Jasper Lee Vick v. State of Tennessee ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 7, 2013
JASPER LEE VICK v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 02-09113 Chris Craft, Judge
No. W2012-01477-CCA-R3-PC - Filed June 4, 2013
The petitioner, Jasper Lee Vick, appeals the post-conviction court’s denial of his petition for
post-conviction relief, arguing he was denied the right to a speedy trial and he received the
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 J ERRY L. S MITH and N ORMA
M CG EE O GLE, JJ., joined.
Charles S. Mitchell, Memphis, Tennessee, for the appellant, Jasper Lee Vick.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Chris Lareau, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
The petitioner was convicted of one count of especially aggravated kidnapping, two
counts of aggravated kidnapping, and one count of sexual battery, arising out of an
encounter with his girlfriend’s fourteen-year-old daughter. State v. Jasper L. Vick, No.
W2005-00467-CCA-R3-CD, 2006 WL 722173, at *1 (Tenn. Crim. App. Mar. 22, 2006).
The underlying facts of the case were recited by this court in its first opinion on direct
appeal as follows:
[The victim’s mother] testified that [the petitioner] began living with
her in her apartment in December 1999. At the time of the offenses, [the
victim’s mother] was seven and one-half months pregnant with [the
petitioner]’s child. [The victim’s mother] said that [the petitioner] took her
to work on February 14, 2001, between 5:15 a.m. and 5:30 a.m., in [the
victim’s mother’s] red, 1989 Oldsmobile Cutlass. [The victim’s mother’s]
mother arrived at her place of employment around 8:15 a.m., and told [the
victim’s mother] that she needed to go home. When [the victim’s mother]
arrived, the police were at her apartment.
[The victim’s mother] identified the comforter that was on the bed of
her daughter, the victim in this case. [The victim’s mother] said that she never
used the comforter after [the petitioner] began living with her. [The victim’s
mother] said that she and [the petitioner] had sexual intercourse about a week
before the offenses, but not on her daughter’s bed.
On cross-examination, [the victim’s mother] said she had a “nice
relationship” with [the petitioner]. She acknowledged, however, that she
called the police in July 2000, when [the petitioner] got upset and struck his
daughter who was visiting them. [The victim’s mother] said that [the
petitioner] never took the victim to school, because the school was located
across the street from their apartment. [The victim’s mother] said that
sometimes her brother and his girlfriend spent the night in the victim’s
bedroom. She denied that her sister and her boyfriend had sexual intercourse
in the victim’s bedroom.
[The victim’s mother] acknowledged that her daughter did not suffer
any physical injuries during the incident, and [the victim’s mother] did not
take her daughter to Child Advocacy until the day after the offenses.
The victim testified that she was fourteen years old at the time of the
offenses. She said that [the petitioner] took her mother to work on February
14, 2001, while she was still asleep. When [the petitioner] returned, he came
into her bedroom and showed her a “crack pipe” fashioned like a sex toy. The
victim said that she told [the petitioner] to leave her alone, and he told her it
was time to get up for school. The victim got up and went into the bathroom.
[The petitioner] was still sitting on her bed when she returned. The victim
said that [the petitioner] did not have a shirt on, but that was not unusual.
[The petitioner] told the victim to turn off the light and close the bedroom
door. She refused. [The petitioner] stood up, and the victim saw that he was
naked. The victim asked him what he was doing, and [the petitioner] told her
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that he was going to “have sex” with her because her mother would not. The
victim kept telling [the petitioner], “no.”
The victim could not remember how her clothes were removed. The
victim refused [the petitioner]’s advances, and [the petitioner] started choking
her. [The petitioner] then rubbed his “private on [her] private.” [The
petitioner] continued touching her for about ten to fifteen minutes, and then
he told the victim to go take a shower. The victim said she showered and got
dressed. [The petitioner] would not let her answer the telephone which had
been ringing on and off that morning. The victim said it was her cousin . . .
calling because the young women always walked to school together.
The victim said she and [the petitioner] left the house. [The petitioner]
was carrying a kitchen knife with a black handle and told the victim not to
“act stupid.” The victim interpreted this to mean that she was not to run or
scream. The victim said she was afraid that [the petitioner] was driving her
somewhere to kill her. [The petitioner] and the victim left the apartment
complex in [the victim’s mother’s] car. [The petitioner] placed the knife in
the cup holder in the front seat armrest while he drove on the interstate. The
victim said she kept talking, trying to calm [the petitioner] down because he
was acting “agitated, real easy to get mad.”
After awhile, [the petitioner] turned the car around and drove the
victim to [the victim’s cousin’s] second floor apartment. [The petitioner]
stood at the bottom of the staircase, and watched as the victim ran up to her
cousin’s apartment. The victim said [her cousin] was waiting for her at the
top of the stairs, and the two young women went inside the apartment. The
victim was crying. [The victim’s cousin’s] mother . . . asked the victim what
was wrong, and the victim said she could not tell her. [The victim’s cousin’s
mother] asked the victim if [the petitioner] had done something to her, and the
victim nodded. [The victim’s cousin’s mother] called the victim’s
grandmother. The victim identified the comforter which was introduced as an
exhibit at trial as the comforter which was on her bed when [the petitioner]
accosted her.
On cross-examination, the victim acknowledged that she did not have
any bruising on her neck after [the petitioner] choked her. She said that [the
petitioner] never touched her with the knife’s blade, but he kept the knife
pointed in her direction. The victim agreed that the comforter was on her bed
when her uncle and his girlfriend spent the night.
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[The victim’s cousin] testified that the victim usually called her in the
morning when she was ready to leave for school. [The victim’s cousin] said
that when the victim did not call her on February 14, 2001, [the victim’s
cousin] started calling the victim’s apartment. [The victim’s cousin] said she
was just starting to go over to the victim’s apartment when [the petitioner] and
the victim arrived. [The victim’s cousin] said that [the petitioner] waited at
the bottom of the stairs until the victim reached the top landing.
Michael Redd testified that he was the groundskeeper for the victim’s
apartment building and lived on the premises. Mr. Redd said that he was
friendly with [the petitioner]. He saw [the petitioner] leave the apartment
complex at approximately 8:00 a.m. in [the victim’s mother’s] Oldsmobile on
February 14, 2001, but [the petitioner] did not speak to him. [The petitioner]
drove toward Interstate 240.
Rachel Copeland, a forensic nurse examiner with the Memphis Sexual
Assault Resource Center, testified that she attempted to take a blood sample
from [the petitioner] for DNA sampling. [The petitioner] told her she would
need a court order. A court order was obtained, and [the petitioner] again
refused to cooperate. The trial court conducted a hearing and again ordered
[the petitioner] to give a blood sample. When he continued to resist, [the
petitioner] was sedated and a blood sample drawn.
Officer Carl Martin with the Memphis Police Department interviewed
the victim on February 14, 2001. Officer Martin said the victim had been
crying and was sometimes unresponsive to his questioning. The victim told
him, however, that [the petitioner] accosted her when she got up to get ready
for school. The victim told Officer Martin that [the petitioner] rubbed his
penis on her vagina. [The petitioner] made the victim take a shower and then
get into the car. Officer Martin said the victim told him that [the petitioner]
drove around for awhile, and then returned to the apartment complex.
Special Agent Donna Nelson, a forensic scientist with the TBI, cut
seven swatches of material from the victim’s comforter. The first four
swatches showed the presence of semen from two unidentified individuals.
The semen sample from the last three swatches matched [the petitioner]’s
DNA. On cross-examination, Agent Nelson testified that it was impossible
to date the semen stains.
[The petitioner] called Alice Faye Robinson as a witness. Ms.
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Robinson said that she lived in Cotton Plan[t], Arkansas, which was about
sixty miles from Memphis. Ms. Robinson had known [the petitioner] for
about twenty-five years. Ms. Robinson testified that [the petitioner] spent the
night with her on February 13, 2001. The following morning, Ms. Robinson
said that she, [the petitioner], and Ms. Robinson’s granddaughter shopped for
most of the day. [The petitioner] gave Ms. Robinson a wrist watch for
Valentine’s Day.
[The petitioner] testified that he was in Cotton Plan[t], Arkansas on
February 13 and February 14, 2001. He said that he and [the victim’s mother]
had an argument about [the victim’s mother’s] cocaine use on the morning of
February 13, and he drove to Arkansas around 4:00 p.m. to avoid further
arguing. [The petitioner] said that [the victim’s mother] had “a habit of
calling the police” when she was angry. [The petitioner] said that [the
victim’s mother] called the police in July 2000 when he got angry because the
victim had kept his daughter out past the time [the petitioner]’s daughter was
supposed to go back to her mother’s house. [The petitioner] said that he was
charged with public intoxication and disorderly conduct on that occasion.
[The petitioner] said that he was not surprised that some of the semen
stains on the victim’s comforter matched his DNA because he and [the
victim’s mother] had previously had sexual intercourse on the comforter.
On cross-examination, [the petitioner] said that [the victim’s mother]
knew where he was going when he left Memphis on February 13, 2001. [The
petitioner] said that he paid the note on the Oldsmobile while he lived with
[the victim’s mother] and considered the car as a joint asset. [The petitioner]
acknowledged that he was arrested on the current charges in Arkansas on
January 26, 2002, after a routine traffic stop. He said he was not driving the
Oldsmobile at that time because the car had been impounded by then.
The State recalled [the victim’s mother] as a rebuttal witness. [The
victim’s mother] testified that she had bought the Oldsmobile Cutlass about
a year before she met [the petitioner], and that the car was hers alone. [The
victim’s mother] said that she never made arrangements for [the petitioner] to
keep the car in Arkansas.
Id. at *1-4.
The trial court merged the petitioner’s two convictions for aggravated kidnapping
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into his conviction for especially aggravating kidnapping and sentenced him as a Range II,
multiple offender to thirty-six years for his especially aggravated kidnapping conviction and
four years for his sexual battery conviction. Id. at *1. The trial court ordered that the
sentences be served consecutively, for an effective sentence of forty years. Id. On appeal,
this court affirmed the petitioner’s convictions but remanded for resentencing to determine
whether the specific elements of the petitioner’s South Carolina conviction would have
constituted a Class C felony in Tennessee under the state of the law as it existed at the time
of the offense. Id. at *11.
On remand, the trial court determined that the petitioner’s South Carolina conviction
for assault and battery of a high and aggravated nature would constitute at least a Class C
felony in Tennessee. State v. Vick, 242 S.W.3d 792, 795 (Tenn. Crim. App. 2007). On
direct appeal, this court reversed, concluding that there was insufficient proof to establish
that the petitioner’s South Carolina conviction would constitute the equivalent of a Class C
felony in Tennessee and remanded for the petitioner to be sentenced as a Range I offender.
Id. at 796. The petitioner was sentenced to an effective term of twenty-six years.
On July 15, 2008, the petitioner filed a pro se petition for post-conviction relief,1 in
which he raised, among other things, numerous allegations of ineffective assistance of
counsel. The post-conviction court conducted an evidentiary hearing on February 2 and 3,
2012.
At the hearing, first counsel testified2 that he was appointed to represent the petitioner
on the original indictment, which went to trial on March 24, 2003. However, after picking
the jury, the State informed him that there was some evidence, a blanket from the victim’s
bedroom, that had not been disclosed to him that “could possibly have some DNA on it.”
The blanket was relevant because the crimes were alleged to have occurred on or around the
blanket. He felt that the State would have a very weak case against the petitioner if the DNA
proved to be someone’s other than the petitioner’s. He thought that going to trial without
testing the blanket would amount to malpractice, so he agreed that a mistrial was necessary
in order to have DNA testing conducted. He said that the accused is normally in the
courtroom, but he did not specifically recall whether the petitioner was in the courtroom
when the mistrial was declared. He noted that it would have also been the trial court’s
practice to inform the accused in open court of a mistrial. He did not recall the petitioner’s
expressing any concern about the mistrial because they “had gone over that at that particular
time,” but the petitioner later did not want to give a DNA sample.
1
It appears that the petitioner has also filed multiple habeas corpus petitions over the years.
2
We will confine the majority of our factual recitation to the testimony relevant to this appeal.
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First counsel testified that the petitioner gave him a list of possible alibi witnesses,
and he did everything he could to interview those witnesses. He said that he personally
drove to Cotton Plant, Arkansas, in an attempt to locate and interview those witnesses, but
he was unable to locate all of them. He recalled that he met with a Ms. Robinson,3 but he
did not recall whether he interviewed other witnesses.
First counsel testified that he did not recall if he filed a motion for a speedy trial or
if the petitioner filed a pro se motion for one. He said that, had the petitioner filed a motion
that had merit, he would have argued it. With regard to selecting the trial date, first counsel
said that the normal practice was for the parties to meet with the trial court and pick the first
available date.
Second counsel testified that he took over the petitioner’s case from first counsel and
that he gave the petitioner’s case “much more than average” diligence and time. Second
counsel said that he hired an investigator to investigate all of the witnesses provided by the
petitioner. He preferred to have his investigator interview the witnesses because otherwise
“you end up becoming a witness yourself.” Second counsel recalled that Alice Robinson
testified at trial and was a good witness for the defense, even though “she showed her age
somewhat . . . [and] was a little bit frail.” Second counsel remembered the names of Damien
Washington and Diedra Jones, but he could not remember why they were not called to testify
at trial. He did not recall the petitioner giving him any affidavits from his alibi witnesses.
Second counsel said that the petitioner was convicted because “the victim was extremely
convincing and then you had this maintenance man that completely blew [the petitioner’s]
alibi out of the water, and then there was some supporting testimony from [the victim]’s
friend and her mother whose home they immediately went to.”
Second counsel testified that it was his understanding that the case was reset from the
first trial date because it was discovered that a DNA sample had been taken from the blanket
in the victim’s bedroom, and the petitioner “demanded that [it] be tested.” Second counsel
said that it generally took a year to get DNA test results back, and the case went to trial in
September 2004, about eighteen months after he got the case. He stated that he could not
make a demand for a speedy trial when they were “waiting on a test that [the petitioner]’s
demanded[.]”
The State submitted transcripts from three hearings and a partial transcript of the
beginning of the petitioner’s first trial. At a hearing on September 12, 2002, the petitioner
3
Post-conviction counsel referred to this witness as Ms. Anderson in his question to first counsel.
However, in light of the recitation of the trial testimony in our opinion on direct appeal, it appears as though
he meant to say Ms. Robinson.
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expressed that he wanted a new attorney. The petitioner insisted that he wanted a speedy
trial and claimed to have filed a motion for one. Appearing that settlement negotiations were
still in the works, the court maintained the scheduled trial date of January 6, 2003, but set
an interim report date to discuss whether there would be a settlement.
At a hearing on October 29, 2002, the State informed the court that the petitioner did
not want to accept a guilty plea offer and that, in the interim, the victim had given them more
information indicating that the petitioner was “under indicted.” As such, the State planned
to resubmit the case to the grand jury on the charge of especially aggravated kidnapping.
The petitioner admitted that he had not written out a list of witnesses for first counsel but
had given first counsel his niece’s address to try to lead him to possible witnesses. First
counsel said that he had not talked to the petitioner’s niece yet, but he talked to one witness
in Arkansas who could not verify that the petitioner “was there at that particular time.”
At a hearing on January 6, 2003, the State informed the court that it had brought a
superceding indictment against the petitioner, charging him with especially aggravated
kidnapping rather than aggravated kidnapping. First counsel indicated that he needed the
twenty days afforded under the statute to prepare for trial under the superceding indictment.
The petitioner then waived reading of the new indictment, and a trial was set for February
3, 2003.
At a hearing prior to the commencement of trial on March 24, 2003, the State
formally nolle prossed the original indictment. Afterwards, first counsel informed the court
that the petitioner felt that his case should be transferred to federal court and was not
cooperating with counsel. First counsel told the court that, at the last court setting, the
petitioner gave him the names of two alibi witnesses, which he investigated. One of the
witnesses was in jail, and first counsel had arranged for the other to come and testify.
The petitioner testified at the evidentiary hearing that he did not consent to a mistrial
of the first trial to have DNA testing conducted and claimed that he was not even in the
courtroom at the time. He said first counsel never discussed the issue with him, and he did
not learn the reason for the mistrial until he received a transcript of the proceeding. He
admitted that he asked counsel to get a DNA expert, but he could not remember when. He
later testified that he wanted the comforter from the victim’s bed tested to show that it had
not been washed as frequently as alleged by the victim’s mother. He said that he would not
have agreed to a mistrial because the comforter should have been tested prior to the first
trial.
The petitioner testified that both counsel failed to investigate his witnesses. He said
that there were multiple witnesses who could confirm that he was in Arkansas on the day of
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the crimes had either counsel investigated. He stated that only one witness, Alice Robinson,
was interviewed and testified at trial. He acknowledged that Robinson did in fact testify that
he was in Arkansas on the date of the crimes but said that “she had lost a little memory as
far as like remembering the color of her car[.]” He claimed to have obtained sworn
affidavits from his witnesses, which he presented to both counsel. He said that neither
counsel investigated the apartment complex groundskeeper, Mr. Redd, who said he saw the
petitioner at the crime scene, or the victim’s testimony regarding where he supposedly turned
around on the interstate.
The petitioner testified that he filed a pro se motion for a speedy trial, after which,
he claimed that the State nolle prossed his case and sought a superseding indictment in order
to punish him for making the request. He stated that he made his speedy trial motion on
September 12, 2002, and was given a trial date of January 6, 2003. He said, “Even after my
motion for a speedy trial was filed and after I had picked a jury March 24th, 2003, I was
tried eighteen months later after the second nol pros and the mistrial.” He stated that the
delay caused his witness, Alice Robinson, to deteriorate mentally, again explaining that she
was unable to remember the color of her car.
After the conclusion of the evidentiary hearing, the post-conviction court denied the
petition, finding that the petitioner failed to prove “that either of his attorneys’ performance
was deficient . . . [or] any prejudice created by any aspect of his attorney[s’] representation.
He also has failed to meet his burden of proof in any of his allegations against the trial
judge.”
ANALYSIS
On appeal, the petitioner makes the stand-alone claim that the post-conviction court
“erred in denying post-conviction relief where [he] was denied the right to have a speedy
trial.” He also argues that he received the ineffective assistance of counsel because counsel
failed to call additional alibi witnesses and failed to protect his right to a speedy trial.
Post-conviction relief is available to a petitioner who establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden of
proving his 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
post-conviction court “are entitled to substantial deference on appeal unless the evidence
preponderates against those findings.” Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see
also Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review is of
purely factual issues, the appellate court should not reweigh or reevaluate the evidence. See
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Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). 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, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
I. Speedy Trial
The petitioner argues that the post-conviction court erred in denying his claim that
he was denied the right to a speedy trial.
The Sixth Amendment to the United States Constitution and article 1, section 9 of the
Tennessee Constitution guarantee the accused the right to a speedy and public trial. In
determining whether the petitioner’s right to a speedy trial was violated by the delay in this
case, we must consider the following four factors: (1) the length of the delay; (2) the reason
for the delay; (3) the petitioner’s assertion of the right; and (4) the prejudice caused to the
petitioner by the delay. See State v. Bishop, 493 S.W.2d 81, 83-84 (Tenn. 1973) (citing
Barker v. Wingo, 407 U.S. 514 (1972)). The second factor “generally falls into one of four
categories: (1) intentional delay to gain a tactical advantage over the defense or delay
designed to harass the defendant; (2) bureaucratic indifference or negligence; (3) delay
necessary to the fair and effective prosecution of the case; and (4) delay caused, or
acquiesced in, by the defense.” State v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996)
(footnotes omitted).
Although the petitioner cites the relevant law on this issue in his brief, he has failed
to provide any clear analysis or argument as to the claim. In any event, the post-conviction
court thoroughly addressed the petitioner’s claim of a speedy trial violation and, after
applying the four-factor test from Barker, determined that the petitioner’s contention was
without merit. The court found that even though the petitioner’s trial occurred two and a half
years after he was extradited back to Tennessee, the petitioner was responsible for the delay
due to his lack of cooperation with his attorneys and demanding DNA testing, then refusing
to comply with a court order to have his blood taken for DNA comparison. The court also
determined that the petitioner had failed to show credible proof of prejudice caused by the
delay, in that first counsel was only able to locate one of the petitioner’s witnesses “just a few
months after the petitioner was indicted” and the petitioner did not present any of the other
alleged alibi witnesses at the evidentiary hearing. With regard to prejudice, the post-
conviction court poignantly found:
Although the petitioner claims prejudice by the delay, in that he testified
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that his alibi witnesses all lived in Cotton Plant and could not be found on the
day of trial, his first attorney, [first counsel], testified that he could not find the
petitioner’s witnesses when he investigated the case just a few months after the
petitioner was indicted. He only remembered driving to Cotton Plant,
Arkansas to interview Ms. [Robinson], who testified for the defense at trial.
[Second counsel] also testified that he had an investigator look for these
witnesses. None of the other alleged alibi witnesses was produced at the
hearing on this petition, who were alleged to be friends of the petitioner.
The record fully supports the trial court’s determination that the petitioner was not
denied his right to a speedy trial, as the evidence shows the petitioner was responsible for the
delay, and the petitioner failed to put on proof of prejudice. Even though the petitioner
asserts on appeal that the delay prejudiced him because Robinson’s mental condition
deteriorated, there is no proof in the record that Robinson’s mental health changed in the time
between arrest and trial. Furthermore, the petitioner precipitated the delay and would thus
be responsible for any mental deterioration that occurred.
II. Ineffective Assistance of Counsel
The petitioner argues that counsel rendered ineffective assistance for failing to
investigate all of his alibi witnesses and have them testify at trial. The petitioner also makes
a one-sentence claim that counsel failed to ensure that his right to a speedy trial was upheld.
The right to effective assistance of counsel is safeguarded by the Constitutions of both
the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn. Const. art.
I, § 9. Ordinarily, to establish that he was denied the effective 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.
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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 benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.
The prejudice prong of the Strickland 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”).
First counsel testified that the petitioner gave him a list of possible alibi witnesses,
and he did everything he could to interview those witnesses. He drove to Cotton Plant,
Arkansas, in an attempt to locate and interview those witnesses, but he was unable to locate
all of them. He recalled meeting with Alice Robinson, but he did not recall whether he
interviewed other witnesses. Second counsel testified that he hired an investigator to
investigate all of the witnesses provided by the petitioner, and he gave the petitioner’s case
“much more than average” diligence and time. He did not recall the petitioner’s giving him
any affidavits from his alibi witnesses. Second counsel recalled that Robinson testified as
an alibi witness at trial and was a good witness for the defense, even though “she showed
her age somewhat . . . [and] was a little bit frail.” Second counsel remembered the names
of Damien Washington and Diedra Jones, but he could not remember why they were not
called to testify at trial. Second counsel explained that the petitioner’s claim of alibi was
unsuccessful because “the victim was extremely convincing and then you had this
maintenance man that completely blew [the petitioner’s] alibi out of the water, and then
there was some supporting testimony from [the victim]’s friend and her mother whose home
they immediately went to.”
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In its findings, the post-conviction court implicitly accredited the testimony of first
and second counsel as to their efforts in investigating the petitioner’s alibi. Therefore, the
petitioner has not shown that counsel’s actions in investigating the petitioner’s alibi witnesses
fell below an objective standard of reasonableness. Moreover, the petitioner did not present
the testimony of these witnesses at the evidentiary hearing. To satisfy the prejudice
requirement of Strickland when alleging that counsel was ineffective for failing to offer
testimony from a favorable witness, the post-conviction petitioner must “(1) produce the
witness at his post-conviction hearing; (2) show that through reasonable investigation, trial
counsel could have located the witness; and (3) elicit both favorable and material testimony
from the witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). Thus, the petitioner has
failed to establish prejudice.
The petitioner is also not entitled to relief on his claim that counsel failed to ensure
that his right to a speedy trial was upheld because, as we determined above, the petitioner
was responsible for the delay and he failed to put on proof of prejudice.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the denial of the petition.
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ALAN E. GLENN, JUDGE
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