### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te mb er 1, 200 9

PA TRIC K HA RR IS v. S TAT E OF TEN NES SEE

Appeal from t he Criminal Court for Shelb y County No. 03-01420 John P. Colton, Jr., Judge

No. W2008-02186-C CA-R 3-PC - Filed November2, 2009

Th e Pe tit ion e r, Pa tr ic k H arr is, was con vi cte d by a jur y of on e c ount o f f

ir st d e g re e mur de r. Hi s conviction was aff

irmed on direc t appea l. See S tate v. Patrick Harris, No. W2004-00469-CCA-R3- CD, 2005 WL 468324 (Tenn. Crim. App., Jackson, Fe b. 25, 2005). He filed a timely p et i tion for post-conviction re lief. He was a p p ointed counsel a

nd filed an a

mended pe tition allegingthat he

re c e ive d in e ff

e c tiv e a ssi sta

nc e of c ouns e l a t tr ia l. Th e Cr imi na l Court of She lby Cou nty de nie d h is p e ti ti o nf o r p o s t- c o n v ic ti o nr e li e f

a f te r tw o e v id e n ti ar

y h e ar in g s

. H e n o w a

p p e a ls th is d e n ia l. We

a ff ir m th e jud g me nt o f t

he po st- c on vic tio n c ourt

.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

D AVI D H. W ELL ES , J., delivere d the opinion of the c ourt, in which A LA N E. G LE NN and C AM I LLE R. M C M ULLEN , JJ., joined.

Pa tr ic k E . St e ga ll, Me mph is, Te nn e sse e , f or the app e lla nt, Pa tr ic k H arris.
Robert E. Cooper, Jr ., Attorney Ge nera l an d R eporter; Cameron L. H yder, A ssistant Attorney Gene ral; William L. Gibbons, Distr i ct Attorney Ge nera l; and Alexia Fulgham, Assistant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F ac tu al B ac kgr ound On direc t appea l, this C ourt summarized the fac ts underlying the Petitioner’s ca se:

This case involves the J une 8, 2002 death of L avon Armstrong who was shot in the front y ard of

his residenc e located i n south Memphis at 728 Lucy Street. The [P etitioner] was arre s t ed
, t ri edfo r, an d co n v i ct edo f f

i rs td egr ee p re m ed i t at edm u rd er. Th e [ P eti ti one r] a dmi tte d to fi ri ngthe fata l sh ot b ut c la ime d th a t he a c te d in self-de fense and in def

ense of his mother.-2- The e vidence at trial, take n in the light most favor able t o t h e s t ate, showe d that the victim, who was 24 y ear s old at the time of his death, lived with his cousin, L a c e y Ar mstro ng , a

nd he r t wo so ns , E dd ie and

L a qu a vio us Arms tr on g . M s. Armstrong last saw the victim betwe en 11:00 a.m. and noon on June 8, as she w as leavingto at t en d a baby

shower. T he victim, Ms. Armstrong ’s sons, and anothe r cousin rema ined at the house. L ater that same da

y , Ms. Armstrong rec eived notice that the victim had bee n shot and that her son, Eddie Armstrong , had bee n injured.

The [Petiti oner]’s mother, Ea rma Ha rris, testified that she l ived nea rby at 713 L ucy Stree t w it

h h e r s o n an d h e r d a

u g h te r , M o n ic a Co n le y

. M o n ic a Co n le y had date d th e vic tim . O n Jun e 8, aro un d n oo n, Ms. Ha rr is w a s at Ca

rt e r’ s F ish

Mark e t; the [Pet iti on e r] a

nd a fe ma le c omp anio n, L a tas ha J enkins , b ro ug ht k e y s to Ms. Har ris. The [P etitioner] mentioned that he and the victim “ had been into it,” which

c on c e rn e d M s. Ha

rr is. Th e [Pet iti on e r] w ou ld n ot e xpla in h is r e mark oth e r t ha n to

su g g e st tha

t hi s mo the r “ a sk

Mo nic a .” Th e [Pet iti on e r] e xpre sse d c on c e rn fo r M s. Har ris’ we lfare and wa

rned he r that people on the porc h wer e “g oing to shoot up the house.”

L ater

that same afternoon, Ms. Har ris was in front of the Armstrongresidenc e talking to the vic tim. The [P etitioner] walked up behind her and told her to g o home. She tol d the [Pet iti on e r] to le a ve , bu t he a g a in tol d he r to g o ho me. Ms . Ha rri s testified that she “ tussled with him, and he kind of threw [her], and then he shot [ the vic tim ].” Ms. Ha

rr is r e c a lle d s e e ing the g un in the [Pet iti on e r]’ s h and , h e ard the sh ot, and sawthe victim fall onto the sidewalk. Th e people on the porc h ran be hind the house. Ms. Har

ris did not see a

wea pon either on the victim or on any one who ha d been on the porch.

Ms. Ha rr is w a s q uit e e mot ion a l. H e r s ist e r a nd oth e rs e sc or

te d Ms. Ha

rr is t o her house . Ms. Harr i s d i d not know the [P etitioner]’s where abouts. When police office rs ar

rived to invest igate, Ms. Har ris told them what happene d and g ave a state me nt. Th e [Pet iti on e r] n e ve r c on ta c te d M s. Ha rr is, and sh e ha d no co nta c t w ith him until he wa s arr ested.

On c ro ss- e xami natio n, Ms. Ha rr is ad mit te d tha t she pr e vio us ly ha d p ro ble ms with the victim, who also was the fathe r of her daug hter’s child. The victim ha d been

so disrespec tful that Ms. H arr is onc e summoned police office rs to escort he r daug hter from the r e s id e n c e

. A f

te r h e r d a u g h te r w a s o u t o f th e h o u s e , M s

. H ar r is h a d no further problems with the victim. Ms. Ha rris had discussed with the [P etitioner] the problems she ha d enco u n t er ed with the victim. Ms. Harris ag ree d that the [P etitioner] was “ve ry protec tive” towar d her, a nd she believe d that the [P etitioner]

wa s t ry i n g t o p ro t ec th er

t h e d ay o f t h e s h o o t i n g.-3- Dr . Cy nth ia Ga rd ne r te sti fi e d that sh e pe rf

or me d the a uto ps y on the vic tim

. The victim died fr om multi ple g un s hot wounds, including two bullets that ente red the

rea r of the head. Two bul lets enter ed the left si de of the nec k and exited the front of the nec k, and the tra

jectory of two other ne ck wounds wa s from fr ont to back. Three additional wounds had c hest entry points. I n all, Dr. Ga

rdner located 13 individual

wo un d tr a c ks

. Memphis Patr ol O ffice r Der rick Blake responde d to the scene of the shooting

a t a pp ro xima te ly

1:3 0 to 1:40 p. m. He dis c ov e re d th e vic tim ’s bo dy , r idd le d w ith bullet holes, on the walkwa y with the head f

acing toward the house. No we apons
wer e in the ar ea. O ffice r B lake believed the victim was still breathing at the time. He int e rv ie we d M s. Ha

rr is, wh o wa s c oo pe rativ e and pr ov ide d the [Pet iti on e r]’ s n a me
a s a su sp e c t. Of

fi c e r B lake iss ue d a

br oa dc a st f

or the [Pet iti on e r]. Se rg e ant C y nth ia Donahue with the Des Moines Police De partment a rre sted the [Petit ioner] on Fe bruar y 25, 2003, in Des Moines, I owa. At that t i m e, t h e [Petit ioner] identified himself as Mar io Brow n. L ater , he did pr ovide his c orre ct name and told the office r that he “w as wa

nted out of Tenne ssee f

or murder .”

L arr y Wing was prese nt at 728 Lucy Street when the shooting occur red. Mr

. Wing lived at the residenc e with Ms. Armstrong

. He testified that Ms. Armstrong ’s sons and seve ral of the sons’ friends wer e sitti ng on the porch. Mr. Wing was inside the house pre paringto go to wor k, and when he lef

t the house, he w alked to the truc k parke d in front of the residence. The driver of the t ruck worked with Mr. Wing, and he told Mr. Wing that a man had a g un. When Mr. Wing turned a round, he sa

w the [Pet iti on e r] s ho oti ng a t the vic tim . T he vic timwa s st and ingin t he y ard and the n f e ll to t he g ro un d. Mr . Win g saw a nd he ard the de fe nd ant s ho ot at the vic timmul tip le tim e s.

Mr . Win g te sti fi e d th a t w he n h e c a me ou t of the ho us e , he no tic e d M s. Ha rr is standing outside the g ate talkingto the vi ctim. He did not detec t any loud voices, and h e d i d n o ts ee an y

we ap o n s o t h e r t h a nt h e [ P et i t i o n er ] ’s fi re ar m

. T h ro u gh

cross-e x amination, the def ense e stablis h ed that Mr. W ing c ould not identify the sh oo te r wh e n he wa s qu e sti on e d by the po lic e

. Mr

. Wing e xpla ine d a t tr ia l th a t hi s back w as to the porc h when the dr iver a lerted him about the ma n with a g un. When M r. W i n g tu rn ed ar o u n d
, h e s aw t h e s h o o t er ’s b ac k

. As t h e s h o o t er co n t i n u edfi ri n g, Mr. Wing bega

n backing up, and when the s hooter turned to leave
, Mr. Wing we nt

a c ro ss t he str e e t.

L aqu av i o u s Ar m s t ro n g, wh o al s o wa s p re s en ta t t h e t i m e o f t h e s h o o t i n g, te sti fi e d th a t he , T on y

Re dmo nd , L a vo n A rm st ron g, Ed die Ar mst ro ng , a nd Ke vin Fa rmer ha d been sitti ng on the porc h “smoking a little marijuana.” The [Petiti oner] walked up a

nd asked the victim for a ride. When the vi ctim declined, the [Petitioner] g ot “mad,” the m en h ad a “f ew wor ds,” and the [P etitioner] left. L aquavious-4-

Armstrong next s aw the [Petitioner] and the [ Petitioner]’s g irlfriend circle the block in a truck a

couple of times. The [P etitioner] waved a g un out of the truck w indow. T h e t h i rdt i m e t h e t ru ckca m e a ro u n d t h e b l o ck t h e [ P et i t i o n er ] wa s n o ti n s i d e r i d i n g.

L aquavious Ar

mstrong sa id he spotted the [Petit ioner ] o n t he side of the house, but befor e any

thin g co u l d happen, the [P etitioner]’s mother arr ived. The [P etitioner] spoke to his mother, afte r which his mother walked toward the porch a nd “ca lled [t he victim] out to the g ate.” The [ Petitioner]’s mother wanted to know why the two men we re a

rg uing, a n d t h e victim explained that the argument related to a

car . L aquavious Ar

mstrong overhe ard the [P etitioner]’s mother rema rk, “[W] ell, he can’ t ge t mad over nothing that ain’t his.” L aquavious Ar mstrong ne ver obse rved the victim being disre spectful to Ms. Har ris; nor did h e o b s er v e any wea pons on the victim or any one else on the porc h.

L aquavious Ar

mstrong the n descr ibed what happene d when the [Petitioner]

wa lke d u p to Ms. Ha

rr is.

A: Wel l, w he n h e g ot u

p th e re , h e wa s like , “Mo mma , g e t aw ay fr om t ho se bitch-ass n******. I ’m fixi n g to kill t his n*****,” y ou know what I ’m saying, like that there.

Q: Who sa id t

hat?

A: That’s what [ the Petitioner] said.

Q: Al l r ig ht.

A: And so his momma was like, “No, g o on to the house g o on to the house.” She g rabbe d him by

the ar m. He broke loose and just lung ed out, just wide

ou t.
Q: Then what happene d?

A: After she tried to hold hi s arm, he br oke loose fr om her a nd ran up on L aVon a nd shot him t wo times. He fe ll....

. . . . Q: All rig ht. Once he fell on the g round, what did [ the Petitioner] do?

A: Wel l, M r. Ha

rr is h e wa lke d u

p o ve r h im a

nd sto od ov e r on him and

jus t kept on shooting. B y

then, y ou know, I ’m running for my life.-5- On cr oss-examination, L aquavious Ar mstrong a dmitted that he joined in the verba l fray

afte r the [Petiti oner] walked up a nd told his m other to leave.

After L aquavious Ar

mstron g ’ s te s ti mony , the state re sted. The de fense called L aShaun L ee, w ho lived next door to E arma Har ris at the time of the shooting . Prior to the shooting, Ms. L ee ha d an occ asion to witness a conf rontation betwe en the vic timand Ms. Ha

rr is. Ms. L e e te sti fi e d th at th e vic timwa s b e ingdis re sp e c tf ul t o Ms. Ha rr is.

Ms. L ee was prese nt on J une 8 and saw the [Petitioner] walk up to his mother, wh o w a s ta lki ngto t

he vic tim . Ms. L e e de nie d th a t th e [Pet iti on e r] tri e d to pu ll h is mot he r a wa y fr om t he vic tim ’s ho us e ; r a the r, Ms. L e e saw M s. Ha rr is try ingto p ull the [Pet it io ner] ba c k f

ro m th e vic timand

te lli nghim

to c ome ba c k to wa

rd the ir house. On cross-e x amination, Ms. L ee testified that she saw the [P etitioner] shoot the victim. She claimed that her me mory of the spec ifics of the shooting was va g ue, howeve r, bec ause she wanted to g et awa y from the gunfire.

The [Petiti oner] took the sta n d, and he be g an his testimony by acknow ledg ing that he had pr eviously

pleaded guilty

to two prior drugoffe nses, two fe lony theft offe nses, and r obbery . Reg ardingthe offe nse on trial, the [Petiti oner] said that ea rlier in the day he became conce rned for his mother’s saf ety beca use of thre ats to “shoot up” her house and shoot her. When he went to che ck on his mother, he sa w her down the stree t talking to the victim; the [Petiti oner] claimed that the pa ir appe are d to be

arguin g

. Th e [Pet iti on e r] tes tif ie d tha t his “r e a so n for g oin g do wn the str e e t w a s to tell [ his] mom to come back home to her house.” He even pulled on her to ge t her

m o v i n g.
The [Petiti oner] admitted shooting the vic tim. He explained his actions in the fo llo wi ngte rm s:

What made me pu ll m y

we a po n o ut w a s g uy

by the name An ton io Redmond, he pulled his w eapon f irst, and the first shot came from the por ch, wh ic h I po int e d my we a

po n, and I wa s in the str e e t be hin d the tr uc k

. . . , me and my mom, and once he poi n t ed his wea pon, Imean, it was a

heate d

arg um ent, w hic h E dd ie sta rt e d a nd L a qu a vio us joi ne d in , a

nd [the vic tim ] walked towa

rd the porc h and when he came off the porc h – Imean whe n they pointed their we apon at me, I took my wea pon out of my

waist, and whe n the sh ot w e nt o ff

, I ha d p us he d my

mom in f e ar t hat sh e wo uld

be sh ot.

Th e [Pet iti on e r] s a id t

hat hi s f ir earm held

six sh e ll c a sin g s, and

he fi re d a ll six bullets. He then ra

n off to esc ape the “mess of gunfire.”A n o th e r S h e lb y C o u n ty A ssista n t P u b lic D e fe n d e r a lso r e p re se n te d th e P e tit io n e r, b u t d id n o t te stify a t h is 1

po s t

- conv i ct i on hear i ng and app ear s t o hav e pl ayed a s m al l er r ol e i n t he Pet i t i on er ’ s def ens e.
-6- On cr oss-examination, the state closely questioned the [P etitioner] to identify th e s o u r c e o f t h e c o n f

l i c t w i t h t h e v i c t i m

. B e c a u s e t h e [P e t i t i o n e r ] h a d to ld h is mother at the f

ish market that he and the victim “ had bee n into it,” the state wante d the [Pet iti on e r] t o e la

bo rate . T he [Pet iti on e r] de nie d tha t he ar g ue d with the vic tim about an automobile. He ga ve a somewhat rambling a ccount to the e ffe ct that af ter the victim declined to drive the [P et i t i oner] home, the [Petit ioner] called his sister

and a sk e d h e r t o c a ll a

nd te ll the vic timthat he sh ou ld a llo w the [Pet iti on e r] t o bo rr owthe c ar br ie fl y to dr ive ho me and c ha ng e c lot he s. Whe n the [Pet iti on e r] a g a in called his sister to check on he r prog ress, she a dvised that no one ha d answe red the telephone when she trie d to rea ch the victim. The [Petitioner] t old his sis ter that the victim and the victim’s cousin wer e standing on the house porc h. The [ Petitioner] said that he told his sister not to “worry about it,” bec ause he would call his “ba by ’s momma” and a

rra ng e for transportation.

Acc o r d in g to th e [P e ti ti o n e r ], h e th e n w a lk e d to th e s to r e , an d on his way back f rom the store, the victim r an out of the house. The [P etitioner] pinpoint ed that

m o m ent as the beg inning of the alter cation. He testified that the victim started

sc re a min g , “ [W]ha t the ‘F ’ y ou me an y ou g oin g to g e t a t me and

wh a t y ou do ne tol d y our sister.” A t some point, some of the other people on the porch “ joined in,” and the [P etitioner] sa i d t h at he told the victim that he wa s g oing to c all his child’s mother to g et a r ide.

As for the firea

rm, the [P etitioner] testified that he had be en ca rry ing it all the time, even thoug h he knew it wa s illega l beca use he is a c onvicted fe lon. He denie d, howeve r, waving a g un outside the truck window as he a nd his girlf

riend drove along Lucy Stre et

. T h e [ Petitioner] admit ted shooting the victim but denied firing at the back of the victim’s he ad. The [ Petiti oner] surmised that the men shooting from the po rc h h it the vic timfr om b e hin d. Th e [Pet iti on e r] a lso dis pu te d th e wi tne ss te sti mony tha t he sto od ov e r t he vic timand

fi re d s ho ts a ft e r t

he vic timha d f

a lle n to the g round.

Har ris, 2005 WL 468324, at *1-4.

The Petitioner’s f

irst hear ing on his pe tition for post-conviction relief o cc u rr ed on J une 5, 2008. The Petitioner first called his tria l c ounsel to te stify

. Trial counse l, a Shelby County Assistant Public De fende r, was appointed to r epre sent the Petitioner at trial. She could not rec all how many 1 times she visited w ith the Petitioner during her repr esentation of him, but she said it was not more tha n f if te e n ti me s. She re c a lle d th a t th e Pe tit ion e r ha d a lot of wit ne sse s ag a ins t him, inc lud inghis own mother, a

nd that his chanc es of suc cess at t ri al we re t h ere fore slim. Upon hearingthe Petitioner’s claim that Antonio Redmond had a gun, howeve r, trial counse l attempted to develop a-7-

theory of self- defe nse. To that end, she revie wed discove ry and intervie wed witnesse s prese nt at the

scene , but she was una

ble to uncover

any evidenc e or potential testimony supporting the Petitioner’s theory . I n particula

r, no witness supported the Petitioner’s claim that Mr. Redmond or any other individual on the porch ha d a g un, althoug h the Petitioner’s mother noted that she may have be en too focused on the Petitioner to notice any one else holding a wea pon.

Af t er refr eshing her me mory using the Petitioner’s trial transc ript, howeve r, trial counse l admitted t h at s h e d i d not cross-e x amine Dr . Gar dner r eg ardingthe victim’s bullet wounds. Trial counsel did not reme mber why she chose not to do so. She also reme mbere d that Dr. Ga rdner had testified that all of t he victim’s wounds appe are d to have be en inflicted by bullets fired fr om more than two fe et awa

y . Trial counse l also said that she believed she would have advised the Petitioner not to testify

at trial.

The Petitioner testified on his own be half at his post-c onviction hear ing. H e said that trial counsel visited him only twice, with both visits occurringin jail, an d t h at trial counsel ne ver discussed his case in detail with him. The Petitioner told trial counsel a bout Antonio Redmond and descr ibed the g un he said Mr. Redmond ha d at the time of the shooting

. The Petitioner believe d trial counsel ne ver spoke to Mr. Redmond, who was in jail on an unr elated c harg e at the time the Petitioner was tr ie d

. T h e Pe ti ti o n e r w an te d tr ia l c o u n s e l t o c a ll M r

. Re d mo n d a s a w it n e s s ; he testified that trial counse l said she would ca ll Mr. Redmond to testify , but she n ever did. The Petitio n er al s o s aid t hat he ur g ed trial c ounsel to interview Ke vin Far mer, who, a lthough he was prese nt on the porch at the time of the Petitioner’s crime, was unr elated to the othe r witnesses. The Petitioner theref

ore be lieved Mr. F arme r would tell the truth.

Trial counse l also impressed upon the Petitioner that a self-de fense claim was not a n option fo r h im b e c a

us e he ha d “ ov e r- kil le d” the vic timby sh oo tin g him

thi rt e e n ti me s. Th e Pe tit ion e r s a id t h a th e s h o tt h e v i c t i m o n l y s i x t i m e s , a s h e h a d b e e n c ar r yi n g a r e v o l v e r w i t h a s i x
- r o u n d c a p a c i t y, and that someone else must also have shot the victim from the porch. Police had never re cover ed the Petitioner’s we apon, howe ver. F inal l y , t h e P et i tioner said that he ha d not wanted to testify b e c a u s e h e w a s c o n c e r

n e d a b o u tm a k i n g h i s c r i m i n a l r e c o r d kn o w n t o t h e j u r y; h e c h o s e t o t e s t i f

y, h o w e v e r , b e c a

u s e t r i a l c o u n s e l i n s i s t e d

t h a th e t e l l h i s s i d e o f

t h e s t o r y.

Tr ia l c ouns e l ha d le ft

the he ari ngby

the tim e the Pe tit ion e r f

ini sh e d te sti fy

ing . T he State

rec al le d h e r a s a r e b u tt a l w it

n e s s , h o w e v e r , in

a Ju ly 1 , 2 0 0 8 c o n ti n u a ti o no f

th e p o s t- c o n v iction hear ing. T rial co u n s el t estified that she ha d, in fac t, spoken to Mr. Redmond on the Petitioner’s be ha lf
, bu t that Mr

. Re dmo nd ha d no t of fe re d any he lpf

ul po te nti a l te sti mony . Sh e c ou ld n ot r e c a ll dis c us sin g any on e na

me d K e vin

F arm er. Tr ia l c ouns e l a lso no te d th a t th e re ha d b e e n n o f or e ns ic

e vid e nc e of

sh ots be ingfi re d fr om the po rc h on whi c h Mr. Re dmo nd and oth e rs sat, oth e r tha n s ho ts fired by the Petitioner.

The post-c onviction court denie d the Petitioner relief in an orde r date d Aug ust 29, 2008. The Pe tit ion e r n owa

pp e a ls.-8- Ana lys is To sustain a petition for post-c o n v i ct i on relief , a petitioner must prove his or her f actua l alleg ations by

clea r and c onvincing evidenc e at a n evidentiar

y hear ing. See Tenn. Code A nn. § 40- 30-110(f ); Momon v. State, 18 S.W .3d 152, 156 (Tenn. 1999) . Upon rev i ew, this Court will not

rew eig h or re-eva luate the evidenc e below; all questions conce rning the credibility of witnesses, the weig ht and value to be g iven their testimony , and the f actua l issues raised by

the evidenc e ar e to be resolved by

the post-convictio n j u d ge, not t he appe llate cour ts. See Momon, 18 S.W .3d at 156; Henley v. State, 960 S.W .2d 572, 578-79 (Te nn. 1997). The post-c onviction judge ’s finding s of fa ct on a petiti on for post-conviction relief are aff orded the weig ht of a jury verdic t and ar e conc lusive on appea l unle ss the evidenc e preponde rate s ag ainst those finding s. See Momon, 18 S.W .3d at 156; Henley , 960 S.W .2d at 578.

The Si xth A me n d me n t to th e U n it e d St a te s Co n s ti tuti o n an d arti c le I , s e c ti o n 9 of the Te nn e sse e Con sti tut ion g ua ra nte e a c ri min a l def

e nd ant the ri g ht t o r e pr e se ntatio n b y c ouns e l. S ta te

v. B ur ns , 6 S.W. 3d

45 3, 46 1 ( Te nn . 1 99 9) ; B a xter v. Ros e , 5 23 S.W. 2d 93 0, 93 6 ( Te nn . 1 97 5) . B oth the United States Supreme Court a nd the Tenne ssee Supre me Court have r ecog nized that the r ight t o s u ch re p re s en t at i o ni n cl u d es t h e r i gh tt o “r ea s o n ab l y ef fe ct i v e” as s i s t an ce , t h at i s , wi t h i nt h e r an ge of compe tence demande d of attorne y s in criminal cases. Strickland v. Washington, 466 U.S. 668, 687 (1984); B urns, 6 S.W.3d at 461; Baxt er, 523 S.W.2d at 936.

A law y er’s a ssi sta

nc e to h is o r h e r c lie nt i s in e ff e c tiv e if the lawy e r’ s c on du c t “ so undermined the proper

functioning of the a dversa ri al proc ess that the trial c annot be r elied on as having produce d a just result.” Strickland, 466 U.S. at 686. This over all standard is c omprised of tw o c omp on e nts : de fi c ie nt p e rf or manc e by the de fe n d a

nt ’ s l a wye r a n d a c tua l pr e jud ic e to t he de fe ns e
cause d by the deficient perf ormanc e. I d. at 687; Bur

ns, 6 S.W .3d at 461. The de fenda nt bear s the burden of establishing both of

these c omponents by

clea r and co n v i n ci n g evidenc e. Te nn. Code Ann. § 40-30-110( f); B urns, 6 S .W.3d at 461. The defenda nt’s failure to prove e ither def iciency or pr e jud ic e is a su ff

ic ie nt ba sis up on wh ic h to de ny re lie f o n a

n in e ff e c tiv e a ssi sta

nc e of c ouns e l c la im. Bur ns, 6 S.W .3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

Th is two -p art

sta nd ard of me a suri ngine ff

e c tiv e a ssi sta

nc e of c ouns e l a lso a

pp lie s to c la ims

ari sin g ou t of

a g uil ty ple a . H ill v. L oc kh art , 4 74 U. S. 52, 58 (1 98 5) . T he pr e jud ic e c omp on e nt i s modified such that the de fenda nt “must show that there is a r easona ble proba bil i t y that, but for counsel’s e rror s, he would not have pleaded guilty and would have insist ed on g oing to trial.” I d. at 59; see a lso Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

.

I n evaluating a

lawy er’ s perf

ormanc e, the r eviewingcourt uses an o bjective standa rd of

“ re a so na ble ne ss. ” Str ic kla

nd , 4 66 U. S. at 688 ; Burn s, 6 S.W.3 d at 462 . The re vie wi ngc ourt mus t be hig hly defe rential to counse l’s choice s “and should indulg e a strongpresumption that counsel’s conduct f alls within the wide rang e of rea sonable profe ssional a ssistance.” Bur ns, 6 S.W .3d at 462;

see a lso St rickland, 466 U .S. at 689. The cour t should not use the benef it o f hindsight to sec ondg uess trial strate g y

or to critici z e counsel’s ta ctics, see Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982), and c ou n s el ’s alleg ed er rors should be judg ed in light of all the fa cts and c ircumstance s as-9-

of the time they

wer e made , see Strickland, 466 U .S. at 690; Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

.
A trial cour

t’s deter mination of an ineff

ective a ssistance of counsel claim presents a mixed question of law a

nd fac t on appea l. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This Court revie ws the trial cour

t’s finding s of fact wit h reg ard to the effec tiveness of counsel under a de novo standard, a ccompa

nied with a pre sumption that those finding s are corr ect unless the preponde ranc e of the e v i d en ce is other

wise. I d. “Howe ver, a

trial court’ s conclusions of law—suc h as whe ther counsel’ s p e r f

o r ma nce w as def

icient or whe ther that de ficienc y was pre judicial—are revie wed unde r a pure ly de novo standard, w ith no presumption of corr ectne ss give n to the trial court’ s conclusions.” I d. (empha sis in original).

The Petitioner’s sole a

rg ument on appea l is that the post-conviction cour t’s denial wa s err or beca use trial counsel failed to c ross-examine Dr. Gar dner at trial reg arding the thirteen unique bullet paths she identified in the vic tim’s body . He c ontends that this failure f ell below an obje ctive sta nd ard of re a so na ble ne ss b e c a

us e “ [w]he n th e e vid e nc e sh ow s tha t the Pe tit ion e r f ir e d s ix sho ts, but the victim was shot thirteen or f ourtee n times, it s h o u l d b e cl ear that someone e lse was shooting.”

I n order to demonstrate that he was prejudice d by trial counsel’ s failure to cross-e x amine Dr

. Gar dner on this point, however , the Petitione r woul d first have to show by clea r and c onvincing evidenc e that he f

ired only six shots. The Petitioner’s wea pon was ne ver r ecove red, how ever , and the post-conviction cour

t appar ently chose not to cre dit the P etitioner’s testim ony that he killed the vic timwi th a

six- sh ot r e vo lve r. Th e Pe tit ion e r a lso did no t pr e se nt a

ny oth e r te sti mony a t his po stconviction hea

ring tending to independently establish that someone e lse also shot the victim or that

cross-e x amining D r. Ga

rdner would have be en bene ficial in some wa y

.

We cannot conc lude that t he post -convic tion court erre d in finding that the Petitioner failed to p ro ve his fa c tua l a lle g a tio ns by c le ar a nd c onvin c inge vid e nc e . We the re fo re a ff ir m th e po stconviction cour

t’s holding that the Petitioner f ailed to show either

prejudice or d e f

ic ie nt pe rfor

mance by tr ia l c ouns e l.

Conclusion Ba sed on the for eg oing a uthor ities and rea soning, w e af firm the Shelby

County Criminal Court’s denial of post-c onviction relief.

______________________________ DAVI D H. WE LLES, JUDGE