### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE April 25, 2001 Sessi

on
JONATHAN DAVIS v. STATE OF TE NNESSEE
Appeal as of Right from the Circuit Court for Maury County

No. 8,455 Robert L. Jones, Judge

No. M2000-01158-CCA-R3-PC - Filed August 16, 2001

The petitioner, Jonat

han Davis, was co

nvicted in the Maury County Cir

cuit Court of two co

unts of felony murder and one count of attempted aggravated robbery. He received consecutive sentences of life imprisonment for the felony murder co nvicti ons and three years imprisonment for the attempted aggravated robbery conviction. On direct appeal, this court affirmed the petitioner’s convictions and sentences. See William Edward Watkins , No. 01C01-9701-CC-00004, 1997 WL 766462 (Tenn. Crim. App. at Nashville, December 12, 1997), perm.to appeal denied , (Tenn. 1998). Subsequently, the petitio ner filed a petition for post-conviction relief alleging the ineffective assistance of

both trial and appe

llate counsel. On

appeal, the petitioner contests the post-conviction court’s denial of his petition for relief. Upon review of the record and the parties’ briefs, we affirm the judgment of the

post-conviction c

ourt.
Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.
Paul J. Bruno, Nashv

ille, Tennessee,

for the appellan

t, Jonathan Davis.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Mike Bottoms, District Atto rney General;

and Robert

Sanders, Assistan

t District Attorney

General, for the appellee, State of Tennessee.

OPINION
I. Factual Backgroun

d In the direct appeal of the petitioner’s convi ct ions, this court summa rized the facts as follows: On March 28, 1994, Watkins borrowed a gun from Lamont Orr. He met some friends at

Columbia Gardens Apartments, and they began discussing a proposed plan to r ob the Ri chland Inn. D avis-2- approache d the gro up and agreed to rob the Richland Inn. Watkins gaveDavis the .22 caliber h and gun and a ski mask , and they bo

th walkedtowards the motel. The others in the group decided that they didnot want to participate in any criminal activity and stay ed behind.
Elwood Sinson, a gu

est at the Richland I

nn, was meeting a

business associate in his room on the ground floor. As he was waiting for his associate to open the door, he saw Davis jump from a brick wall on the side of the parking lot and walk towards him. Davis quickened his speed and aimed the gun at Sinson and said, "your money or y our life." Sinson was able to get inside the m otel room before Davis could do anything further.

After the failed robbe

ry attempt at th e Richland Inn, Watkins and Davis decided to rob Lamont Orr. They we nt to Orr's trailer, where he lived with his girlfriend, Elizabeth Smith. Orr left with them when Watkins and Davis told him tha t they were going to participate in a cocaine transaction. Orr drove Watkins and Davis to the parking lot of Brown's School. Upon arrival at the parking lot, D

avis without any provocation shot Orr in the head. Orr was also shot a sec

ond time in the head and died as a result of these wounds. Although Orr was seen with15-20 rocks of

crack cocaine earlier that day, no drug s were found on his person after his death.

Because Smith had seen Orr leave with t hem, W atkins and Davis returned to the trailer. Smith was fatally shot once in the head. Earlier that evening, Smith was seen with $100. No money was found at the trailer after the homicide, and the re was also evidence that some cocaine wa

s missing from t

he trailer. Davis was subsequently

seen wearing r ings which he claimed he had taken from Smith.

Watkins was arre ste d tw o da ys later on an unrelated forgery char ge. A fter being questioned on the murders, Watkins gave a s tatemen t implicating himself and Davis in the attempted robbery of Sinson

and the homicides of

Orr and Smith. Davi

s subsequently confessed to the crimes as well.

After a joint ju

ry trial, both defendants were convicted of one (1)
c ountof attempted aggravated robbery and two (2) counts of f

irs t degree felony murder. For both defendants, the t rial court imposed consecutive sentences of life imprisonment for each count of felony
mur der a nd t hree (3) years for att emp ted aggr avat ed ro bbe ry.-3-

Watkins , No. 01C01-9701-CC-00004, 1997 WL 766462, at **1-2.

The petitioner was represented at trial by Attorne y Richard Clark. However, prior to a hearing on the petitioner’s motion for a new t rial, Attorney Clark was disbarred for misappropriation of client funds. Thereafter, the petitioner was represen ted by At torney Gary Howell at the motion for new trial and on appeal. This court affirmed the judgment of the trial court
on direct appeal, and our

supreme court denied

the petitioner’s a

pplication for pe

rmission to appeal. Subsequently, the petitioner filed for post-con viction relief alleging that he received ineffective assistance of both trial and appellate counsel. The post-conv iction court d enied the petition er’s claim for relief. It is

from this ruling tha

t the petitioner now

appeals.
II. Analysis Because the petitioner

filed his post-conviction petition after May 10, 1995, hemust prove all factual allegations contained therein by clear

and convincing ev

idence in order t

o obtain relief. Tenn. Code Ann. § 40-30-210(f) (1997). In other words, the petitioner must demonstrate that there is “no seri

ous or substantial d

oubt about the cor

rectness of [his

] conclusions drawn from the evidence.” Hodges v. S.C. Too f & Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992); see also State v. Holder , 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999), perm. to appeal denied , (Tenn. 2000). It i s the duty of the post-conviction court to resolve all issues regard ing the credibility

of witnesses, the weight and value to be accorded their testimony, and the factual questions raised by the evidence. Henley v. State , 960 S.W.2d 572, 579 (Tenn.1997) . On appeal, this court accords the post-conviction court’s findings of fact the weight of a jury verdict, and t hose find ings are binding on this court unless the evidence in the record preponderates against those findings. Id. at 578.

Tennessee case

law has establishe

d that a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). Our supreme court has further

explained that, on appeal, a post-conviction court’s findings of fact are reviewed de novo with

a presumption of c

orrectness, whi

le its conclusions o

f law are revie

wed purely

de novo. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001).

In o rder t o obtain relief because of ineffective assistance of counsel, the petitioner must prove not only “that counsel’s performance was defi cie nt” but also “that the deficiency prejudiced

the defense.” Goad v. State , 938 S.W.2d 36 3, 369 (Tenn. 1 996) (citi ng Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (198

4)). Counsel’s perfor mance is not deficient if such performance f

ell within the rang

e of competence

required of atto

rneys in criminal
cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Additionally,

[t]o establish prejudice, the petitioner must demonstrate “that there is
a reasonable pro

bability that

, butfor counsel’s unp

rofessional err

ors, the result of the p roceeding would have been different.” A probability

is “reasonable” if it is “sufficient to undermine confidence in the outcome” of the proceeding. Campbell v. State , 904 S.W. 2d 594, 597 (Tenn. 1995 ) (quoting Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994)). This court need not review both el ements if the petitioner has failed to prove one1 The name of the wit ness is also spel

led “Donny Ragsdale

” in various

portions of the recor

d.
-4- element; i.e., if t he petitio ner has failed to prove prejudice, this court need not decide if the attorney’ s performance h

as been deficie

nt. See Burns , 6 S.W.3d at 461; Michael J. Boyd v. State , No. 02C01-9406-CR-00131, 1996 WL 753 51, at *6 (Tenn. Crim. App. at Jackson, February 21, 1996), affirmed by State v. Boyd , 959 S.W.2d 557 (Tenn. 1998).

A. Ineffective Assistance of Trial Counsel The petitioner contends that his trial counsel was ineffec tive in the following respec ts: (1) tria l counsel refused to allow the petitioner to testify in his own behalf during tr

ial; (2) trial counsel should have called Donnie Ragsdale as a witness at the petitioner’s t

rial; (3) trial counsel fai

led to adequately

investigate the petitioner’s case; (4) trial counsel did

not try to “win” the petitioner’s trial and instead merely tried to “get grounds for an appe al”; (5) trial counsel did not

ensure the petitioner’s presence for two court dates; and (6) trial counsel was taking the anti-depressant drug Zoloft during trial, which indic

ates his ineffec

tiveness. We will address each of these contentions in turn.

The petitioner mainta

ins that the outcome

of his trial would have been different had he testified at trial. The petitioner explained at the post-con viction hearing that he would have testified that his statement to the police was co

erced. Addit

i onally, the petitioner maintained that he would have testified

at trial that “[the murders were] a last-minute thing on my--on my behalf.

. . . t hey just basically wanted me to follow along and just be a lookout, but at the last moment, i t turned in to be a

little blood bath.” Notably, the petitioner conceded that, prior to trial, he filed at least one motion to suppress his statement to the police and explained the circumstances surrounding the statement to the trial court during a proceeding on that motion; nevertheless, the trial court ruled that the statement was admissible at trial. Furthermore, on direct appeal, t

his court found that the petitioner’s confession was voluntary. Watkins , No. 01C01-9701-CC-00004, 1997 WL 766462, at **6-8. Moreover, the pe

titioner’s versio

n of events would no

t have exculpate

d h im from being criminally

responsible

for his co-defendant’s actions and would have essentially been a confession to the crimes for which he was being tried. See Charles E. Dorse, Jr. v. State , No. 02C01-9706-CR

00205, 1998 WL 118148, at *6 (Tenn. Crim. App. at

Jackson, March 1 8, 1998); see also Tenn. Code Ann. § 39-11-402 (1997). Accordingly, the petitioner has failed to prove that he was prejudiced by any alleged def

iciency of trial c

ounsel for failing

to have the petitio

ner testify at tria

l.

The petitioner

also alleges that his trial counsel was inef fective by not ca

lling Donnie Ragsdale 1 to testify on his behalf at trial. Ragsdale testified at the post-conviction hearing that prior to the petitioner’s trial, he was incarcerated with the petitioner’s co-defen d ant, William Watkins, and-5-

heard Watkins confess to a murder. However, as the post-conviction court noted, the petitioner was convictedof two separate murders, and Ragsdale was unab le to identify the murder to which Watkins had been referring. Moreover, the post-conviction court found that, because of Ragsdale’s criminal history of seven theft convictions and two aggravated burglary convictions and because of hi s inconsis tent testimony at the post-conviction he

aring, Ragsdale w

as not credible a

s a witness. See Hindman v. State , 672 S.W.2d 223, 224 (Tenn. Crim. App. 1 984); Michael Todd Drinno n v

. State , No. E1999-2001-CCA-R3-PC, 2000 WL 1478568, at *8 (Tenn. Crim. App. at Knoxville, October 6, 2000), perm. to appeal denied , (Tenn. 2001). We agree with the post-conviction court that the petitioner has failed to prove that he was prejudiced

by trial counsel’ s failure to call Ra gsdale as a witness at trial.

The petitioner also co

ntends that trial c

ounsel failed to

properly investig

ate his case and that counsel advised the petitioner that he was not trying to “win” the petitioner’s case but was only trying to “save grounds for an appeal.” Addition ally, the p etitioner’s mother testified at the post-conviction hearing that trial counsel was not trying to “win” the petitioner’s case. Even if the petitioner’s contention is true, the petitioner has failed to demonstrate what more counsel could have done in furthera

nce of his case. See State v. John C. Garrison , No. 03C01-9702-CC-00047, 1998 WL 103318, at *13 (Tenn. Crim. App. at Knoxville, February 27, 1998), perm. to appeal granted , (Tenn. 1998); cf. State v. Casson Marcel McCoy , No. 01C01-9603-CC-00109, 1997 WL 137422, at *2 (Tenn. Crim. App. at

Nashville, March

27, 1997) . The pet

itioner also alleg

es that counsel did notask questions that were suggested by the petitioner to impeach witnesses at trial. However, not only does the petitioner

fail to specify the

questions counsel s

hould have asked,

he alsoneglects to identify the witness(es) to whom the questions should have been posed. Cf

. Barry L. Speck v. State , No. W1999-00436-CCA-R3-PC, 2000 WL 1024605, at *5 (Tenn. Crim. App. at Jackson, July 19, 2000), perm. to appeal denied , (Tenn. 2001). Once again, the petitioner has fa

iled to demonstrate prejudice.
Additionally, the petitioner complains that trial counsel failed to ensure the petitioner’s presence at two court dates. However, the petition er was una

ble to specify which proceedings he did not attend. Moreover, even if counsel were deficient in this regard, the petitioner has nonetheless failed to establish what prejudice he suffered by not being present. We also note that the petitioner has not included in the record a transcript of any proceeding where he was not present. SeeTenn. R. App. P. 24(b ); State v . Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993). Thus, the petitioner has failed to carry his burden on this issue.

Finally, the petitioner co

nte nds that trial counsel was ineffective because counsel was taking the anti-depressant drug Zoloft during trial. However, the petitioner has failed to allege the effect, if any, that the me

dication had on co

unsel’s perform

ance. Moreover

, the petitioner’s app ellate counsel testified at the post-conviction hearing that, during his research for the petitioner’s a

ppeal, he reviewed a transcript of the trial and could find no indication that trial counsel had been anything less than alert and effective. Cf

. Garrison , No. 03C01-9702-CC-00047, 1998 WL 103318, at *14; Thomas K eith Battle v. State , No. 01C01-9510-CR-00335, 1997 WL 13739, at *1 (Tenn. Crim. App

.-6-

at Nashville, January 16, 1997). In sum, on every issue presented to this court, the petitioner ha s failed to carry his burden of proving the ineffectiveness of trial counsel.
B. Appellate Counsel Th e petitioner also al

leges that he rec

eived the ineffe

ctive assistance

of appellate counsel. Specifically, the petitioner contends that appellate counsel was ineffective because:

(1) counsel failed

to submit an adequate brief to this court on direct appeal; (2) counsel fail

ed to properly inve

stigate appellate

issues; (3) counsel failed to meet with the petitioner prior to filing his appellate brief; and (4) counsel failed to notify the petitioner re garding his right to

appeal the decision of this court to the supreme c ourt unt il approximately twenty days before the deadline.

The petitioner’ s f

irst allegation of ineffective assistance of counsel concerns the inadequate

brief submitted by appellate counsel to this court. The pe titioner argues that counsel failedto properly cite a

ny authority to

support his appella

te arguments and f

ailed to properly

cite to the record. However, this court has previously noted that such behavior, although not condoned or encouraged

by th e appellate courts, will not be deemed ineffective per se. Garton v. State , 555 S.W.2d 117, 119 (Tenn. Crim. App. 1 976). It is clear from our review t

hat, despite the sparse brief of appellate counsel, on direct appeal this court

fully explored al

l of the petitioner

’s contentions. Id. Additionally, the petitioner argues that, on dire ct appeal, counsel failed to raise all of the issues containedin the petitioner’ s motion for new tri al. However, our

courts have repeated

ly held that the decision regarding which issues to raise on appeal is a strategic one that may not be second guessed in a post-conviction proceeding. Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993); Dorse , No. 02C01-9706-CR-00205, 1998 WL 118148, a t *7. Mo reover, “[t]he petitioner does no

t suggest a specific issue that, if addressed in the appellate brief, would have affected the result of the appeal.” Campbell , 904 S.W.2d at 597. Accordingly, the petitioner has not established that he was prejudiced by appellate counsel’s brief.

The petitioner

also contends that

counsel did

not adequately inv

estigate his appe

llate issues and, specifically, did not meet with the petitioner to discuss the ap pell ate brief. Appe llate counsel admitted at the post -conviction hear

ing that he did not me

et with th e petitione r after speaking with the petitioner regarding the appellate procedure following the motion for new trial. However, appellate counsel also testified that he was unaware of any assistance the petitioner could have provided in the preparation of his brief See Porterfield v. Sta te , 897 S.W.2d 672, 678 (Tenn. 1995). The petitioner has failed to show what assistance he would have been able to

provide or that additional meetings between counsel and the petitioner would have resulted in a different outcome.

Next, the petitioner alleges that he received insuff icient notice of h

is right to appeal the decision of

this court to

the supreme cour

t and did not recei

ve counsel’s help

in appealing this-7-

court’s decision. However, it appears from the records of the Clerk of the this Court that the petitioner was nonetheless a

ble to request per

mission toappeal, which request was denied. Delbridge v. State , 742 S.W. 2d 266, 267 (Tenn. 1987) “([

C]ourts may take judicial notice of ... court records in an earlier proceeding of the same case and the actions of the court thereon.”). Accordingly,
we agree with the post-conviction cour t that the petitioner has also failed to prove that he was prejudiced

by counsel’s actions in th is regard, and, therefore, he has failed to establish that he received the ineffective assistance of appellate counsel.
C. State’s Failure to Respond Finally, the petitioner ar

gues that, becau

se the State failed to time ly respond to his petition for post-conviction relief, the trial court should ha ve g ranted his petition. However, this court has previously indi

cated that the Sta

te’s failure to r

espond to a post-conviction petition is not grounds for granting a petitioner post-conviction relief. See Loring C. Warner v. State , No. 03C01- 9610-CR- 00407, 19 98 WL 22072, at *3 (Tenn. Crim. App. at Knoxville, January 23, 1998). Moreover, Tenn. Code Ann. § 40 -30-208(a) (19

97) specifically

provides that “[f

]ailure by the sta

te to timely respond does not entitle the petitioner to relief under the Post-Conviction Procedure Act.” Addit ionally, the petitioner has not demonstrated how

he was prejudice

d by the State’s fa

ilure to respondin a timely manner. See Robert Roger Brew ington v. State , No. 01C01-9808-CR-00327, 1999 WL 1129672, at *3 (Tenn. Crim. App. at Nashville, December 10, 1999), perm. to ap pea l denied , (Tenn. 2000). This issue is without merit.

III. Conclusion Finding no error, w

e affirm the judgm

ent of the post-co

nviction court.

___________________________________ NORMA McGEE OGLE, JUDGE