### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Marc h 4, 200 8

BRA ND ON MC CA SLIN v. S TAT E OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Dyer County

No. C04-55ALee M oore, Judge

No. W2007-01352-C CA-R 3-P C - F iled Jun e 12, 2009

Pe tit ion e r, B ra

nd on Mc Ca sli n, a

pp e a ls the dis mis sa l of

his pe tit ion

fo r po st -co nv ic tio n r e lie f i n which he a lleg ed that his trial counse l rende red ine ffe ctive as s i s t ance of c ounsel at trial and on

a pp e a l. Spe c if

ic a lly , Peti tio ne r co nte nd s tha t tria l couns e l wa s ine ff e c tiv e be c a

us e he fa ile d ( 1) to challeng e ce rtain prospe ctive jurors dur ing voir dire; (2) to object to t h e S tate’s a dmission of

e vid e nc e that Pe tit ion e r h a d a pr ior c on vic tio n f

or the un a uth or ize d u se of

a ve hic le ; ( 3) to r e qu e st the tr ia l c ourt to ins tr

uc t the jur y on the us e of imp e a c hme nt ev ide nc e ; and (4 ) t o p re se rv e and

ra ise issues on appea l other than the sufficie ncy of t he convicting e vidence . After a thoroug h revie w of the re cord, w e conc lude that Petitioner has fa iled to show that his trial counsel re ndere d ineffe ctive

a ssi sta nc e and a ff ir m th e jud g me nt o f t

he po st- c on vic tio n c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

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

Ralph I . L awson, Dy ersbur g , Tenne ssee, f or the a ppellant, B randon Mc Caslin.

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

ne y Ge n e r a l a n d R e p o r te r; Da vid H. F ind le y , A ssi sta

nt A tto rn e y

Ge ne ra l; and C. Phill ip Bivens, District Attorne y Gene ral, for

the appe llee, the State of Tenne ssee.

OP IN ION

I. Bac kgr ound
Following a jur y t ri al
, Petitioner was convic ted of two c ounts of theft of pr operty over $1,000, both Class D fe lonies. The fa cts surroundingPetitioner’s convictions wer e summarized by thi s Co ur t in the dir e c t a

pp e a l a s f oll ow s:

Def endant dr ove himself and Mr . Doss, his co-de fenda nt, to J ones Jewelry

and then t o t h e D i a m o n d

G a l l e r y i nD ye r s b u r g

. A tb o t h s t o r e s , M r

. D o s s r e m o v e d e n t i r e t r ays-2-

of ring s while the De fenda nt spoke with the store attend an t s

. T he De fenda nt then drove himself, Mr . Doss, and a mutual a cquaintanc e to s ev er al pawn shops, whe re three of the stolen ring s wer e sold. The sale of the stolen propert y ca m e t o an end when the owner of

the fourth pa

wn shop visited became s uspicious and ca lled the police. Ba sed on descr iptions from the cler ks at t he two jewelr

y stores and the pawn shop owner, a long w ith the surveillance tape f ootag e, Dy ersbur g Police Offic ers beg an lo o k in g f

o r th e D e f

e n d an t an d h is c o

- d e f

e n d an t. Sh o rtl y th e r e a fter the De fe nd ant’ s v e hic le wa s d isc ov e re d n e ar h is m oth e r’s ho us e, and arr e st w arr ants

wer e obtaine d fo r t h e two men. The Dy ersbur g Police g ained e ntry to the house, wh e rein th ey

fo un d th e De fe nd ant a

nd Mr . D os s h idi ng . T he tw o w e re take n in to custody and sepa rate ly interviewe d at the police station. The De fenda nt informed the police that the r emainder

of the ring s were hidden in his mother’s house.

At trial, Tammy

Kimbrell testified that she wa s working at J ones Jewelry the day twelve r ings w ere stolen. She stated that two men ca me into the store and “ one kept me busy ” by

claiming to be looking f

or a g ift for his g irlfriend. Shortly afte r the two men l eft the store together
, another mall patron informed Ms. Kimbrell that she

s aw s o m e o n e r e a c h i n t o o n e o f t h e j e w e l r y c a s e s

. M s

. K i mb r e l l c h e c k e d h e r d i s p l ays
and dis c ov e re d th a t a

tr ay c on ta ini ngtw elv e ri ng s w a s mi ssi ng . Sh e imm e diate ly called the police and filed a repor t. Ms. Kimbre ll gave phy sical desc riptions of the tw o me n to the po lic e the da y of the c ri me , b ut a

t tr ia l sh e c ou ld not po sit ive ly identify the Def endant a s one of those me n. Gre g Swims, one of the owner s of J ones J ewe lry , testified that the value of the stolen ring s was over $1,000. He a lso stated that eleve n of the twe lve ring s had bee n rec overe d and re turned to him.

Ric k Wi lb an k s , th e o w n e r o f th e D ia mo n d G a ll e r

y , te s ti f ie d th a t w h e nthe Defendant a

nd Mr. Doss visited his store he wa s assisting anothe r customer . He eventua lly

spoke with the De fenda

nt, showing him var ious items, but t he two men left without making a purc hase. While putting a way his mercha

ndise at the end of the day , Mr. Wilbanks discovered that three tra y s, containing a t o t al of thi rty -five ring s, were mis s i n g. M r. W ilbanks stated that the re tail value of the ring s was $17,881. I mmediately

afte r discover ing the missing ring s, Mr. Wil banks re viewed his surveil l an ce ta

pe fr om the day , which showe d Mr. Doss re ach into the jew elry

case and take the tray s of ring s out to the Defe ndant’s J eep in two separ ate trips. Mr. Wilb ank s c a lle d th e po lic e , f ile d a re po rt , a nd tur ne d th e surveil lan ce ta

pe ov e r t o investigators with the Dy ersbur g Police Depa rtment.

The owne r of City

Pawn S hop in Dy ersbur g , Be nnie Patterson, testified that he re ceive d a ca ll from the Dy ersbur g Police Depa rtment reg ardingthe thef t of jewelr y on the day of the thef

ts. Mr. Patterson stated that only “a f ew minutes later ” a woman he knew to be Cry stal Custer enter ed his shop desiring to sell a couple of ring s. Be cause the rings were new, Mr. Patterson be came suspicious. He ca lled the police and be g an to desc ribe the r ings ove r the phone. Mr. Patterson testified that a s-3-

he wa s talking to the police , Ms. Custer left t he rings, exited the store, and dr ove off in a white Jeep driven by

the Def endant, whom Mr. Patter son knew.

Offi c e r Ch r is H a mm

w it h th e Cr im in a l I

n v e s ti g a ti o nD iv is io no f the Dy ersbur g Police Depa

rtment testified that he r esponded to the r eport of a t heft at J ones J ewe lry
, and interviewe d Ms. Kimbrell. After lear ning of the theft, he called

sever al local pa

wn s hops, including the City Pawn S hop, and warned the proprietor s to be on the look-out for stol en rings. Shortly there afte r, Officer Hamm re ceive d Mr. Patterson’s ca ll reg arding the s uspicious ring s. He interviewed Mr . Patterson, took possession of the t wo rings and tra nsported them to J ones Jewelry for identific ation. Howeve r, the ring s did not match those stolen from Jones J ewe lry

.
Offic er Jim J oy

ner te stified that he wa s called to respond to a re port of thef t from the Diamond Galler

y on J anuar

y 9, 2004. Offic er Joy

ner w as aw are that Offic er Hamm was inve stigating the ear lier J ones J ewe lry theft and ha d rec overe d ring s from a paw n shop that had not bee n matched to that theft. Offic er Joy ner c alled Of

fice r Hamm and a sked him br ing the ring s to the Diamond Galler y . Mr. Wilbanks of the Diamond Galler

y identified the ring s rec overe d at the City Pawn Shop as belong ing to his store.

Of fi c e r H a mm t e sti fi e d at tria l tha t he i de nti fi e d th e De fe nd a nt a nd Mr . D os s from the Diamond Gallery surveillance video, and immediately beg an looking for the two suspects. The D efe ndant’s whi t e J ee p was discove red pa rked in a hospital pa rk inglot ve ry ne ar h is m oth e r’ s h ou se . T he po lic e watc he d th e Jee p a nd the ho us e fo r s e v e r a l h o u r s , h o p i n g t o f i n d t h e t w o s u s p e c t s

. A to n e p o i n t , t w o i n d i v i d u a ls

wer e see n looking out of the windows of the house. The police went and knoc ked on the door, but no one a

nswere d.

Offic er Joy

ner te stified that the Def endant’ s mother was c alled, and she eventua lly

came and authoriz ed the police to enter her home afte r arrest wa rra nts for her son a nd Mr. Doss wer e pre sented. The police ente red the house and discove red the Defenda

nt hiding unde r a mattress, and Mr. D oss hiding in a showe r. B oth men

w e r e ta k e nin to c u s to dy , an d

w e r e in te r

v ie w e d s e p ar a te ly

a t t h e p o li c e s tati o n. Offic er H amm testified that the Def endant a dmitted he was with Mr. Doss whe n the ring s were stolen, but maintained that he him self had nothing to do with taking the ring s. The De fenda

nt also informed the police that the remainder of the ring s were hidden under

the sink in the bathroom of his mother’s house

. Ms. Cry stal Custer testified that she kne w Mr. Doss, and w as a fr iend of the Def endant. She state d that on the date in que stion, Mr. Doss contacte d her a nd asked her to he lp him pawn some ring s beca use he did not have any

state issued I .D. The Def endant a nd Mr. Doss picked he r up a n d p ro ce eded to drive to Missouri in t he De fe nd ant’ s Jee p, wh e re sh e so ld t wo ri ng s a

t tw o d if fe re nt p awn

sh op s, e a c h ti me-4-

g ivi ngthe mon e y

to M r. Do ss. Th e group the n r e tur ne d to Dy e rs burg , w he re Ms. Custer pawn e d

o n e mo r e r in g a t a

lo c a l p aw ns h o p b e f

o r e g o in g to th e Ci ty

Pawn Sho p. Ms. Cus te r te sti fi e d that wh e n the a tte nd ant a t the City Pawn Sho p b e c a me suspicious and place d a ca ll to whom she believed was the police, she left the store
, went bac k to the J eep a

nd asked the Def

endant a nd Mr. Doss if the ring s were stolen. Th e y c on fi rm e d th a t th e y

we re , b ut s tate d th a t th e y were st olen fr om a wo man in J ackson. Ms. Custer then de manded that th e De fendant drive her home, which he did.

Ms. Custer further testified that wh en t he De fenda nt dropped he r off

at her house, he g ave her four or five ring s, and asked her to hold on to them for him, which she did. The ne x t day , a Saturda y , Ms. Custer was informed that the Def endant a nd Mr . D os s h a d been

arr e ste d f

or ste a lin g ri ng s f

ro m tw o lo c a l je we lr

y sto re s. Ms. Custer bec ame ve ry

conce rned a

nd called the police, who c ame to her house and took the ring s she was holding for the Def endant. The following Monday she went to the police station and g ave a

statement to investiga

tors workingon the ca se.

Ms. Custer also stated that af ter she had g iven the ring s to the police, the Def endant, out on bail, ca

me to visit her and aske d for the ring s. She told him she g ave the ring s to a fr i en d fo r safe kee ping. Ms. Custer f urther te stified that the Def endant then told her

that he “distra cted” the store cler ks while Mr. Doss took the ring s, and the police did not have any thing on him. He e x plained that bec ause Mr

. Doss alre ady

knew he was going to jail for violating hi s parole
, he was g oing to take the full blame for

the thefts.

On cross-examination, Ms. Custer admitted that she wa s orig inally char g ed, along with the Def

endant a nd Mr. Doss, for he r involvement in the incident, but

ma de a de a l to have he r ch arg e s dro pp e d if she wo uld te sti fy a t th e De fe nd ant’ s tr ia l. Ms. Custer also testified t hat s he was curr ently on probation herself for a prior the ft conviction.

The de fense called one wit ness at trial, J ere my Doss. Mr. Doss testified that he wa s curr ently

serving a sente nce w ith the Tenne ssee De partment of Corr ection for parole violations a

nd theft convictions related to the same incident for which t he Def endant wa s being tried. Acc ording to Mr. Doss, he and the Def endant f irst visit ed

sever al shops at the Dy ersbur g mall, includin g J o n es Jewelry . The De fenda nt was shopping f

or a g ift for his g irlfriend. Mr . Doss stated that when he noticed one of the jewelr y case s was open, he just t ook a tra y of ring s and ca

rried it out to the Def endant’ s J eep. After the t wo l eft J ones J ewe lry
, they drove to a pet store to look at puppies and f

eed the fish. After visiti ng the pet store, Mr. Doss stated they walked

n e xt d o o r to th e D ia

mo n d G a ll e r

y , w h e r e th e D e f

e n d an t c o n ti nu e d s h o p p in g f or a g ift. When the s tore attendant walked to a back room, Mr. Doss t ook advanta g e of-5-

the opportunity to steal t hree tray s of rings, aga in taking them out to the Def endant’ s J eep while the Def

endant c ontinued to shop for a g ift.

Mr. Doss testified that he did not inform t he Defenda nt about the ring s stolen f r o m e i t h e r

s t o r e u n t i l a f

t e r t h e t w o w e r e d r i v i n g a w ay f r o m t h e D i a m o n d

G a l l e r y. The two then went to the De fenda nt’s mothers’ house, where Mr. Doss hid most of the ring s under the sink. The Def endant and Mr. Doss then pi cked up Ms. Custer and started pa wning some of the ring s. After two ring s were left at the City Pawn Shop, the g roup picke d up some drug s and then dropped Ms. Custer off at her house , wher e Mr . D os s c l a i m e d h e g a v e M s

. C u s t e r s e v e r a l r i n g s a s p ay m e n t f o r h e r h e l p in pa wn ingthe oth e rs . T he tw o me n the n r e tur ne d to the De fe nd ant’ s mo the r’ s h ou se wher e they drank alcohol, smoked marijuana and used coca ine until the police found and ar rested them. Mr. Doss also stated that he neve r at a ny time ga ve any ring s, or money obtained fr om selling the r ings, to the Def endant. Acc ording to Mr. Doss, the

o n l y b en ef i tt h e D ef

en d an tre ce i v edfr o m ei t h er t h ef tw a s “m ay

b e” s o m e d ru gs purcha sed with money

obtained fr om pawning a fe w of the r ings.

O n c r o s s

- e xa mi n a ti on, Mr. Doss could not explain why the surveillanc e video showed the two dr ive direc tly up to the front o f t he Diamond Ga llery in the Def endant’ s J eep a

n d en t er the store, consider ing he testified that they had wa lked to the Diamond Galler

y from a ne arby

pet store. Mr. D oss also admitted that the two had bee n involved toge ther in a pr ior criminal incident in 2000, whe re he had bee n convi ct ed o f t heft of a

car and the De fenda

nt was convic ted for joy riding . The D e f e n d an te l e c t e d

n o tt o t e s t i f

y.

State v. Br andon McCaslin, No. W 2004-02539-CCA-R3-CD, 2005 Tenn. Crim

. App. L EXI S 1029, *1-12, (Te nn. Crim. App., at J ackson, Sept. 6 , 2 005) (f ootnotes omitt ed), pe rm. to appea l denied (Tenn. F eb. 6, 2006).

II. P os t- Co nvi c ti on H e ar ing
At the pos t-conviction hearing
, Petitioner testified t hat t rial counsel ignor ed his reque st that trial counsel c halleng e two prospec tive jurors during voir dire: L inda Capps, who wa s Ms. Cust er’ s aunt and whose brother was a police office r in Jackson; and Judy Smit h, who also knewMs. Custer

and wh os e e x-hu sb and

wo rk e d f or the Dy e rs burg P ol ic e De pa rtme nt. Pe tit ion e r s a id t

hat he a lso asked tr ia l c o u n s e l to c h a ll e n g e p r o s p e c ti v e ju r o r s A n g ie M c D o n a ld an d K im b e r ly Jo h n s o n , but Pe tit ion e r c ou ld no t re me mbe r the ba sis fo r h is r e qu e st. Pe tit ion e r s a id t hat tr ia l c ouns e l to ld h im that “he ha d something pla nned or w as g oing to do something .”

Petition e r c o nte n d e d

th a t t r ia l c o u n s e l’ s p erf

ormanc e wa s deficie nt beca use he f ailed to object to the State’s cr oss-examinati o n o f M r. Do s s about his prior convictions of thef t, one of whic h inv olv e d Pe tit ion e r a s a

c o- de fe nd ant

. Th e lin e of qu e sti on ingwa s p ro mpt e d a ft e r M r. Do ss
e qu ivo c a te d as to wh e the r P e tit ion e r k ne w M r. Do ss h a d b e e n c on vic te d o f t he ft of fe ns e s p ri or

to-6-

the cha rge d o ff en s es. P etitioner said that trial c ounsel’s assistance was a lso ineffe ctive whe n he ref used the trial court’s offe r of a limit ing instruction c oncer ning the jury ’s consideration of the proof of Petitioner’s prior c onviction.

Petitio n er t es tified that trial counse l misl ed the jury during opening statement whe n he promised the jury

that they would hear

testimony

that both Petiti oner a

nd his mother, Wanda Townsend, direc ted Mr. Doss to r eturn the stolen jewelr y

. Petitioner acknow ledg ed that ther e wa s no evidenc e that Ms. Townsend kne w any thing about the jewe lry . Petitioner stated, howeve r, that the State ca lled Ms. Townsend as a rebuttal witness, but trial counse l chose not to cross-e x amine her

. Petitioner stated that the prose cutor was able to capitalize on the missing testimony , during closing

argume nt, to P e tit ion e r’ s d e tr ime nt.

Petitioner stated that he met with trial c ounsel once befor e trial. P etitioner told trial counsel that he wa

nted to call Ms. Townsend and Mr. Doss a s defe nse witnesses. Petitioner did not know wh e the r t ri a l c ouns e l in te rv ie we d a ny of the State ’s wi tne sse s. Pe tit ion e r sa id that tr ia l c ouns e l di d not reviewthe surveillanc e tape from Jones J ewe lry , and Petit i o n er d i d not know whether he revie wed the sur

veillance tape f

rom Diamond Galler

y , but said that trial counsel “ probably” did not revie w the tape

.
On cr oss-examination, P etitioner said that he wanted t o call Mr. Doss as a w itness to support Petitioner’s defe nse that he did not know that Mr. D oss stole the jewelry while Pet i t ioner wa s sh op pin g fo r a pe nd ant. Pe tit ion e r c ou ld n ot r e me mbe r why he wa nte d tr ia l c ouns e l to c a ll M s. Townsend a s a def

ense w itness and ac knowledg ed that the State subpoe naed he r to testify . Petitioner

a c kn ow le dg e d th a t tri al cou ns e l pr e se nte d h is d e fe ns e a s Pe tit ion e r r e qu e ste d. Pe tit ion e r a lso confirme d that eac h of the four jur o rs wh o m Petitioner felt should have be en re moved from the prospec tive jury

panel testified that they

could be “ fair a

nd impartial.”

Ms. To wn se nd te sti fi e d at the po st- c on vic tio n he ari ng that she wa s su bp oe na e d b y

the State to testify at trial. Ms. Townsend state d that she wa s not asked whe ther she kne w about the stol en jewelr y or whe ther she ha d told Mr. Doss to return the jewelr y

. Ms. T ownsend confirme d that she te sti fi e d th a t sh e ha d n ot s e e n M r. D os s w ithPe tit ion e r a ft e r t he of fe ns e s w e re c omm itt e d. Ms. Townsend state d that she h ea rd P etitioner ask tria l counsel to remove Ms. Capps from the prospec tive jury

panel “ more than onc e.”
District Attorney

Gene ral Phil B ivens testified that trial counsel did not object whe n Gene ral Bi v e n s b e g anto c r o s s

- e xa mi n e M r

. D o s s a b o u t h is p r io r

th e f t c o n v ic ti o n s

. G e n e r a l B ivens confirme d that the sole issue on direc t appea l was the suff iciency of the c onvicting e vidence

.

Tr ia l c ouns e l te sti fi e d that he ha d be e n pr a c tic ing law “ a re a l lon g tim e .” Tr ia l c ouns e l sa id that he did not rec ollect Petitioner reque sting him to challeng e any of the prospec tive jurors. Tria l counsel said that he did not r eca ll Mr. Doss telling him that he and Petitioner ha d been c onvicted of

a pr ior the ft c ha rg e a s c o- de fe nd ants wh e n h e int e rv ie we d M r. Do ss p ri or to t ri a l.-7-

On cr oss-examination, trial counsel stated that Petitioner’s de fense was that he did not know Mr. Doss had stolen t h e j ew el ry while Petitioner was with him. Trial counse l stated that the surveillance videos from two jew elry stores showed that Mr. Do s s wa s t h e one who remove d the jewelr y from the display

case s. Trial counse l said that he wa s awa re that Ms. Cust er ha d a prior the ft conviction and a

“poor” reputation in the community for telling the truth. Al t h o u gh he had no prese nt rec ollection of doing so, trial counsel wa s sure that he discussed with Petitioner Ms. Capp’s and Ms. Smith’s relationship with Ms. C uste r. T ri al counse l stated that if he did not cha lleng e a particula r prospe ctive juror, he had a r eason f or doing so.

III. Stand ard of Review
A petitioner see king post-c onviction relief must establish his alleg ati o n s b y clea r and

c on vin c inge vid e nc e . T .C. A. § 4 0- 30 -1 10 (f ). Ho we ve r, the tr ia l cour t’ s a pp lic a tio n o f t

he law t o the fa cts is review ed de novo, w ithout a presumption of corr ectne ss. Fields v. State, 40 S.W .3d 450, 458 (Tenn. 2001)

. A claim that counsel rende red ineffe ctive assistance is a mix ed question of f

act and law a nd there fore also subject to de novo revie w. I d.; State v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999).

When a petitioner see ks post-conviction relief on the basis of inef

fec tive as s i stance of counsel, he must establish that counsel’s per formanc e fe ll below “t h e ra ng e of c ompetence d e m an d e d

o f a t t o r n e y s i nc r i m i n a l c a s e s

. ” B a x t e r v

. R o s e , 5 2 3 S

. W

. 2 d

9 3 0 , 9 3 6 ( T e n n

. 1 9 7 5 )

. In

a dd iti on , h e mus t sh owthat c ouns e l’ s in e ff e c tiv e pe rfo rm ance ac tua lly a dv e rs e ly

imp a c te d h is defe nse. Strickland v. Washing ton, 4 6 6 U. S. 668, 693, 104 S. C t. 2052, 2067, 80 L . Ed. 2d 674 (1 98 4) . In r e vie wi ngc ouns e l’ s pe rf or manc e , the dis tor

tio ns of hin ds ig ht m

us t be a vo ide d, and

thi s Court will not s econd- g uess counse l’s decisions re g ardingtrial strat egies a nd tactics. He llard v. State , 6 29 S.W. 2d

4, 9 (Ten n. 19 82 ). Th e re vie wi ngc ourt , th e re fo re , s ho uld no t c on c lud e that a pa rt ic ula r a c t or omi ssi on by c ouns e l is unre a so na

ble me re ly

be c a us e the str a te g y

wa s uns uc c e ssf

ul. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s a lleg ed er rors should be judg ed from cou n s e l’ s p e r s p e c ti v e a t t

h e p o in t o f

ti me th e y

w e r e ma d e in

li g h t o f a ll th e f a c ts and circ umstances at that time. I d. at 690, 104 S. Ct. at 2066.

A petitioner must satisfy

both prong s of the Strickland test befor e he or she may preva il on a cla im of ineffe ctive assistanc e of counsel. See Henley v. State, 960 S.W .2d 572, 580 (Tenn. 1997)

. Th a t is, a pe tit ion e r mus t no t on ly sh ow that his c ouns e l’ s pe rf or manc e fell b elo w accept a ble standards, but that such performanc e was prejudicia l to the petit ioner. I d. Fa ilure to satisfy either prongwill result in the d en i al o f re l ief. I d. Acc ording ly , this Court need not addre ss one of the components if the pe titioner fails to establish the other. Strickland, 466 U .S. at 697, 104 S. Ct . at 2069.

IV. P rospect ive Jurors

Peti t i o n er ar gu es t h at t ri al co u n s el ’s as s i s t an ce wa s i n ef fe ct i v e i nn o tex er ci s i n g a per emptory

c ha lle ng e or

c ha lle ng ingfo r c a

us e pr os pe c tiv e jur or s Ca pp s, Smith, Mc Do na ld, and John so n. Ms.-8-

Capps disclosed during voir dire that she was Ms. Custer’s a unt. I n response to both trial counsel’s

and the pr os e c uto r’ s q

ue sti on s, ho we ve r, Ms. Ca pp s sa id that her re latio ns hip wi th Ms. Cus te r w ou ld

no t c a us e he r t o e va luate Ms. Cus te r’ s tes tim ony any dif fe re ntl y tha

n th e oth e r w itn e sse s. Ms. Smith dis c los e d th a t Ms . Cu ste r w a s a fr ie nd of he r ste p- da

ug hte r, bu t Ms. Smith state d that she he rs e lf did not have a

persona l relationship with Ms. Cust er.

I n response to trial counsel’s que stioning dur i n g voir dire, both Ms. Smith and Ms. C apps dis c los e d th at th ey kn ew p e op le in t he po lic e fo rc e . M s. Smith s tate d th a t he r e x-hu sb and wa s a member of

the Dy ersbur g Police Depa rtment, but that her e x -husband had never discussed his work with her while the y

wer e married. Ms. Capps stated t hat her brother’ s occupation as a police of fice r wi th t he Jac ks on

Pol ic e De pa

rtme nt w ou ld n ot a ff

e c t he r a bil ity to b e fa ir and imp art ia l.

At the post-conviction hea ring , Petitione r d i d n o t p rese nt any basis for the e x clusion of prospec tive jurors Kimberly J ohnson and Ang ie McDona ld othe r than Petitioner’s r ecollec tion that he re qu es t ed t ri al counsel to exercise a per emptory challeng e as to these jurors. None theless, we g lean f rom the rec ord that the State exercised a pere mptory challeng e to r emove pr ospective juror John so n w ho , a c c or din g to t he vo ir dir e kn e w Pe tit ion e r, his mot he r, his g ra

nd pa re nts , a nd B e nn ie Patterson, the owne r of City Pawn Shop. We al s o gl ea n from the r ecor d that prospec tive juror Mc Do na ld a lso kn e w M r. Pa tte rs on , b ut s he state d th a t th is ac qu a int anc e wo uld no t af fe c t he r a bil ity to b e fa ir and imp art ia l.

Petitioner did not call J urors McD onald, Capps, and Smith to testi fy at the post-convic tion hear ing c oncer

n ingtheir re lationship with t he State’s witnesse s. See B lack v. State, 794 S.W.2d 752, 75 7 ( Te nn . Cr im. App. 19 90 ) (con c lud ingthat f a ilure to p re se nt a

mate ri a l w itn e ss at th e po stconviction hea

ring g ener all y re s u l t s in the failure to establish ineffe ctive assistanc e of c ounsel). Moreove r, Petitioner has not pointed to any portion of t he record indicating the biased chara cter of any of the challeng ed jurors. The post-conviction court a ccr edited trial c ounsel’s testimony that he allowed Ms. Smith a n d M s

. C ap ps to remain in the jury pool as a matter

of trial strate g y , and the court a ls o f

o u n d th a t P e ti ti o n e r

h a d f a il e d to e s ta b li s h th a t h e w a s p r e

ju d ic e d b y tr ia l c ounsel’s decision. B ased on our

revie w, we c onclude that the e vidence does not preponde rate ag ainst the trial court’s f inding that tria l counsel’s a ssi s t ance was not inef fec tive in this reg ard. Petitioner is not entitled to relief on this issue.

V. Evi de nc e of P r iorCo nvi c ti ons

Pe tit ion e r a

rgue s th a t tr ia l c ouns e l w a s in e ff e c ti ve for fa ili ngto o bje c t to the State ’s c ro ssexamination of Mr. Doss conce rning Mr. Doss’s prior theft offe nse i n which P etitioner wa s char g ed

a s a c o- de fe nd ant. On

dir e c t e xami natio n, Mr . D os s te sti fi e d th a t he sto le the je we lr y a t bo th locations wh il e Pe ti ti o n e r w a s b e in g a s s is te d

b y s a le s c le r

k s , an d th a t h e f ir s t s h o w e d

th e s tole n jewelr y to Petiti oner a s they

wer e driving t o Petitioner’s mother’s house . Duringcross-e x amination, Mr. Doss testified that he and P etitioner were “g ood friends,” that they “hung out” t og ether , and that they had known e ach othe r appr ox imately seven y ear s. The followingcolloquy then occ urre d:-9-

[THE STATE] : Does [Petiti oner] know y ou wer e a thief ?

[MR . DOSS] : No, sir, I don’t –

T H E S T A T E : O k ay.

MR. DO SS: – I do n’ t g ue ss, y ou

kn ow , I mean, I knowhe kn ow s I sto le be fo re , b ut –

THE STATE: May we a pproac h, Your Honor ?

A b e nc h c on fe re nc e wa s h e ld i n th e pr e se nc e bu t out of the he ari ngof

the j ury

. The State

e xpla ine d, “ Yo ur

Ho no r, the se tw o we re c o- de fe nd ants

. Th e se tw o w e re c o- de fe nd ants in t wo the ft s and convic ted of a

theft of a car in 2000 and he’ s denying it now.”

Trial counse l did not object to the State’s proposed line of q u es t ioning, a

nd the State was allowed to proc eed. Mr. Doss subsequently acknow ledg ed that he a

nd Petitioner were char g ed as c odefe ndants in the theft of a car in 2000, afte r which Mr. Doss enter ed a ple a of guilty to the char g ed offe nse, and Petitioner e ntere d a plea of g uilty to the offense of una uthorized use of an a

utomobile.

P et i t i oner c ontends that any rele vance of the testimony conce rning Petitioner’s prior conviction was outwe ighe d by its prejudicial ef

fec t, and trial counse l should have objec ted to the proposed testimony

pursuant to Rule 404(b) of the Tenne ssee Rules of Evide nce. Rule 404( b) states that evidenc e of “other crimes, wrong s or acts is not admissible to prove the char acte r of a person or to s ho w a c tio n in

c on fo rm ity wi th the c ha

ra c te r tr a it” bu t th a t su c h e vid e nc e “ may

. . . b e a dmi ssi ble fo r o the r p ur

po se s. ” “ Othe r p ur

po se s” have be e n d e fi ne d to inc lud e : ( 1) mot ive ; ( 2) int e nt; (3 ) guil ty kn ow le dg e ; ( 4) ide nti ty

of the de fe nd ant; (5 ) a

bs e nc e of mis take or a c c ide nt; (6 ) a c omm on sc he me
or plan; (7) completion of the story ; ( 8) opportunity ; a nd (9) prepa

ration. State v. Be rry , 141 S.W .3d 549, 582 (Tenn. 2004)

. Petitioner’s theory

of def ense, a s prese nted throug h Mr. Doss’s testimony
, was that he had no knowledg e that Mr. Doss stole the jewelr y until af ter the c ommissi on of the off enses a nd thus did not knowing ly obtain proper

ty of another without c onsent. Mr. Doss testified that he a nd Petitioner had been f riends for app ro x i m ately

seven y ear s, but he equivocated about Petitioner’s knowle dg e of whether Mr. Doss had committ ed thef t offense s in the past. The State a rg ues that the prose cutor’s questions co ncer

ning Mr . Doss’s prior thef t conviction in which Petitioner was c harg ed as acode fe nd ant w a s r e le va

nt t o s ho w a

n a bs e nc e of mis take or

a c c ide nt o n Pe ti ti on er’s part un de r R ule 404(b). The post-conviction cour t found that there was no basis for an objection to the introduction of the testimony

conce rning Petitioner’s prior conviction. The evidenc e was not off ere d to show that the cha rg ed off ense confor

med with Petiti oner’ s prior ac tiviti es which le d to an unauthorized use of

a uto mob ile c on vic tio n, bu t to re bu t Pe tit ion e r’ s c la im that de sp ite his lon g fr ie nd sh ip w ithMr . D os s, he wa s unawa

re of Mr. Doss’s prope nsity

to steal. We conclude that the evidenc e d o es not-10-

preponde rate ag ainst the post-conviction cour t’ s fi nding that trial counsel’s a ssistance wa s not defic ient in this reg ard.

M o re o v er , P et i t i o n er

h as fa i l edt o es t ab l i s h t h at h e w as p re j u d i ce d b y t h e l i n e o f q u es t i o n i n g. Petitioner was cha

rg ed with knowing ly

exercising control over

prope r ty w ithout the owner’s e ffe ctive

c on sent un der

a the or y of c ri min a l r e sp on sib ili ty . Se e T. C.A . § § 3 9- 11 -4 02 ; 39 -1 4- 10 3. Thus , no tw ith sta

nd ingPe tit ion e r’ s th e or

y of de fe ns e that he did no t kn ow Mr

. Do ss sto le the je we lr y wh ile they wer e shopping in the two jewelr y stores, the e vidence was ove rwhe lming that Peti t i oner later fo un d o ut t

hat th e je we lr

y wa s st ole n a

nd that he no ne the le ss d

ro ve Mr . D os s an d Ms. Cu ste r t o
se ve ra l pa wn sh op s in Mis so ur i and

Te nn e sse e to d isp os e of

the pr op e rt

y . Pe tit ion e r h a s f

a ile d to de mon str a te th a

t “ t h e r e i s a re a so na ble pr ob a bil ity that, b ut f or c ouns e l’ s p ro fe ssi on a l e rr or s, the re su lt of the proc eedingwould have be en diffe rent.” Strickland, 466 U.S. at 694.

Petitione r also cha lleng es trial counse l’s decision not to reque st a limit ing instruc tion that evid en ce of Petitioner’s prior c onviction could only be used to impea ch Mr. Doss, a nd not as substantive proof that Petitioner c ommitt ed the c harg ed of fe nse. At the c onclusion of closing argument, the following colloquy occur red:

[TRIAL CO UR T]: I do n’ t kn ow w het her t o rea d t hi s ch arge or no t. [P etitioner] didn’t testify

but there is some proof of --

D E F E N S E C O U

N S E L : I wo ul dn ’ ta s k f o r [i t ] b e c a u s e It h i n k

i tdr aws the ir attention . . . .

TRI AL COURT: I t’s up to y ou [defense counsel], if y ou want it charg ed, I ’ll char g e it, if y ou do not want it char g ed, I wi l l not

c ha rg e it.

DEF ENSE COUNSEL : Idon’t want it cha rg ed.

This Court is constrained not to se cond-guess the tactica l a nd strateg ic choice s made by trial counsel a bsent a showingthat those dec isions were uninfor med due to inade quat e pre paration. Hellar d, 629 S.W .2d at 9. Trial c ounsel’s alleg ed er rors a re judg ed at the time they

wer e made in lig ht of the fa cts and c ircumstance s then exist ing. Strickla nd, 466 U.S. at 690, 104 S. Ct . at 2066. I n the instant case , trial counsel considered his approa ch and decided not to re quest a limiting instruction in order not to ca ll attention to the ex chang e about Petitioner’s prior c onviction for the una uthorized

us e d o f a ve hic le a s a

matte r o f t

ri a l strate g y . We wi ll n ot, wi th the be ne fi t of hin ds ig ht, se c on d- g ue ss trial counsel’ s decision. Petitioner is not entitled to relief on this issue.

VI . P r om ise s D ur ing Ope ning Ar gum e nt

Pe tit ion e r argue s that tr ia l c ouns e l’ s a ssi sta nc e wa s ine ff

e c tiv e be c a

us e he ma de pr omi se s to the j ury during opening argument which were not fulfilled during t he trial. Spec ifically , trial counsel-11-

argued that the proof would show that Petitioner did not know the jewelr y had bee n stolen until Mr. Doss and Petitioner we re dr iving home, and that Mr. Doss would testify that Petitioner had no idea the je we lr y wa s st ole n. Tr ia l c ouns e l th e n s tate d:

No w the pr oo f i s g on na [sic ] s ho w that the y did ri de aro un d and the y did g o o ve r t o [ P eti ti one r’ s] mo the r’ s h ou se . O n th e wa y ov e r t he re [,] th a t is wh e n M r. Do ss t e lls him

. . . I have sto le n the ri ng s. No w at th a t po int pr oo f i s a lso g onna

sh owthat bo th [P etitioner] and his mother told [ Mr. Doss] he neede d to take them bac k.

Although Mr . Doss testified on direc t e x amination that Ms. T ownsend wa s home when he and Petitioner returne d from the mall, Mr. Doss state d that he did not show the jewe lry to Ms. Townsend nor did either he or Petitioner tell Ms. Town s en d wh at M r. Doss had done. Ms. Tow nsend wa s subsequently ca l l ed as a rebuttal witness and testified that she did not see Mr . Doss on the day the of fe ns e s w e re c omm itt e d a

nd kn e w n oth inga

bo ut t he of fe ns e s.

B a se d on thi s te sti mony , tr ia l c ouns e l re a so na bly de c ide d no t to purs ue wh e ther M s. Townsend told Mr. Doss to re turn the jewe lry . The prima ry t hrust of trial counse l’s opening

argume nt w a s to outli ne Pe tit ion e r’ s th e or y of de fe ns e , th a t is , th a t he did no t kn owMr . D os s st ole the je we lr y un til a ft e r the of

fe ns e s we re c omm itt e d. Th e po st- c on vic tio n co ur t found that “ Mr . D os s did so te sti fy and the re wa s n oth inga

bo ut t ri a l c ouns e l’ s op e nin g state me nt wh ic h c ou ld c on c e iva bly chang e the outcome of the trial.” We c onclude that the evidenc e does not pre ponderate ag ainst the po st- c on vic tio n c ourt ’s fi nd ingthat, e ve n if su ch stat e me nts we re de fi c ie nt, Pe tit ion e r f a ile d to

e sta bli shtha t he wa s p re

jud ic e d b y

tr ia l c ouns e l’ s open in g state me nt. Pe tit ion e r i s n ot e nti tle d to relief on this iss ue.
VII. Appellate Issues

Petitioner contends that trial counsel was ineffe ctive for failing to pr eser ve or raise issues on appea l other than the sufficie ncy of the convicting evidenc e. The se issues include the f amilial and persona l relationship of ce rtain jurors with the State’ s witn esses; the disclosure to the jury of Petitioner’s prior c onviction for u n au t h o rized use of a n automobile; and trial counse l’s statement duri ngop e nin g argume nt that evi de nc e wo uld sh ow that Peti tio ne r an d Ms. T ow ns e nd tol d M r. Do ss to take the r ings ba ck.

Th e same pr inc ipl e s a

pp ly in d e te rm ini ngthe e ff e c tiv e ne ss o f b oth

tr ia l and a pp e llate c ouns e l. Campbell v. State, 904 S.W .2d 594, 596 (Tenn. 1995) . A petitioner a lleg ing ine ffe ctive assistanc e of appe llate counse l must prove both that (1) appe llate counse l was objec tively unre a s o n a

b le in f ailing to raise a particula r issue on appea l, a

nd (2) a bsent appe llate counse l’s defic ient perf ormanc e, ther e
was a rea sonable proba

bility that the petitioner’s a

ppeal would have bee n succe ssful befor e the state ’s hig he st c ourt . Se e , e .g ., Smith v . Ro bb ins , 5 28 U. S. 2 59 , 28 5, 12 0 S. Ct . 7 46 , 7 64 (2 00 0) ; Apa ri c io v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Mayo v. Hende rson, 13 F.3d 528, 533- 34 (2d Cir. 1994).-12-

We have a lrea dy

conclu ded that Petitioner has f ailed to establish that he wa s prejudice d by trial counsel’ s strateg ic dec ision not t o challeng e prospe ctive jurors Capps, Smith, and McDona ld,

or by his fa ilure to ob

je c t to the lin e of qu e sti on ing a bo ut Pe tit ion e r’ s pr ior

c on vic tio n. We h a ve a lso

c on c lud e d th a t Pe tit ion e r fa ile d to show that he wa s pre jud ic e d by

tr ia l c ouns e l’ s o pe nin g state me nt, or that his trial counsel’ s assistance w as def icient in this reg ard. Ba sed on our review, we conclude that Petitioner has fa iled to show that the results of his appe al would have be en any differ ent had tria l counsel ra ised these issues on a ppeal. Petitioner is not entitled to relief on this issue.

VIII. F ailure to P repare for Trial
Petitioner argues that his trial counsel’ s assistance w as d ef i ci ent because he failed to mee t with Petiti oner more t han one time. Petitioner c ontended at the post-conviction hea ring that trial counsel to his knowledg e neve r interview ed any witness, filed any motions, or revie wed the je welry stores’ surve illance tape s. Petiti oner pr esente d no evidenc e at the post-conviction hear ing othe r than his te sti mony

a s to tr ia l couns e l’ s lac k o f p re -t ri a l pr e pa ra tio n. Th e po st- c on vic tio n c ourt sp e c if ic a lly

cre dited trial counsel’ s testimony that he viewe d both surveillance videos and that he pre sented the theory of def ense Petitioner ha d reque sted. Ba sed on our r eview, w e conc lude t h at P etitioner has failed to show that tria l counsel’s a ssistance fe ll below acc eptable s t an dards or that Petitioner was pr e jud ic e d b y

any a sp e c t of his tr ia l c ouns e l’ s a ssi sta nc e

. P eti tione r i s n ot e nti tle d to re lie f o n th is issue.

CO NC LU SION

Af te r a tho ro ug h r e vie w, we a ff

ir m th e jud g me nt o f t

he po st- c on vic tio n c ourt

.

___________________________________ THOMAS T. WOODAL L , J UDGE