### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs O ctober 28, 2003 MICHAEL C. A

DAMS v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Sullivan County

No. C46,200 R. Jerry Beck, Judge

No. E2 003-0 0658- CCA-R3 -PC December 22, 2003 The petitione

r, Michael C. Adams, appeals the denial of his petition for post-conviction relief from his conviction for second degre e murder

and four counts of aggravated a ssault. He argues that he was denied effective assistance of counse l because his trial counsel failed to properl y advise him of his right to testify and

failed to properly

communicate a plea offer and re commended that he proceed to trial. Following our review, we affir m the post-conviction court’s denial of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined. Michael J. LaGu ardia, K ingspor t, Tenne ssee, for the app ellant, Mi chael C. Adams. Paul G. Summers, Attorney Genera l and Reporter; B rent C. Cherry, Assistant Attorney General; and H. Greeley

Wells, Jr., District Attorney General, for the appellee, State of Tennessee.
OPINION FACTS
We first will set out the facts which were the basis for the prosec ution of the petitioner. On the evening of May

31, 1997, a series of threatening telephone calls were made to the Commerton residence in Sullivan County. Mary Commerton, her two children, Chris and Melissa, and two of Chris’s friends, Scott Berry and Travis Freese, decided to conf ront the caller and drov e to his location. They wer

e unarmed. When they

arrived, a confrontation

ensued, which resulted in several s hots being fired at Mrs. Commerton’s vehicle. One of the shots hit and killed Mr. Freese. Mrs

. Commerton and the other children fled the scene on foot. The y later re turned to the scene with a sheriff’s deputy, and the pe titioner and several others were taken into custody . A jury convicted the petitioner of seco nd degr ee murd er and f our co unts of agg ra vated assault, and he received a total sentence of forty-nine

years. On direct appeal, his convictions were affirmed, but his sentenc e was-2-

reduced to forty years, twe

nty-four years f or the second degree murde r conviction and four y

ears for each of the aggravated assa

ult convictions, the sentences to run consecutively

. State v. A dams , 45 S.W.3d 46, 50 (Tenn. Crim. App. 2000), perm. to appeal denied (Tenn. 2001). The petitioner then filed a pro se petition for post-conviction relief, which was amend ed twice after counsel was appointed.
At th e p os t- co nv ic ti on he ar in g, th e p et it io ne r t es ti fi ed th at he on ly me t w it h h is at to rn eys twice prior to tr

ial, and t hat these meeting s lasted “ for abou t three ( 3) minutes

each time .” He sa

id that his attorneys did not keep him informed a nd did not advise him of their trial strateg y. H e also said that his attorneys often

spoke “amongst themselves” and described his involvement in the ca se as merely be ing “present.” The petitioner stated that he not did testify at trial a nd did not disc

uss his rig ht to testif y with his attorne

ys e ither be fore tri al, during trial, or after the close of all the pr oof. He recalle d, at some pointbefore the prosecution rested, being removed from the courtroom

and plac ed in a hol ding ce ll during a court recess. He said that, during this time, his attorneys a lso did not explain his right to te st if y, althoug h admitting

that his attorneys told him, prior to trial and sometime near preliminary motions, that, bec ause of a state ment to law

enforc ement of

ficers, it would not

be in his be st intere st to te st if y. The petitioner further testified that, while he was in the holding cell, his attorney s presented him a plea offer that he serve twenty -five ye ars at eighty

-five percent. However, he did not spec ify whether this offer was for all of the charg es or for the murder charge only . He said that junior trial counsel advised h

im not to tak

e the ple a becau se he felt they had a strong case, and he told junior trial counsel to reject the plea agre ement. Lead trial counsel testified that he and h i s son represented the petitioner at trial. After the petitioner was arr ested, le ad couns el interv iewed him

at the jai l at l e ast ten times and discussed various matters during these visits. T he pet itioner had made three statements, two of which were incri minat ing. In the first statement, the petitioner said that he went to

Wal-Mart and purchased two Remington

single- shot shotg

uns and six

boxes of ammunition. He returned to Billy Thrif t’s trailer, and “all the guys f

ired the guns.” I

n the second statement, the petitioner admitted that he and two other individuals began shooting at a car in the driveway

of the trailer. Lead trial counsel said that he did not file

a motion to suppress the statements because he had an agreement with the prosecution that they would not be used

at trial, unless the petitioner chose to testify

. Lead trial counsel testified that he discussed with the petitioner, on multiple occasions, about his right to testify and whether he should testify. He told the petitioner that ver y few pe ople are acquitted in murder cases unless they te st if y. He said that

the petitioner did not want to testify beca use he was afraid of

cross-examination, and that he had

a particular problem about being cross-e xamined about the statements he made to police. He sai d that he went over t hese i ncrim inati ng st atements with the petitioner several times prior to trial, and that the petitioner expressed fear about being cross-examined because he thoug ht he might get confused and admit to things he did not do.-3-

During trial, and while the petitioner was in the hold ing cel l, lead c ounsel ag ain explained to the petitioner his right

to testify. During this conve rsation, he explained that Amanda Hurt was the prosecution’s key

witness, and her testimony wa s “most probative on the issue of guilt of [the petitioner].” He explained to the petitioner the need to rebut her testimony , and, after the prosecution closed its proof, he again told the petitioner that it would be ha rd to get an

acquitta l without hi s te st im on y an d u rg ed hi m t o t es ti fy:

Itold him that I’d been in f if ty (50) or sixty (60) Murder c ases and it’s tough to get an acquittal unl ess a def

endant te stifies. I

told him a jury wants to know. If y

ou say y ou didn’t kill somebody, stand up and tell me tha

t. But I explained the theories of the law, presumption of innocence and a ll t hat, and he didn’t have to testify , couldn’t be made to, t hat ther e’s some pros and cons to it. He, from day one, al wa ys told me he

did not want to testify. And he wa s frightened that he could never be prepared to w ithstand cross examination based, pr ob ab ly, on two things. His ment al capaci ty and the fac ts of the case. And statements he had made incidental to the facts of the ca se. And I certainly

wasn’t going to put him on the witness stand unprepared

should he, at the last minute, change his mind. So as best Iwas able to, I tried

to prepa re him to testify. And as rec ently as the last recess, I told him, wordsto t he effect, y ou may improve y

our chance by testi fying.
He said t hat the petitioner made a “fully informed” decision not to testify. At the c lose of all the proof, he told the court tha t he had c onsulted w

ith the petitioner many

times, bef

ore tria l, during trial, and in “in the last hour,” and it was the petitioner’s decision not to testify. H e explained that “ i n the last hour” referred to the conver sations he had with the petitioner during the court’s recess and at the counsel table. He said thecourt then questioned the petitioner, and the petitioner to ld th e c ou rt th at it wa s h is de ci si on no t t o t es ti fy.
He recalle d that, pr

ior to trial, there was some discussion with the petitioner about pleading guilty to sec ond de gree mur der in exch ange for a sentence of twenty

-five ye ars. However, there was no plea offer from the prosecution for such a sentence: There was some discussion that a plea offer would have

to origi nate [i]n effect from the [petitioner]. And of course [the district attorney gener al] tried the case with [the as si stant distr ict a ttorney gen eral ]. It alway s indicate d [the plea ] would hav e to be something t h a t satisfied [the p rose cution], and that [the prosecution] would hav e to take it up with the family. The plea p roposal, as occurs on about every case, something’s offered. But there was never, never a n offer of less than First Degree Murde r.-4-

He testified that he discussed this proposal with the petitioner, but the petitioner would not accept sucha lengthy

sentence. He also said that the twenty -four-year sentence was for the murde r charge only and did no t include

the agg ravate d assault

charg es. Junior trial counsel testified that his father was lead counsel for the petitioner, but he assisted with the preparation o f the case. He said that after the trial began, the prose cution offered the petitioner a plea of life with p arole, w

hich the p etitioner

tu r ned down. He could not recall the specifics of the of

fer but r emember ed that it was for f

irst degreemurder. He said that after the State closed its proof and the court re cessed, he and his father met with the

petitione r in a hold

ing cel l. He specific ally

recalle d speakin

g with the petiti oner abo

ut his right to testify. He

said the petitioner did not want to testify. He also re called that his fathe r communic ated to th e petitioner the be nefits of him testif

ying a nd explained to him the burden of proof. There were also similar discussions during trial, both before and after the prosecution put on its proof. The district attorney g eneral, the lead prosecutor

at trial, testified that he was responsible for any plea agreement that would have been made to petitioner. He said that he never made a plea of fer for less than first degre e murder . He spec ifically denied ma

king an offer that would

have allowed the petitione

r to plead g

uilty to second degre e murder , nor did

he make an offer for “twenty -five (25) years on anything.”

He stated that although he and lead counsel discussed the possibility of allowing the petitioner to plead guilty to second degree murder, he never made such an offer. Lead counsel was then r

ecalle d to the sta

nd andtestifie d that the

State had

not offe red to allow the petitioner to plead to second degree mur der: [W]e [referring to himself and the district at to rn ey g eneral] talked several times about the trial prior to the trial; severance, whatever

. And I alway s, in ever

y c ase, try to negotiate if I c an. I wa s steadf astly told that First Degree Murder is the only acceptable ve rd ict to the State. And the ramifications of the total sentence, the General wanted to confer with Mr. Freese, he being the fa ther of the deceased. And Ialway s had the impression they would not acc ept a lesser plea. I discussed this talk about [the p e titioner] and twenty-five (25) years and that, you know, y

ou talk to your clien

t about, w ell, what

would suit you if we could talk the othe r side into it? But we cou ld ne ver talk the other side into i t, so t hat was all wasted conversation, in a sense. He also stated that he did not have any specific recollection of

a plea a greement that w ould

enable the petitioner to serve twenty -five ye ars at eighty- five percent, but unsuccessfully spoke with the prosecu tion about

reducin g the charges .-5- ANALYSIS I. Standard of Review The post-con

viction pe

titi oner bea

rs the burden of proving his allegations by clear and convincing evidence. See Tenn. Cod e Ann. § 40 -30-210( f). When a n evident iary hearing is held in the post-convictionsetti ng, th e find ings of fact made by the trial court are conclusive on appeal unless the evide

nce pre pondera tes aga inst them. See Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factua l issues, the appell ate cour t should not re weigh or reevaluate the evidence. Se e Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the la w to the fa

cts of the caseis de novo , with no presumption of correctness. See Ruff v. S tate , 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel a nd possible prejudice to the defense are mixed questions of law and fac t and, thus, subject to de novo review by the appellate court. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).
To determine the com

petence of counse l, Tenne ssee cou rts have appli ed standards dev eloped infederal case law. See State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the same standard

for determining ineffective assistance of c ounsel that is applied in federal cases also applies in

Tenness ee). Th e United S tates Supr eme Court articulated the standard in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is widely accepted as the appropriate standard for all claims of a convicted pet itioner that counsel’s assistance was defective. The st an da rd is fi rm ly g ro un de d i n t he be li ef th at co un se l p la ys a role th at is “cr itical to the abil ity of t

he adversarial sy stem to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland

standar d is a two-

prong te st: First, the defendant must show th at counsel’s performance was deficie nt. This requires showing that counsel made errors so serious that counsel was n ot functioning as the “counsel” guar anteed the defendant by the Sixth Ame

ndment. Se cond, the

defenda nt must show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that

counsel’ s error s were so

serious a s to deprive the defendant of a fair trial, a trial whose r esult is reliable. Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explai ned the mea ning of “deficient pe rf or ma nc e” in th e f

ir st pr on g o f t he te st in th e f ol lo wi ng wa y: Inany ca se presenting an ineffectivene ss claim, the performance inquir y must be wheth er couns el’s assi stance w as reas onable consideringall the circumstances. . . . No particular set of detailed rules for coun sel’s conduct can satisfactorily take account of the variety of circumstances faced by def ense coun sel or the range of-6- legi tima te decisions regarding how best to re present a criminal defenda nt. Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s repres entation fell below an objective standard of reasonableness unde r prevailing pro fessional no rms.” House v. St ate , 44 S. W.3d 508, 5 15 (Te nn. 20 01) (ci ting Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996)). As for the prejudice prong of the test, the Stric kland Court stat ed: “The defenda nt must show that ther

e is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the procee ding wou

ld have be en diffe

rent. A r easonab le proba

bility is a proba

bility sufficie nt to unde rmi ne confidence in the outcome.” 466 U.S. a t 694, 104 S. Ct. at 2068 ; see also Overton v. State , 874 S.W.2d 6, 11 (Tenn . 1994) (c oncluding that petit ioner fa iled to est ablish tha t “there is a reasona ble probability that, but for counsel’s e rrors, the outcome of the proceeding s wo uld have been different”). Courts need not approach the Strickland test in a sp ecific order or even “a ddress bo th componen

ts of the inquiry

if the defendant

makes an insufficient showing on one.” 466 U.S. at 697, 104 S. Ct. at 206 9; 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 cla im”).
We note t hat wh en pos t-con victi on pro ceedin gs have included a full evidentiary hearing, as was true in this case, the trial judge’s findings of fa ct and conclusions of law are given the eff ect and weight of a jury ve

rdict, and this court is “bound by the tria l judg e’s find

ings of fact unless we conclude that the evidence contained in the record preponderates ag ainst the judgment entered in the cause.” Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990)

. The reviewing court mus t indu lge a strong presumption that the conduct of counsel fa lls wit hin the ra

nge of reasona ble p rofessional assistance, see Strickland , 466 U.S. at 690, 104 S. Ct. at 2066, and may not seco nd

guessthe tactical and

strategic choices made by trial counsel unless those choices were uninformed because of inadequate prepar ation. See Hellard

v. State , 629 S.W.2d 4, 9 (Tenn. 1982). By written order, th e trial c ourt deni ed the pe tit ion for post-conviction relief, making the following finding s: The cour t gives credit to the testimony of petitioner’s original counsel, and spec ifically

finds tha t: (A) The discussion of the wisdom of the defendant/petitioner test ifying w as raised on several occasions, and up until the time at trial where the [petitioner] elected not to testify

. (B) Prior t o the decision being made not to testify , the petitioner’s original counsel had made a ttempts to prepare

his client to testify and this fact is set out in the testimony of [lead trial counsel][.]-7- (C) The tr anscrip t from the

origina l trial . . . clearly a

nd beyond any doubtestablishes that the trial judge advised the [ petitio ner] of his rightt o testify or not testify , and the question or statements of [the tria l j udge] in many re spects mirror the language c ontained in the later arising case of State v. Momon

. (D) The petit

ioner ha s failed t

o establish t hat he is e

ntitled to Po st Conviction Relief by

clear and co nvin cing pr oof. Fu rther , alth ough notpresently the law , t he petit io ne r h as fa il ed to es ta bl is h, by a preponderanceof the evidence, that his is entitled to Post Conviction Relief. (E) Considering the cases of Strickland v. Washington , 466 U.S. 668, 104 S[.] Ct. 2052 (1984), and Baxter v. Rose , 523 SW2d 930 (Tenn. 1975), and other applicable law, thepetitioner has faile d to estab lish that he had ineffective assistance of counsel at his original trial or on appeal. The court

specifically f

inds that the petitioner had effective counsel at trial and on appeal. (F) The petit

ioner ha s failed t

o establish

that counsel failed to convey a plea offer.
A. Ri ght t o Test ify The petitioner argues that trial counsel did not comply with the procedural re qui rements concerning

his right to testify, as outlined in Momon v. Sta te , 18 S.W.3d 152 (Tenn. 1999), saying that, prior totrial, “he was advised by trial counsel that it was not in his best interest to testify,” and that “there was no further conversa tion concerning the right to testify other than the colloquy

at the defense table at the end of the State’s proof.” The petitioner

also notes that trial counsel stated that he had spoken with the petitioner prior to and sometime duri n g trial, but he never made refe rence to a discussion in whichhe advised the petitioner of his right to testify af

ter hearing all of the State’s proof.
At

the post-conviction hearing, the petitioner testified that he did not have any

conversation with his trial counsel about

his righ t to testify either b efore or after

the trial , althoug

h, acco rding to the petitioner, lead counsel told him that it was not inhis best interest to testify beca use he could be cross-examined

about the statements he made to the police. Conversely , lead counsel testified that he advised t

he petitioner of hi s right to testify on multiple occasions befor e and during trial, and

that, inhis opinion, fe w de fendants were acquitted of murder unless they testified. He said that the petitioner stated he was afraid of being cross-examined and elected not to testify

. Inthe di smis sal or der, t he pos t-con victi on cou rt set out a p ortio n of th e inte rchange between the petiti oner and

the trial court as to the pet itioner’ s testify

ing in his behalf a t the tria l:-8- [LEAD COUNSEL ]: Your Honor, I ’ve cons u l ted with [the petitioner] many times, and more re cently, just before this trial and during th is trial, and in the last hour, and it is the decision of [the petitioner] not to testi fy

inthis case. [The petitioner] understands he ha s a fu ll r ig ht t o te sti fy . I s th at

rig ht [ the pe tit ioner ]? [THE PETITI ONER]: Yes, sir.
THE COURT: Tha

nk y ou. But, . . . you have h eard dur ing the c ourse of th e tr ial , i n t he o pen in g in st ruc ti ons I g ave to thi s Jury, that the [petitioner] does not ha ve to te st if y. You have an absolute right not to testify. I f you chose to testify , you may do so, and

the Jury would consider you r testimon y in light of all the facts and circumstances in the case. This being an absolute right, it is y our choice, and

a choice tha t, that only y

ou, with the advi[c]e of your attorney s, can make

. And,

. . . let me take [the codefendant] first. Do I unde rstand that you, you understa nd fully, that y

ou do have

the rig ht to testify or

not testify, as y

ou choose? [CODEFENDANT]: Yes, sir, Your Honor.
THE COURT: And

that in your choosing

not to testi fy , this Jury

will be instructed by the Court that they cannot hold that against y ou? [CODEFENDANT]: Yes, sir, Your Honor. THE COURT : Beca

use y ou have that righ

t. And is it your decision and your choic e not to testify in this case? [CODEFENDANT]: Yes, sir. THE COURT: [The petitioner], likewise. [THE PETITI ONER]: Yes, sir. THE COURT : Do y

ou under stand tha

t right? [THE PETITI ONER]: Yes, sir.
THE COURT: And

is it you r decisio n not to testify

in your defe

nse in this case? [THE PETITI ONER]: Yes, sir.-9- THE COU RT: Well, the Court will find that they each understa ndably and knowingly ha

ve made that

decision and just place that on the record at this point in time. The petitioner argues that he is entitled to post-conviction relief under the holding of Momon v. State , 18 S.W.3d 152, 161-62 (Tenn. 1999) , wherein our supreme court held that a criminal defendant’s right to

testify is a funda

mental constitutiona

l r ightthat may be wa

ived only by

the defendant and requ

iring th at the defendant’ s waiver be made on the record. However, the court explain edthat its holding was not retroactive, stating: “[T]he procedures adopte d herein do not establish a new constitutional rule which must be retroactively applied.” Id. at 163. As to this issue, the post-conviction court found that trial counsel had discussed on several occasions up until the time of trial and that the petitioner elected not to testify , although counsel had attempted to prepare his trial testimony. F urther, the post-conviction court determined that the trial court had adequately

explained to the petitioner his right to testify or de cline to do so. We conclude that the r ecord su pports the se deter

minations.
B. Plea Offer The petitioner argues that t rial c ounse l imp roperl y communi cated t o him a sent ence ran ge associated

with a pl ea offer and thereafte r advised him to reject the offer and proce ed to trial. He further contends that under Deon Brade n v. State , No. 01C01 -9708-CC- 00351, 199 8 Tenn. Cr im. App. LEXI S 744 (Tenn. Crim. App. July 15, 1998), a trial counsel’ s failure

to advise his client of a range of punishment

associated with a guilty

plea should be considered in determining whether the petitioner received ineffective assistance of counsel.
At the post-conviction hearing, lead counsel testified that there was neve

r an off er for le ss than first degree murder. He also said that he was informed by the prosecution that any

plea offer w ould have to originate with the petitioner, and that the prosecution would have to clear any

ple a agreement

with the vi ctim’s fa

mily . He fur

ther stat ed that, p rior to tr ial, there was “some discussion” about the petitioner pleading guilty to second degree murder in exchang e for a twent y- fiv e-yea

r sentence, but these discussions did not go any where. Si mi la rl y, the district attorney g eneral who prosecuted the case te stifi edthat there was no plea offer for any

charge less than first deg ree murder:
I’m certain that we discussed, at [lead couns e l’s] instigation, the possibility

of allowi

ng the [pe

titioner] to

plead g uilty to Se cond DegreeMurder. An offer was never ma de by me, or [the assistant districtattorne y gener

al], to allow [the peti

tioner] to p lead gu

ilty to Second Degree Murder

to any sentence . The only offe r was made by my office , by

mys elf, or by [the

assist ant district a

ttorney gener al]-10- was for him to enter a guilty plea to a charge of F irst Degree Murder. That was the only thing we would ac cept. As to this claim, the post-conviction court accredited the testimon y of the district attorney general and petitioner’s lead trial counsel, that the on ly plea of

fer mad e as to the ho mici de char ge was that he plead guilty

to first degree murder, which is pu ni sh ab le on ly b y death, life without pa role, o r life wit

h the possi

bility of parol e. The r

ecord su pports this

determination by

the postconvicti on court. CONCLUSION Based upon t he fore going au thori ties a nd reas onin g, we affirm the post-conviction court’s denial of the petition for post-conviction relief.

___________________________________ ALAN E. GL

ENN, JUDGE