly, so he
filed a complaint against him. The trial court appointed appellate counsel to represent him
in post-trial proceedings and on appeal. The petitioner claimed that appellate counsel filed
the same motion for new trial that trial counsel had drawn up, but the petitioner had wanted
appellate counsel to raise other issues, like a double jeopardy claim. The petitioner believed
he had a double jeopardy claim because he was convicted of attempted second degree murder
and reckless aggravated assault, which had the same elements, but appellate counsel did not
raise the issue. On cross-examination, he acknowledged that the appellate court fixed the
double jeopardy problem.
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Trial counsel testified that he undertook representation of the petitioner in October
2007. The petitioner’s case had been set for trial on one prior occasion, so counsel
anticipated a February 2008 trial date when he took over the case. Counsel met with the
petitioner the day of his appointment and made arrangements to meet with the petitioner at
the jail, which he did. Counsel had a lengthy discussion with the petitioner concerning what
original counsel had developed as far as the evidence and availability of witnesses. Counsel
also conferred with original counsel regarding “the discovery, the state of the case, the state
of the investigation, whether or not there was anything left to be done.” He further met with
the hired investigator to determine whether there was anything left that she could do to assist
in preparing for the case.
Trial counsel testified that the petitioner provided a list of possible witnesses, and
counsel reviewed the previous attempts that had been made to try to locate those witnesses.
Counsel recalled discussing one particular witness with the petitioner whose testimony the
petitioner thought was important to the defense. However, neither counsel, original counsel,
nor the investigator was able to locate that witness. Counsel stated that he discussed the facts
and circumstances of the petitioner’s case with him, the possible defenses and how the
evidence would apply to the defenses, and what would be in the petitioner’s best interest.
Trial counsel testified that he filed a motion to suppress the petitioner’s statement, but
his motion was denied. He was prepared for a February trial date, but the case was
eventually reset to July at the request of the State. Counsel recalled that the petitioner
received an offer from the State but did not want to take it and was, instead, “adamant in his
defense of self-defense.”
Trial counsel testified that he was aware the petitioner’s house had been shot at prior
to the incident in this case. Counsel reviewed the police report from that incident, and
information concerning that incident came out at trial. Counsel recalled that police
photographs showed that the petitioner had casts on his feet at the time he was questioned
by the police. With regard to his alleged interaction with a juror during voir dire, counsel
elaborated:
[A]s part of my voir dire, there is a time in which we want to discuss with the
jury the effects of -- well, the problem with the jury in a trial [is] that you can’t
prove a negative. And it’s done quite frequently here in Shelby County, Mr.
So-and-so on the jury, we were outside talking a few minutes ago and I told
you my middle name and you laughed at it and said it’s similar to someone in
your family. Can you please tell the jury what my middle name is? We didn’t
talk out in the hallway is the response. No, we did. We talked out in the
hallway. . . . It goes on until you say, well, then, prove it. It’s only you and I.
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You and I are the only ones that can say what happened between us, and I’m
accusing you -- who should have to bear the burden of proving it? Should you
have to defend yourself or should I have to prove it? And we go down through
that and expand on that and it helps the jury understand that the State’s the one
that’s accusing. The State has the burden of proving their case and that a
defendant on most cases can’t prove that they didn’t do something. And that’s
why -- that’s why in the criminal justice system, in the Tennessee Constitution
and the Federal Constitution, we require and place the burden on the [S]tate.
Trial counsel testified that he discussed with the petitioner the ramifications of
testifying and, although unable to remember specifically, believed that he advised the
petitioner not to testify. Counsel recalled feeling comfortable about having established self-
defense through the use of the State’s witnesses.
On cross-examination, trial counsel noted that there was a letter in the case file
between original counsel and the petitioner discussing that they were having difficulty with
locating a particular witness whom the petitioner felt was crucial to his defense. Counsel
stated that it was probably true that the only witnesses the investigator interviewed were
witnesses also interviewed by the police because “they wouldn’t know about those witnesses
if they’re unknown, they would have had to have had some way to discover those witnesses.”
Trial counsel said that he was aware the petitioner had lived at the apartment complex where
the incident occurred for only a short time, but all the witnesses who testified at trial had a
long history at the complex.
Trial counsel testified that he reviewed the witness statements obtained by the
investigator and the police in preparation for trial. He said that the defense made an
extensive investigation to try to locate the witness whom the petitioner claimed would
support his story but was unsuccessful. Counsel noted that his billing records indicated that
he started the process to obtain additional funding for the investigative service but did not
recall whether that was to re-interview a witness or to be available to testify at trial.
Regardless, he knew that “there was a continued conversation[] between [the investigative
service and him] about the investigation funding and . . . how the case was proceeding.”
However, he reiterated that “the case for all practical purposes had been prepared for trial on
at least several occasions prior to [him] coming on.”
Trial counsel testified that the name Robert Phillips sounded “vaguely familiar” as the
name of the witness the petitioner specifically wanted to be interviewed. Trial counsel was
not the petitioner’s attorney at the time the search for Phillips took place. Counsel said that
he would not have personally looked for Phillips other than to have possibly “done some
research on the computer through databases” because locating witnesses was typically left
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to the investigators. Counsel admitted that he did not know that Robert Phillips was listed
on Wikipedia as a member of the rap group, Three 6 Mafia, and that Phillips was
incarcerated at the time the investigator was supposed to be looking for him.
The petitioner’s appellate counsel testified that he was appointed to represent the
petitioner in the motion for new trial and appeal. Appellate counsel said that he reviewed the
transcripts and discussed possible issues with trial counsel before determining the best issues
to raise. Appellate counsel recalled considering a possible argument that the petitioner’s
convictions for reckless aggravated assault and second degree murder violated double
jeopardy but concluded that the concurrent sentences resulted in no prejudice to the
petitioner. Counsel elaborated:
I think under the Denton test, you can look and if it’s one incident, you look,
and if there are multiple victims, I think you look at the legislative purpose and
the elements of the crime and double jeopardy, it’s kind of -- back at that time
it was kind of a complex area, cases were going different directions on that.
But I concluded that . . . the fact of the matter was the judge ran the attempted
second degree murder concurrently with the reckless aggravated assault. So
even if I would have won on a double jeopardy argument, it would not have
changed his ultimate sentence, which was twenty years. And so, I just decided
it would be better to focus on that allowing his prior conviction to come in and
really focus the court’s attention on that and narrow the brief as much as
possible when he wouldn’t have even gotten a different sentence, they would
have just merged the two convictions if I raised double jeopardy.
On cross-examination, appellate counsel again explained his rationale for not raising
the double jeopardy issue:
I thought I had a strong issue on [the petitioner’s being impeached with
a reckless homicide conviction which was similar to the convictions for which
he was on trial] and I thought I wanted to focus the Court’s attention on that
because that would have set aside both convictions. The double jeopardy
argument simply merges them and the sentence is still the same. It doesn’t
really help him in the end as far as any relief on this case. So at the time, I
decided just to focus on what I thought was a strong issue that would help him
actually get a new trial.
After the hearing, the post-conviction court entered an order denying the petition.
This appeal followed.
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ANALYSIS
On appeal, the petitioner argues that he received ineffective assistance of counsel
because: (1) trial counsel failed to investigate and prepare his defense; (2) trial counsel
repeatedly referred to him by his street name instead of proper name, told the jurors in his
opening statement that they probably would not like the petitioner, and exhibited
inappropriate behavior toward a juror; and (3) appellate counsel failed to raise a double
jeopardy issue on appeal about his being convicted of attempted second degree murder and
reckless aggravated assault.
The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 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 Tidwell v. State, 922 S.W.2d
497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572,
578 (Tenn. 1997). However, review of a trial 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 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 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
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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)).
Moreover, 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”).
I. Investigation and Preparation of Defense
The petitioner first argues that he received ineffective assistance of counsel because
trial counsel failed to investigate and prepare his defense of self-defense, including locating
a particular witness who would support his claim. With regard to this issue, the post-
conviction court found that counsel made reasonable efforts to investigate the petitioner’s
claims and that the petitioner did not present the testimony of the witness at the hearing
whom he claimed counsel failed to locate. The record supports the post-conviction court’s
determinations. Trial counsel testified that “the case for all practical purposes had been
prepared for trial on at least several occasions prior to [his] coming on [the case].” Even so,
counsel testified to his actions upon undertaking representation of the petitioner’s case and
discussed how a particular witness deemed important by the petitioner was unable to be
located. Although we discern no deficiency in counsel’s performance, more importantly, the
petitioner has failed to prove prejudice. The petitioner has not shown how any additional
investigation on the part of counsel would have benefitted his case and did not present the
testimony of the “crucial” witness at the evidentiary hearing whom he claimed would have
supported his defense. In order to succeed on a claim that counsel did not properly
investigate or call favorable witnesses at trial, a petitioner must generally elicit favorable
testimony from those witnesses at the evidentiary hearing, as a post-conviction court may not
speculate “on the question of . . . what a witness’s testimony might have been if introduced”
at trial. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
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II. Conduct at Trial
The petitioner next asserts that he received ineffective assistance of counsel because
trial counsel repeatedly referred to him by his street name instead of proper name, told the
jurors in his opening statement that they probably would not like the petitioner, and exhibited
inappropriate behavior toward a juror. The petitioner elaborates that counsel behaved
inappropriately toward a juror by “accusing [the juror] of discussing the case with someone
else.” With regard to this issue, the post-conviction court found that counsel’s use of the
petitioner’s street name and comment during opening statement fell within the realm of trial
strategy. The court also found that it was within trial strategy for counsel to use the exchange
with the juror as a way to help the jury understand that the State had the burden of proving
the petitioner’s guilt and that the petitioner could not prove something that he did not do.
The court determined that there was no evidence that counsel’s actions prejudiced the jury.
The record supports the post-conviction court’s determinations. At the hearing,
counsel explained that the exchange with the juror was to try to illustrate that, in most cases,
“a defendant . . . can’t prove that they didn’t do something.” In addition, we have reviewed
counsel’s opening statement, in which counsel said, “I’m going to tell you, you don’t have
to like [the petitioner], I don’t think you are going to like [the petitioner]. It’s not your role,
not your job,” as well as his referring to the petitioner at times during the trial by his
nickname, “Black,” as did some of the witnesses. We determine that counsel’s actions fell
within the realm of trial strategy, and there is no evidence that those actions caused the
petitioner prejudice at trial.
III. Double Jeopardy
The petitioner lastly argues that he received ineffective assistance of counsel because
appellate counsel failed to challenge his convictions for reckless aggravated assault and
attempted second degree murder as being in violation of double jeopardy. With regard to this
issue, the post-conviction court found that the petitioner failed to establish how the outcome
of his appeal would have been different had appellate counsel raised the issue. Upon review,
there is no need to determine whether appellate counsel performed deficiently because the
petitioner cannot show prejudice. On direct appeal, this court, on its own initiative,
determined that the petitioner’s convictions for attempted second degree murder and reckless
aggravated assault were the same for double jeopardy purposes and, therefore, merged the
petitioner’s conviction for reckless aggravated assault into his conviction for attempted
second degree murder. Therefore, the petitioner cannot show that a different course of action
by appellate counsel would have achieved a different result.
CONCLUSION
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Based on the foregoing authorities and reasoning, we conclude that the petitioner
has not met his burden of showing that he was denied the effective assistance of counsel.
Accordingly, we affirm the denial of the petition for post-conviction relief.
_________________________________
ALAN E. GLENN, JUDGE
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