IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 19, 2012

CRAIG O. MAJORS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

No. 40701074 Michael R. Jones, Judge

No. M2011-02353-CCA-R3-PC - Filed August 13, 2012

Petitioner, Craig O. Majors, was convicted of especially aggravated kidnapping, attempted

aggravated robbery, and aggravated burglary in Montgomery County. See Craig O. Majors

v. State, No. M2009-00483-R3-CD, 2010 WL 2483512 (Tenn. Crim. App., at Nashville,Jun.

21, 2010), perm. app. denied, (Tenn. Dec. 8, 2010). Petitioner’s convictions were affirmed

on appeal. Id. at *1. Petitioner sought post-conviction relief on various grounds, including

ineffective assistance of counsel. The post-conviction court denied relief. Petitioner now

appeals. After a thorough review of the record and applicable authorities, we affirm the postconviction court’s denial of post-conviction relief as Petitioner has failed to show clear and

convincing evidence that he is entitled to post-conviction relief. Accordingly, the judgment

of the post-conviction court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

J. S. “STEVE” DANIEL, SP. J., delivered the opinion of the court, in which THOMAS T.

WOODALL, and JOHN EVERETT WILLIAMS, JJ. , joined.

Craig O. Majors, Pro Se, Wartburg, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; John W. Carney, District Attorney General; and Steve Garrett, Assistant District

Attorney General, for the appellant, State of Tennessee.
OPINION

Factual Background

The facts that set forth the basis for Petitioner’s convictions for especially aggravated

kidnapping, attempted aggravated robbery, and aggravated burglary in Montgomery County

were set forth in this Court’s opinion on direct appeal. See Craig O. Majors, 2010 WL

2483512 at *1-3. Petitioner took part in a home invasion of Gene and Wendy Douglas, who

testified that:

[S]he was asleep when she heard her husband calling her for help and asking

her to call 9-1-1. She found her husband in the garage struggling with an

individual. The individual was on top of her husband and had his hands

around her husband’s throat. Mrs. Douglas testified that she ran to her

husband’s aid and struck the assailant in the head. She then ran back to her

bathroom where she called 9-1-1 from her cellular telephone. Soon after she

made the telephone call, the assailant fled the couple’s garage. The couple

discovered that the keyless entry to Mrs. Douglas’ car was missing, along with

her driver’s license and a credit union debit card. Within minutes, the police

brought a suspect to the couple’s home where Mrs. Douglas and her husband

separately identified [Petitioner] as the intruder. Mrs. Douglas described the

events of that night as “terrifying” and “horrible.”

Id. at *2. Petitioner was not in possession of any weapons or stolen property. Id. at *3.

However, shoeprints taken from outside an open window at the scene matched those worn

by Petitioner. There were no identifiable fingerprints found at the scene. The second suspect

alleged to have been involved in the invasion was never found.

On appeal from his convictions, Petitioner argued that the State utilized peremptory

challenges to exclude African-American jurors from the jury; his convictions for especially

aggravated kidnapping and attempted aggravated robbery violated due process; the evidence

was insufficient to prove his identity; and the trial court improperly sentenced him. Id. at *3-

9. Petitioner’s convictions and sentence were affirmed on appeal. Id. at *9.

Subsequently, Petitioner filed a lengthy pro se petition for post-conviction relief,

alleging, among other things, that he received ineffective assistance of counsel at trial. At

the hearing on the petition for post-conviction relief, Petitioner testified as to various

allegations of ineffective assistance of counsel. Specifically, Petitioner claimed that trial

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counsel was ineffective because she failed to recognize that the State withheld favorable

evidence with regard to the shoeprint found at the scene. Petitioner’s main complaint with

regard to trial counselstemmed from the way she handled the issuesrelating to identification.

Petitioner insisted that his identity was the main issue at trial.

Petitioner also complained about the identification process. He thought that it was

inherently suggestive but admitted that the issue had been addressed on direct appeal by this

Court and he was not granted relief. Further, Petitioner complained that one of the witnesses

described the suspect as “light-skinned” and failed to describe the suspect’s clothing.

Petitioner insisted that had trial counsel more effectively cross-examined the witness there

would have been a different result at trial. Petitioner also thought that trial counsel should

have tried to impeach one of the detectives by using the testimony of the victims.

Petitioner next complained that trial counsel was ineffective for failing to request a

special jury instruction on identity. Petitioner conceded that the jury was in fact given an

instruction on identity at trial but complained that it was “basic.”

Petitioner testified that trial counsel should have objected to several statements made

by the prosecutor in closing argument. On cross-examination, Petitioner emphasized that the

primary issue in his petition was about ineffective assistance of counsel with respect to

failure to raise issues with regard to identity at trial. Petitioner also complained that appellate

counsel failed to raise several issues on appeal.

Trial counsel testified that she was retired from a twenty-five year career in the Public

Defender’s office. Trial counsel recalled Petitioner’s case and determined that based on the

evidence and research she did prior to trial there was no basis for a challenge to the

identification procedure used. Trial counselspecifically recalled cross-examining the victims

but acknowledged that she was concerned because of their emotional state and ability to

become sympathetic figures to the jury. Trial counsel felt at the time that any questioning

deemed too rigorous would have a negative effect on the jury.

At the conclusion of the post-conviction hearing, the court took the matter under

advisement. In a separate order, the post-conviction court examined each allegation

presented by Petitioner and determined that Petitioner did not sustain the burden for postconviction relief. Specifically, the post-conviction court noted that Petitioner was not denied

due process by the introduction of a copy of a photograph at trial. The post-conviction court

determined that Petitioner failed to present Deputy Willie Wall as a witness at the postconviction hearing to establish anything about a second suspect. With regard to ineffective

assistance of counsel, the post-conviction court determined that: (1) trial counsel was not

ineffective for failing to ask for a jury instruction on attempt to commit especially aggravated

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kidnapping because the offense was not raised by the proof; (2) trial counsel was not

ineffective for failure to challenge the “show up” as unduly suggestive because he “failed to

show that the show up tainted the in-court identification;” (3) trial counsel was not

ineffective for failing to object to a question about whether the perpetrator’s face was

partially or fully covered because any objection would have been overruled at trial; (4) trial

counsel was not ineffective in failing to cross-examine Wendy or Gene Douglas because

Petitioner failed to show how any further cross-examination would have been of benefit; (5)

trial counsel was not ineffective for failing to impeach Detective Julie Webb because

Petitioner failed to show how this affected the outcome of his trial; (6) trial counsel was not

ineffective for failing to introduce a prior statement of Savannah Carroll for impeachment

because Petitioner failed to show prejudice; (7) Petitioner failed to present testimony of

Deputy Wall and thus could not establish ineffective assistance of counsel by trial counsel

for failure to question the deputy about descriptions of the assailant; (8) trial counsel was not

ineffective for failing to object to questions about fingerprints because there was no evidence

to show prints were known prior to Petitioner being booked; (9) trial counsel was not

ineffective for failing to object to whether the intruder was alone or with someone because

there was nothing objectionable about the question; (10) trial counsel was not ineffective for

failing to “impeach concerning mask” because it was a tactical decision and failure to ask

more questions is not ineffective assistance of counsel; (11) trial counsel was not ineffective

for failing to cross-examine Gene Douglas about lights and/or that Mr. Douglas’s testimony

was perjury as Petitioner failed to show prejudice; (12) trial counsel was not ineffective for

failing to object to the State’s closing argument because there was no improper argument

from which to object; (13) trial counsel was not ineffective for failing to request a special

jury instruction on identification because Petitioner failed to show the outcome of trial would

have been different had the instruction been given; (14) trial counsel was not ineffective for

failing to raise a third-party culpability defense because the record shows that trial counsel

raised this defense at trial; (15) trial counsel was not ineffective for failing to object to a

“racial” remark made during closing as Petitioner failed to show that any statements made

by the prosecutor were racial remarks. As a result of the findings, the post-conviction court

denied relief and dismissed the petition.

Petitioner filed a timely notice of appeal.

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Analysis

Post-Conviction Standard of Review

After filing the notice of appeal, Petitionersought leave from the court to proceed pro se on appeal. 

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After a hearing, the trial court granted the waiver of counsel and allowed Petitioner to proceed pro se on

appeal from the denial of post-conviction relief. 

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The post-conviction court’s findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

During our review of the issues raised, we will afford those findings of fact the weight of a

jury verdict, and this Court is bound by the post-conviction court’s findings unless the

evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d

572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This

Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those

drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.

2001). However, the post-conviction court’s conclusions of law are reviewed under a purely

de novo standard with no presumption of correctness. See Shields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

Ineffective Assistance of Counsel

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial

counsel were deficient and (b) that the deficient performance was prejudicial. See Powers

v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient

performance, the petitioner must show that the services rendered or the advice given was

below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must

show that there is a reasonable probability that, but for counsel’s deficient performance, the

result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.

668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on

a claim of ineffective assistance of counsel, failure to prove either deficient performance or

resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,

960 S.W.2d 572, 580 (Tenn. 1997).

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record

preponderates against the court’s findings. See id. at 578. However, our supreme court has

“determined that issues of deficient performance by counsel and possible prejudice to the

defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]

is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

Furthermore, on claims of ineffective assistance of counsel, the petitioner is not

entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).

This Court may notsecond-guess a reasonably-based trialstrategy, and we cannot grant relief

based on a sound, but unsuccessful, tactical decision made during the course of the

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proceedings. See id. However, such deference to the tactical decisions of counsel applies

only if counsel makes those decisions after adequate preparation for the case. See Cooper

v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

On appeal, Petitioner complains that the post-conviction court improperly denied his

petition for post-conviction relief. Specifically, Petitioner arguesthat he received ineffective

assistance of counsel because trial counsel failed in several different ways to properly raise

the issue of identification. In fact, Petitioner’s lengthy brief and “extented brief” to this

Court comprise nearly 300 pages of complaints about trial counsel’s performance. The State

insists that the post-conviction court “properly denied the petition because [Petitioner] failed

to demonstrate that counsel was deficient in any regard or that this alleged deficiency . . .

affected the outcome of the trial.”

The overriding theme of Petitioner’s argument on appeal is that trial counsel erred by

not sufficiently challenging witness identification of him as the perpetrator of the offense.

Specifically, Petitioner first insists that trial counsel was ineffective for not challenging the

“show up” identification as unduly suggestive. Trial counsel testified at the post-conviction

hearing that she reviewed the evidence and researched the issue and concluded that she was

unlikely to be successful if she challenged the identification process at trial. Petitioner did

not show any evidence to the contrary at the hearing on the post-conviction petition.

Moreover, this Court addressed the identification made by the victims on direct appeal and

found them to be unequivocal. Craig O. Majors, 2010 WL 2483512, at *7. The evidence

does not preponderate against the post-conviction court’s decision in this regard. Petitioner

is not entitled to relief on this issue.

Next, Petitioner claims that trial counsel was ineffective in cross-examining and/or

failing to impeach the victims at trial. Trial counsel testified that she cross-examined both

victims at trial but found them to be very sympathetic witnesses because they were extremely

emotional. In her experience, if she cross-examined the victims too harshly it would be

counterproductive. Petitioner did not show how further cross-examination would have

resulted in a different jury verdict at trial. As pointed out by the post-conviction court, these

were trial strategy decisions made and employed by trial counsel. It is not the function of this

Court to second-guess trial strategy. Henley, 960 S.W.2d at 579. The evidence does not

preponderate against the determination of the post-conviction court. Petitioner is not entitled

to relief on this issue.

Petitioner alleges that trial counsel was ineffective for failing to request an additional

instruction on identification. Petitioner acknowledged that the trial court instructed the jury

on this issue at trial but complained that the trial court should have told the jury that

identifications made by victims were somehow less reliable. If a jury instruction fails to

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“submit the legal issues” or “misleads the jury as to the applicable law” it is erroneous. State

v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Petitioner has shown neither instance with

regard to the jury instructions provided to the jury herein. Further, any comment by the trial

court as to the reliability of an identification could have been perceived as a comment on the

evidence. The trial court is prohibited from commenting on the evidence. See Tenn. Const.

art. VI, § 9. The evidence does not preponderate against the determination of the postconviction court. Petitioner is not entitled to relief on this issue.

Finally, Petitioner complains about trial counsel’s failure to object to certain

statements made by the State during trial. Specifically, Petitioner alluded to “racial” remarks

and statements by the prosecutor that essentially vouched for the credibility of the victims.

The post-conviction court determined that there was no basis for the objections. Petitioner

has not shown how he was prejudiced by any objectionable statements that may have been

made by the prosecutor or how the result of his trial would have been different had trial

counsel objected. Petitioner is not entitled to relief on this issue.

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Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

___________________________________

J.S. “STEVE” DANIEL, SPECIAL JUDGE

Petitioner makes an argument in passing about the failure of appellate counsel to raise certain issues

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with regard to “racial remarks” made by the prosecutor during opening statement on direct appeal. This

issue was not, as we can surmise, addressed by the post-conviction court at the hearing on the petition or in

the order disposing of the petition. However, a review of the hearing on the post-conviction petition reveals

that Petitioner was not represented on appeal by trial counsel. Appellate counsel did not testify at the

hearing. Thus, Petitioner cannot show that the decision to fail to address this issue on appeal was ineffective

assistance of counsel. Again, it is Petitioner’s burden to show that (a) the services rendered by trial counsel

were deficient and (b) that the deficient performance was prejudicial. See Powers, 942 S.W.2d at 558.

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