### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d onBr ie fs A ugus t 5, 200 8

MA RC US JOHNS ON v. ST ATE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 01-07733 Car olyn Wad e Blackett , Judge

No. W2007-02664-C CA-R 3-PC - Filed November10, 2008

The pe titioner, Marc us J ohnson, appea ls the Shelby County Criminal Court’s denial of his petition for post-c onviction relief f rom his convictions for first deg ree felony murder, e specia lly

ag g ravated robber y , and ag g ravated assault. On a ppeal, he contends that he rec eived the ine ffe ctive assistanc e of tr ia l c ouns e l. B a se d up on the re c or d and the pa rt ie s’ br ie fs , we a ff

ir m the jud g me nt o f t

he po stc on vic tio n c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt is Affi rm ed.

N OR MA M C G EE O G LE , J ., delivere d the opi nion of the cour t, in which T H O M A S T. W O O D A LL and D. KEL L Y T HOMAS , J R ., J J ., joined.

J uni S. Gang uli, Memphis, Tennessee , for the a ppellant, Marc us J ohnson.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Da

vid H. F ind le y , A s s i s t a

nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Tr acye Jones , As sistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION

I. F ac tu al B ac kgr ound We gle an the f

ollowing f

acts fr om this court’s opinion in the pe titioner’s direc t appea l: On the n igh t o f D e c e mb e r 2 8 , 2 0 0 0 , th e p e ti ti o n e r an d h is c o
- d e f e n d an t, T r av is Pa

r s o n , w e n t to the Discount Shop in Memphis. State v. Marc us J ohnson, No. W2002-00987-CCA-R3-CD, 2003 Tenn. Crim. App. L EXI S 780, at *2 (J ackson, Sept. 4, 2003), perm. t o appea l denied, (Tenn. 2004). Armed with guns, the y

stood in the doorway

and fire d into the store, seriously injuring the store mana g er and killing a cler

k. I d. at **3-4. They also took f ourtee n hundred to six teen hundr ed dollars f rom a cig ar box underne ath t he counter. I d. at *6. Caroly n Scott, who arrive d at the store shor tly afte r-2-

the robbe ry , told police that she saw a blue For d Contour leavingthe s tore pa rking lot. I d. at *4. She later identified the petit ioner as the m an she sa w drivingthe ca

r. I d. at *5. Police investig ating the crime sc ene f

ound a drive r’s license in the pa rking lot, and the license did not belong to the pe tit ion e r, his c o- de fe nd ant, or e ith e r v ic tim . I d. Ho we ve r, fi ng e rp ri nt a na ly si s on th e lic e ns e reve aled the pe titioner’s thumb print. I d. The petiti oner became a suspect throug h Crime Stoppers tip s, a nd the po lic e arr e ste d h im o n D e c e mbe r 2 9, 20 00

. I d. Th e pe tit ion e r g ave thr e e state me nts to the police. I d. at *8. I n the first statement, he sa id he was pr esent duringthe robbe ry and ac ted
as the lookout f

or a man named Ty e Owens, who committed the crimes. I d. at **9-10. In his second statement, the pe titioner admitted that he had lied about Owe ns committi ng the cr imes and said that he we nt to the store with Parson, who took cig are ttes fr o m t h e s t o re

. I d. at *11. In his third statement, the petitioner said that he and Parson went to the Discount Shop armed with an A K-47 assault rifle a

nd a shotg un, that he held the door open, that Parson fired the g uns into the store, and that Parson took money

from a c iga

r box and cig are ttes. I d. at **12-13. At his tria l, the petitioner testified that he and Parson went to the store arme d with an AK- 47 assault rifle a nd a shotg un, that he re fused to g o into the store, that Parson “snatched” the assault rifle from him, that Parson fire d both guns into the store , and that Parson took c iga rettes a nd money from behind the c ounter. I d. at *7. The pe titioner also claimed that be fore the robbe ry , Parson found a driver’ s license. I d. at **7- 8. The pe titioner held the license b ri ef l y , g ave it bac k to Parson, and Parson intentionally left the license in the store parkinglot. I d. at *8. The jury convicted the petitioner, who wa s tr ie d separ ately from Parson, of

first deg ree felony murder a nd two counts of espe cially ag g ravated robbe ry , and the trial co u rt sentenc ed him to an eff ective se ntence of life plus twenty y ear s. I d. at **1-2. On appeal, a panel of this court a ffirme d the petitioner’s mur der c onviction and one of his especia lly

ag g ravated robbe ry

convictions but modified the second espec ially ag g ravated robber y conviction to ag g ravated assault and r emande d the ca se to the trial cour

t for sente ncingas to that offe nse. I d. at *2. Subsequent l y , t he petitioner filed a t i m el y p et i tion for post-conviction re lief. The tr ial court a ppointed counsel, a

nd counsel
ame nd e d th e pe tit ion , c la imi ngtha t the pe tit ion e r re c e ive d the ine ff e c tiv e a ssi sta

nc e of tr ia l c ouns e l.

At the evidentiar

y hear ing, tr ial counsel testified that she had been prac ticing law since 1993
and that sh e wa s a

pp ointe d to re pres ent the p e tit ion e r o n O c tob e r 8 , 2 00 1. At that ti me , s ixty

to six ty -five pe rce nt of counsel’ s prac tice involved cr iminal law, and counsel had participated in m ore than t en murder t rials. On October 25, 2001, c ounsel filed a motion for disc overy , and she r ece ived discovery materia ls from the State on Nove mber 21, 2001, a bout five months prior t o the petitioner’s tr ia l. C ouns e l st a te d th a t th e mos t dam a g ing e vid e nc e a g a ins t the pe tit ion e r w a s h is thr e e state me nts to police. The petiti oner did not have an alibi , and counse l stated that the def ense’ s g oal was “ to try and attac k the state’s c ase through i m p eac hment, both of any ey ewitnesses a

nd the takingof the statements and thing s of that nature .” Counsel did not try to challeng e the a dmissibi lity of the driver’ s license be cause she saw no ba sis to suppress it.

Couns e l te sti fi e d th at on

No ve mbe r 3 0, 20 01 , th e tr ial c ourt a pp ointe d a

n inve sti g a tor

to
a ssi st the de fe ns e

. Th e inv e sti g a tor a tte mpt e d to spe ak with the surv ivi ng vic tim , a nd c ouns e l di d not know if the investig ator spoke with Caroly n Scott. The investig ator did a thorough investigationLi k e t h e pet i t i on er , T r av i s Par s on w as i n di ct ed f or pr eme di t at ed mu r der , f el on y mu r der , a n d t wo cou n t s of 1

es pec i al l y a g g r av at ed r obber y

. Se e St at e v

. T r av i s Par s on , N o W 2002- 02743- CC A- R3- CD , 2004 T en n

. Cr i m. App. LE X IS 2 1 3 , at * 1 (Jackson, M ar. 3, 20 0 4 ). A jur y co nvi ct ed hi m of o ne co unt of cri m i nal l y negl i gent hom i ci d e and tw o c o u n ts o f esp e c ia lly a g g ra v a te d ro b b e ry. Id . at *2

. -3- and had a dequate time to investigate the ca se. Counsel said s h e h ad s ufficie nt time to prepare adequately

for tria l. Counsel met with the petitioner a total of six times, twice in jail and four times in court. She filed numer ous pretria l motions , including mo t i o n s for discove ry , exculpatory evidenc e, spee dy

trial, and jury instructions on lesser included offe nses. C ounsel g ave the petitioner a copy of discover

y materia ls and discu s s ed d i s co very with his family . Counsel advised the p e t i t i o n e r a b o u tt h e c o n s e qu e n c e s o f

t e s t i f yi n g a tt r i a l , an d

i t w a s th e p e t i t i o n e r ’ s d e c i s i o n t o t e s t i f y. I n p re pa ratio n f or the pe tit ion e r’ s te sti mony , c ouns e l w e nt o ve r t he pe tit ion e r’ s st a te me nts wi th h im, and she sa id she usually

did “some ty

pe of r ole playing” with her c lients.

On cr oss-examination, counsel testified that she re viewed the d i s co v ery materia ls and revie wed them with the pe titioner. The State off ere d to allow the petitioner to plea d g uilty in return fo r a lif e se nte nc e , b ut t

he pe tit ion e r t

ur ne d d ow n th e of

fe r. Couns e l a c kn ow le dg e d th a t sh e c ro ssexamined the State’s witnesses a nd objected when she thoug ht it was appropr iate.

The then twe nty -five- y ear -old petitioner t estified that counsel “didn’t do her job . . . . She didn’t, y ou know, speak up for me r ight in my behalf ,” and he acknow ledg ed that his co-de fenda nt was not convic ted of first deg ree murder. The petitioner completed the eig hth gr ade a nd attended 1 sp e c ia l e du c a tio n c la sse s in sc ho ol, and he tol d c ouns e l a bo ut h is e du c a tio na l ba c kg ro un d. He a lso t o l d co u n s el ab o u t t h e fa ct s o f h i s ca s e a n d th at h e d i d

n o tu n d er s t an d

ev ery th i n g th at wa s h ap p en i n g. Howeve r, a psychiatrist or a psy cholog ist never e valuated him. Counsel met with the petitioner twice in jail to discuss his case , and ea ch mee ting laste d betwee n five a nd ten minutes. She also g ave him a copy

of discover

y materia ls. The petitioner told counsel that he was int ox icated when he g ave his first statement to the police a nd t h at he gave his other two state ments beca use the police threatened “ to put it all on me.” The petiti oner was onl y eig hteen year s old when the police arr ested him, and he told counsel he was not guilty of first degree murder. Counsel rec ommended that the pe tit ion e r t e sti fy , b ut s he did no t te ll h im the pr os e c uti on wo uld be a llo we d to c ro ss- e xami ne him

. Th e pe tit ion e r wa

nte d co un se l to su

bp oe na his “ ba

by momma ” and

he r m oth e r b e c a

us e the y wo uld have te sti fi e d th a t he wa s w ith the m the night of the c ri me s. Th e pe tit ion e r state d that th e de fe ns e inv e sti g a tor

ne ve r m e t w ithhim

in j a il.

On cr oss-examination, the petitioner acknow ledg ed that he told the pol ice he had complete d the tenth g rade and wa s working on obtaining his G ED. He also acknow ledg ed that he could re ad
and wr ite . T he pe tit ion e r n e ve r t old the po lic e a

bo ut h is a lib i, b ut h e tol d c ouns e l a bo ut i t. H e a lso did no t men tio n his al ibi wi tne sse s at tr ia l be c a us e c ouns e l to ld h im “ the re wa s n o r e a so n f or me to call them ther e.” Counsel a nswere d the petitioner’s que stions about discovery . The police office rs tried to take a fourth statement from the petitioner, but he aske d for a n attorney . He sa id that was
no t th e fi rs t ti me he a sk e d f or a lawye r a nd that th e po li ce read him his ri g hts a ft e r h e g ave his state me nt.-4-

I n denying the petitioner’s pe tition for post-conviction relief , the post-conviction cour

t noted that tr ia l c ouns e l me t w iththe pe tit ion e r “ on oc c a sio n, ” re c e ive d dis c ov e ry , f ile d p re tr ia l mo tio ns , and ca lled and cr oss-examined numerous witnesses at trial. The court conclude d that the petitioner failed to show that c ounsel did not have a dequate time to prepar e for trial or that her pe rfor mance was de ficient. The court c oncluded that he did not rece ive the inef fec tive assistance of counse l.

II. Ana lys is

T h e p e t i t i o n e r c o n t e n d s t h a t h e r e c e i v e d th e i n e f f e c t i v e a s s i s t an c e o f c o un s e l be c a us e his attorn ey had only

four months to prepa

re f or trial and f

ailed to pre pare for tria l adequately . He argues that counse l failed to argue in the m otion to suppress his statements that the police coer ced his confessions. Counsel also fa iled to attempt to suppress the petitioner’s state ments based upon his mental health and f

ailed to investig ate a

defe nse base d on men tal health g rounds. Fina lly , he argues that def

ense c ounsel also did not ha ve a “cohe rent trial strateg y .” The State a rgues that the tr ia l c o u rt p r o p e r ly

c o n c lu d e d

th e p e ti ti o n e r d id

n o t r e c e iv e th e in e f

f e c ti v e a s s is ta

n c e o f c o un s e l. We ag ree with the State.

To be succ essful in a c laim for post-convic ti o n re lief, the pe titioner must prove all fac tual allegations conta ined in the pos t-conviction petit ion by clea r and convincing evidenc e. See T enn. Code Ann. § 40-30- 110(f)

. “‘Clea r and convincing evidenc e means e vidence in which there is no serious or s u b s tan ti a l d o u b t a

b o u t th e c o rr e c tn e s s o f

th e c o n c lu s io n s d r a w n f

r o m th e e v id e n c e.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992) ). Issues r egar ding the cre dibilit y of witnesses, the w eight and value to be a ccor ded their te stimony, and the fac tual questions raised by the e vidence adduce d at trial
are to be resolved by the post-conviction court as the trier of fa ct. See He nley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). There fore , we a ffor d the post-conviction court’s findings of fac t the weight of a jury verdict, with such findings being conclusive on appea l absent a showing that the evidenc e in the rec ord pre ponderates aga inst those findings. Id. at 578.

A c la im o f i ne ff

e c tiv e a ssi sta nc e of c ou ns e l is a mix e d q ue sti on of

la w andfa c t. S e e State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999) . We w ill review the post-c onviction court’s findings of fac t de novo with a pre sumption t hat those findings are corr ect. See Fields v. S tate, 40 S.W.3d 450, 45 8 ( Te nn . 2 00 1) . H ow e ve r, we wi ll r e vie w the po st- c on vic tio n c ou rt ’s c on c lus ion s o f la w p ur e ly de novo. Id.

“To establish ineffec tive assistance of counse l, the petitioner bea rs the burde n of proving both that counsel’s pe rformance was de ficient a nd that the def iciency prejudice d the def ense.” Goad
v. St a te , 9 3 8 S. W

. 2 d 3 6 3 , 3 6 9 ( T e n n

. 1 9 9 6 ) ( c it in g St r ic k lan d v
. W a s h in g to n , 4 6 6 U

. S. 6 6 8 , 687, 104 S. Ct

. 2052, 2064 (1984))

. In evaluating whe ther the petitioner has met this burde n, this court must d et er mine whether

counsel’s pe rformance was within the ra nge of c ompetence require d of attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 ( Tenn. 1975). The pe titioner claims that he re ceive d the i neff ective assistance of counsel because his trial attorney failed to pr epar e for trial adequately. Howeve r, counsel testified that an i n v es tigator-5-

assisted the defense and did a thorough investigation, that she filed nume rous pre trial motions, that she re viewed disc overy materials, and that she revie wed discove ry m at er i als with the petitioner. Cou ns e l a lso te sti fi e d th at sh e ha d a de qu a te tim e to pr e pa re , an d the po st- c on vic tio n c ou rt ob vio us ly
acc redited he r testimony.

Th e pe tit ion e r co nte nd s tha t cou ns e l shou ld ha ve a lle ge d inhis mot ionto s up pr e ss that hi s statements wer e coe rce d and t h at s uppression wa s warr anted due to his mental health. The petitioner’s motion to suppress has not been included i n the record on appea l; howeve r, the tra nscript for the suppr ession hearing has bee n included. Ac cording t o t h e t ra n script, counse l argue d to the trial court that the pe titioner was intoxicated at the time of hi s first statement and that the petitioner gave the rema ining two statements due to “intimidating methods used b y t h e p o lice off icer s that pressure d Mr. Johnson into giving those statements.” There fore , despite t he petitioner’ s claim to the contra ry, the re cord r evea ls that counsel did ar gue that the pe titioner’s statements we re c oerc ed. Fu r th e r mo r e , th is c o u r t a d d r e s s e d th e is s u e o f c o e r c io n in th e p e ti ti o n e r ’ s d ir e c t a p p e a l and conclude d that the petitioner’s state ments “we re not the pr oduct of intimidation, co er ci o n , or dece ption.” Johnson, No. W2002-00987- CCA-R3-CD, 2003 Tenn. Crim. App. LEXI S 780, at *23. There fore , the petit ioner has failed to show that counsel render ed deficient performanc e or that he was pre judiced by any de ficienc y.
Th e pe tit ion e r a lso c on te nd s th a t c ou ns e l sh ou ld h a ve arg ue d sup pr e ssi on of the state me nts
was wa rra nted by the pe t i t i o n er ’s mental state. How ever , the petitioner failed to present a ny evidenc e re garding his mental hea lth at the evidentiary hearing. There fore , he has failed to show that he wa s prejudice d by any def iciency.

Finall y , the petitioner c ontends that he is entitled to post-conviction re lief bec ause tria l counsel ha d “no cohe rent trial strategy.” At the evidentiary hearing, the petitioner ar gued that he ha d alibi witnesses who could have testified on his behalf

. Howeve r, he failed to pre sent the witnesses at the hea ring. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) . Other tha n an a lib i d efen se, the pe tit ion e r h a s n ot a lle ge d w hat de fe ns e c ou ns e l sh ou ld h a ve pr e se nte d at tria l. There fore , we c an find no e vidence to preponde rate against the post-c onviction court’s finding that counsel wa s not ineffe ctive.

III. Conclusi on Based upon the r ecor d and the pa rties’ briefs, we aff

irm the j udgment of the post-c onviction
c ou rt

.

___________________________________ NORMA McGEE OGL E, J UDGE