### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 7, 2003 MICHAEL P. HEA

LY v. STATE OF T ENNESSEE Direct Appeal from the Criminal Court for Shelby County No. P-26147 Arthur T. Bennett, Judge

No. W2002-01962-CCA-R3-PC - Filed February 5, 2004

The petitioner appeals the t ria l court’s finding that the petitioner received ef fective assistance of counsel both before and during trial. We affir m the denial of the post-conviction relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and N ORMA M C G EE O GLE , JJ., joined. Ju ni Ga ng ul i, Me mp hi s, Te nn es se e, fo r t he ap pe ll an t, Mi ch ae l P . H ea ly. Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney G eneral ; William L. Gibbons, District Attorney General; and Le e Coffee, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION The petitioner, Michael P. Healy , was convicted of the indict ed charges of aggravated robbery and aggravated assa

ult. Sentences of thirty y ears for aggr

avated robbery a nd fifteen ye ars f or aggravated assa

ult, to be served consecutively , were imposed. The convictions were affir m e d ondirect a ppeal to t his Court. See State v. Mi chael P. H ealy , No. W1999-01510-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 471 (Tenn. Crim. App. at Jackson, June 26, 2001). The petitioner filed a pro se petition for post-conviction relief on February

8, 2002. Counsel was appointed, and an amended petition was filed. An extensiveevidentiary he aringwas held on July 10, 2002, and the petition was denied. The petitione

r’s clai ms were overlapp ing in some instances, but the alleged deficiencies of counsel c an be ca

tegori zed as: (1) failure to proper ly c onduct a pre-tri al investi gation t hat could develop p ossible defense theorie s;-2-

(2) fail ure to fil e timely

pre-tri al motions, including notice of an alibi d

efense ; (3) ineffective representation at trial in cross-examination and thefailure to object to certain testimony. The facts supporting the petitioner’s conv icti on were summarized in State v. H ealy . The petitioner, wearing

a platinu m blonde wig , sungl asses, and facial covering, e ntered a store owned by Sherrie and Ben ny C olville. T

he petitioner point

ed a gu n at Mrs. Colvilleand demanded she open the cash register. I

nstead, she called for her husband, who observe d the petitioner from behind a two-way mirror. The petitioner took Mrs. Colville’s purse. As the petitione r turned to leave, he saw Mr. Colville crouching in the back of the store and pointed the gun at Mr. Colville. The petitioner fled, pursued by Mr. Colville, who saw the pe titioner remove his disguise enabling Mr. Colvilleto see the petitioner’s face. A witness saw the petitioner fleeing the store and obtained the licen se plate number on the vehicle in which the petitioner escaped. The petitioner was later apprehended, and the Colvilles independently identified the p e titioner in a six-person photographic lineup as the perpetrator. This Courtreviews a claim of ineffective assistance of counsel under

the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington , 466 U.S. 668 , 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner has the bur den to prove that (1) the attorney’ s performance was deficient, and (2) the deficient per formance resulted in prejudice to the defendant so as to deprive him of a fair trial. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. Sta te , 938 S.W.2d 363, 3 69 (Tenn . 1996); Butler v . State , 789 S.W.2d 898, 899 (Tenn. 1990). The failure to prove either deficiency or prejudice justifies denial of relief; therefore, the court ne ed not add

ress the componen

ts in any particu lar orde r or eve n addres s both if

one is insufficien

t. Goad , 938 S.W.2d at 370. In or

der to es tablish pr

ejudice , the peti

tioner mus t establish a “rea sonable probabil ity t

hat, butfor counsel’s unprofessional errors, the result of the proc eeding would have been differ ent. A reas onable

probability is a probability sufficient to undermine confidence in the out come. ” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. The test in Tennessee to determine whether counsel provided effective assistance is whether his or her performance

was within the

range of compe tence de manded of

attorne ys i n crimina l cases. Baxter , 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct falls within the wide range of acce ptable professional assistance. Strickland , 466 U.S. at 689, 104 S. Ct. at 2065 ; State v. Honey cutt , 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove a de fi ci en cy, a

petitioner must show “that counsel’s acts or omissions were so serious as to fall below anobjective standard of reasonableness under prevailing professional norms.” Goad , 938 S.W.2d at 369 (citi ng Strickland , 466 U.S. at 688, 104 S. Ct. at 2065)

. Inreviewing counsel’s conduct, a “f air assessment

. . . requires that every

effort be made to eliminate the di stort ing e ffects of hindsight, to reconstruct the circumstanc es of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspe ctive at the time.” Nichols v. State , 90 S.W.3d 576, 587 (Tenn. 2002) (citi ng Strickland , 466 U.S. at 689, 104 S. Ct. at 2065 ). The fact that a particular strategy

or tactic failed or hurt the defe nse does n

ot, standi ng alone, estab lish-3-

unreasonablerepres entat ion. Howev er, def erence t o matt ers of s trate gy and tactical choices applies only if the choices are informed ones based upon adequate prepar ation. Henley

v. State , 960 S.W.2d 572, 579 ( Tenn. 199 7); Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). The petitione

r was init ially repres ented by

Michael Johnson of the S he lb y C ounty Public Defender’s Office

from Dec ember 3, 1998, until April 27, 1 999. The p etitioner complained that hi s counsel was inaccessible, did not spend adequate time with him, failed to initiate a proper investigation, and did not file a requested speedy -trial motion. OnApril 27, 1999, Gr egory Carman was substituted as counsel for the petitioner. The petitioner claimed t hat Mr. Ca

rman fa iled to move to sup

press the disguise items, fa iled to properl

y investig ate witnesse s or th e possible presenc e of surv eillance camera s, and fa

iled to obje ct to prejudicial statemen

ts in the pr

osecution’s closin

g arg ument. The petitione

r also all eged that, to his detrimen t, Mr. Car man chan ged de fense st

rateg y du ring tr ial. Mr. Johnson test

ifie d th at during

his repr esentat ion of the

petitione r, he obta

ined full discovery from the State and shared its contents with the petitioner. He also initiated a n investigation

through his office. He state d the peti tioner did not wish to consider acceptance of the plea barga in offer . Mr. Johnson

stated he did not f i le the spe edy

trial motion as, in his

opinion, it would have been futile. As it was, the petitioner’s arraig nment was December 3, 1998, and the trial occurred on March 4, 1999. Mr. Johnson stated that he had himself removed as coun sel du e to a personal conflict with the petitioner. Gregory Carman succeeded Mr. Johnson as counsel. His time logs reflected that he had spent a total of 551⁄2 hours on the case, which included 71⁄2 hours of confer ences with the petitioner a n d 153⁄4 hours in

cour t. The remainder of time was devoted to investigation, rese arch, review of evide nce, and general prepara tion. Mr. Carman not only visited the crime sce ne but initiated tw o other investig atio ns with his staff. Witnesses were interviewed, and the possibility of an alibi defense was explor

ed. Thisdefense was discarded when the only suggested witness, Jeri Wilmouth, the petitioner’s girlfriend, could not provide a location or time that would support an alibi defense. Mr. Carman

said that his str

ategy , which wa s discusse d with and approve d by

the petiti oner, wa s to attempt to prove a lesser offense than char ged. Conseque

ntly , identity

was no t cont ested , alth ough the petitione

r attempt ed to resurrect the issue during trial. All pre-tria l motions were filed according to Mr . C ar ma n’ s t es ti mo ny. The post-conviction judge issued a written finding and concluded that the petitioner’s bar e allegations of ineffective counsel were unsupported by evidence adduced

at the hearing. The postconvictionjudge accredited the testimony of

the petitioner’s trial counsel in the denial of the petition. Thesefindings of fact on post-conviction hearings a re conclusive on appeal un less th e evidence preponderates otherwise. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). Having concluded that the evidence does not preponderate ag ainst those findings, we ar e b ou nd by t hem. He nl ey, 960 S.W.2d at 578.-4-

Havingcon cl uded that the petitioner failed to prove deficiency of counsel, we therefore affirm the denial of post-conviction relief.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE