IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 2, 2010

KARDIUS WILKES v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-27220 John T. Fowlkes, Jr., Judge

No. W2009-01476-CCA-R3-PC - Filed August 18, 2010

The Petitioner, Kardius Wilkes, was convicted by a jury of one count of first degree murder.

This Court affirmed his conviction on direct appeal, and his application for permission to

appeal was denied by the Tennessee Supreme Court. See State v. Kardius Wilkes, No.

W2001-02172-CCA-R3-CD, 2002 WL 818255 (Tenn. Crim. App., Jackson, Apr. 26, 2002),

perm. app. denied (Tenn. Oct. 7, 2002). He later filed a petition for post-conviction relief.

Following an evidentiary hearing, the post-conviction court denied the Petitioner relief. In

this appeal, the Petitioner contends that the post-conviction court erred in denying him relief

because his trial counsel failed to: (1) impeach a particular witness using transcripts of the

Petitioner’s first trial, which ended in a mistrial; (2) adequately meet with the Petitioner

before his second trial; (3) call the Petitioner’s brother as a witness; and (4) adequately

investigate and interview potential witnesses. After our review, we affirm the postconviction court’s denial of relief.

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

DAVID H. WELLES,J., delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS

and CAMILLE R. MCMULLEN, JJ., joined.

R. Andrew Hutchinson, Memphis, Tennessee, for the appellant, Kardius Wilkes.

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

General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant

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

Factual Background

We summarized the facts of the Petitioner’s case on direct appeal as follows:

On January 12, 2000, several residents of Watkins Manor Apartments

in Frayser were barbequing outside their apartments when the Appellant and

Nicholas Russell drove up and parked their vehicle. Witnesses watched as the

[Petitioner] and Russell approached the victim. The [Petitioner] struck the

victim, Alexander King, in the head with a pistol and exclaimed, “I told you

about ya’ll [Vice Lords] selling drugs over here in this neighborhood.” After

the [Petitioner] struck the victim with the handgun, the victim began running.

The [Petitioner] chased the victim into a driveway. The [Petitioner] leveled

his pistol at the victim, fired one shot and missed. As the victim continued

running, the [Petitioner] fired a second shot from a distance of approximately

fifteen feet and the victim fell to the ground. The fatal gunshot struck the

victim in the back of the head. The [Petitioner] and Russell returned to their

vehicle and drove away. Officers were called to the scene around 8:45 p.m.

and found no weapons on the victim.

In his statement to police, the [Petitioner] described the events

preceding the murder and the murder itself as follows:

Me and Nicholas Russell was riding through Watkins Manor

Apartments and we had saw Mr. King [the victim] and then at that time

we went back to Nicholas house in the Watkins Manor Apartments.

Nick had went upstairs and got the gun, he brought it back down and

gave it to me. We went back around where we saw [the victim] at and

I guess [the victim] didn’t notice me cause we had an incident where he

had took something from me. He took some money from me about a

couple of months ago. This was our first confrontation since he took

the money. Nick had got into it with [the victim] about something, but

I don’t know what it was about and Nick told [the victim] not to come

back in the Watkins Manor. When [the victim] walked up he didn’t see

me but Nick was talking to him. Nick was like saying, “Give me some

money, give me something out of your pocket”, and then I hit [the

victim] with my hand, [the victim] took off running. Then Nick and me

chased him and then Nick said, “shoot at him”, and then I shot two

times to try and scared him and he was running. He took a couple of

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more steps and then he fell. After, I saw him fall, me and Nick jumped

in the car and rode off . . . I got up at about 3:30 a.m. . . . and I stopped

right there at the Wolf River and I got out, slung the pistol over the side

. . . . I didn’t try to kill him and I didn’t try to rob him. I just was trying

to show him that you don’t do folks wrong and get away with it. I

didn’t mean to shoot him anywhere . . . I was just trying to scare him.

A witness at the scene, Aaron Taylor, also recalled briefly seeing the

[Petitioner] arrive at the apartment complex and leave prior to his return

twenty minutes later. The [Petitioner] did not testify at trial.

State v. Kardius Wilkes, No. W2001-02172-CCA-R3-CD, 2002 WL 818255, at *1-*2 (Tenn.

Crim. App., Jackson, Apr. 26, 2002) (footnote omitted).

At his post-conviction hearing, the Petitioner relayed his version of the events

underlying his conviction, explaining that he had merely been trying to break up a fight

between Mr. Russell and the victim. When the victim ran, the Petitioner fired his gun into

the air intending to scare the victim but instead accidentally shot him to death.

Regarding the performance of his trial counsel, the Petitioner said that trial counsel’s

failure to order transcripts of his first trial resulted in the inability to properly impeach

witnesses at his second trial. The Petitioner said that, at his first trial, witness Aaron Taylor

testified that he had removed money and a beeper from the victim’s body; the Petitioner said

this established that Mr. Taylor could also have removed a gun from the victim’s body and

given it to the victim’s brother, who was later arrested with a gun in his possession. The

Petitioner said that, at the second trial, Mr. Taylor denied removing any items from the

victim’s body. The Petitioner added that, at the first trial, Mr. Taylor testified that the victim

was relatively far away from the Petitioner when he was shot; at the second trial, Mr. Taylor

said the victim was much closer. The Petitioner said trial counsel did not notice these

discrepancies and did not impeach Mr. Taylor even after the Petitioner asked him to do so.

The Petitioner also testified that he had never fired a gun before shooting the victim,

and requested an expert witness for the purpose of establishing how difficult it would have

been for him to make the fatal shot intentionally; trial counsel had responded that an expert

would not be worthwhile. In addition, the Petitioner had wanted his brother, Nicolas Russell,

to testify on his behalf; trial counsel did not call Mr. Russell as a witness.

Regarding his preparation for trial, the Petitioner said trial counsel only met with him

three or four times in jail. He also met with the Petitioner during court proceedings before

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the actual trial. Each of these meetings lasted only five to ten minutes. He also said that trial

counsel seemed less attentive and asked fewer questions of witnesses during the second trial.

Mr. Russell testified at the post-conviction hearing that he was with the Petitioner

during the events that resulted in the victim’s death. He said that the victim had a chrome

nine millimeter handgun tucked into his pants during the encounter that preceded the

shooting. He believed the victim displayed the gun in order to frighten Mr. Russell and the

Petitioner. The victim never drew the gun. Mr. Russell said he told trial counsel that he saw

the victim in possession of a gun. He acknowledged on cross-examination that he told the

police, in an interview about a week after the incident, that he did not know whether the

victim had been armed.

Trial counsel also testified. He said that he met with the Petitioner on many

occasions, including at least six meetings before the first trial and additional meetings before

the second trial.

Regarding the Petitioner’s and Mr. Russell’s claim that the victim had a gun, trial

counsel noted that Mr. Russell only told him that he “believe[d] the victim had a gun.” Mr.

Russell never said he had seen a gun. Trial counsel chose not to call Mr. Russell as a witness

because every other witness testified that the victim was not armed. Trial counsel also noted

that every other witness said Mr. Taylor had not taken anything from the victim’s body and

therefore could not have removed a gun.

Trial counsel said that a firearms expert might have been helpful; he chose not to hire

one because he was not sure whether the trial judge would have allowed it. He also said that

an expert might have been damaging, however, in that the expert might have established the

unlikely nature of the Petitioner’s claim that he had shot the victim while trying to fire into

the air over the victim’s head. Trial counsel noted that he spoke to a number of people who

had been in the area at the time of the shooting; all of them said they had not been able to

hear whether the victim and the Petitioner argued, and did not know what had happened

before shots were fired. He did not hire an investigator to interview witnesses. Trial counsel

also noted certain ways in which the Defendant’s statement differed from his claim that he

was merely breaking up a fight between the victim and another person, in that the Petitioner

admitted that the victim had stolen money from him and was a rival gang member.

The post-conviction court denied the Petitioner relief. He now appeals.

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Analysis

To sustain a petition for post-conviction relief, a petitioner must prove his or her

factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.

Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon

review, this Court will not reweigh or re-evaluate the evidence below; all questions

concerning the credibility of witnesses, the weight and value to be given their testimony, and

the factual issues raised by the evidence are to be resolved by the post-conviction judge, not

the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-

79 (Tenn. 1997). The post-conviction judge’s findings of fact on a petition for postconviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless

the evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley,

960 S.W.2d at 578.

The Sixth Amendment to the United States Constitution and article I, section 9 of the

Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). Both the United States Supreme Court and the Tennessee Supreme Court have

recognized that the right to such representation includes the right to “reasonably effective”

assistance, that is, within the range of competence demanded of attorneys in criminal cases.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523

S.W.2d at 936.

A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so

undermined the proper functioning of the adversarial process that the trial cannot be relied

on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is

comprised of two components: deficient performance by the defendant’s lawyer and actual

prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d

at 461. To demonstrate prejudice, a defendant must show “a reasonable probability that but

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. The defendant bears the burden of establishing both of these

components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6

S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient

basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6

S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

This two-part standard of measuring ineffective assistance of counsel also applies to

claims arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice

component is modified such that the defendant “must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would have

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insisted on going to trial.” Id. at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn.

Crim. App. 1998).

In evaluating a lawyer’s performance, the reviewing court uses an objective standard

of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing

court must be highly deferential to counsel’s choices “and should indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should

not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,

see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be

judged in light of all the facts and circumstances as of the time they were made, see

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

A trial court’s determination of an ineffective assistance of counsel claim presents a

mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

This Court reviews the trial court’s findings of fact with regard to the effectiveness of

counsel under a de novo standard, accompanied with a presumption that those findings are

correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s

conclusions of law—such as whether counsel’s performance was deficient or whether that

deficiency was prejudicial—are reviewed under a purely de novo standard, with no

presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

I. Failure to Impeach Aaron Taylor

The Petitioner first contends, based on his claim that Mr. Taylor’s testimony at the

Petitioner’s first trial differed from his testimony at the Petitioner’s second trial, that trial

counsel was deficient in failing to impeach Mr. Taylor. This issue does not appear in the

Petitioner’s petition for post-conviction relief; it is therefore waived. See Tenn. Code Ann.

§ 40-30-104(d) (stating that “[t]he petitioner shall include [in the petition for post-conviction

relief] all claims known to the petitioner for granting post-conviction relief and shall verify

under oath that all the claims are included”). Although the post-conviction court accordingly

did not specifically address this issue in its order denying post-conviction relief, we note that

the post-conviction court found that Petitioner failed to prove his factual claims by clear and

convincing evidence. We also note that the Petitioner did not introduce transcripts of his

trials in order to show that Mr. Taylor’s testimony differed between the first and the second

trials. The Petitioner is not entitled to relief on this issue.

II. Failure to Adequately Meet with the Petitioner

Trial counsel testified that he met with the Petitioner at least six times before his first

trial and a number of times before his second trial. The post-conviction court credited his

testimony rather than the Petitioner’s, and the evidence does not preponderate against this

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factual finding. While the Petitioner correctly notes that the meetings before his first trial do

not necessarily establish that he was prepared for his second trial, they were certainly

pertinent to the second trial in that the evidence being presented against the Petitioner was

nearly identical. Additionally, the Petitioner has not identified any specific way in which he

believes he was not prepared for trial or unable to participate in his own defense. This issue

is without merit.

III. Failure to Call Nicolas Russell as a Witness

The post-conviction court credited trial counsel’s testimony that Mr. Russell never

claimed to have seen a gun in the victim’s possession. That being so, trial counsel’s decision

not to allow him to testify that he merely believed the victim to be armed was reasonable in

terms of trial strategy. All of the other witnesses at trial testified that the victim did not have

a gun, and no gun was found on the victim’s person. Mr. Russell’s belief that the Petitioner

was armed would have done little to establish the threat that he and the Petitioner claimed

to perceive. The post-conviction court noted that Mr. Russell’s credibility was “terrible.”

The post-conviction court found that trial counsel’s performance was not deficient for

electing not to call Mr. Russell as a witness. We agree. This issue is without merit.

IV. Failure to Interview Potential Witnesses

The evidence does not preponderate against the post-conviction court’s finding that

trial counsel interviewed other people who were at the scene at the time of the shooting. The

Petitioner contends that trial counsel should have hired a private investigator to do the same.

The Petitioner presented no evidence that trial counsel’s investigation was deficient in any

way, or that any other favorable evidence would have been uncovered had a private

investigator attempted the same task. The post-conviction court found that trial counsel’s

performance was not deficient in this respect. We agree. This issue is without merit.

Conclusion

Based on the foregoing authorities and reasoning, we affirm the judgment of the postconviction court.

_________________________________

DAVID H. WELLES, JUDGE

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