# FILED
October 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1998 SESSION

TAVAR US U. WILLIAM S, ) ) C.C.A. No. 02C01-9711- CR-00423 Appellant, ) ) Shelby County V. ) ) Honorable Chris Cr

aft, Judge ) STATE OF TENN ESSEE, ) (Post-Conviction/First Degree Murder) ) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: C. Anne Tipton John Knox Walkup Attorney at Law Attorney General & Reporter 140 North Third Street Memphis, TN 38103 Peter M. Coughlan Assistant Attorney Gener al Cordell Hull Bldg. , 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 William L. Gibbons District Attorney General Daniel S. Byer Assistant District A

ttorney General 201 Poplar Avenue, Third Fl oor Memphis, TN 38103

OPINION FILED: ___________________ REVERSED; CONVICTION VACATED; REM ANDE D FO R NE W TR IAL
PAUL G. SUMM ERS, Judge

O P I N I O N1 In the post-conv iction hearing trans cript, the appellant’s aun t’s name is spelle d “Jacocks.” In the Court of Cr iminal Appea ls decision, her nam e is spelled “Jaco x.” -2- In September 1991, fifteen-year-ol d Tavarus Williams, the appellant, shot and killed Raymond Brooks outside of J.T.’s Lounge in Memphi s, Tennessee. He was tried as an adult and convicted by a j ury of first degree premeditated murder in the Shelby County Criminal Court. The cour t sentenced the appellant to life imprisonment with the possibility of parole. The Court of Criminal Ap peals affirmed the judgment of the trial cour t. State v. Tav

arus U. Williams , C.C.A. No. 02C01-9307-CR-00137 (Tenn. Cr im. App., filed at Jackson June 29, 1994). The appellant’s application for per mission to appeal was deni ed.
In November of 1995, the appellant fil ed a motion for post-convicti on relief. An amended petition was filed in August of 199 6. After an evidentiary hearing, the court denied th e petition and this appeal follow ed. The following issues ar e presen ted for o ur review:
I. Whether the appellant ’s counsel failed to adequately investigate and assess his case and effectively present the proof at trial. II. Whether the appellant was denied a fair a nd impartial jury of his peers because the trial court refused to ex cuse a juror who reveale

d information prejudicial to the appellant during the trial. III. Whether the appellan t’s aunt, De Lois Jacocks, 1 exerted undue influence over the appellant such that he could not properly c onfer wit h his atto rney and m ake his own decisions regarding

his case.
Because we find that the evidence preponderates against the trial cou rt’s finding that the appellan t failed to estab lish that his attor ney was inef fective, we reverse the lower

court's judgment, vac

ate the appellant's convic tion and remand this matter for a new trial.-3- In February of 1992, the court appointed assistant public de fender Samuel Perkins to represent the appellant. The case was s et for trial on June 22, 1992. In 1992, the appellant’s father was in prison and hi s mother was in a mental institute. The appellant’s aunt, De Lois Jacocks, acc ompanied the appellant to his appointments w ith attorney Perkins. Ms. Jacocks told Perki ns that God had forgiven the appellant and would take care of him . She also told Perkins that she was going to hire a “real lawyer” or ask for a different public defender.

Perkins reviewed the state's file and obtained a ple a offer from the state. The appellant rejected an offer to plea d guilty to second degree murder in exchange for a fo rty-year sen tence. T he appel lant stat ed that h e did not believe the sentence fit the facts of the crime. With the assistance of dif ferent counsel, the appellant had previousl y given a statement to the police in which he described the shooting as one of self-defe nse. Since the state would not make the appellant any other offers, he d ecided to proceed to trial.
At the post-conviction hearing, Perkins testi fied that he did not request an investigation from the publ ic defender’s office because he want ed to do the investigation himself. He testified that he had been to J.T.’ s Lounge and knew the people there. Perkins tes tified that, on March 20, 1992, he w ent to the lounge and talked to three men and a lady who were i n the bar. He also talked to the disc jockeys. He testified that the people he had i nterviewed did not w ant to get involved so he did not record their names. This effort is primarily the extent of Perkins’ inv

estigation into the appell ant’s case.
Attorney Perkins testified that he did not remember talking to the sta te’s witnesses. He testified that his file did not contain any notations that he had tri ed to contact the state’s witnesses prior to trial or that he had talked to those witnesses. Attorney Perkins told the appellant to have his witnesses get in touch-4- with the public defender’s office and set up an ap pointment so that Perkins could take a statement from them. Perkins testif ied that this was his policy because too many witnesses had s urprised him at trial. He also stated that if the witnesses would not come to his office then they wo uld be unlikely to show up for trial. Perkins nev

er talked to the appellant’s witnesses. He did not subpoena any witnesses to tes

tify on the appellant’s behalf at trial.
At the post-conviction h earing, attorney Perk ins testified that he was r eady to go to trial on June 22. He testified that the trial c ourt granted a one week continuance because the appellant t old the court that he had sev eral witnesses that he wanted P erkins to interview. At this point in the post-conviction h earing, the court ordered a transcr ipt of the June 22 hearing. The tr anscript was later introduced as evidence at the post-conviction heari ng. The transcript rev ealed that, on June 22, Perkins w as accompanied to court by the Assistant Director o f the Shelby County Publi c Defender’s office, attorney R obert Jones. Perkins asked the court for a continuance because he ha d not completed his investigation of the case.He told the court that he had t alked to two of the state’s seven or eig ht witnesses. The court r esponded that it was sure that Perkins’ investig ator had provided him w ith a complete report. Perk ins told the court that an investig ation was not ordered becaus e the appellant’s aunt had said that she was goin g to hire a “real law yer.” The court responded that it was aware of Ms. Jacocks’ intentions to hire another att orney. The court stated, however, that he had told Perkins four or five times that the case was going forward to trial, regardless of whether the appell ant wanted to substitute couns el. Assistan t Director Jones ap ologetic ally ackno wledged th at Perkin s should h ave been prepared to go to trial . Jones told the court that th e appellant’s case had not been fully investigated. The court granted a one w eek continuance, with the trial set for Monday, J une 29th. The court revoked the appellant’s bond so that Perkins would have n o trouble meeting with him. Perkins met with the appellant one time, that being on the eve of trial.-5- On June 22, Shelby County Public Defender, A C W harton, immediately assigned his Supervising Investigator, Leah Abbott, to the appellant’s case. Ms. Abbott was a nine-year veteran of the public defender’soffice. At the postconviction hearing, Ms. Abbott testified that an inv estigator is usually

allotted one to one and one-half months to investigate a “serious” cas e. To begin her investigation, Ms.Abbott was given the indictment and some of the discov ery. Ms. Abbott testified that she and Perkins did not have a c hance to talk about the theory of the defense. She testified tha t she was not provided with as much information about the appellant’s c ase as she usually is at the beginning of the investigation. Ms. Abbott contacted Perkins to find out how she could reach Ms. Jacocks. Ms. Abbott interviewed the state’s witnesses. She interviewed every potential defense witness that she could reach. She follow ed up on as many leads as time permitted. Ms . Abbott prepared writte n summaries of her interviews for Per

kins. In her summaries, she gave her impressions

about the witnesses

and made notati ons such as “ we do not w

ant this witness,” “

talk to me about this witness,” and “Important, read.”

Ms. Abbott testified that she l ocated a witness who w as unrelated to the appellant or the Jacockses. The witness, an older man, “ felt very strongl

y” that the victim had been pulling a gun on the appellant when the appellant shot him. Ms. Abbott did not remember the name of the witness and did not hav e a copy of the summary of his statement. Ms . Abbott placed the name of the witn ess and a summary of his testimony, along with the results of her investigation, in Perkins’ “box” on the morning of the trial. The witness ca me to the appellant’s trial and was available to testify on the appellant’s behalf. Perkins did not call the witness to testify. Perkins tes

tified that he was unawar e of the witness.
No explanation was pr

esented as to why Ms. Abbott and Perkins did not speak about this witness immediately prior to or during the trial. There appears to have been no communication between Ms. Abbott and Perkins after Ms.-6- Abbott submitted the results of her investigation. Indeed,Ms. Abbott testified that she did not have a reasonable opportunity to discus s the results of her investigation wi

th Perkins. From her testimony, it appears that she a nd Perkins did not discuss the case during the weekend prior to trial. They did not discuss the case on the morning of trial . Ms. Abbott testified that Per kins never asked her about any of the investi gation and never tried to contact her during the t rial. Perkins testified that he spok e with Ms. Abbott three or four times during the week before trial. He t estified that they talked about what she had discover ed during her investigation and about the witnesses’ testimony. The import of Ms. Abbott’s testimony is sh e never had any meaningful c onversations about the results of her investigation, if she had any discuss ion at all. Finally , Ms. Abbott testified tha t she did not have enough time to in terview the appella nt, although she did have his statement.

The trial court dismissed the appellant’s petition. The c ourt held that the petitioner failed to establis h that he was denied effective a ssistance of counsel. The court found that the necessary investigation wa s complete prior to trial and that at no time was Perki ns taken by surprise by anything that was i ntroduced at trial. The court also held that, even assuming that Pe rkins’ representation w as ineffective, the petitioner fail ed to establish that he was prejudiced by the erro rs.
The findings of fact of the trial judg e on a petition for post-conv iction relief are conclusive on appeal, unless the evidence preponderates against tho se findings. We do not reweigh or reev aluate the evidence, nor do w e substitute our inferences for those draw n by the trial judge. Questions concerning th e credibility of witnesses, the weight and value to be given thei r testimony, and the factual issues raised by the evidence are to be resol ved by the trial ju dge. See Henley v. State , 960 S.W.2d 572, 578-79 (Tenn. 1997). The appellant has th e burden of establishing that the evidence preponderates aga inst the findings of the trial court. See id.-7- To establish ineffectiveness, a petitioner must show that counsel's performance fell below an object ive standard of reasonableness under prevailing professional norms; this re quires the petitioner to

demonstrate that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed by the Constitution. See Strickland v. Washington , 466 U.S. 668, 687 (1984); Henley , 960 S.W.2d at 579. A petitioner must also establish that the deficient representatio n prejud iced the defense t

o the poi nt of depr

iving the appe llant of

a fair trial with a r

eliable result, calli ng into question the rel iability of the outcome of the trial. See Strickland , 466 U.S. at 687; Henley , 960 S.W.2d at 579. T o establish prejudice the petitioner “ ‘must show that there is a reasonable probability that, but for c ounsel’s unprofessional err ors, the result of the proceeding would hav

e been different. A reasonable probabil ity is a probabilit y sufficient to undermine confiden ce in the outcome.’ ” Henley , 960 S.W.2d at 579 (quoting Strickland , 466 U.S. at 694).
Perkins’ failure to proper ly investigate the appellant’s case and prepar e for trial constitutes ineffectiv e assistance of counsel. Perk ins did not receive the written results of Ms. Abbott’s investigation until the morning of his trial. W e fail to see how he had any meaning ful opportunity to revi ew these results. The record reflects that he did not review all of the investigative findings with Ms. Abbott. Ms. Abbott testified that she did not have time to conduc t the investigation in the usual manner, including locating defense witnesses who were out of town. That Ms. Abbott was able to locate at least one unbiase d defense witness in the few day

s that she had to investigate the case indicates that Perkins’ efforts at invest igation were insufficie nt. Although Ms. Abbott compl eted a large portion of the inv estigation prior to tr

ial, it does not appear that s he was able to effectively communicat e the results of her inves tigation to Perkins so as to benefit the appellant.-8- The court below made no specific findings of credibility

regarding either Perkins or Abbott, althoug h it relied heavily on Perkin's testimony w hen contrast ed with the appellan t's. Alth ough we def er to the t rial court , we have serious problems with Perkins’ credibility. Before the post-conviction court ordered the transcript of the J une 22 continuance request, Per kins blamed the appellant for the need to have the trial continued. He state d that “I was ready.” From read ing the tra nscript o f June 22 , we fail to see how Per kins coul d have forgotten that the Assistant Director of the Shelby County Public Defe nder’s office, Robert Jones, accompanied him to court on the day of trial because Perkins was not prepar ed for trial, despite the tri al court’s repeated instr uction to be ready. In any eve nt, we turn to Perkins’ investigation.
Although Perkins had rev iewed the state’s file and t alked to the assistant district attorney, this is not a substitute for an independent investigatio n into the facts of this c

ase. While there w

as no dispute

that the appel lant shot the victim, there was a dispute as to whether the shooting was premeditated. Perkins’ investigation consisted of going to J.T.’s Lounge once and talking to the people that just happene d to be th ere when he arrived. He testifie d that he may have interviewed tw

o of the state’s witnesses.Perkins should have or dered an investigation or i nterviewed all w itnesses, including thos e furnished by the appellant. As Perkins seemed to understand, the case involved a fifteen-yearold charged with firs

t degree murder. At one point in the hearing, Perkins testified that he did not investigate the case because, up un til the week before trial, Ms. Jacocks c

ontinued to tell him that she w as going to hire another attorney. This is not a r easonable basis for Perkins’ failure to investigat

e the appellant’s case. All at torneys must deal with difficult clients. This does not excuse them from being prepar ed when in court on behalf of that client. Furthermore, the trial court repeatedly told Perkins to be ready for trial.2 Apparently the trial cou rt reviewed the tran script of the appellan t’s trial prior to making his decision. -9- In addition to finding ineffectiv e assistance at the inves tigative stage of the case, we hold that the appell ant has also established prej udice resulting from Perkins' representation. In determining whether a petitioner has establish ed prejudice, a court
must consider the totality of the evidence before the judge o r jury. Some of the factual finding s will have been unaffected by the errors, and factual findings that were affected will have been affect ed in dif ferent wa ys. Some e rrors will ha ve had a pervasive effect on the i nferences to be drawn from the evidence, altering

the entire evidentiary

picture, and some will have had an i solated trivial effect.... Henley , 960 S.W .2d at 580 (quoti ng Strickland , 466 U.S. at 696-97).
A review of the facts as found by this Court on direct appeal is necessary to determine if the evidence pr esented at the post-conviction hearing establishes a reasonable probability that the results of the appellant’ s trial would hav e been different if that evidence had been int roduced at the appellant’s tr ial. The transcript of the appellant’s trial is not in the rec

ord. 2 The facts as found by this Court on direct appeal are as follows:
On September 14, 1991, appellant was at J. T.'s Loun ge in Memphis, Tennessee. He began to argue with Raymond Brooks, the victim, concerning a woman to whom both were speaking. The men were separ ated by friends, and appellant left the lounge. Tony Jefferson was work ing at the lounge that ev ening and knew the victim well. After the argument with appellant, Mr. Jefferson took the victim to the back of the loun ge and told him to go h ome. He th ought the victim had calmed d own until he heard him tell Dar ryl Dawkins tha

t he was "going to go out there and slap [the appel lant] like a whore." The victim and Mr. Daw

kins then left the lounge. Outs ide, they approached the appellant. Testimony differs as what happened next. Tony Jefferson testified that the victim got in the appellant's face and asked, "What's up?" At that point, appel lant drew a gun and shot him. A number of other individuals also witnessed the shooti ng. Patrick Mason was appr oximately one block aw ay at the time. He heard the victi m ask, "What's on your mind?"-10- before he got shot. After shooting the victim, appellant sa id, "Look at you now." David Monger was leaving a nearby lounge when he heard two gunshots. Looking around he saw the vic tim falling backwards and another man shoot ing at him. He stated that there was a hesitation bet ween the shots and that the man appeared to be picking his places to shoot. After the shooting, he heard the man say , "I told you I was going to get you, boy." Willie Hayden, a security g uard in the parking lot of the lounge, was about five y ards away when the shooting began. After he heard the first s hot he looked back to see what was happening. He stated that the victi m was unarmed and had his hands to his si de. Mr. Hayden identified appellant as the shooter. Eric Harris and Marcus Jacox, friends of the appellant, also testified as to the shooting that evening. Mr. Ha rris left the lounge with appellant an d Marcus Jacox after the i nitial altercation with the v

ictim. Later, the vic

tim came outside and approached appellant. He ask ed, "You got something to say to me?" The victi m then turned to a friend and said, "Give me that thing." At that point, appellant began shooting and Harris ran across the street to his car. He refused to give appellant a ride home. Marcus Jacox gave similar testimony. He heard the victim say to a friend, "Man, give me that thing so I can kill this bitch." The victim then l eaned his hand towards his friend who pulled up his shir

t to reveal a pistol. At that point, appellant sh ot the vict im. Dr. Jerry Franci sco, professor of pathology at the University of Tennessee, performed the autopsy. He stated that the victim died of multiple g unshot wounds to the head and chest. There were a total of four wounds to the head and two to the chest.
In a statement to the police, the appellant stated that he overhea rd the victim say that he, the appellant, was going to die tonight. The appellant stated that he was approached by the victim and the vic tim’s friend outside the club. The victim directed sev eral epithets at the appellant and then asked his friend for the “tone.” The victim’s friend raised his shirt and the appellant saw a pist ol. Seeing the gun, the appellant pulled out his pistol and s hot the victim. He state d that he kept on shooting because he was afraid for his life. The statement was not introduce d at trial but was int roduced at the post-conviction h earing.3 “Since petitioner at his hearing on t

his petition has failed to produce a si ngle additional witness to substanti ate his claim of self-def ense other than those a ctually called at trial, even af ter having been g iven an additiona l setting to call additional witne sses, this Cour t will not assume tha t his trial attorney could hav e done any better at trial.” -11- The evidence to support the appel lant’s conviction of firs t degree murder was not overwhel ming. See Strickland , 466 U.S. at 696 (“a verdict . . . only weakly supported by the record is more likely to have been affected by [counsel's unprofessional] errors than on e with overwhel ming record support.”) The appellant could have establi shed prejudice by produci ng evidence at the postconvictio n hearing which creat ed a reaso nable pro bability t hat he wou ld have been convicted of a lesser deg ree of homicide or acquitted. We turn to the evidence in the record of pr ejudice.

Ms. Abbott testified that she had found . . . one witness . . . who was not related i n any way to [the appellant] or the Jacocks. He was an older man. He felt very strongly that the victim was pulling a gun. He believed that the victim was pulling a g un. Had this witness been called at trial, his testimony would have significantly bolstered the appellant's theor y of self-defense. And even if the te stimony was not succe ssful in c onvincing the jury to acquit the appellan t, it may wel l have convinced them to convic t him of something less than premedi tated murder. This missing testimony was so significant in the context of this particular case that its exclusion under mines our confidence in the outcome of the trial. See Strickland , 466 U.S. at 694. Accordingly, trial counsel's failure to produce this witness constituted in effective assistance of counsel w hich prejudiced the appellant.

The lower court's sole

comments relating to this testimony go to the appellant's f ailure to call this witness at the post -conviction heari ng. 3 But we are perplexed as to how the appellant could have produced this wi tness. Ms. Abbott found this gentleman on June 28, 1992. The appellant did not file for postconviction relief until

more than three years lat er. Post-conviction counsel was4 Prior post-conv iction counsel had been remov ed in June 1996, fo r repeated failures to appear. -12- not appointed until July 11,1996. 4 Ms. Abbott testified in Nov ember 1996 that she had no written recor d of the witness' name and could not recall it. She further testified that she had gi ven the witness' name and a summary of her interview with him to Perkins. Perkins claimed to have never known about this man, alt hough he was waiting o utside th e courtro om to tes tify. W e recognize that this witness' pr

oposed testimony should have been produced at the postconviction hearing un der the general rule announc ed in Black v. State , 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). However, we think it is fundamentally unfair to hold this failure of proof against the appella nt and, therefore, find the Black rule inapplicable under the facts of this case. To hold otherwise puts the appellant in a double bind from which he cannot escape: his lawyer's ineffectiv

eness condemns him not only at t rial but prevents him from later proving that i neffectiveness at his post-conv iction hearing.
The best evidence that the appellant had of the crucial testimony was Ms. Abbott, and he did produce that proof at the hearing. According ly, because he produced independent proof of vital testimony that would hav e been available at the hearing but for his tri al lawyer's ineffecti veness (in never di scovering the witness, not calling

him and losing all rec

ord of him), we hold that the appellant has established both prongs of the Stricklandtest.
With respect to the appellant’s second iss ue, it was previous ly determined by this Court on direc

t appeal. Therefore, the issue is not cognizable in a postconviction petition. T. C. A. § 40-30-206(h). The appellant’s third issue is without merit. The low er court, sua sponte , raised the issue of whether the appellant’s aunt exerted undu e influence over the appellant.The court found that she had not exerted such a n influence over the appellant and that the appellant’s decision to r eject the state’s plea agr eement was made with-13- independence and sufficient maturity . The evidence does not preponder ate against the lower cou rt’s findings.
For the reasons set forth above, the judgment of the cou rt below is reversed, the appellant's conviction is vacated and this cause is remanded for a new trial.

_____________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

___________________________ DAVID H. W ELLES, Judge

___________________________ JOE G. RILEY, Judge