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

Briefs J uly 20, 2005
ANDREW CHRIS TIAN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County No. GSA 3393 J. Randall Wyatt, Jr., Judge

No. M2004-02793-CCA-R3-PC - Filed September 7, 2005

The petitioner appeals the denial of his petition f orpost-conviction relief in which he asserted various instances of ineffective assistance of counse l. Upon review, we conclude that the evidence does not preponderate against the finding s of the post-conviction court. Therefore, we a ffirm. 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., d elivered the opinion of the court, in which A LAN E. G LENN and R OBER T W. W EDEMEYER , JJ., joined. Matthew Mayo, Na shville, Tennessee, for the appellant, Andrew Christian.

Paul G. Summers, A ttorney Gene ral and Reporter; Preston Shipp, Assistant Attorney Genera l; Victo r S. (T or ry) Johnson, III , District Attorney Gene ral; and Michael Rohling, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION Facts and Procedural History

The petitioner, An drew Thomas C hristian, was conv icted of one coun t of hara ssment (a

Class A misdemeanor) stemming from a series of phone c alls made by the petitioner to the mother of his minor child. As a

result, he was se

ntenced to time ser

ved and h is parole was revoked. On Decembe r 11, 2003, the petitioner filed a pro se petition for

post-convi ction relief, after which counsel was appointed, an amended

petition was filed, and an evidentiary hearing was conducted. Following the hearin g, the post-conviction court denied the petition by written order. T he petitioner timel

y a ppeals to this court contending that counsel was ineffective in fa iling to: (1) subpoena

his daug hter as a witness; (2) investigate the State’s witnesses; and (3) subpoena

pertine nt phone r

ecords. Following thorough review, we a ffirm the denial of post-conviction relief.1 This w itness ’s las t na me is not a pparent fr om the recor d.
-2- At the post-conviction hearing, the petitioner testified that coun sel repr

esented him in both general sessions and criminal court and that they met two times prior to trial. He stated that he discussed the facts of the case with counsel, but she did no t discuss an y possible defense s to the charge with him. The petitioner r ecalle d that he f

elt it impor

tant to ca ll his daug

hter as a witness because she was present with the victim when the phone c alls were p laced and knew that the petitioner did not thr

eaten th e victim. H e stated that he e xpressed t

o counsel his desire to have hi s daughter testify, but

counsel indicated that she would not be able to testify unless her mother

allowed her to do so. Rega

rding th e State’ s witnesse s, the petitioner particularly noted that Isha Fisher a

nd Tameka 1 did not testify in gene ral sessions court but

did testif y in criminal court. He testified that counsel l earned

of the wit

nesses a pproximate ly two day s prior to t he trial i n crimina l court.

Oncross-examination, the petitioner testified that if counsel had inve stiga ted the State’s witnesse s, she would have discovered that heand Tameka had never spoken. He furthe r recalled that counsel told him the State’s witnesses were going to testify that they hear d the phone message left for the victim. The petitioner noted that he “had discovery , but, there was [sic] no names on [h is] discovery”

and that counsel sent him copies of motions but did not review them with him.

As the second of two witnesses at the hearing, counsel testified that she had bee n employed by the Public Defender’s Office for a year a nd a half and that the petitioner’s case was her first jury trial. She recalled that Jonathan Farmer, also of the Public Defe nder’s Office, assisted her with the case, ensuring

that she f iled the proper mo tions and a ssisting w ith trial st rateg y. C ounsel ag

reed wit h the petitioner that she met with him twice and further stated that she fully discussed

the case wit

h the petitioner. She acknowledg ed that sh e became awar e of the t wo witnes ses for the State shortly before trial and that she spoke with one of the witne sses in pe

rson and one by

phone pr ior to trial. Counsel recalled that the petitioner was concerned about the witnesses, particularly because he did notkn ow th em ve ry w ell. She ackn owledged that she discussed the phone recor ds with the petitioner but did not subpoena the records for trial.

Counsel testified that the petitioner’s defense was that the phone ca lls concerned issues of child custody and wer

e not of a harassing

nature. She further

explained that the petitioner did not deny placing the calls but, rather, disputed the number of calls and their content. Counsel stated that she was aware that the petitioner’s daughter had knowledg e of the incident but had some trepidation about calling he r t o t es ti fy b ec au se of th e p ot en ti al ef

fe ct it mi gh t h av e h ad on th e j ur y. Finally, she stated that a police officer was present whe n the phone calls were made.

Oncross-examination, counsel testified that she filed a request for discovery and made the discovery availab le to the p etitioner . She furt her st atedthat she f

iled and a rgued approxima

tely fourteen motions and that the petitioner was present during all of the motion hearing s. Finally, when asked if she did everything necessa ry to protect the petit

ioner’s rights, she answ ered, “ I did w hat I needed to do.”-3- Analysis

This court reviews 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, 10 4 S. C t. 2052, 80 L. E d. 2d 67 4 ( 19 84 ). Th e p et it io ne r h as th e b ur de n t o p ro ve th at (1 ) t he at to rn ey’ s performance was def

icient, a nd (2) the deficie nt performance

resulted inprejudice to the defendant
so as to deprive him of a fair trial. Strickland , 466 U.S. a t 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; theref ore, the court ne ed not add

ress the components in any par ticular order or even

address both if one is insufficient. Goad , 938 S.W.2d at 370. I n order t o establish prejudi ce, the p etitioner must estab lish

a “rea sonable probabilit

y that, but for counsel’s unprofessional errors, the result of the pr oceeding would have been different. A
reasona ble probability is a probability sufficient to undermine confide nce in th e outcome.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068.

The test in Te

nnessee to determine whether counsel provided effe ctive assistance is whether his or her perfor mance w as within t

he rang e of comp etence

demande d of attor

ney s in criminal case s. 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. H oney cutt , 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficie ncy , a petitioner must sh

ow “that c ounsel’s

acts or o missions we

re so ser ious as tofallbelow
anobjective standar

d of rea sonableness 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 “fair assessment . . . requires that eve ry effort b e made to eliminate the distort i ng effects of hindsight, to reconstruc t the circumstances of counsel’s challeng ed conduct, and to evaluate the conduct from counsel’s perspective 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 defense does not, standing alone, e s tablish
unreasonablerepresentation. However, deference to matter s of strategy

and tactical choices applies only if the choices are informed ones based upon ade quate preparation. Henley v. State , 960 S.W.2d 572, 579 ( Tenn. 199 7); Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982).

T h e petitione

r first c ontends that counse l was inef fective in failing to call his

daught er to testify for the defense. We initially note, however, that he failed to present his daughter’s testimony at the post-conviction hearing. I t is well settled thata petitioner should present the testimony of any witnesses that he or

she contends counsel should have called at trial. See Black v . State , 794 S.W.2d 752, 757 (Ten

n. Crim . App. 199 0). “As a general rule, this is the only way the pe

titioner can establish that . . . (d) the failure t o have a known witness present or call the witness to the stand resulted in the d enial of critical evidence which inured to the pre judice of the petitioner.” Id. Becau se his daughter’s testimony was not presented at the post-con viction he aring, we are

unable to determine whether counsel’s omission prejudiced the petitioner in any way.-4-

Moreover, the post-conviction court accredited the testimony of co unsel, in which she expressed concern about calling a minor child to testify on behalf o f her father and against her mother. T

he court particu larly noted “that the de cision to c all witnesse s is a tactical decision, and [counsel’ s] decision not

to call the Petitioner’s daughter as a witnesses[sic] was not unreasonable.” We conclude that

the evide nce doe s not prep onderat

e against this finding. Therefore, ha ving failed to prove ei

ther pre judice or deficie nt performance

by c lear an

d convinc ing evid

ence, th is claim cannot be sustained.
Next, the petiti oner con

tends tha t counsel failed to investig ate and effectively cross-examine Isha Fisher and Tame

ka. Howe

ver, the petitione r agai n failed to call the se witnes ses at thepostconvictionhearing. Therefore, be cause we are unaware of the testimony that could have be en elicited on cross-examination, we cannot conclude that it would hav e altered the outcome of the case. As such, the petitioner has failed to prove prejudice.

We further note that counsel testified she was able to speak w

ith both witne sses and d

iscuss the content of their testimony with the petitioner prior to trial. The trial court accredited t his testimony and determ ined that “[counsel] was adequately prepared to cross-examine the State’s witnesse s, and perf

ormed this

task well within the

range of compe

tence de manded of

attorne ys i n criminal cases.” We agre e and co nclude that the evidence p resente d does not p

reponde rate ag ainst this finding. Therefore, the petitioner has failed to prove that counsel was ineffective in this regar d.

Fi na ll y, the petitioner cont ends that counsel was ineffective in failing to subpoena the pertine nt phone r

ecords. Howeve

r the post-convic tion cour t noted tha

t: [C]ounsel did not subpoena the vi ctim’s p hone rec ords bec ause Of ficer K evin Colemanwas present when the Petitioner called the v ictim, and testified that the Petitioner made the harassing phone calls. The Court is of the opinion that the Petitioner has failed to show

any prejudice

resulting from

the phone records not being obtained, and, therefore, this ground is without merit. We agree and conclude that the of ficer’s testimony established that the petiti oner pla

ced the c alls, that the vic ti m received the calls, and that the calls were of a harassing nature. There fore, the petitioner’s case was not prejudiced by the a bsence of the phone record s at trial . As such, this claim of ineffective assistance cannot be sustained.

Conclusion We affirm the denial of post-conviction relief.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE