IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 13, 2010

TORREZ TALLEY v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 01-08325-33 Paula Skahan, Judge

No. W2009-02036-CCA-R3-PC - Filed May 9, 2011

Petitioner, Torrez Talley, appeals the dismissal of his petition for post-conviction relief in

which he alleged that he received ineffective assistance of trial counsel because counsel

failed to sufficiently argue the standard of reasonable doubt during closing argument. After

a thorough review of the record, we conclude that Petitioner has failed to show that his trial

counsel rendered ineffective assistance of counsel and affirm the judgment of the postconviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Michael R. Working, Memphis, Tennessee, for the appellant, Torrez Talley.

Robert E. Cooper,Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant

District Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Background

Following a jury trial, Petitioner was convicted of ten counts of especially aggravated

kidnapping and four counts of aggravated robbery. He was sentenced to an effective one

hundred and forty-year sentence. On appeal, this Court affirmed the convictions and

sentences. State v. Torrez Talley, Jevon Bryant, and Keith Ezell, No. W2003-02237-CCAR3-CD, 2006 WL 2947435 (Tenn. Crim. App. Oct. 16, 2006) perm. app. denied (Tenn., Mar.
19, 2007). The facts surrounding Petitioner’s convictions were summarized by this Court on

direct appeal as follows:

The defendants’ convictions in this case originate from the commission of

especially aggravated kidnapping and aggravated robbery offenses against

victims Kimberly Hancock, Omar Coleman, Divin Wright, Oliver Wright,

Jerome Carpenter, Tonyell Somerville, and Jodeci Somerville.

The proof presented at trial reflects that Kimberly Hancock was at her home

on January 11, 2001, when she received a phone call from a friend requesting

she come by and pick up some clothes. After receiving the call, she asked

Divin Wright (her boyfriend), and Omar Coleman to accompany her. The

group took Omar’s white Ford Focus. Upon arrival at the house, Kimberly and

Divin went inside to pick up the clothes while Omar waited outside in the car.

Inside the house, Kimberly saw Defendant Talley, Thaddeus Brown, John

Williams, and Jarvis Williams. As Kimberly proceeded upstairs,John Williams

grabbed her by the neck and threw her down the stairs. He then picked her up

from the floor, placed her on the couch, and proceeded to question her about

her boyfriend’s brother, Oliver Wright, whom John Williams believed

orchestrated a break-in of his home. Divin was also forced to sit on the couch

and questioned about the break-in. The group of men including Defendant

Talley threatened to kill Kimberly and Divin if they did not tell them what they

wanted to know. Divin was also told to remove his clothes. At this time,

Kimberly saw that Defendant Talley and the Williams’ brothers had guns.

After Kimberly and Divin were questioned for a few minutes, Thaddeus

Brown and Defendant Talley went outside. According to Omar Coleman, he

was approached by three armed men and brought into the house under the

pretense that he was under arrest. He was then forced to take off his clothes,

and his checkbook, credit cards, and drivers license were taken. At this time,

Defendant Bryant arrived at the house armed with two guns. Upon arrival,

Defendant Bryant brandished his guns and exclaimed, “I want the bitch who

set it up.” Jarvis Williams told Kimberly that she was going to help find

Oliver Wright. Jarvis Williams and Defendant Bryant then forced Kimberly

into a black Ford Probe and left. After Jarvis Williams and Defendant Bryant

left with Kimberly, Defendant Ezell entered the house wielding a shotgun.

Defendants Ezell and Talley then proceeded to beat Divin with their fists and

guns.

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After Oliver Wright was located, Jarvis Williams called him on the phone and

asked if he would pick him up and take him to Auto Zone to get a battery.

Oliver agreed. Thereafter, Jarvis Williams and Defendant Bryant met up with

Thaddeus Brown and Defendant Ezell. At this time, Kimberly was moved to

the backseat of a purple Dodge Intrepid. Defendant Ezell also sat in the

backseat, armed with a shotgun. Later, Oliver arrived in a Dodge Neon

accompanied by Jerome Carpenter, Tonyell Somerville (Oliver’s girlfriend),

and Jodeci Somerville (Tonyell’s seven-year-old son). When Oliver and

company arrived, Oliver got out of the car. Immediately, Defendants Bryant

and Ezell, armed with guns, walked to Oliver’s car and told him “[d]on’t

move. You niggers gonna die tonight.”

Both Oliver and Jerome were forced to take off their clothes. Defendant Bryant

hit Oliver in the head with a gun after Oliver asked what was going on. Oliver

was forced into the trunk of the Intrepid, and Jerome was forced into the trunk

of the Neon. In an attempt to get out of the trunk, Oliver put his leg out. While

his leg was hanging out, Defendant Bryant closed the trunk on Oliver’s leg,

breaking it. With Defendant Ezell driving the Neon, the group left the area and

drove to a different area of town. Here, Defendant Ezell took Tonyell

Somerville’s jewelry, cash, and purse. Defendant Ezell then ordered Tonyell

and her son, Jodeci, out of the Neon. Before Tonyell left the car, however,

Defendant Ezell told her to handover [sic] her identification. After Tonyell

complied, Defendant Ezell told her that “we’ve got your ID, we have your

address, we know where you live, we know what you look like. If we get

caught, if we go to jail, if you call the police, we’ll come back and kill you and

your son.” In the meantime, Jerome was taken out of the Neon’s trunk and

placed in the Intrepid’s trunk with Oliver. A short time later, Kimberly was

dropped off near her mother’s house. Before being released, she was

threatened with death if she called the police. However, both Kimberly and

Tonyell called the police after being released.

Meanwhile, the defendants returned to the house with Jerome and Oliver. The

defendants, along with the other assailants, placed Oliver and Divin in the

middle of the floor and beat them with their fists and guns. Defendant Ezell

also struck Omar in the back of the head with his shotgun. In addition to being

beaten, Oliver was burned with cigarettes and Divin was burned after being

tossed headfirst into a fireplace. The defendants then poured bleach on Oliver,

Divin, Omar, and Jerome. The defendants informed these men that they would

be taken to Mississippi and killed; whereupon, the defendants forced the men

once again into the trunks of their vehicles and started driving toward

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Mississippi. However, shortly after leaving the house, police officers initiated

pursuit, which led to the release of the four men from the confines of the trunks

and the eventual arrest of the defendants.

Id. at *1-3.

II. Post-Conviction Hearing

Petitioner testified that he made the decision to proceed to trial pro se. The State’s plea

offer at the time of trial was thirty years. The previous offer was forty years to be served at

eight-five percent. Petitioner testified that his case involved high publicity, and he felt that

a change of venue would have been better for him because there would have been less

publicity and less hostility.

Trial counsel testified that he spent a “terrible amount” of time with the jury during

voir dire on the standard of reasonable doubt. He noted that unless something “strange”

happened, he “would have pointed that to the jury at the beginning of the trial and at the end.”

Trial counsel testified that he went into great detail about the facts of the case and the

problems with the State’s case. He agreed that the whole point of his closing argument was

to persuade the jury that the State failed to meet its burden of proving the case beyond a

reasonable doubt. He also pointed out to the jury that they were not required to believe

everything that the prosecutor said because he was a representative of the State and that

Defendant had the right to a fair and impartial trial. Trial counsel said:

[W]hen you have a closing argument like this you say those things to the jury

and you try to highlight what you say was wrong with the - - with the State’s

proof and that it just - - if I didn’t say the words, you know, come up to a

beyond a reasonable doubt over and over again I think if you look at the jury

selection that I paid close attention to the fact that they would have to find my

client guilty beyond a reasonable doubt and to a moral certainty.

Trial counsel further testified that he had been practicing law somewhere between

forty-three and forty-five years, and his practice over the past thirty to thirty-five years had

been mainly criminal law. He estimated that he had tried more than two-hundred cases.

III. Standard of Review

A petitioner seeking post-conviction relief must establish his allegations by clear and

convincing evidence. Tenn. Code. Ann. § 40-30-210(f). The trial court’s application of the

law to the facts is reviewed de novo, without a presumption of correctness. Fields v. State,

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40 S.W.3d 450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a

mixed question of fact and law and therefore also subject to de novo review. Id.; State v.

Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

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

counsel, he must establish that counsel’s performance fell below the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

In addition, he must show that counsel’s ineffective performance actually adversely impacted

his defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d

674 (1984). In reviewing counsel’s performance, the distortions of hindsight must be

avoided, and this Court will not second-guess counsel’s decisions regarding trial strategies

and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore,

should not conclude that a particular act or omission by counsel is unreasonable merely

because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Rather, counsel’s alleged errors should be judged from counsel’s perspective at the point of

time they were made in light of all the facts and circumstances at that time. Id. at 690, 104

S.Ct. at 2066.

A petitioner mustsatisfy both prongs of the Strickland test before he or she may prevail

on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580

(Tenn. 1997). That is, a petitioner must not only show that his counsel’s performance fell

below acceptable standards, but that such performance was prejudicial to the petitioner. Id.

Failure to satisfy either prong will result in the denial of relief. Id. Accordingly, this Court

need not address one of the components if the petitioner fails to establish the other.

Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. The right to effective assistance of counsel

extends to opening and closing arguments. Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct.

1, 4, 157 L.Ed.2d 1 (2003); Bell v. Cone, 535 U.S. 685, 701-02, 122 S.Ct. 1843, 152 L.Ed.2d

914 (2002). Nonetheless, counsel has wide latitude in deciding how best to represent a client,

and deference to counsel’s tactical decisions in his or her opening or closing argument is

particularly important.

Petitioner argues that trial counsel was ineffective for failing to “seriously argue the

standard of reasonable doubt in his closing argument.” We disagree. As pointed out by the

post-conviction court in the order denying post-conviction relief, trial counsel stated the

following in closing argument:

We’ve tried to bring your attention to what the proof has been against my client.

And while we say that the state has not met their burden of proof to where their

proof has been beyond a reasonable doubt; that then you go back to deliberate,

based on what you’ve heard about my client - really put your mind to it - it is

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our suggestion to you the state has not met their burden of proof. Mr. Lepone

may say he’s done it, but it’s up to you to make that decision. Just because he’s

a representative of the state - Ms. Nichols or Mr. Lepone - cloaked with all of

the powers of the State of Tennessee - when we started this case, you agreed

that everybody is equal - the state and client. My client has a right to a fair and

impartial trial.

Let me try to bring to your attention what you’ve already heard in this case as

it applies to Torrez Talley.

Trial counsel then went on to review the evidence with the jury as presented at trial by both

the State and the defense. The post-conviction court noted that although “[ t]rial counsel did

not repeatedly state the words ‘reasonable doubt,’ trial counsel referenced the standard

multiple times by highlighting the insufficiencies of the of the State’s proof at trial.” At the

post-conviction hearing, trial counsel testified that the whole point of his closing argument

was to persuade the jury that the State failed to meet its burden of proving the case beyond a

reasonable doubt. He also reviewed the standard of reasonable doubt with the jury during voir

dire.

We conclude that Petitioner has failed to show that trial counsel’s assistance fell below

acceptable standards or that Petitioner was prejudiced by any aspect of his trial counsel’s

assistance. Petitioner is not entitled to relief on this issue.

CONCLUSION

After a thorough review, we affirm the judgment of the post-conviction court.

___________________________________

THOMAS T. WOODALL, JUDGE

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