### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d onBr ie fs May

6, 200 8

MA TTHEW DIX ON v. ST ATE OF TEN NES SEE

Appeal f rom the Cr im inal Cou rt for Shelby Coun ty No. 28655 W. F red Axley, Judge

No. W2007-01091-C CA-R 3-P C - F iled Jul y 8, 2008

The Petitioner, MatthewDix on, appea ls from the post-conviction court’s order denying his pe tition for post-c onviction relief. O n appea l, he arg ues t hat the denia l of relief was e rror beca use he did not

rec eive the eff

ective assistance of counsel at trial. Following our revie w, we conclude that the Pe tit ion e r ha s no t sh ow n that tr ia l c ouns e l wa s ine ff e c tiv e

. Con se qu e ntl y , we a ff ir m the postconviction cour

t’s order denying post-c onviction relief.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the cour t, in which J A M ES C UR WO OD W I TT , J R ., J ., and D AVI D G. H AYES , S R

. J ., joined.

Br itton J . Allan, Memphis, Tenne ssee, f or the a ppellant, Matthew D ix on.

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

ne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , A ssi sta nt A tto rn e y

Ge ne ra l; Wil liam L . Gibbons, District At torney Gene ral; and Tom Hoove r, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F ac tu al B ac kgr ound Following a jury

trial, the Petitioner was c onvicted of pr emeditated f irst deg ree murder a

nd two counts of espe cially

ag g ravated ki dnapping

. See State v. Micke ns, 123 S.W .3d 355, 361 (Tenn. Crim. App. 2003), perm. to appeal denie d, (Tenn. 2003) (consolidated a ppeal of the Petitioner and his c o- de fe nd ants , Cor e y Mic ke ns , Chr ist op he r Smith , an d Chon c e y Jone s) . He wa s se nte nc e d to li f e w it h o u t t h e p o s s ib il it

y o f p ar o le f

o r th e mu r d e r an d to tw o c o n s e c u ti v e th ir

ty

- tw o

- y e ar , s ixmonth sentence s for the e specia lly ag g ravated kidnapping s. I d.

O nd ir e c t a

p p e a l, th is Co u rt s e t o u t t h e f a c tu a l c ir c u ms ta

n c e s s u r r o u n d in g th e Pe ti tioner’s crimes. See id. at 362–68. He was a member of the Memphis c hapter of the “Ga ng ster Disciples,”T h e p u n ish m e n ts inc lud e d thr e e a n d six m inu te b e a ting s, a s w e ll a s d e a th. S e e id

. 1

-2- a national g angof cri m i n al s h ea d q u artered in Chicag o. See id. at 363. Part of the g ang ’s org anization was the existence of se t punishments admi n is te r e d to g angmembers who violate d g ang 1 rules. See id. at 363–64. The victims in this c ase, Marsha ll Shipp and Ricky Aldridg e, we re g ang members who w ere punished for violatingg angrules. See id. at 364. Shipp broke a rule by being ins ub or din a te to a su

pe ri or , and Al dr idg e c omm itt e d a vio latio n b y

“ fi ri ngon ” oth e r g angme mbe rs

. See id.

An ey ewitness testified that the g ang ’s hig h-ra nking me mbers in Memphis or dere d that the victims be punished for their rule violations. See id. Victim Aldridg e testified that the Petitioner was pre sent and pa

rticipated in “ar

resting ” the victims a

nd administering their punishments. See id.

a t 36 6. Ac c or din g to Ald

ri dg e , the Pe tit ion e r, a lon g wi th se ve ra l othe r g ang ste rs , for c e d the vic tim s i n t o t h eir c ars at gunpoint, tra nsported them to a se cluded pa rk in South Memphis, and then beat Shipp severely

by striking him re peate dly

for sever al minutes w ith ba seball bats and a tire iron befor e shooting him in the buttocks with a pistol. S ee id. at 366–67. Aldridg e wa s also beate n by the mob for a pproxi mately

six minutes, but no wea

pons were used to bea

t him. I d. at 367. Shipp was left for de ad, and A ldridg e wa s eventua lly allowed to le ave. See id. Aldridg e re turned to the pa rk later

and too k Sh ipp to a

ho sp ita l w he re he die d tw o d ay s late r. I d. Th e Pe tit ion e r d id n ot t e sti fy a t hi s trial. See id. at 362–68.

This Court affirme d the Petitioner’s convic tions on direct appe al, and our supreme c ourt denied his applicat i o n fo r p ermiss ion to appeal. I d. at 355. He f iled a timely , pro se pe tition for post-conviction re lief, and c ounsel was a ppointed to repre sent him in his pos t-conviction ac tion. An amende d petition was filed, and the post-conviction court held an evidentiar y hear ing during which the Pe tit ion e r a

nd the a tto rn e y wh o re pr e se nte d him a t tr ia l (t ri a l c ouns e l) we re the on ly wi tne sse s.

Th e Pe tit ion e r t e sti fi e d th a t tr ia l c ouns e l r e pr e se nte d him a t his pr e lim ina ry he ari ng , at tr ia l, and on appe al. Acc ording to the Petitioner, approximately two y ear s passed be tween the time he was indicted and his trial, and over that time, trial counsel only met with him “about four or five times.” Their mee tings lasted a

pproxi mately

fift ee n m i nutes ea ch. Dur ing the ir meeting s, trial counsel would only

tel l him about various motions he intended to file, but he did not explain any of the motions t o the Petitioner.

Th e Pe tit ion e r a lso te sti fi e d th a t pr ior to h is t ri a l, t ri a l c ouns e l di d n ot d isc us s th e State ’s c a se wi th h im
, n o r d id tr ia l c o u n s e l p r o v id e h im w it h an y d is c o v e r

y mate r ia ls un ti l a f

te r th e trial. The Pe tit ion e r a sse rt e d th a t he ha d g ive n tr ia l c ouns e l th e name s o f t hr e e wi tne sse s h e wa

nte d to c a ll ( his brothers a nd sisters), but they did not testify

. Also, an investig ator wa s appointed to his case , and the inv e sti g a tor

me t w iththe Pe tit ion e r t

wi c e be fo re tr ia l, but tr ia l c ouns e l w a s n ot p re se nt at th os e meeting s. Furthe r, the Petitioner cla imed that trial counsel did not discuss the facts of hi s case , the

c on se qu e nc e s o f c on vic tio n, or any de fe ns e str a te g y

wi th h im p ri or

to t ri a l.-3-

Trial counse l testified that he had b ee n appointed to re prese nt the Petitioner and that he “proba bly ” met with him for the f irst time before the pre liminary hear ing. T rial counse l could not

reme mber the spe cific de tails of his visits with the Petitioner beca use appr ox imately

nine y ear s had passed since the Petitioner’ s trial. Trial counse l stated that he “ would have” met with the Petitioner ag ain af ter the pr eliminary

hear ing a nd, at that time, he would have g one over the packet of discove ry
mate ri a ls p ro vid e d to the Pe tit ion e r a nd his c o- de fe nd ants . H e a lso “ wo uld have dis c us se d the c a se in light o f [ t he] preliminary hear ing te stimony .” Tria l counsel explained that he met with the Petitioner “re g ularly ” bef ore his trial to discuss their de fense strateg y

.

Tr ia l c ou ns el f

ur the r e xpla ine d th a t th e Pe tit ion e r w a s tr ie d w iththr e e c o- de fe nd ants : Micken s , S m i t h
, and J ones. Howe ver, the se we re not the only defe ndants indicted for

the cr imes perpe trated a g ainst victims Shipp a nd Aldridg e; another g roup of def endants ha d been tr ied for the

c ri me s p ri or

to t he Pe tit ion e r’ s tr ia l, a

nd tr ia l c ouns e l te sti fi e d th a t th e re we re “ sig nif ic ant b e ne fi ts” g ained f rom beingable to obser

ve the State’ s case in the previous trial. Tr ial couns el s h ared an office with an attorne y

who re prese nted one of

the def endants in the fir st trial. Thus, he had r eady

acc ess to the testimony

of all the State’s witnesses who testified at that trial, a nd trial counsel wa s able to “utiliz e t h e fr u i t s of his [partner’s] investigation,” in addition to what he lear ned by conducting h i s o wn i n vestig ation. Acc ording to trial counsel, he ha d “a substantial amount of information” amassed to pre pare the Petitioner’s def ense, inc luding the transcr ipts from the pr evious trial as we ll as the discover y provid ed b y t h e State in that trial. Trial counse l testified that he discussed all of this information with the Petitioner.
Asked how thoroug hl y h e woul d have disc ussed this information with the Petiti oner, tria l

c ouns e l r e sp on de d a s f

oll ow s:

Wel l, I wo uld have —th e wa

y Iwo uld hav e condu c te d, and

Ido n’ t r e c a ll specific ally , but the way

Iwould have conducte d it is we would have me t in jail and Iwould [have] advised him that I had the testimony and this is what these pe ople ar e g oing to testify

to. And, I would have a sked him, y ou know, from his per spective, y ou know, first y ou know, what is y ou r p o sition on t his testimony . I f they said he

wa s th e re , you

kn ow , w hat is his po sit ion
, wa s he no t the re or wh e re wa s h e ? I s th is inc or re c t? I s it ina c c ur a te ? I f h e ha d n o a ns we r o r h e ha d n o po sit ion , th e n I wo uld have a dvised him what my plan was. Y ou know, I

woul d h ave e ither broug ht up another witness’s testimony

or I would have br oug ht up where the par ticular individual we wer e talking about the time conf licted with pe rhaps another witness’s testimony and how the pla

n was to cr oss-examine that witness.

Acc ording to trial counsel, the Petitioner asser ted that, when the vic tims were take n inside the par k to be “punished,” he stay ed at the car s as a “lookout,” so he wa s not actually prese nt when the cr imes took place. The Petitioner’s p o s i t i o n wa s contra ry to the testimony

prese nted at the pr e lim ina ry he ari ng . T ri a l c ouns e l e xpla ine d this to the Pe tit ion e r, and tr ia l couns e l expla ine d to hi m the conc ept of c riminal responsibility for the a cts of other s.Rel eva nt port i ons of t he po s t

- convi ct i on cour t ’ s order ar e s et out i n t he ana l y s i s bel ow. 2

-4- Reg ardingthe Petitioner’s dec ision not t o test i fy at his trial, trial counsel testified that he discussed the issue with th e P et i t i o ner, but he did not remember the details of their

conver sation. He sa id that he “pr obably would have a dvised him not to t estify ” bec ause he “w o u l d not have thought that there wa s an y t h ing that could have be en g leane d from his testimony .” Tria l counsel

ex p l ai n ed that his best def ense w as g oing to be pointing out inconsistencies in the te stimony prese nted by

the State’s witnesses, a

nd in impeachingany witnesses that testified to the Petitioner’s pr e se nc e duri ngthe pe rp e tr a tio n o f t he c ri me . It w a s th e Pe tit ion e r’ s d e c isi on no t to t e sti fy

a t tr ia l.

Reg ardingimpeachme nt of the State’s witnesse s, trial co u n s el t es t ified that he did in fa ct impeach some of the State’s witnesses. How ever , some of the State’ s witnesses neve r mentioned t h e P et i t i o n er ’s n am e; t h o s e w i t n es s es “n ev er p l ac ed[ t h e P et i t i o n er ] at an y o f t h es e [ gan g] m ee t i n gs
or sa id he ha d any inv olv e me nt. ” Con se qu e ntl y , tr ia l c ouns e l ma de the de c isi on duri ngtr ia l no t to

cross-e x amine any of t he witnesses who di d not testify to the Petitioner’s involvement. Tria l counsel said that he discussed this strateg y with the Petitioner and explained to him t hat if a w itness did not

me nti on him , h e wa s n ot g oin g to cr os s- e xami ne the m be c a us e he did

no t w ant “ to d o a

ny thi ngto dr aw atte nti on

to h im a nd have [the wi tne sse s] r e c a ll h is p re se nc e .” I f a wi tne ss d id s pe c if

ic a lly testify that the Petitioner had be en pre sent during the per petration of the crimes, tria l counsel impeache d them with “either their inconsistent prior stateme nts or whate v er [ h e] had to impeach them with.”

I n prepa ration for the P etitioner’s trial, trial counsel also went to the cr ime scene . Fur ther, he hired an investigator to he lp him prepa re. On cross-e x amination, trial counsel confi rm ed t h at victim Aldridge was the only wi t n es s who specif

ically testified to the Petitioner’s pre sence at the

scene of the c rime. Trial counsel explained that A ldridg e would not c ooperate with defe nse lawyers
o r i n v e s t i g a t o r s b e f

o r e t h e t r i a l
, s o h e p r e p ar e d t o c r o s s

- e x a m i n e h i mb y r e l yi n g o nt h e “ l e n g t h y” testimony Aldridg e g ave at the first trial and at t h e P etitioner’s pre liminary hear ing. A lso, trial counsel “ felt ce rtain” that he “pr obably had a ba ckg round file” on Aldridg e that would have detailed any criminal his t o ry h e h ad . Specifica lly , trial counsel’ s plan was to “c onvince the jur y that [Aldridge] was not telli ng the t ruth” and also to show that he wa s an ac complice to some e x tent and a member of the g ang . He hope d that by pointing out inconsistencies fr om Aldridg e’s pr evious testimony , he could g ive rise to re asonable doubt in the minds of the jurors as to the Petitioner’s g uil t.
Subsequent to the hea ring , the post-conviction cour t denied re lief by

enter ing a

detailed written order of dismiss al addressing eac h argument put forwa rd by the Petitioner in his petition. 2 I t is fr om t

he or de r d e nyingre lie f t

hat th e Pe tit ion e r a

pp e a ls.

AN AL YSI S Ona p p e a l, th e Pe ti ti o n e r

a s s e rts th a t t

h e p o s t- c o n v ic ti o nc o u rt e r r e d b y d e n yin g relief

. Spe c if ic a lly , h e c la ims tha

t tr ia l c ouns el was con stitut ion a lly ine ff e c tiv e be c a

us e he fa ile d to investigate “the f

acts” prior to trial, he f

ailed to prope rly

cross-e x amine wi t n es s es at trial, and-5-

be c a us e he did no t ade qu a te ly c on su lt with him pr ior to tr ia l. F ur the r, the Pe tit ion e r a sse rt s th a t a new tria l is warra

nted bec ause of

cumulative er

ror.

The Six th Amendment to the United S t at es C o n s tituti on and ar ticle I , section 9 of the Te nn e sse e Con sti tut ion

g ua ra nte e a c ri min a l de fe nd ant the ri g ht to re pr e se ntatio n by c ouns e l. S tate

v. B ur ns , 6 S.W. 3d

45 3, 46 1 ( Te nn . 1 99 9) ; B a xter v. Ros e , 5 23 S.W. 2d 93 0, 93 6 ( Te nn . 1 97 5) . B oth the United States Supreme Court and the Tenne ssee Supre me Court have r ecognized that the rig ht t o s u ch re p re s en t at i o ni n cl u d es t h e r i gh tt o “r ea s o n ab l y ef fe ct i v e” as s i s t an ce , t h at i s , wi t h i nt h e r an ge of compe tence demande d of attorne y s in criminal case s. Strickland v. Washington, 466 U.S . 668, 687 (1984); B urns, 6 S.W.3d at 461; Baxt er, 523 S.W.2d at 936.

A l awye r’ s a ssi sta

nc e to h is o r h e r c lie nt i s in effective if the lawye r’ s c on du c t “ so undermined the proper

functioning of the a dversa rial proc ess that the trial ca nnot be re lied on as having produce d a just result.” Strickland, 466 U.S. at 686. This over all standard is c omprised of tw o c omp on e nts : de fi c ie nt p e rf or manc e by the de fe nd ant’ s la

wye r a nd a c tua l p r e j u d i c e t o t h e d e f e ns e
cause d by the deficient perf ormanc e. I d. at 687; Bur

ns, 6 S.W .3d at 461. The de fenda nt bear s the burden of establishin g b o t h o f these c omponents by clea r and c onvincing evidenc e. Te nn. Code Ann. § 40-30-110( f); B urns, 6 S.W .3d at 461. The defe ndant’s failure to pr ove either de ficienc y or pr e jud ic e is a su ff

ic ie nt ba sis up on wh ic h to deny re lie f on a n in e ff e c tiv e a ssi sta

nc e of c ouns e l c la im. Bur ns, 6 S.W .3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

I n evaluating a

lawy er’ s perf

orm an ce , the re viewingcourt uses a n objective standa

rd of

“ re a so na ble ne ss. ” Str ic kla

nd
, 46 6 U. S. a t 68 8; B ur

ns , 6 S.W. 3d

a t 46 2. Th e re vie wi ngc ourt mus t be hig hly defe rential to counsel’s choice s “and should indulg e a strongpresumption that counsel’s conduct f alls within the wide rang e of rea sonable profe ssional a ssistance.” Bur ns, 6 S.W .3d at 462;

see a lso St rickland, 466 U .S. at 689. The cour t should not use the benef it of hindsight to secondg uess trial strate g y

or to criticize counse l’s tactics, see Hell ar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982), and c ounsel’s alleged er ro rs should be judg ed in light of all the fa cts and c ircumstance s as of the time they

wer e made, see Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

.
A trial cour

t’s deter mination of an ineff

ective a ssistance of c ounsel claim presents a mix ed question of law a

nd fac t on appea l. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This Court revie ws the trial cour

t’s finding s of fac t w ith r eg ard to the eff ectivene ss of counsel unde r a de novo standard, a ccompa

nied with a presumption that those finding s are corr ect unless the pr eponder ance of the e vidence is otherwise. I d. “Howe ver, a t ri al court’s c onclusions of law—such a s whether counsel’s pe rf

o r ma n c e w a s deficie nt or whethe r that def iciency was pre judicial—are revie wed unde r a pure ly de novo standa

rd, with no presumption of cor rec tness g iven to the trial cour t’s conclusions.” I d. (empha sis in original).

I n this case, the Petitioner first asser ts that tr ial counsel was ineffe ctive beca use he did not in t e r v i e w “ k e y w i t n e s s e s ” p r i o r t o t r i a l

. T h e p o s t

- c o n v i c t i o n c o u rt a d dr e s s e d t h i s ar g u m e n t in i ts de ta ile d o rd e r d e nyingpo st- c on vic tio n r e lie f, fi nd inga s f oll ow s:-6-

[Trial counsel] testified that he had the testimony of witnesses f

rom the pre vious trial

and the pr e lim ina

ry he ari ng , in

a dd iti on to i nte rv ie ws pr ov ide d b y the oth e r d e fe ns e counsel’s inve stigators and re ports made by his own investigators. Counsel testified that he intervie wed witnesse s that would speak to him and “he had a f ile on ever

y witness who took the stand, either with a prior state ment or prior te stimony .” Pe tit ion e r’ s c la im i s th e re fo re wi tho ut m e ri t.

The re cord suppor

ts the post-con v i ct i o n court’s findings. More over, the Petitioner has made no argument reg ardinghow furthe r pre -trial intervie ws with the State’s witnesses w ould have a ffe cted the outcome of

his trial. Consequently , he has failed to demonst rate how he wa s prejudice d by any alleg ed def

iciency in this reg ar d
, an d t here fore the Petitioner’s cla im that trial counsel was ineffe ctive for failing to inter view witnesses is w ithout mer it. See Tenn. Code Ann. § 40- 30-110(f ); Bur ns, 6 S.W .3d at 461.

Se c on dly , th e Pe tit ion e r a sse rt s th a t tr ia l c ouns e l wa s ine ff e c tiv e fo r fa ili ng to “ a de qu a te ly

c ro ss- e xami ne the State ’s wi tne sse s dur ingtr ia l.” Mo re sp e c if ic a lly , th e Pe tit ion e r b ro a dly a sse rt s that trial counsel kne w only one of the State’s witnesses (Aldridg e) would testify to his presenc e at the sce ne of the crime a

nd that trial counsel did not prope rly impeach him. The post-conviction cour t also addre ssed this argument in its written order de nying r elief:
[Trial counsel’s] strateg y to impeach only

witn esses that placed Petitioner on the

scene us i n g t h ei r p ri o r c o n fl i ct i n g s t at em en t s wa s re as o n ab l e u n d er t h e c i rc u mstances and rises to the “ rang e of competenc e demande d of an attorney in a cr iminal case.” Bax ter, [523 S.W .2d] at 936. Further , Petitioner has offe red no e vidence showing that failing to impea ch a witness prejudice d his tria l. Strickland, [466 U.S .] at 695. [T]hi s c ourt

wi ll n ot s e c on d gue ss coun se l’ s r e a so na ble ta c tic a l de c isi on

to a vo id

cross-e x amining w itnesses that did not mention P etitioner. (e mphasis added)

. We ag ree with the post-conviction cour t: no showing of prejudice has bee n made, a nd this iss ue has no merit. See Te nn. Code Ann. § 40-30- 110(f) ; Burns, 6 S.W.3d at 461.

Th ir dly , th e Pe tit ion e r a sse rt s th a t tr ia l c ouns e l w a s in e ff e c tiv e be c a

us e he “ fa ile d to pr op e rl y
c on su lt w ith[the Pe tit ion e r] p ri or to tr ia l.” I n su pp or t of thi s c on te nti on , th e Pe tit ion e r r e lie s o n h is testimony prese nted at the post-conviction hear ing, asser ting that it established “a c omplete lack of communication betwe en [the Petitioner] and trial counsel.” Howeve r, trial counsel testified that he met with the Petitioner “re g ularly .” Trial counse l also expl ained that he went over the testimony

of the St a te ’ s w it

n e s s e s an d

h is d e f e n s e s tr a te g y

w it hth e Pe ti ti o n e r

. T h e p o s t- c o n v ic ti o nc ourt

a c c re dit e d th e te sti mony

of tr ia l counse l by

fi nd ingtha

t “ [t]he re is n oth ingin t he re c or d o r i n Petitioner’s testimony

that would substantiate Petitioner’s conte ntion that the lack of [a g reater] number of mee tings with Petitioner direc tly and adve rsely

aff ecte d the outcome of

his trial.” The

rec ord supports the findingof the post-c onviction court. Ag ain, the Petitioner has not demonstrate d ho w h e wa s p re

jud ic e d b y

the a lle g e dly

de fi c ie nt p re -t

ri a l c on su lt ati ons w ithtr ia l c ouns e l.-7-

Acc ording ly , this iss ue also has no merit. See Tenn. Code Ann. § 40-30- 110(f) ; Burns, 6 S.W.3d at 461.

L a stl y , th e Pe tit ion e r a rgue s th a t th e c umu lativ e e ff e c t of the e rr or s ma de by

the po stconviction cour

t resul t ed in prejudicial e rror , war rantinga new

trial. Howe ver, be cause we have found no er

ror in the pr ocee dings be low, t h e P et i t i o n er is not entit led to relief on the basis of cumulative er

ror. We conc lude that the Peti t i o n er est ablished neither defic ient repr esentation by counsel nor pr ejudice f

rom the shortcoming s which he a lleg ed.

Conclusion Ba sed on the for eg oing a

uthorities and re asoning , we a ffi r m t h e post-convic tion court’s orde r of dis mis sa l.



### ____ ____ ____ ____ ____ ____ ____ __ DAVI D H. WEL L ES, J UDGE