LeSergio Wilson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 15, 2015
LeSERGIO WILSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2010-C-1912 Cheryl Blackburn, Judge
No. M2014-01763-CCA-R3-PC – Filed September 17, 2015
The petitioner, LeSergio Wilson, appeals the denial of his petition for post-conviction
relief, arguing that 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
ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and NORMA MCGEE OGLE, JJ., joined.
Kara Everett, Nashville, Tennessee, for the appellant, LeSergio Wilson.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
Following a jury trial, the petitioner was convicted of first degree felony murder
and especially aggravated robbery and sentenced to life imprisonment plus twenty-five
years. His convictions and sentences were affirmed by this court on direct appeal, and
our supreme court denied his application for permission to appeal. State v. Lesergio D.
Wilson, No. M2012-00500-CCA-R3-CD, 2013 WL 3148279, at *1 (Tenn. Crim. App.
June 18, 2013), perm. app. denied (Tenn. Oct. 17, 2013).
The underlying facts were recited by this court on direct appeal as follows:
The [petitioner’s] convictions relate to the robbery and shooting
death of the victim, Usama Shehata. At trial, the victim’s wife, Mariam
Zaky, testified that she and her husband were Egyptian immigrants and that
the victim had been in the United States for one year prior to his murder.
Ms. Zaky stated that her husband carried a wallet that typically contained
two to three hundred dollars in cash, in addition to his green card, his social
security card, papers, and photographs. The victim also carried his car keys
and his cellular telephone with him.
Magdy Daniel testified that he owned and operated the Smoke Depot
on Porter Road, a tobacco store. Mr. Daniel testified that the victim had
only worked for him for seven days at the time of his murder. Mr. Daniel
explained that, on the day of the murder, April 7, 2010, he had worked the
morning shift at the store, and the victim worked the second shift alone.
The victim was to close the store at 10:00 p.m. Mr. Daniel had three
security cameras inside his store, and one of those cameras recorded sound.
The time-stamp on the surveillance footage showed the victim leaving the
store through the front door at approximately 9:58 p.m., although the State
argued in closing argument, without objection, that the time-stamp was
approximately 13 minutes slow. Although the parking lot is not visible on
the video, a short “bang” can be heard at 9:58:38, followed by a second
“bang” at 9:58:46.
Ajeel Mohammad testified that he operated a cellular telephone store
that was located in the same building as and next door to the Smoke Depot.
Mr. Mohammad stated that he had a security camera outside his store
which also showed the front door of the Smoke Depot. Mr. Mohammad
acknowledged that the time-stamp on the surveillance camera was close to
one hour slow. According to Mr. Mohammad’s video, at 8:56:50 on April
7, a person approached the front door of the Smoke Depot and then walked
away. The video then shows the victim leaving the Smoke Depot at
9:10:20.
Danielle Howse testified that, at approximately 10:30 p.m. on April
7, she was driving her vehicle on Porter Road when she noticed a man on
his knees next to a vehicle; the man’s head was down, and he was
motionless. Ms. Howse noticed blood on the man’s shirt and pants. She
called out to him from her vehicle, but she got no response. She then
turned into the parking lot, and her vehicle’s headlights revealed blood
coming from the man’s head. When she again got no response from the
man, Ms. Howse called 9-1-1. Ms. Howse observed what appeared to be “a
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lunch bag and a bottle of water” resting on the back of the vehicle. Ms.
Howse recognized the victim as an employee of the Smoke Depot, which
she had patronized on previous occasions.
Officer Frederick Nelson with the Metro Nashville Police
Department (“Metro”) testified that, at 10:38 p.m. on April 7, he responded
to a call about a shooting at Porter Road and Greenwood Avenue. When
Officer Nelson arrived on the scene, he found the victim lying on the
ground next to the vehicle. Officer Nelson interviewed Ms. Howse and
established a perimeter.
Metro Detective Matthew Filter responded to the crime scene on
April 7 and searched the victim to determine his identity. Detective Filter
testified that the victim had no identification and nothing in his pockets
when he was discovered. The police determined his identity after checking
the registration of the vehicle next to the victim. Law enforcement officers
later contacted the owner of the Smoke Depot and the victim’s wife, who
positively identified him. Detective Filter stated that no fingerprint or
deoxyribonucleic acid (“DNA”) evidence linked the [petitioner] to the
crime. Detective Filter stated that he searched the railroad tracks in an
attempt to locate the personal items allegedly discarded by the [petitioner],
but he was unable to locate any of those items.
Doctor Tom Deering, a medical examiner, testified that he
performed an autopsy on the victim. During the course of the autopsy,
Doctor Deering recovered a bullet from the victim’s back. Doctor Deering
determined that the bullet entered the victim’s head above his left ear,
traveled through the victim’s brain, and came to rest above and near his
right shoulder blade. Doctor Deering was able to determine that the gun
was between six and 24 inches from the victim’s head when it was fired,
based on the gun powder stippling on the victim’s head. Doctor Deering
testified that the cause of the victim’s death was a single gunshot wound to
the head and that the manner of death was homicide.
Metro Detective Curtis Hafley testified that on April 16, 2010, he
arranged the [petitioner’s] arrest on an outstanding misdemeanor warrant.1
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Although it was unknown to the jury, Detective Hafley was also investigating
the [petitioner] on an unrelated murder charge. The [petitioner] was eventually charged
with first degree murder in this separate incident as well. The outstanding warrant,
apparently unrelated to either case, was described by Detective Hafley as involving either
a “domestic violence” case or a “simple assault” case.
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Detective Hafley had previously met with Metro patrol officers, showing
them photographs of the [petitioner] and informing them of the warrant.
While in an unmarked vehicle and street clothing, Detective Hafley located
the [petitioner] at the Panorama Apartments, where the [petitioner’s]
girlfriend allegedly resided:
I then parked -- I saw [the petitioner] walking down from the
apartment building. He got in the passenger’s side of his car.
It was daylight, sunshine, clear view of him, just the opposite
side of the parking lot, not very far away. I recognized him
immediately. I got on the radio, told the other police cars that
I had met with about looking for [the petitioner] and where he
was, what he was wearing, what car he was in, and where he
was sitting. And they drove out of the -- the vehicle drove
out of the apartment complex. I followed them. I saw the
police cars pull in behind him to pull him over, and I
continued on.
....
. . . I turned around and drove back by and saw that
they had located him and that they were serving the warrant.
But I did not stop, I did not talk to anybody.
Approximately two weeks later, Detective Hafley contacted the [petitioner]
by telephone to arrange a meeting, explaining to the [petitioner] that he
needed to discuss an ongoing investigation with him. On May 1, Detective
Hafley and Detective Mark Woodfin met the [petitioner] in a restaurant
parking lot. During their interview with the [petitioner], the [petitioner]
indicated that he typically resided with his grandmother at 66 Creighton
Avenue. Detective Hafley identified the Creighton Avenue address and the
Panorama Apartments on a map of East Nashville, both of which are within
a few blocks of the crime scene. The [petitioner] told Detective Hafley that
the gun recovered from the car during his arrest on April 16 was not his.
He claimed that, when exiting the apartment complex, he found the gun in a
discarded bag next to his car.
On May 21, 2010, Detective Hafley conducted a second interview
with the [petitioner], this time at the police precinct. The [petitioner] was
not wearing a shirt when he was brought in for the interview. During the
interview, Detective Hafley asked the [petitioner] if he was under the
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influence of any drugs or alcohol, and the [petitioner] stated that he had
consumed approximately half of a half-pint of brandy just prior to his
arrest. He also stated that he was “getting cold” because he was not
wearing a shirt, but he then stated that he was fine. The [petitioner], who
was 23 years of age at the time, signed a waiver of his constitutional rights
after being provided Miranda warnings. Although he initially maintained
that he found the .357 handgun in a bag by his car at the Panorama
Apartments, he eventually admitted that he got the gun “from out South.”
When confronted about the victim’s murder, the [petitioner] stated that he
knew nothing about it, but when the detectives told him that the gun
matched the bullet found in the victim, the [petitioner] stated that he robbed
the victim.
The [petitioner] told them that when the victim exited the Smoke
Depot and walked to his car, the [petitioner] told him to “give me
everything in your pockets. He gave me everything, put everything on the
car. So I mean he was cooperative so I just took everything.” The
[petitioner] stated that the victim put everything on the back of the trunk.
After robbing the victim, the [petitioner] stated that he turned and fled
down the railroad tracks. He turned back when the heard the victim yell
and believed that the victim was pointing something at him, which
prompted the [petitioner] to fire two gunshots at the victim. The
[petitioner] told the officers that the victim's wallet contained $200 “and a
whole bunch of pictures and papers and stuff like that.” The [petitioner]
then claimed that he discarded the wallet on the train tracks. He also stated
that he stole the victim’s cellular telephone and car keys. The [petitioner]
eventually changed his story and indicated that, while standing by the trunk
of the car, he shot the victim in the head. After the detectives pressed him
about an accomplice, the [petitioner] again changed his story and indicated
that a man named Trevon assisted him in the crime and was the actual
shooter. Law enforcement officers never found anyone named Trevon
matching the description given by the [petitioner].
Metro Officer Marty Reed testified that, on April 16, 2010,
Detective Hafley requested that he stop a car in which the [petitioner] was a
passenger to issue an outstanding misdemeanor warrant. When Officer
Reed stopped the car, which was driven by the [petitioner’s] girlfriend,
Alicia Nicole Williams, he noticed the [petitioner] “leaning down in the
front like towards the floorboard of the car.” Officer Reed had previously
identified the [petitioner] from a mug shot and recognized him as the
person named in the warrant. When Officer Reed directed the [petitioner]
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to step out of the vehicle and place his hands behind his back, the
[petitioner] began to struggle. Officer Reed stated that he needed the aid of
two additional officers to handcuff the [petitioner]. After placing the
[petitioner] under arrest, Officer Reed noticed “in the front floorboard . . .
sticking out underneath the seat . . . a handle to a pistol and a cylinder,
which would be a revolver.” Officer Reed stated that the revolver had six
rounds in the cylinder at the time he recovered it from the vehicle. When
Officer Reed asked the [petitioner] how the gun came into his possession,
the [petitioner] responded, “[P]eople drive my car.”
Marcus Akins testified that, at his cousin’s funeral, he met the
[petitioner], who was introduced to him as his cousin’s best friend.
Sometime after meeting the [petitioner], Mr. Akins learned of the victim’s
murder on the news. In May, 2010, Mr. Akins encountered the [petitioner]
at the home of a mutual friend by the name of Torian Williams. Mr. Akins
overheard the [petitioner’s] telling Mr. Williams that the [petitioner] had
killed someone. Later, the three men were standing outside together, and
the [petitioner] again stated that he had “just killed somebody” and that he
“had did [sic] something at the store on Porter Road.” Mr. Akins told the
[petitioner] that he had seen, on the local news, surveillance camera footage
of someone trying to open the door of the Smoke Depot and asked whether
that was the [petitioner]. The [petitioner] responded that it was he.
Special Agent Shelly Betts with the Tennessee Bureau of
Investigation (“TBI”) crime laboratory testified that she examined the bullet
recovered from the victim’s body and stated that it was a .38 or .357 caliber
hollow point bullet. She confirmed that the ammunition recovered with the
.357 handgun were also hollow point bullets. After examining the .357
revolver recovered from the [petitioner], Special Agent Betts determined
that the bullet recovered from the victim’s body had been fired from the
[petitioner’s] gun.
With this evidence, the State rested its case. Following the trial
court’s denial of the [petitioner’s] motion for judgments of acquittal and a
Momon colloquy, see Momon v. State, 18 S.W.3d 152, 161-62 (Tenn.
1999), the [petitioner] elected not to testify.
Based on this evidence, the jury convicted the [petitioner] as charged
of felony murder and especially aggravated robbery. The trial court
imposed an automatic sentence of life imprisonment for the murder
conviction. Following a sentencing hearing, the trial court sentenced the
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[petitioner] to 25 years for especially aggravated robbery and ordered that
sentence to be served consecutively to the [petitioner’s] life sentence, for an
effective sentence of life plus 25 years.
Id. at *1-4.
The petitioner filed a pro se petition for post-conviction relief on January 13,
2014, and following the appointment of counsel, amended petitions were filed on May
30, 2014, and July 30, 2014. In his petitions, the petitioner alleged, among other things,
that he received the ineffective assistance of counsel at trial and on direct appeal.
At the July 30, 2014 evidentiary hearing, trial counsel testified that he had been a
practicing attorney for over fifteen years and was appointed to represent the petitioner
while employed by the public defender’s office. At the time of counsel’s appointment,
the petitioner had a murder charge pending in another case. He and co-counsel were
concerned that the State would seek the death penalty in the petitioner’s other case and
would use any convictions in this case as an aggravator. Co-counsel met with the
petitioner weekly, and trial counsel reviewed the discovery with the petitioner. Trial
counsel believed the petitioner understood the legal issues they were dealing with, but the
petitioner “didn’t appreciate how risky the situation was and the potential consequences.”
Trial counsel recalled that following the robbery and shooting in this case, the
petitioner was stopped by the police and a gun matching the description of the gun used
in the shooting was found in the petitioner’s vehicle. The petitioner subsequently made
statements indicating that he was involved in the crimes. Trial counsel and co-counsel
filed a motion to suppress the petitioner’s statements based upon the petitioner’s
intoxication and his being shirtless and placed in a cold room during the interview, which
lasted a considerable length of time. Counsel also alleged in the motion that the
interviewing detective had been coercive. A second motion to suppress was filed,
alleging that the police did not have probable cause to stop the petitioner and search his
vehicle. However, both motions were unsuccessful. Trial counsel said that the “most
damning bit of evidence” against the petitioner was his possession of the gun used in the
shooting, as well as his statement.
Trial counsel said he investigated the petitioner’s upbringing, educational level,
and mental health history and obtained all of his school records. He said that he obtained
the services of a neuropsychologist, Dr. Pamela Auble, “[t]o make sure that [counsel]
were aware of any cognitive or psychological issues and to make sure [the petitioner] was
competent and to help [counsel] with mitigation.” Dr. Auble recommended that counsel
obtain experts in substance abuse and brain injuries, and counsel’s motions to procure the
services of Dr. Walker and Dr. Street were successful. Counsel sought their services to
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“see if [the petitioner] was competent to stand trial, to see if . . . there were cognitive or
physiological issues that would affect [the petitioner’s] ability to have the mental state of
committing an aggravated robbery, to see if there were any other issues that would be
important for his defense, and ultimately for mitigation if [the petitioner] went to trial on
a capital case.”
Trial counsel recalled that the in-house private investigator for the public
defender’s office investigated the petitioner’s case, but he could not recall whether an
outside investigative service had been used. He said that he prepared the petitioner’s case
as a death penalty case and requested a mitigation expert. However, the trial court denied
his request because the State had not filed a notice of intent to seek the death penalty.
Trial counsel then filed an interlocutory appeal, which was denied by this court.
Trial counsel said he did not think to include the denial of a mitigation expert in
his motion for a new trial. He elaborated that he viewed “the mitigation as a separate
issue unrelated to the trial.” Counsel said that the death penalty notice in the petitioner’s
other case was filed after the conclusion of this case. Counsel subsequently withdrew
from the petitioner’s case after the death penalty notice was filed.
Co-counsel testified that she had been a practicing attorney for nine years and was
employed with the public defender’s office. She said that trial counsel was the lead
attorney in the petitioner’s case. She said it was “very clear” that the State was going to
seek the death penalty in the petitioner’s other murder case and that both of the
petitioner’s cases were closely intertwined. Co-counsel met with the petitioner on a
regular basis and was more involved in the day-to-day interaction and client management
than lead counsel. Co-counsel said she noticed that the petitioner had “very good . . .
covering skills,” was “very street savvy and was used to making his way in the world and
used to putting up a facade of understanding and comprehension and control of
everything. I think that he actually had a functional understanding that was much less
than that.” Co-counsel explained the petitioner’s “covering skills” as “a failure to ask
questions, a failure to identify things that he didn’t understand, acting as if he understood
everything that was going on, and saying yes when asked if he understood.”
Co-counsel said she reviewed the petitioner’s videotaped statement several times
and believed “there was a lot of covering going on in that of him pretending to, again,
sort of be in control while not, pretending to understand everything when he didn’t.” She
said that she and lead counsel were concerned that the petitioner’s statement was not
voluntary “both because of his intoxication, his mental state at the time, his general
mental capacity, and what [counsel] saw as . . . threats made by the interviewing
detective.” Co-counsel acknowledged that she and lead counsel did not obtain any expert
services for the suppression hearing but did so for the case as a whole.
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Margaret Wilson, the petitioner’s grandmother, testified that the petitioner lived
with her “the majority of the time” he was growing up and did not have any special
education needs in school. She said that the petitioner “[s]ometimes” followed the
directions she gave him and described him as “bull headed or pig headed because he was
stubborn.” The petitioner was involved in an automobile accident in 2007 or 2008, after
which he seemed to have difficulty understanding what was being said to him. Ms.
Wilson said that the petitioner started drinking and “would walk around half of the day
with a bottle in his pocket and something in a cup.” She said that the petitioner “would
go for days and pop pills and drink.” On cross-examination, Ms. Wilson acknowledged
that she and the petitioner also had conversations where he responded in accord to her
questions.
The twenty-seven-year-old petitioner testified that he did not believe counsel
effectively represented him at trial and that he had trouble understanding some of the
legal concepts explained to him. He said that he had been diagnosed with bipolar
disorder, post-traumatic stress disorder, and “something else” that he could not
remember. On cross-examination, the petitioner said that counsel should have asked
more questions about his background and mental health. He admitted that counsel
obtained a psychologist and other doctors to examine him and obtained his medical
records. He could not explain how any additional information might have affected his
trial.
At the conclusion of the hearing, the post-conviction court took the matter under
advisement and subsequently entered a written order on August 25, 2014, denying post-
conviction relief.
ANALYSIS
On appeal, the petitioner argues that trial counsel was ineffective for failing to (1)
utilize information uncovered during the petitioner’s neuropsychiatric examination at trial
and at the suppression hearing, and (2) preserve the denial of a mitigation expert in the
motion for a new trial and subsequent appeal. The State counters that the post-conviction
court properly determined that the petitioner failed to demonstrate that he received
ineffective assistance of counsel.
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
9
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
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 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”).
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In the denying the petition, the post-conviction court concluded:
The main components of the petitioner’s ineffective assistance of
counsel argument are the two issues raised in the second amended petition
– that trial counsel failed to utilize mental health experts and failed to
challenge the Court’s denial of a mitigation expert on direct appeal. The
mental health-based issue, in turn, has two components: trial counsel’s
failure to make a mental health-based argument regarding the motion to
suppress and failure to introduce mental health evidence at trial.
Regarding the first mental health issue, trial counsel sought expert
services to determine any mental health-based concerns the petitioner might
have. Trial counsel’s ability to do so was limited, given that the State did
not file a notice to seek the death penalty in either of the petitioner’s cases
until this case was on direct appeal. Although trial counsel did not acquire
expert services until after the order denying the motion to suppress the
petitioner’s statements was filed, counsel did not simply file away the
information derived from these experts to be used as capital mitigation.
The Court accredits [trial counsel’s] account that trial counsel identified
several potential uses for this expert evidence before trial, but upon
reviewing the evidence derived from the experts, counsel concluded the
evidence did not provide a basis for rearguing the motion to suppress.
Given the Court of Criminal Appeals’ opinion affirming this Court’s denial
of the suppression motion and the lack of any mental health-based evidence
at the post-conviction hearing, the Court concludes this strategy was a
reasonable one and did not constitute deficient performance.
Furthermore, although the petitioner testified that trial counsel
should have investigated his mental health background in greater detail, he
was unable to provide specific examples of the evidence trial counsel
should have developed. Reviewing the record, the Court concludes trial
counsel thoroughly investigated the petitioner’s social and psychological
history; the scope of this investigation was about as extensive as possible
within the confines of a non-capital case. Trial counsel sought funds for a
mitigation expert three times, but the Court denied these motions. The
petitioner also claims that trial counsel should have presented evidence
regarding his “background” at trial, but little to no such evidence was
presented at the post-conviction hearing. [The petitioner’s grandmother]
testified about a car accident that purportedly affected the petitioner’s
mental state, but no evidence was introduced to support this testimony.
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There was no evidence presented regarding diminished capacity,
intellectual disability, or other type of claim that would have been
admissible during trial. The petitioner also has not identified any other
motions that could have been filed based on this evidence before trial.
In the Court’s view, trial counsel’s handling of the mental health
investigation in this case was neither deficient nor prejudicial.
Consequently, the Court concludes trial counsel did not render ineffective
assistance as to this issue.
....
The petitioner also faults trial counsel for not challenging this
Court’s denial of a mitigation specialist in either the motion for new trial or
direct appeal. Trial counsel conceivably could have pursued the issue
following the Court of Criminal Appeals’ denial of the petitioner’s Rule 10
appeal, but it is doubtful such an appeal would have been successful. The
Court notes the Court of Criminal Appeals’ opinion in State v. Jason
Christopher Underwood, No. M2006-01826-CCA-R3-CD (Tenn. Crim.
App. Dec. 10, 2008), in which the appellate court concluded the defendant
in that non-capital case did not show the specialized need for a mitigation
expert when the other court-appointed experts were able to produce the
same evidence that would have resulted from a mitigation expert’s
investigation. . . . Similarly, in this case the petitioner did not present any
evidence at the post-conviction hearing regarding the type of evidence a
mitigation expert would have produced and how it would have differed
from any of the evidence produced by the [c]ourt-appointed experts. In
other words, post-conviction counsel has not established how trial counsel
would have been able to show the particularized need necessary for
obtaining mitigation services at trial or successfully arguing the issue on
appeal. Accordingly, trial counsel’s actions did not prejudice the petitioner,
and therefore the Court concludes trial counsel did not render ineffective
assistance as to this issue.
We conclude that the record supports the post-conviction court’s finding that trial
counsel provided effective representation. Trial counsel testified that the petitioner
understood the legal issues they were dealing with, but the petitioner “didn’t appreciate
how risky the situation was and the potential consequences.” Trial counsel said that he
obtained the services of a neuropsychologist who recommended that he obtain experts in
the fields of substance abuse and brain injuries, and counsel filed successful motions to
procure the services of those experts. Trial counsel’s request for a mitigation expert was
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denied because the State did not file a notice of intent to seek the death penalty, and
counsel’s interlocutory appeal to this court was denied. Counsel did not include the
denial of a mitigation expert in the motion for new trial because he viewed “the
mitigation as a separate issue unrelated to the trial.” 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). In this matter, the State correctly notes that the petitioner did
not present, at the evidentiary hearing, a witness to show that a mitigation expert would
have benefitted him at trial by providing information not already available to trial counsel
through the three expert witnesses provided by the court. Thus, he has failed to establish
prejudice.
In sum, the petitioner has failed to show that trial counsel was deficient in his
representation. We conclude, therefore, that the petitioner is not entitled to post-
conviction relief on the basis of his claim of ineffective assistance of counsel.
CONCLUSION
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
_________________________________
ALAN E. GLENN, JUDGE
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