Jerry Crawford, Jr. v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 9, 2015
JERRY CRAWFORD, JR. v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Madison County
No. C-15-83 Roy B. Morgan, Jr., Judge
No. W2015-00882-CCA-R3-PC - Filed March 31, 2016
A Madison County jury convicted the Petitioner, Jerry Crawford, Jr., of aggravated
robbery, and the trial court sentenced him to thirty years in prison. The Petitioner
appealed his conviction and sentence, and this Court affirmed the trial court‟s judgments.
See State v. Jerry Crawford, Jr., No. W2012-02729-CCA-R3-CD, 2014 WL 296014, at
*1 (Tenn. Crim. App., at Knoxville, Jan. 28, 2014), no Tenn. R. App. P. 11 application
filed. In 2015, the Petitioner filed a pro se petition for post-conviction relief. The post-
conviction court appointed counsel who filed an amended petition for post-conviction
relief alleging that the Petitioner had received the ineffective assistance of counsel. The
trial court held a hearing on the petition and denied relief. On appeal, the Petitioner
contends that the trial court erred when it denied his petition. After a thorough review of
the record and applicable authorities, we affirm the post-conviction court‟s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ALAN E. GLENN, J., joined.
Joseph T. Howell, Jackson, Tennessee, for the appellant, Jerry Crawford, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Meredith Devault, Senior
Counsel; Jerry Woodall, District Attorney General; Jody S. Pickens, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
This case arises from a robbery that occurred at a Circle K convenience store in
Jackson, Tennessee. For this offense, a Madison County grand jury indicted the
Petitioner for one count of aggravated robbery.
A. Trial
In our opinion on the Petitioner‟s direct appeal of his conviction and sentence, this
Court provided a summary of the evidence presented at trial:
Jane Long testified that, in November 2010, she was employed as a
manager at the Circle K convenience store (“the store”) on the Highway 45
Bypass in Jackson, where she worked the third, or “graveyard,” shift from
10:00 p.m. until 6:00 a.m. On November 6, 2010, Ms. Long was working
alone at the store when a customer entered at approximately 1:50 a.m. Ms.
Long, who had been stocking a cooler, proceeded to the cash register to
wait on the customer. When she asked if she could assist him, the customer
handed her a note which read, “I have a gun pointed at you.” Ms. Long
immediately opened the cash register drawer and began handing him cash
from the drawer. Ms. Long testified that no handgun was visible but that
the robber “had his hand in his [jacket] pocket,” which Ms. Long “believed
was the gun.” Ms. Long further explained that the robber was waving this
hand around while it was still in his pocket, and she heard the sound of
something metallic hitting the metal cash register. Ms. Long believed that
the sound she heard was that of a handgun striking the cash register. Ms.
Long affirmed that she was fearful of being shot or killed.
Ms. Long gave the robber the cash from the register drawer, which
she recalled amounted to “probably a ten, a fi[v]e and some ones,” and the
robber stated, “B * * * *, I know you got more f* * * * * * money than
this.” Ms. Long then opened the second cash register, and as she was
removing cash from the drawer, the robber stated, “B * * * *, I‟ll kill you.”
Before Ms. Long could hand the robber the cash from the second drawer,
the robber requested three cartons of cigarettes. Ms. Long handed the cash
to him, totaling approximately $150 between the two registers, and the man
left the store with the cash but without the cigarettes. Ms. Long testified
that she immediately locked the door and called the police.
Ms. Long affirmed that the store was equipped with video
surveillance equipment, and, through her testimony, the State introduced
into evidence surveillance footage from the early morning hours of
November 6, 2010, which showed the robbery unfold as Ms. Long had
previously described. At 1:50:40 a.m., a black man entered the store, and
Ms. Long identified for the court the man in the video as the [Petitioner].
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Ms. Long also identified the handwritten note that the robber handed to her,
which read “My gun is pointed at you. Give me the money.”
On November 10, 2010, an investigator with the Jackson Police
Department (“JPD”) showed Ms. Long a photographic lineup, from which
Ms. Long identified the [Petitioner] as the man who robbed the store.
On cross-examination, Ms. Long admitted that, prior to November 6,
she had never seen the [Petitioner]. With respect to the photographic
lineup, Ms. Long testified that she “didn‟t even have to hesitate” and said,
“As soon as [the investigator] handed [the lineup] to me, soon as she
showed me, I said „That‟s him right there.‟” Ms. Long explained that, once
the robber left the store, she “was really freaked out.” She retrieved her
cellular telephone and called another store manager to ask for the telephone
number of the police department. Before the store manager could answer,
Ms. Long realized that she needed to call 911, so she ended the call and
then called 911 from the store telephone.
JPD Officer Thomas Brea testified that, in the early morning hours
of November 6, 2010, he responded to a call of an aggravated robbery at
the store. When he arrived, Ms. Long advised him that the robber had
handed her a note, which Officer Brea collected and sealed inside an
evidence bag. Officer Brea identified the note for the jury.
On cross-examination, Officer Brea confirmed that the note was
folded and lying on the store counter when he arrived at the scene.
Deputy Lashunda Perry with the Madison County Sheriff‟s
Department (“MCSD”) identified a criminal fingerprint card, which
contained all of the [Petitioner‟s] fingerprints.
William L. Roane, a forensic latent print examiner with the JPD,
testified as an expert. Mr. Roane testified that he had examined the note
recovered from the store for fingerprints. Once he had identified six “prints
of value,” he ran one of the fingerprints through the Federal Bureau of
Investigation‟s “AFIS” system and was able to determine that the
fingerprint belonged to the [Petitioner]. Mr. Roane was later able to
compare the [Petitioner‟s] fingerprints on the criminal fingerprint card on
file with the MCSD with those found on the note, and he was able to
identify three of the [Petitioner‟s] fingerprints on the note, which included
the print identified through AFIS.
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On cross-examination, Mr. Roane acknowledged that three
fingerprints and one palm print on the note did not belong to the
[Petitioner], and he was unable to determine the origin of those prints.
JPD Investigator Susan Cole testified that the [Petitioner] became a
suspect in the aggravated robbery of the store following the discovery of
the [Petitioner‟s] fingerprints on the robbery note. Investigator Cole
prepared a photographic lineup, which included the [Petitioner‟s]
photograph, and, on November 10, she showed it to Ms. Long, who
positively identified the [Petitioner] as the robber.
Lieutenant Shannon Hughes with the Crockett County Sheriff‟s
Department (“CCSD”) testified that, on November 28, 2010, she was
working at the Crockett County jail, and she allowed the [Petitioner] to
make a telephone call. Lieutenant Hughes stood approximately eight to 10
feet from the [Petitioner] while he was making his call, and she was able to
overhear portions of his conversation. Lieutenant Hughes testified that, to
the best of her recollection, the [Petitioner] stated “to the other party
something about getting a letter, and if they would do what was asked in
that letter, he would be coming home pretty soon.” An audio recording of
the [Petitioner‟s] telephone conversation was entered into evidence, in
which the [Petitioner] is overheard making the aforementioned statement.
Lieutenant Hughes stated that this statement by the [Petitioner] “raise [d] a
flag,” and Lieutenant Hughes recalled that the [Petitioner] had written a
letter earlier that same day.
CCSD Deputy Wes McGullion testified that he was working in the
Crockett County jail on November 28 and that Lieutenant Hughes informed
him of a potential situation involving the [Petitioner]. Deputy McGullion
listened to the audio recording of the [Petitioner‟s] telephone conversation,
and he recalled that the [Petitioner] said “something to the effect of, „when
you get these letters, tear them up, you know. If you do this for me, babe,
I‟ll be out of here.‟” Deputy McGullion also recalled the [Petitioner‟s]
making a statement about “taking the charge” for him. After listening to
this recording, Deputy McGullion retrieved two letters written by the
[Petitioner] and delivered them to Lieutenant Penny Curtis. Deputy
McGullion identified the first letter from the [Petitioner] as addressed to
Dominique Mitchell and the second letter addressed to Erika Brooks,
purporting to be from the [Petitioner‟s] alias, Jerry Fenner.
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CC SD Lieutenant Penny Curtis testified that she was in charge of
the criminal investigations division. She testified that she was familiar with
the [Petitioner], and, from a series of still photographs taken from the
store‟s video surveillance footage, she identified the [Petitioner] as the
robber of the store. Lieutenant Curtis also identified a kelly green sedan
with the word “Celtics” printed on the passenger side doors, which was
visible in front of the store moments before the [Petitioner] entered, as
owned by Dominique Mitchell, the [Petitioner‟s] girlfriend. With respect to
the recorded telephone conversation at the Crockett County jail, Lieutenant
Curtis identified the voices on the recording as those of the [Petitioner],
Dominique Mitchell, and Erika Brooks.
Lieutenant Curtis identified the letter written by the [Petitioner] to
Dominique Mitchell, which contained three pages. The first page was a
copy of the [Petitioner‟s] arrest warrant, which contained a narrative of the
robbery of the store and a handwritten note below the narrative stating,
“This is what happened,” with a line and arrow pointing to the affidavit. At
the bottom of the page, another handwritten note stated, “Baby call this
person,” with an arrow connecting the name of Investigator Cole and her
telephone number. The second page, which was entirely handwritten in
pencil, stated as follows:
Baby I got three charges in all one in Gibson, one in
Crockett and that robbery in Jackson. That‟s the one I can‟t
shake. Since you‟re only 17 I need you to really represent for
me and take that charge at that store.
By you being only 17 they will take you to the
[Juvenile] Court in Jackson and they will take the charge off
me and give it to you. Now Baby they will try everything in
their power to say you are protecting me, and they will say
they know for a fact that it was me cause they got my finger
prints, and the lady (white lady) at the store did a photo line-
up and picked me out of the group. Now when they say this -
This is what you say . . . I took the sheet of note book paper
off his moms table and I wrote I have a gun pointed at you
give me the money b[* * * *]. That how his prints was on it
and thats how it happen. I walked in the Circle K store
around four that morning and I waited for the lady to come up
from the back of the store and I said I have a note for you,
and she read it and gave me about $150.00 one hundred and
5
fifty dollars and I walked out the store heading towards the
back and begin to run, thats when I got away. If they ask you
had on a Army colored hat that fit around your whole head,
and you had my black coat on with some white jogging pants
with the red stripes going down the side with some white and
blue Js. Baby I got Gibson and Crockett beat. I just need you
to do this one. See Baby Jackson wants me bad so you needs
to convince them that it was really you. They may ask if you
know me say yes. They may even say they will bound you
over but I swear don‟t believe it. You are about to be 18.
They can‟t do nothing they may even say you will get ten
years cause of this but baby everything I be saying comes true
right so if I know you like I do then you got this for me
right,? ? ? I love you. Just call the Jackson Police Dept. and
tell them, # 425-8400. If they ask what store, you know
where Big K Mart is – it‟s the store right across the street
from it at the corner. When you tell them this keep the same
story and they gots to let me go, and you will be on probation
til you turn 18. We will back together like always. I love you,
sorry so [illegible] sleepy. Tell them you went in looking like
a boy cause you knew you would get away with it.
The third page, again handwritten in pencil, primarily contains
statements by the [Petitioner] professing his love for Ms. Mitchell, but, in
the middle of the page, the [Petitioner] tells Ms. Mitchell that, “I need you,
and I feel in (call investigator S. Cole 425-8400 and that all you need to
tell) my heart that you will go to Jackson and tell the investigator S. Cole
what happen that‟s why I put the paper of what happen in there so you‟ll
know.” The back of the second page contains a short, handwritten love
letter in black ink, signed “Jerry.” A fourth page contains a short,
handwritten note in pencil, entitled, “To my love on our wedding day,”
signed by “Jerry Fenner.”
The second letter, contained in an envelope addressed to “Erica
Brooks” but written to Ms. Mitchell, is handwritten in black ink:
Hello Baby Girl how are you? I‟m not doing so good,
cause I miss you so so much and it kills me inside to not be
there. I can‟t wait til we are back together. I herd [sic] you
and Erica came up here today. I was so upset I couldn‟t see
you. But on that biz that you‟re gonna do for me will get us
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back together next month. I got the charge here beat in
Alamo, and Humboldt, but you gotta take the one in Jackson.
When you go there look like a tomboy have a hat on some big
pants and that black coat.
They will try their best to say you are lying for me, but
keep saying I‟m not lying I did it and they will be like well
how did Mr. Crawford prints get on the note that said give me
the money my gun is pointed at you. You will say we was
over his moms house playing cards and he was keeping the
score and thats how it got on there. The next question they
may ask is, well the clerk at the store saw his face and pointed
him out. Then you say she is lying it was me, she couldn‟t
see my face cause I had a Army hat covered half of my face.
By this time the investigator will be mad as hell cause
they want me bad and you come in and f[* * *] s[* * *] up, so
this is the point where he will start lying . . . saying things like
so you‟re willing to go down for him? You say I‟m not going
down for no one, I did it. Then he will say why did you do it?
You say cause my Grandmom told me I have 37 hours to get
out of her house and I was sleeping in my car, so I had no
choice. Then he might say something like . . . well if I charge
you with this, you will be facing twenty years or some shit
like that. He trying to spook you into saying it was me.
Whatever he say just keep your story and don‟t change it for
nothing. This is whats really about it make them mad . . .
when they ask how old are you and you say 17 he will be like
damn, Jerry is smart that‟s why she‟s doing this cause she
knows we can only hold her until she‟s 18 and they both will
be free. (f[* * *] ) Thats what he will say. But before he
breaks down and realizes that you‟re not giving in he will try
one last scare tatic [sic] which is well we will bound you over
as an adult and you‟ll hate you took the charge. Then you say
I did the crime so I gotta do the time right. He‟ll say you‟re
f[* * * * * *] right about that.
After a few more paragraphs in which the [Petitioner] gloats that law
enforcement officials will bemoan the fact that “Jerry done got away” and
that the [Petitioner] and Ms. Mitchell orchestrated “some bonnie and clyde
type” of activity, the [Petitioner] warns Ms. Mitchell that the prison
7
officials “read our letters so don‟t say nothing. Talk in codes.” The letter
then continues with more statements of the [Petitioner‟s] love for Ms.
Mitchell and a request that Ms. Mitchell retrieve a wedding ring “from
[B]uddies on Highland and put it on your finger.” Before ending the letter,
the [Petitioner] once again instructs Ms. Mitchell to “call Jackson and tell
them you wanna confess to something and I‟ll be on my way home.”
Dominique Mitchell testified that she was 17 years of age in
November 2010 and that she was, at that time, in a romantic relationship
with the [Petitioner]. Ms. Mitchell confirmed that she resided with her
grandmother in November 2010 and that the letter the [Petitioner] had
written to her from jail was addressed to her at her grandmother‟s address,
although she never actually received that letter. Ms. Mitchell also
confirmed that she and the [Petitioner] were friends with Erika Brooks.
Ms. Mitchell reviewed a still photograph taken from the video surveillance
at the store on the night of the robbery and admitted that the green sedan
emblazoned with the word “Celtics” that was visible in front of the store
was, in fact, her vehicle. Ms. Mitchell also reviewed two still photographs
that showed the robber entering the store on the morning of November 6,
and Ms. Mitchell identified the [Petitioner] as the man in those
photographs. With respect to the [Petitioner‟s] time in jail in November
2010, Ms. Mitchell testified that she received a “multitude” of telephone
calls from the [Petitioner] from jail in which he asked her if she was “still
gonna do it for him,” which she acknowledged referred to his requests that
she admit to perpetrating the robbery.
On cross-examination, Ms. Mitchell admitted that, when she initially
spoke with someone from the JPD, she denied that the [Petitioner] had
possession of her car on the morning of the robbery. Ms. Mitchell
acknowledged that she later visited the JPD and admitted that the
[Petitioner] “had [her] car on November the 6th.”
Erika Brooks testified that she was familiar with the [Petitioner]
through his relationship with Ms. Mitchell. Ms. Brooks admitted that the
letter the [Petitioner] attempted to send her from jail was properly
addressed to her at her residence in November 2010. Ms. Brooks also
reviewed the photograph of the green sedan that was visible outside of the
store on November 6 and confirmed that the vehicle was owned by Ms.
Mitchell but that Ms. Mitchell allowed the [Petitioner] to drive it.
With this evidence, the State rested its case. Following a Momon
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colloquy, see Momon v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999), the
[Petitioner] elected to testify.
The [Petitioner] testified that his name was Jerry Crawford, Jr. but
that he sometimes used the name Jerry Fenner because Fenner was his
Father‟s surname. The [Petitioner] admitted that he had been convicted of
“several” crimes in the past, including multiple burglary, theft, and
vandalism convictions in the counties of Madison, Chester, Crockett,
Gibson, Hardeman, Carroll, Dyer, and Henderson, following a 2003 “crime
spree.”
The [Petitioner] stated that he was familiar with Ms. Long, the store
manager, because “she buys pills from me.” The [Petitioner] testified that
he had met Ms. Long in mid-October 2010 when he was standing outside a
store in Jackson “smoking a blunt.” The [Petitioner] stated that Ms. Long
approached him and inquired about purchasing some pills. The [Petitioner]
sold her five Xanax pills for five dollars apiece. At Ms. Long‟s request, the
[Petitioner] provided her with his telephone number, and Ms. Long
contacted him periodically to purchase more pills.
With respect to the events of November 6, the [Petitioner] claimed
that Ms. Long contacted him at approximately 10:00 p.m. on November 5
and requested some pills “on credit.” The [Petitioner] said that he could not
comply because he had to have money to feed his children and because Ms.
Long had not paid for pills that she had previously purchased on credit.
Ms. Long called back two hours later and told the [Petitioner] that she “got
a way that you can get paid and get a little bit extra on top.” The
[Petitioner] was intrigued, and he testified that the following telephone
conversation ensued:
[Ms. Long] said, “Well, you‟ll have to come in and act like you‟re
robbing me.” I said, “Well I can‟t rob you, I don‟t have a gun.” She said,
“You ain‟t got to have a gun. Just hold your hand in your pocket and make
it look like it.” I said, “Okay, I can do that.” She said, “When you come,
make sure you have -- you bring those pills.” I said, “Okay. What you
want me to do this, sit them on the floor or something when I‟m heading
out the door?” She was like, “No, just put them in a piece of paper.” She
said, “Better yet, just write a note or something and make a note and put on
there like „This is a stickup‟ or you gotta gun. Just put something on there,
that way you can put the pills in there and you can hide that from the
camera, and on top of that, I‟ll be explain [sic] to the police that I was being
9
held up.” I was like “Okay.”
The [Petitioner] described the Xanax pills as “the size of a rice
grain.” The [Petitioner] testified that Ms. Long called him around “1
something” on November 6 and told him to come to the store. The
[Petitioner], who resided close by, proceeded to the store in the “green
Boston Celtics Crown Victoria.” The defense attorney then played the
video surveillance footage, and the [Petitioner] identified himself entering
the store. The [Petitioner] stated that the only item in his pockets was the
folded note containing the pills that he intended to give Ms. Long. The
[Petitioner] claimed that Ms. Long did not completely unfold the note when
he handed it to her because “she already knew what it said.” The
[Petitioner] denied that he had a gun in his pocket, claiming instead that it
was only his left hand and that he was “acting like [he was] pointing
something at her.” The [Petitioner] recalled that he did call Ms. Long a
“b[* * * *]” to “make it look real.”
The [Petitioner] testified that, approximately five seconds after he
left the store, Ms. Long called his cellular telephone to inquire whether the
[Petitioner] had managed to leave the parking lot next to the store. When
the [Petitioner] replied that he had, Ms. Long told him she was going to
contact the police but promised him “that she would make sure [he] got
away before she called the police.” The [Petitioner] stated that he
recognized the number because Ms. Long had called him about “20 times”
and that he would “never forget that number.”
The [Petitioner] admitted that he had contacted Ms. Mitchell
following his arrest in an attempt to convince her to confess to the robbery.
He stated that he “should have never did that, and I‟m glad that she never
received any of them letters because it‟s not fair for her to go down for
something that I did, me and [Ms. Long] did.” The [Petitioner] denied that
he received $150 from the store‟s cash registers, claiming that Ms. Long
gave him only $63.
The [Petitioner] testified that he was never interrogated about the
robbery and that he was never given a chance to explain his story to law
enforcement officers.
On cross-examination, the [Petitioner] admitted that he had received
a copy of the indictment, which contained both Ms. Long‟s name and her
cellular telephone number, although he later claimed that he had never
10
received a copy of the indictment which contained Ms. Long‟s telephone
number. When asked if he had ever told any law enforcement officers
about Ms. Long‟s involvement in the robbery, the [Petitioner] responded
that “they never came and talked to [him].” The [Petitioner] admitted that
he had attempted to convince Ms. Mitchell to confess to the crime and that
he was “not above having people come in here and lie to a jury of 12 of
your peers.”
Crawford, 2014 WL 296014, at *1-7.
The jury convicted the Petitioner of aggravated robbery and the trial court
sentenced him to thirty years of incarceration, to be served consecutively to his sentence
in a separate case from Crockett County. The Petitioner appealed to this Court, alleging
that the evidence adduced at trial was insufficient to support his conviction, that the
prosecutor committed misconduct by impermissibly shifting the burden of proof to the
defendant during closing argument, and that the sentence imposed was excessive. Id.
This Court affirmed his convictions and remanded the case on the matter of the
Petitioner‟s sentence, unrelated to this appeal. Id. at 11.
B. Post-Conviction Proceedings
The Petitioner then filed a petition for post-conviction relief, pro se, in which he
alleged that he had received the ineffective assistance of counsel. The post-conviction
court appointed counsel, who filed an amended petition alleging that the Petitioner had
received the ineffective assistance of counsel because: (1) his trial counsel (“Counsel”)
did not subpoena Ms. Long‟s cell phone records to prove she did not immediately call
police; (2) Counsel failed to request a jury instruction for facilitation, conspiracy, and
solicitation; (3) Counsel “failed to exclude” the Petitioner‟s prior conviction; and (4)
Counsel failed to research and prove that the Petitioner‟s prior convictions were subject
to merger because they had occurred within a twenty-four hour period.
The post-conviction court subsequently held a hearing, during which the following
evidence was presented: the Petitioner testified that he had been charged with aggravated
robbery and was represented by Counsel, a lawyer from the Public Defender‟s Office.
The Petitioner testified that he never had the chance to talk to investigators after his arrest
about “what was really going on,” so when Counsel was appointed to represent him, the
Petitioner told counsel that Ms. Long was not the victim but a co-defendant and that he
could prove she was buying pills from the Petitioner. He informed counsel that Ms. Long
would have Xanax and crack cocaine in her system and that counsel should request that
Ms. Long submit a urine sample. Counsel told the Petitioner that he could not get a urine
sample from Ms. Long. The Petitioner also told Counsel to contact county hospital
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where Ms. Long used to work and from where she had been fired for stealing syringes.
The Petitioner testified that he asked Counsel to take other steps, including obtaining Ms.
Long‟s phone records, to prove she was not a victim in this case, but Counsel would not
do what the Petitioner asked. The Petitioner testified that the video recording from inside
the store showed that Ms. Long recognized him and knew him because she waved and
smiled at the Petitioner.
The Petitioner admitted that he had implicated himself in his letters to Ms.
Mitchell, asking her to lie for him, but that Ms. Long was also not credible and should
have been challenged. He stated that Ms. Long set the “whole thing up” and that he went
along with it because she owed him money. The Petitioner testified that he met Ms. Long
on Hollywood Drive when she asked him for some Xanax and gave him her phone
number. He stated that Ms. Long would call him and ask for some “medicine,” and he
would take it to her at the store where she worked. The Petitioner asked Counsel to get
the video recording from the day the Petitioner and Ms. Long met, to prove they knew
each other before the robbery, and Counsel “would not get the video [recording] of that
for nothing.” The Petitioner testified that he told Counsel that the video would prove that
Ms. Long was lying. He also stated that Ms. Long‟s phone record would have proven
that they knew each other. Post-conviction counsel asked the Petitioner whether Ms.
Long had been subpoenaed for the post-conviction hearing, and he indicated that she had
but that she was unavailable.
On cross-examination, the Petitioner agreed that the jury had heard his theory at
trial. He agreed that he had written a letter to his girlfriend while in jail stating that he
had robbed Ms. Long at gunpoint, but he stated that it “wasn‟t true.” He also agreed that
he had asked his girlfriend to “take” the aggravated robbery charge “for him.” The
Petitioner stated that he had no proof that the incident in the Circle K was merely a theft.
The Petitioner agreed that he had been convicted previously of more than thirty felonies
involving theft and vehicle burglaries. The Petitioner was shown a handwritten letter
titled “Why I Robbed the Store,” and he agreed that he had written it to Counsel but
stated that his admission was “beside the point.”
The Petitioner testified that he had written to counsel asking why they had not met
and that the Petitioner referred to the man in the video recording taken from inside the
Circle K store as the “suspect.” He agreed that he had offered “multiple” versions of
what had happened during the incident, including that his girlfriend had robbed the store
and that another black male had robbed the store.
On redirect-examination, the Petitioner testified that he wrote several letters to
counsel in addition to the ones shown to him during the hearing. In one of those letters,
the Petitioner “finally” told the truth about what had happened, specifically that he and
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Ms. Long had set up a fake robbery to hide a drug transaction. He maintained that the
video recording corroborated his story.
Counsel testified that he was employed by the Public Defender‟s Office and had
been a licensed attorney for eleven years and had handled “several hundred” criminal
cases, with one hundred percent of his time being devoted to indigent clients. He
testified that he represented the Petitioner at trial. Regarding cell phone records, Counsel
stated that the Petitioner did not provide him with his own phone number to obtain his
records and never made a request for Counsel to obtain Ms. Long‟s phone records.
Counsel recalled that the Petitioner requested that he do a background check of Ms.
Long, but her record did not “provide any type of impeachment material” to use at trial.
Counsel stated that he knew of no legal grounds by which he could obtain a urine sample
from Ms. Long.
Counsel stated that there was nothing he would have done differently when
representing the Petitioner that would have affected the outcome of his case. He testified
that he handled the Petitioner‟s case on direct appeal and successfully obtained relief
regarding the issue of sentencing, resulting in a remand and resentencing.
On cross-examination, Counsel agreed that he met with the Petitioner at the
county jail. Counsel agreed that the Petitioner told him that he knew Ms. Long before the
day of the robbery. He stated that he did not interview Ms. Long and that he recalled she
was living in Florida and only came to town for a night for the trial. Counsel stated that
he was never told that she had been fired from a previous job or anything about syringes.
Counsel recalled that he argued in front of the jury that Ms. Long knew the Petitioner and
so could not have been placed in fear, making the Petitioner not guilty of aggravated
robbery. Counsel testified that the Petitioner raised his mental health as an issue, and
also wanted his brother to testify at trial because they looked alike, but the Petitioner
never said it was his brother who robbed the store.
Following the hearing, the post-conviction court stated that the Petitioner had
failed to present any evidence to support his claims that Counsel was ineffective for
failing to subpoena Ms. Long‟s phone records. The post-conviction court stated that the
Petitioner‟s motion was denied, and stated that any other claims made in the petition also
were denied due to a lack of proof. In a subsequently issued order denying the motion,
the post-conviction court specifically accredited Counsel‟s testimony and did not credit
the Petitioner‟s testimony. It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that he received the ineffective assistance of
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counsel because Counsel failed to present evidence at trial that the Petitioner and Ms.
Long had a prior existing relationship before the robbery in the convenience store and
because he failed to present evidence that they were “co-conspirators” in the robbery.
Without this evidence, the Petitioner contends that Counsel failed to present a defense.
The State responds that there was no evidence of the Petitioner‟s and Ms. Long‟s
relationship, other than the Petitioner‟s own testimony, which was not accredited by the
post-conviction court. Thus, the State argues that Counsel was not ineffective for failing
to present any evidence in this vein. We agree with the State.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). The post-conviction court‟s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the
evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court‟s conclusions of law, however, are subject to a purely de novo review by this Court,
with no presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court‟s evaluation of a claim for ineffectiveness:
First, the [petitioner] 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 [petitioner] by
the Sixth Amendment. Second, the [petitioner] must show that the
deficient performance prejudiced the defense. This requires showing that
counsel‟s errors were so serious as to deprive the [petitioner] of a fair trial,
a trial whose result is reliable. Unless a [petitioner] makes both showings,
it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417,
419 (Tenn. 1989).
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In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show
that counsel‟s representation fell below an objective standard of reasonableness. House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).
When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney‟s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney‟s perspective at the time. Strickland, 466 U.S. at
690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court
must be highly deferential and “should indulge a strong presumption that counsel‟s
conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed
to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation. However, deference to
matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996)).
If the petitioner shows that counsel‟s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel‟s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694;
Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
In this case, the Petitioner claims that Counsel was ineffective for failing to
present evidence that the Petitioner and Ms. Long, the victim, were actually co-
conspirators who had planned the robbery ahead of time. Aside from his own testimony,
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the Petitioner offered no evidence to support his assertion at the post-conviction hearing.
While he contended that Ms. Long‟s phone records would have shown they were in
contact prior to the robbery and damaged her credibility at trial, he did not offer those
phone records. Counsel testified that he argued in front of the jury that the Petitioner and
Ms. Long knew each other, thus negating the fear element of aggravated robbery.
However, he also recalled that the Petitioner did not request that her phone records be
obtained and did not provide his own phone number to obtain his phone records. Ms.
Long did not testify at the post-conviction hearing. Other than the Petitioner‟s testimony,
no evidence was presented at the post-conviction hearing to support his claim that he and
Ms. Long knew each other and conspired in the robbery. The State provided a letter at
the post-conviction hearing, written by the Petitioner, in which he confessed to robbing
the convenience store.
The post-conviction court found that Counsel‟s representation was not ineffective
and it discredited the Petitioner‟s testimony. We conclude that the post-conviction
court‟s decision was supported by the evidence; indeed, no evidence was presented to
support the Petitioner‟s theory. He is not entitled to relief on this issue.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
post-conviction court‟s judgment.
________________________________
ROBERT W. WEDEMEYER, JUDGE
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