### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 6, 200 9

NA KOMIS JONES v. S TAT E OF TEN NES SEE

Appeal from t he Criminal Court for Shelb y County Nos. 02-02917-18, 02- 04286 W. Mark Ward, Judge

No. W2009-00258-C CA-R 3-PC - Filed Dece mber 22, 2009

Th e pe tit ion e r, Na

ko mis Jone s, a

pp e a ls the po st- c onvi ctio n c ourt ’s de nia l of his pe tit ion

fo r p os tc on vic tio n r e lie f, a rguin g that he re c e ive d the ine ff e c tiv e a ssi sta

nc e of c ouns e l a t tr ia l and

on a pp e a l. Following our re view, we aff irm the post-conviction cour t’s denial of post-c onviction relief.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

A LA N E. G LE NN , J., deliv ere d the opinion of the court, in which D. K EL LY T HOMAS , J R . and C AM I LLE R. M C M ULLEN , JJ., joined.

R. Todd Mosley (on appe al) a nd David Christensen ( at hea ring), Memphis, Tenne ssee, f or the

app e lla nt, Na

ko mis Jo ne s.
Robert E. Cooper, Jr., Attorney Genera l and Reporter ; Matthew Bryant Ha skell, Assistant Attorney Gene ral; William L. Gibbons, District Attorney Ge nera l; and Paul Hager man, Assistant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F AC TS

T h e p et i t ioner wa s convicted by a Shelby County jury of two counts of f

irst deg ree felony murder, o ne count of

second de g ree murder, two c ounts of espec ially ag g ravated kidnapping , and three counts of beinga fe lon in possession of a wea pon. The trial court mer g ed the multiple murder,
espec ially ag g ravated kid n apping , and fe lon in possession of a wea pon convictions into one

c on vic tio n f

or e a c h o ff e ns e a nd se nte n c e d

t h e p e t i tio ne r t o c on se c uti ve te rm s o f l if e , th ir ty -f ive y e a rs , and thre e y ear s, respe ctively . The petiti oner’ s convictions and sente nces w ere aff irmed by this court on direc t appea l, and the Te nnessee Supreme Court denie d permission t o ap p ea l

. See State v. Na ko mis Jone s, No . W2 00 4- 01 58 3- CCA -R 3- CD , 2 00 5 WL 24 64 68 1, a t *1 (Te nn . Crim . App . O c t. 5, 2005), per

m. to appeal de nied (Te nn. Fe b. 27, 2006).

Th e un de rl y ingfa c ts o f t

he c a se we re re c ite d b y

thi s c ourt on dir e c t a pp e a l a s f oll ow s:-2- Ke vin Wise man te sti fi e d that he a nd Jess e Wind om w e re br oth e rs a nd so ld used ca rs tog ether at J ust for You Auto Sales in Memphis. On August 7, 2001, Windom had bee n working at the ca r lot, whic h closed at 5:00 p.m. About 6:00 p.m., Windom telephoned Wiseman and aske d him to come to the lot in order for Windom
to g et a set of key s from W iseman. Wis eman we nt to the lot and met Wi ndom, who

was driving a black L exus. A white Dodg e Stratus with three Afric an-A merica n men ins ide pu lle d in to t

he lot , a nd the dr ive r o f t

he Str a tus g ot o ut and began ta lki ngto Windom . Wis eman r elated that the man appe ared to know Windom but that Wis eman did not know any of the men in the Stratus. A second ma n g ot out of the Stratus and appr oache d Wis eman, a nd Wis eman sa

w that the man ha d a g un. The third man rema ined in the Stratus but pointed a s awe d-off shotgun out of t he car a nd told W iseman that he w ould shoot if W iseman tried to run. The first man, who ha d be e n ta lki ng to W in do m, pu lle d u p h is s hir t and sh ow e d th a t he ha d a

g un in h is pants. Wiseman ident i fi ed co d efendant Norr is Ray as the fir st man and the [petit ioner] as the s econd man. Wis eman related that the third man, who re mained in the Stratus, was neve r identified.

Ray g ot into Windom ’s L exus and started the eng ine. The [petitioner] then order ed Wiseman to g et into the L exus’ trunk. The car started moving , and Wiseman hear d a man tell Windom, “[ T]ell me where the money is or I ’m g oing to kill y ou.” Wise man th e n h e a rd

Wind om s a y , “ Ido n’ t have a ny mon e y , th e po lic e do ne too k it

a l l

. ” A f t e r f i v e o r t e n m i n u t e s , W i s e m a n h e a r d a g u n s h o t a n d h e a r d W i n d om y e ll. He then he ard a

car door close an d hear d a man sa y , “[T] here g o the police. You kn o w th e y ’ r e c o mi n g

. ” Wi s e ma n r e c a ll e d th a t th e c a r b e g a n ma k in g a lot of turns and that he w as sl iding around i n the t runk. He then hear d the car engine cut off a nd hear d the ca

r doors c lose. Wiseman waited ten o r fifteen minutes and beg an pounding on the trunk. As he wa s wiping swe at off his fa ce, he hit the inside trunk latch and the trunk popped ope n. Wis eman said that the m en were g one and that he was in the Southwood apartment c omplex , which is next t o the Fla irwood apa rtment

c omp le x. He g ot o ut o f t

he tr un k a nd saw a fr ie nd , w ho a g re e d to dr ive him ba c k to the used c ar lot. As they we re d riving , they saw a n ambulance at a Ma

pco convenie nce store

. They stopped at the store and lear ned that Windom had been shot and wa s in the ambulance. Windom later died. Wis eman testified that he went to the police depa

rtment, looked at a photogr aphic arr ay , and identified N orris Ray as the driver of the Stratus. Two day s later, he loo k ed at another photog raphic arr ay and picked out the [petit ioner’s] photogr aph. Wis eman testified that he was c erta in Ray and the [petitioner] were the men who pulled g uns on him and his brother. He

a c kn ow le dg e d h a vin g pr ior mis de me a no r t

he ft c on vic tio ns

.

On cross-e x amination, Wis eman acknow ledg ed that he initially told p o l i ce he could only identify the driver of the Stratus. Howeve r, two day s later he picke d out the [petit ioner’s] photogr aph and identified him as the se cond man who or dere d him into t he trunk. W iseman also acknow ledg ed that in his initial descr iption of the-3-

second ma

n, he stated that the man had a “medium fade ” haircut. He a cknowledg ed that in the [petit ioner’s] photogr aph, the [petitioner] had braided ha ir. He sa id that he re cog nized the [ petitioner] by his face and tha t t h e [ p et itioner] did not have braide d hair at the time of the robber y

. He a cknowledg ed that while the [petitioner]

wa s p oin tin g the g un a t him
, he wa s no t fo c us ing on the [pe tit ion e r’ s] fa c e

. He a lso acknow ledg ed that he ne ver sa w who ac tually

g ot into the L exus wit h his brother.

Offic er G ary

Clax ton of the Memphis Police Depa rtment testified that on Au g us t 7, 20 01 , at a

bo ut 6:3 0 p. m., he wa s o ff du ty a nd dr ivi nghis Ni ssa

n M a xima

we stb ound

on Winc he ste r Roa d. He no tic e d a bla c k L e xus in

the lane to t

ur n s ou th

on to T c hu laho ma

Str e e t. S ud de nly , a wh ite Do dg e Str a tus pu lle d o ut a nd ne a rl y hit him. Cl axton s tated that he sw erve d to avoid hitting the Stratus and pulled into the turn lane be hi n d the L exus. He relate d that all three car s were in the turn lane

wa iti ngto t

ur n le ft on to T c hu laho ma

a nd that th e L e xus w a s in

fr on t, t hat hi s Ma xima wa s b e hin d th e L e xus, a nd that the Str a tus wa s beh ind the Ma xima . Wh ile the ca rs wer e wa iting to turn left, a man jumped out of t he backseat of t he L exus and ran into a ne arby

Mapco pa

rking lot. Cl axt o n stated that the man a ppear ed to be h av i n g a panic attack a

nd fell down. The L exus m ade a u-turn and dr ove into the Mapco lot. When the t raf fic li g ht turned gre en, C laxt on pulled over to let the Stratus pass him. He then wr ote down the S tratus’ li cense plate number. The L exus drove out of the Mapc o parkinglot and traveled south on Tchula homa. Clax ton beg an fo llo wi ngthe L e xus and

c a lle d a dis patc he r t o g ive he r the Str a tus ’ l ic e ns e plate numb er and tell her

that “something strang e” w as g oing on in the a rea . Clax ton stated that he f

ollowed the L exus for three or four minutes b u t l o s t s i gh t of it. He the n r e tur ne d to the Ma

pc o p a rk inglot

.

C h an dra J o n es , No rr i s R ay ’s ex -fianc é, testi fi edt h at s h e o wn eda 1 9 9 8 Do d ge Stratus. About 5:00 p. m

. o n Au gu st 7, 2001, she loaned the c ar to Ray and Ray
returne d the ca

r later that night. About midnig ht, the police ca lled J ones’ a partment and aske d her to come outsi de. J ones m et the police outside a nd told them that Ray

wa s a sle e p in

he r ap a rtme nt. Th e po lic e a sk e d he r to tel e ph on e Ray a nd a sk him to come outside, a

nd she did so. On cross-e x amination, J ones testified that she did not kn ow the [pe tit ion e r] a nd ha d ne ve r se e n him be fo re

. She state d that a bo ut 6 :45 p. m. on Aug ust 7, she called he r ce llular t el ep h o ne, which w as in her c ar, a nd a man named Ge no answe red.

Kim Hug hes testified that in Aug ust 2 0 0 1 , she lived in the F lairwood
apar tment complex. On t he evening of August 7, the [ petitioner] came to her door, told her that his car

had broke n down on Tchula homa Street, a

nd asked to use he r te le ph on e . H ug he s d id n ot k no w the [pe tit ion e r] b ut h a nd e d h im h e r c or dle ss telephone. T he [petit ioner] a ppear ed nervous and tried dialing a couple of telephone

nu mbe rs bu t ne ve r c omp le te d th e cal ls

. W hile he wa s u sin g the te le ph on e , N or ri s Ray walked up to the [petitioner], and the [petitioner] handed him the telephone. Ray-4-

made a telephone c all and said, “ Geno, c ome g et us.” Ray also told Geno that he wa s at the F lairwood apartment complex

. The nex t day
, Hug hes saw inf ormation on the

news a bout J esse Windom’s shooting and c alled Crime Stoppers. As a result of he r

c a ll, a po lic e of fi c e r c a me to he r a

pa rtme nt a nd sh ow e d h e r p ho tog ra

ph ic a rr a y s. Hug hes picke d out Ray ’s and the [petiti o ner’ s] phot og raphs. She sa id that the [petit ioner] ha d braide d hair when he came to her a partment. On c ross-examination, Hug hes testified that Crime Stoppers pa id her money for he r information.

L ieutenant Pre ntiss J olly

of the Memphis Police Department testified that about 7:35 p.m. on Aug ust 7, 2001, he re sponded to a c all at the Mapc o convenie nce sto re a t th e in ter sec tio n o f Wi nc he ste r a nd Tc hu laho ma . Wh e n h e a rr ive d, Jess e Windom had alr eady

been tr ansported to the hospital. About 8:15 p.m., J olly lear ned that Windom had died. Joll y investigated the ca se and interviewed K evin Wiseman and Of fice r Gary Clax ton. As a re sult of the investigation, the police beg an looking fo r a wh ite Do dg e Str a tus a nd a bla c k L e xus. Joll y als o che c ke d th e lic e ns e plate number that Claxton had provided and lea rned that the car

was reg istered to Nanny Har ris and Chandra

J ones. Jol ly l ea rn ed M s

. J ones’ a ddress a nd went to her
apar tment complex, where he saw a white Dodg e Stratus. J olly telephoned Ms. J ones

a nd a sk e d h e r t o c ome ou tsi de

. Ms. Jone s c a me ou t of the a pa rtme nt a nd tol d Joll y that N or ri s Ray wa s her bo y fr ie nd a nd that he wa s asl e e p insi de the a pa rtme nt. Ms. J ones then c al l ed R ay an d asked him to come outside. Ray came out of the

a pa rtme nt, a nd

the po lic e a rr e ste d h im.

Serg eant J oe Stark of the Memphis Poli ce D epar tment testified that on Aug ust 8, 2001, he helpe d proce ss a white Dodg e Stratus and a black L exus. S tark obtained a f

inge rprint from the L exus’ out s ide re ar pa sseng er door window. The print was in a downw ard p o s i t ion, meaning that the per son who left the pr int was either on top of the car

or had his hand on the window while the door was ope n.

I nv e sti g a tor

Do n Ca rp e nte r o f t

he Me mph is Po lic e De pa

rtme nt t e sti fi e d that he a lso dusted the Stratus for finge rprints. He recove red a fing erpr int from the dr iver’s side w indow of the Stratus. The print was in a downward posit ion. He also rec overe d a palm print fr om the Stratus’ outside re ar door panel

. On cross-examination, C arpe nter testified that it was impossibl e to know how long the prints had bee n on the ca r.

L atent Print Ex aminer Ma rtin Milner of the Me mphis P olice De partment testified that he r ece ived the prints that Stark and Car penter rec overe d. He submitted the print s to the Autom ated Fing erpr int I dentification Sy stem (AF I S), a fing erpr int da ta b a s e

. A F I S g a v e M il n e r th e n a me s o f tw e n ty

- f iv e p o s s ib le matc h e s f

o r the prints. Milner then compar ed the r ecove red pr ints with prints th at we re on f ile for those ind iv id

u a ls

. H e c o n c lu d e d

th a t t h e p a lm p r in t r e c o v e r e d

f r o m t h e r e a r door panel of the Stratus matched the [petit ioner] and that the fing erpr int recove red f rom-5-

the Stratus’ driver ’s side window matc hed Norris Ray

. Two finger prints rec overe d fr om t he L e xus matc he d Jes se Wind om.

Tom Dee ring , the I nterim Medica l Ex aminer for S helby County , testified that O. C. Sm ith

pe rf or me d Win do m’ s a

uto ps y . A c c or din g to Dr . Smith ’s a uto ps y re po rt , the victim wa s shot onc e in the abdomen. The bullet entere d Windom ’s rig ht flank

are a and e x ited his left hip. The b u llet cut throug h Windom ’s rig ht common iliac
arte ry and rig ht common illi ac ve in, causing extens i v e b l eedingand death. The vic tim ’s blo od

te ste d n e g a tiv e fo r a lc oh ol a nd dr ug s.
Kimbery Tanzy testified t h at s he wor

ked for the Shelby

County Criminal Court Clerk’s Office. T he [petitioner] was convicted of three felony

drug offe nses in 1996.

Norris Ray testified on his own behalf that about 4:15 p.m. on Aug ust 7, he drove Chandr a Jones’ Dodg e Stratus to Geno’ s apar tment

. Ray

stay ed at Ge no’s apar tment for about thirty

minutes. Ray ’s brother , Marvin Jackson, came to Geno’s apar tment and Ray and J ackson left and went to Jackson’s a partment in F ray ser. Ray le ft the Str a tus a nd

its ke y s a t G e no ’s ho us e . Abo ut 5 :15 p. m., Da ph ne L ov e c a me to J ackson’ s apar

tment a nd L ove and Ray drove to D y ersbur g

. There
, they smoked marijuana , had sex, and visited Ray ’s other brother, Anthony J ackson. L ove drove Ray ba c k to Ge no ’s apar tm e nt i n M e mph is a bo ut 1 0:0 0 p .m. Ray

g ot t he Str a tus ’ key s from Ge no’s g irlfriend, dr ove the Stratus to Chandra J ones’ a partment, a

n d went to sleep. At some point, the police called Ms. Jones’ apa rtment and Ray

answe red the te le ph on e . T he po lic e a sk e d to sp e a k w ithMs. Jone s and to ld Ray that Ms

. Jone s’ c a r h a d b e e n in vo lve d in a hit -a nd -r un a c c ide nt. Ray tho ug ht the c a ll wa s a joke and hungup. The p o l i ce called ba ck re peate dly , and Ray hung up eac h time. Finally
, he gave the t elephone to Ms. J ones and J ones went outside to speak with the police. The police t h en ca lled Ray and aske d him to come outside. Ray left the
apar tment, and the police a

rre sted him. Ray related that he had se en the [petitioner] previously

but did not know hi m. He also stated t hat he did not know Kim Hug hes and had ne ver se en her

befor e.

On cr oss- e xa

mi n a ti o n , Ra y a c k n o w le d g e d

h a v ing pr ior convictions for se x ual battery an d burg lary . He state d that he knew J esse Windom but that they did not

“ ha ngou t” tog e the r. Ray

state d th a t he wa s n ot di sp uti ngthat Ms . Jon e s’ wh ite Stratus was used dur ing Windom’s killing. Howe ver, he stated that Ge no and two other men must have used Ms. J ones’ c ar a nd kidnapped Windom and Wis eman.

I d. at **1-4.W e w ill li m it th e m a jo rity o f o u r te stim o n ia l su m m a riz a tio n to th a t p e rtin e n t t o th is a p p e a l. 1

A 2001 c al enda r r eve al s t hat A ugus t 7, t he day of t he m ur der
, w as a Tues day. 2

-6- T h e r e a f t e r , t h e p e t i t i o n e r f

i l e d a t i m e l y pr o s e petition for post-conviction re lief as we ll as

a 11 0- pa g e a me nd e d p e tit ion , a rguin g he rece ive d th e ine ff e c tiv e a ssi sta

nc e of tr ia l and a pp e llate counsel and raising other iss ues surroundinghis convictions. After the appointment of counse l, two oth e r a me nd e d p e tit ion s w e re fi le d, a nd a n e vid e nti a ry

he a ri ngwa s c on du c te d o n tw o date s in October 2008.

At the he a ri ng , th e pe tit ion er te sti fi e d th a t c ouns e l r e pr e se nte d h im at tr ia l and on a pp e a l. 1 The pe titioner met with counsel “onc e eve ry sever al months” from Nove mber or D ece mber 2002 until counsel withdrew a fter the direc t a ppeal. The pe titioner stated that he a nd counsel discussed

cer tain aspec ts of his case but never discussed a theory of def ense. The petitioner told counsel that he wa s not guilty

of the c harg es ag ainst him so there mus t h av e been some thing wr ong with the
ey ewitness identifications. He also noted discre pancie s in the descr ip t i o n s gi v en by the var ious witnesses.

The pe titioner said that he provide d counsel with a letter containing the names a nd addre sses of potential alibi witnesses, his cousin, Timothy Har drick, a

nd Alice Johnson, both of whom he was wi th on the da

y of the mur de r. Th e pe tit ion e r s ta te d th a t c ouns e l ne ve r c on ta c te d h is a lib i w itn e sse s,

a nd no ne of his a lib i w itn e sse s w e re c a lle d to te sti fy a t tr ia l. T he pe tit ion e r sa id that he sp ok e wi th

c ouns e l’ s in ve sti g a tor , Cl a rk Cha pma n, and as ke d Ch a

pma n w hat c ou

ns e l ha d d isc ov e re d w ith
reg ard to h i s al i b i witnesses. Acc ording to the petitioner, Chapman indicated to him that counsel was “ chec king into it.” The petiti oner de nied telling Cha pman to stop try ing to locate Har drick a nd J ohnson.

Th e pe tit ion e r te sti fi e d tha t he a nd c ouns e l ne ve r d isc us se d a ny iss ue s r e la te d to his a

pp e a l. He sa id that he specific ally wanted counsel to a ppeal any issues involving the c ourt’s not allowing him to int roduce a Co u rt T V d ocumentar y that highlig hted the victim’s identification of him. He also said that when the trial judg e and the attorney s wer e discussing the admission of the Court TV documentar

y , Kevin Wis eman, the sur viving victim, was still in the courtroom. The petitioner explained that the rea son for see king a dmission o f t h e documentary was to impeac h Wis eman’ s testimony as t o h i s i dentification of the petitioner, and Wiseman he ard the court’s c omments and

ru lin g s b e fore he wa s c ro ss- e xami ne d. Th e pe tit ion e r a c kn ow le dg e d th a t c ouns e l ob je c te d to Wis eman’ s testimony

and aske d for a

mistrial, but counsel did not raise that issue on appe al.

Al ic e John so n, a

lon g -t ime fr ie nd

of the pe tit ion e r a

nd on e of his pr op os e d a lib i w itn e sse s, t e s t i f i e d t h a ts h e r e m e m b e r e d A u g u s t 7
, 2 0 0 1
, t h e d a y o f t h e m u r d e r , b e c a u s e h e r d o g d i e d t h a td a y. She said that the petitioner wa s “droppe d off by Tim” around 8:00 p.m. on August 6 a nd stay ed at her house for three or four nights, leaving on Saturday

. She later said that the petitioner wa s at her 2 house “the whole we ekend” and that she r eally did not know when he le ft. She elab o rate d that

someone had stolen the petitioner’s watch, and he w as trying to f ind it while he was stay

ing at her-7-

house. Howe ver, she re ca l l ed that the petitioner ne ver le ft her house and looked f or his watch by inquiring of

“eve ry body who came over

[t o] [ her] house.” She e x plain ed t h at she did not contac t the po lic e or the pe tit ion e r’ s a tto rn e y to inf or m him that the pe tit ion e r ha d be e n at he r h ou se be c a us e she did not find out the petitioner had be en cha rg ed until “af

ter he was locke d up.”

Counsel testified that he was appointed to repr esent the petitioner at trial and on appe al. He said that he met with the petitioner seven times in per son and talked to him on the telephone once. Counsel r eca lled that he and the petitioner discussed a possible a libi def ense, for wh i ch T imothy Har drick a

nd Alice J ohnson wer e mentioned as potential witnesse s. Counsel discussed the potential wi tne sse s w ith his inv e sti g a tor , Cla rk Cha pma n, a nd Cha

pma n “ did mos t of

the le g wo rk

on the se witnesses.” Counsel re ceive d a memo fr om Chapman rela y ing that the petitioner “a dvised him that Mr. Har drick ha d some other issues a nd wouldn’t be a g ood person to c ontact and that Ms. J ohnson ha d s ome he a lthiss ue s and that w e pr ob a

bly sh ou ldn ’t c on ta c t he r e ith e r. ” Couns e l sa id t hat he did

no t c on sid e r c on ta c tin g the pe tit ion e r’ s a lib i w itn e sse s h ims e lf be c a us e Cha pma n “w a s bette r at it

a nd ha d ta lke d to [ the pe tit ion e r] a nd [the pe tit ion e r] h a d a

pp a re ntl y tol d h im t o n ot c on ta c t th e m so that’s wher e we left it.”

Couns e l te sti fi e d th a t he purs ue d a de fe ns e of mis ide nti fi c a tio n, wh ic h he tr ie d to pr ov e , in part, by showing that the surviving witness had a dif ficult time identify ing the petitioner. For that
purpose, c ounsel soug ht to introduce a Court TV vide otape, but the trial court did not allow it to be admitted. Coun s el s aid that the trial c ourt allowed him to cross- examine Wi seman a bout the videotape, a

nd Wis eman wa s in the courtroom duringthe entire discussion rega rd i ng the admissibili ty

of the videota

pe.
Counsel testified that he kept a list of possibl e issues to appe al during the t ri al an d then
actua lly appea led only

the three or four strong est issues. He reca lled that he considered a ppealing the e xclu sio n o f the Court TV vid e ota pe a nd the c ourt ’s fa ilure to g ra nt a mis tr ia l ba se d o n K e vin Wis eman’ s testimony

being tainted but ultimately decide d not to appeal those issues. Counsel

e xpla ine d th a t “ wh e n it

c ome s ti me to w ri te the a pp e llate br ie f, Ius ua lly

tr y to n a rr owthe fo c us a lit tle bit to t wo or thr e e str on g on e s.

. . . A nd fo r w hate ver reas on in my mi nd a t th e tim e , my judgme nt Ig uess, they

didn’t make the c ut.”

Clark Chapman, the de fense investigator, testified that he me t with the petitioner on Fe b r uary 6, 2004, and, ther eaf

ter, c reated a c onfidential memo to counsel detailing the meeting

. During that meeting , Chapman and the petitioner discussed the possible a libi witnesses, Har drick a nd J ones, and the pe tit ion e r s a id t

hat H a rd ri c k “ may have be e n c a

ug ht up in s ome iss ue s, a nd may no t be g oo d to have him locat ed and broug ht to trial.” He r eca lled that the petitioner a lso told hi m that Alice J ohnson, whom the petitioner re ported to be his aunt, “had some medica l issues, and . . . it wouldn’t be g oo d to have he r br ou g ht in, a s we ll. ” Cha pma n no te d in his me mo that the pe tit ion e r t old him to focus on the State’ s evidenc e rather than his potentia l al i b i witnesses. Chapman state d that he be lie ve d h e ha d ma de “ so me a tte mpt s” to loc a te the tw o witn e sse s bef or e the pe tit ion e r tol d h im “ it wouldn’t be g ood to use these individuals.”-8-

Following the hea

rin g, t h e p ost-conviction cour t entere d a thoroug h order denying the petitioner post-convic tion relief. The petitioner appe aled.

AN AL YSI S

On appe al, the petitioner r aises thre e alleg at i ons of ineff ective a ssistance of c ounsel. He

a sse rt s th a t c ouns e l w a s in e ff e c tiv e fo r f

a ili ngto m ount a

n a libi defe ns e a t tr ia l and fo r f a ili ngto raise a s issues on appea l the trial court’ s exclusion of the Court TV videotape and t he trial c ourt’s denial of a

mistrial “beca

use of tainted te stimony

from Ke vin Wi seman.”

The post-c onviction petitioner bea rs th e b u rd en o f proving his alleg ations by clea r and convincing evidenc e. See Te nn. Code Ann. § 40-30- 110(f) (2006). When an e videntiary hear ing is held in the post-conviction setting, the finding s of fac t ma de by the cour t are conclusive on a

ppeal unless the evidenc e pre ponderates ag ainst them. See Tidwell v. State, 922 S.W .2d 497, 500 (Tenn. 1 9 9 6 ). W h er e ap p el l at e r ev i ew i n v o l v es p u re l y fa ct u al i s s u es , t h e ap p el l at e co u rt s h o u l d n o tre we i gh

or reeva lu a te th e e v id e n c e

. Se e H e n le y v

. St a te , 9 6 0 S. W. 2 d

5 7 2
, 5 7 8 ( T e n n

. 1 9 9 7 )

. H o w ever , re vie w o f a tr ia l c ourt ’s a

pp lic a tio n of the law to the fa c ts of the c a se is de novo , with no presumption of cor rec tness. See Ruff v. State, 978 S.W.2d 9 5
, 9 6 (Tenn. 1998). The issue of ineffe ctive assistance of counse l, which presents mix ed questions of fact and law, is revie wed de novo , with a presumption of cor

rec tness g iven only

to the post-conviction cour t’s finding s of fa ct. See Fields v. State, 40 S.W .3d 450, 458 (Tenn. 2001) ; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

I. Tr ial Iss ue

Th e pe tit ion e r f

ir st a rgue s th a t c ouns e l w a s in e ff e c tiv e fo r f

a ili ngto mou

nt a n a lib i de fe ns e at trial.

To establish a c laim of ineff ective a ssistance of c ounsel, the petit ioner ha s the burden to show both that tr ia l c o u n s e l’ s p e r f

o r ma n c e w a s d e f

ic ie n t a n d th a t c o u n s e l’ s d e f

ic ie n t p e r f

o r ma n ce pr e jud ic e d th e ou tc ome of

the pr oc e e din g . Stri c kla

nd v. Was hin g ton , 4 66 U. S. 6 68
, 68 7, 10 4 S. Ct. 2052, 2064 (1984); see State v. Taylor, 968 S.W .2d 900, 905 (Tenn. Crim. App. 1997) (noting that

same sta nd a rd fo r d e te rm ini ngine ff

e c tiv e a ssi sta

nc e of c ouns e l th a t is a

pp lie d in fe de ra l c a se s a lso

a pp lie s in Te nn e sse e ). Th e Str ic kla nd sta nd a rd is a tw o- pr on g te st:

F irst
, the de fe nd a nt m

us t sh owthat c ouns e l’ s p e rf or manc e wa s d e fi c ie nt. Th is require s showing that counsel m ade e rror s so serious that counsel wa s not fu nc tio nin g a s th e “ c ouns e l” g ua ra nte e d th e de fe nd a nt b y

the Sixth A me ndme nt. Second, the de fenda

nt must show t h at the def icient per formanc e pre

judiced the defe nse. This require s showing that counsel’s err ors wer e so serious as to deprive the defe ndant of a

fair tr ial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct . at 2064.-9-

The de ficient pe rfor

m an ce p ro ng of the test is satisfied by showing that “counse l’s acts or omissions wer e so ser ious as to fall below an objective standard of rea sonablene ss under pre vailing
pr of e ssi on a l no rm s. ” Go a d v. Sta te , 9 38 S.W. 2d 36 3, 36 9 ( Te nn . 1 99 6) (c iti ngStr ic kla nd , 4 66 U. S. at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) ). The pr ejudice pr ong of the test is satisfied by

showing a re asonable probability , i.e., a “proba bility sufficie nt to unde rmine confide nce in the outc ome,” tha t “ b ut f o r c o unsel’s unprof

essional er

rors, the r esult of the proc eeding would have be en diffe rent.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

At the evidentiar

y hear ing, the petitioner testified that he g ave c ounsel a letter containing the

name s o f tw o a lib i w itn e sse s. Th e pe tit ion e r d e nie d te lli ngc ouns e l’ s in ve sti g a tor to c e a se tr

y ingto locate those witnesses. Counsel testified that he rec eived a memo from the investig ator, Chapman, rela y ing that the petitioner “a dvised him that Mr. Hardrick had some other iss ues and w ouldn’t be

a g oo d p e rs on

to c on ta c t and

that Ms . Johns on had so me he a lthiss ue s and that w e pr ob a

bly shouldn’t c ontact her e ither.” Chapma n there afte r conf

irmed what counsel had te stified to from the memo and adde d that the petitioner told him t o focus on the State’ s evidenc e rather than his potential alibi witnesses. The c ourt resolve d conflicting testimony ag ainst the petitioner a nd conclude d that the petitioner ha d not established def icient per formanc e. W e will not rewe igh the post-conviction court’s c redibility

deter mination. See Momon v . State, 18 S.W .3d 152, 156 (Tenn. 1999)

. There fore , the petitioner ha s failed to esta blish deficient per formanc e.
Along the same lines, the pe titioner argues t h at t h e broa der issue r eg ardingcounsel’s defic ient perf

ormanc e is that counsel f ailed to conf

irm directly

with the petitioner that he did not want to pursue a

n alibi defe nse or investig ate the w itnesses befor e di s cu s s ing w ith the petitioner whether those witnesses would be be nefic ial. I t was not unrea sonable for counsel to re ly on the service s and the re port of his investigator. C f. Anthony M. Clark v. State, No. M2 00 6- 01 17 6- CCA -R 3- PC, 2 00 7 WL 22 95 58 3, a t *8 (T e nn . Crim . App . Aug . 6, 2 00 7) , p e rm . to appeal denied ( Tenn. De c. 17, 2007) ( concluding that counsel c ould rea sonably rely on the
pe tit ion e r’ s summa

ry of the po ssi ble de fe ns e wi tne sse s’ po te nti a l te sti mony in d e c idi ngwh e the r t o conduct f urther inve stigation and persona lly interview those w itnesses).

I n a ny e ve nt, e ve n if the pe tit ion e r e sta bli sh e d d e fi c ie nt p e rf

or manc e on the pa rt of c ouns e l, the petit ioner has failed to establish pre judice. As noted by

the post-conviction cour

t, the petitioner did not offe r t he testi mony of Tim othy Har drick at the evidentiary hear ing. To satisfy the pre judice require ment of Strickland whe n alleg ing that counsel wa s ineffe ctive for failing to offer

testimony fr om a f a vo ra ble wi tne ss, the po st- c on vic tio n p e tit ion e r m us t “ (1 ) p ro du c e the wi tne ss at hi s post-conviction hea

ring ; (2) show that throug h rea sonable investig ation, trial counsel c ou l d have located the witness; and (3) elicit both favor able a nd materia l testimony

from the witness.” Denton v. State, 945 S.W .2d 793, 802-03 (Te nn. Crim. App. 1996) (citing Bla ck v. State, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990) ).

Th e pe tit ion e r d id p ro vid e the te sti mony of Al ic e John so n, wh o w a s e ith e r h is l on g -t ime friend or aunt, at the e videntiary

hear ing. Johnson stated that the petitioner was at her house on the day of the murde r and stay ed with her for thre e or four nig hts. Upon questioning, Johnson reca lled-10-

cer tain events of the day

of Aug ust 7, 2001, but did not rec all what day of the wee k it was and he r testimony was at times incongr

uous. The post-convic tion court found that Johns on’s testimony was not cre dible or persuasive. The court noted t hat “[ v]i ewing her testimony from the witness stand, he r t e sti mony

did no t a pp e a r c on vin c ing .” Ag a in, we wi ll n ot s e con d-guess a c re dib ili ty de te rm inatio n mad e by the po st- c on vic tio n co ur t. Ac c or din g ly , the pe tit ion e r ha s fa ile d to e sta bli sh

a re asonable probability

that the re sult of the proce eding would have be en diffe rent ha d his proposed alibi witnesses testified.

II. Appellate Issues

The pe titioner argues that counse l was ineff ective f or fa iling to ra ise t h e t rial cour t’s exclusion of the Court TV videotape a nd the t ri al cour

t’s denial of a

mistrial “beca

use of tainted testimony from Ke vin Wi seman” as issues on appe al.

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 t

ri a l and app ellate c ouns e l. Campbell v. State, 904 S.W .2d 594, 596 (Tenn. 1995). I n order to establish the ineffe ctive assistanc e of a pp e llate c ouns e l, a

pe tit ion e r m

us t pr ov e that (1) a

pp e llate c ouns e l w a s o bje c tiv e ly un re a so na

ble in failing to raise a

particula r issue on appe al, and ( 2) there was a rea sonable proba

bility that the petitioner’s a

ppeal would ha

ve bee n succe ssful befor e the state’s highest court had appellate counse l

no t re nd e re d de fi c ie nt pe rf or manc e

. Se e , e .g ., Smit

h v. Rob bin s, 52 8 U .S. 25 9, 28 5- 86 , 1 20 S. Ct

. 746, 764 (2000); Apa

ricio v. Artuz, 269 F.3d 78, 95 ( 2d Cir. 2001); May o v. Hende rson, 13 F.3d 528, 533-34 (2d Cir. 1994). To showthat counsel wa s ineffe ctive for failing to raise a

n issue on direc t appea l, the revie wing co u rt m u st determine the me rits of the issue. Carpe nter v. State, 126 S.W .3d 879, 887 (Tenn. 2004) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574 (1986))

.

Counsel does not have a

constitutional obli g ation to r aise ever y conce ivable argument which might be ma de on appe al. I d. (citing King v. State, 989 S.W .2d 3 1 9
, 3 3 4 (Tenn. 1999)). The deter mination of which issues to prese nt on appea l is a matter a ddresse d to the profe ssional judgment and sound discre tion of appellate counsel. Porterfie ld v. State, 897 S.W .2d 672, 678 (Tenn. 1995)

. Th is d e te rm inatio n is a

ta c tic a l or str a te g ic c ho ic e . Ca mpb e ll, 90 4 S. W.2 d at 59 7. “ [I ]ne ff e c tiv e ne ss is very rar ely found i n case s where a def endant a sserts that appe llate counse l failed to ra ise an issue on direc t appea l, primarily beca use the decision of what issues to r aise is one of the most important strateg ic dec isions to be mad e by appellate counsel.” Kennath Hender son v. State, No. W20 03 -0 15 45 -C CA -R 3- PD, 20 05 WL 15 41 85 5, a t *44 (T e nn . Crim . App . J un e 28 , 2 00 5) , p e rm

. to appea l denied (Te nn. Dec . 5, 2005).

A. Co ur t T V V ide ot ape
The pe titioner argues that counsel was ineffe ctive for failing to a ppeal the trial court’s r

uling that th e Court

TV vid e ota

pe of the po lic e inv e sti g a ti on was ina dmi ssi ble to i mpe a c h K e vin Wis eman’ s identification of the petitioner. Counsel te stified that it wa s his pr actice to narrow the potential issues on appea l to only the three or four

strong est issues. Altho u gh co u nsel could notT he r ecor d s ho w s t hat coun s el di d no t m ake a cont em po r aneou s obj ect i on upo n di s coveri ng t hat W i s em an 3

w a s in th e c o u rtro o m . H o w e v e r, th e fo llo w in g d a y , co u n se l m o v e d to e x c lu d e W ise m a n ’s tes tim o n y , p re su m a b ly in its en tire ty , an d a fte r th a t w a s d e n ie d , re q u e ste d a m istria l.

-11- sp e c if ic a lly re c a ll w hy he did no t r a ise the tr ia l c ourt ’s e xclu sio n o f t he Court TV vid e ota

pe , h e sa id that the dec ision would have bee n based on his conc lusi o n t h at it was not one of the petitioner’s strong est issues. The post-conviction court conc luded that “the pr actice of nar rowing the issues for the appe al is a rea sonable prac tice for an appellate attorney .” We likewise ag ree that it is a sound tactica l decision for a

n appellate attorney

to narrow

the i ssues to prese nt to the appellate court. See Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993) (quoting J ones v. B arne s, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3313 (1983)) for proposition that “experienc ed advocates have long‘empha siz ed the imp or tanc e of wi nn ow ingou t w e a ke r a rgume nts on a pp e a l and fo c us ingon

on e c e ntr a l is su e if
po ssi ble , o r at mo st a

fe w k e y iss ue s’ ”). Th e pet it ion e r h a s f a ile d to sh owthat it

wa s o bje c tiv e ly

unrea sonable for

counsel not to appe al this issue.

Moreove r, the re cord does not sug g est a reasonable probability that an appeal of this issue

wo uld have be e n suc c e ssf ul. Th e tr ia l court ba se d its excl us ion of the vid e ota

pe on the fa c t th a t it

wa s “ dr a ma tize d a

nd mis le a din g ” a nd

ha d b e e n e dit e d to uti lize sp lit sc re e ns a nd

dif fe re nt a ng le s. The c ourt descr ibed the video a s a “commercia liz ed sensationaliz ed Holly wood film,” not “a

n objective c onstantly

running came ra f

or C-SPAN or

for some c ivics class.” The court fur ther noted that th e vid e o s ho wed W is eman id e nti fy ingthe pe tit ion e r, so it w a s n ot “ e xcu lpator y or dir e c tly
contra dictory ” of Wis eman’ s testimony

. We note that the videotape was not included in the r ecor d be fo re us

. F ur

the rm or e , the tr ia l c ourt a llo we d the pe tit ion e r to c ro ss- e xami ne Wise man a bo ut h is initial ability to ide ntify the petitioner as illustrated in the video, just without util ization of the video. The a dmission of evidence g ener ally lies within the sound discretion of the tria l court and w ill not be re verse d on appea l absent a showing of an a buse of d i s cr et i on. See State v. Robinson, 146 S.W .3d 469, 490 (Tenn. 2004); State v. Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000); State v. Edison, 9 S.W .3d 75, 77 (Tenn. 1999). We simply fail t o see any rea sonable proba bility that the re viewing court would ha v e d e te r

mi n e d th a t t h e tr ia l c o u rt a

b u s e d it s d is c r e ti o n in

e xc lu d in g th e Co u rt T V videotape.

B. Mistrial

The pe titioner argues t hat counsel was ineffec tive for failing to appea l the t rial cour t’s denial of his motion for a mistrial based upon K evin Wisem an ’s pre sence in the courtroom dur ing the discussion reg ardingthe Court TV videotape that took place prior to Wi seman’s c ross-examination. The re cord shows that the day afte r the jury -out hea

ring reg arding the admis sibili ty of t he Court TV videotape, c ounsel moved for a mistrial on the basis that Wiseman “could have bee n able to tailor his testimony

to [ the cour

t’s] i nstructions . . . as t o what would be a llowed . . . into evidence if he said what he said, and what would not be allowed in evide nce if he said something differ ently .” The 3

c o u rtd e n i e d

t h e p e t i t i o n e r ’ s m o t i o n o n t h e b a s i s t h a tt h e d i s c u s s i o n d e a l ta l m o s te xc l u s i v e l y w i th the admissibilit y

of the video f

or impeac hment purposes a n d dealt with Wiseman’s identification-12-

only to the extent of what was r efle cted on the videotape. The court also noted that the television on which they

watche d the video wa s not visibl e to Wiseman.

We i nit ia lly

no te that th e pe tit ion e r h a s argua bly wa ive d r e vie w o f thi s is su e fo r f a ili ngto provide a ny citation to authorities in support of his argum en t

. S ee Tenn. R. Crim. App. 10(b). Reg ardle ss of waive r, ag ain, the post-convic tion court deter mined that it was a reasona ble pra ctice for a n appellate attorney to narrow the issues on appe al, and we ag ree . See Cooper, 849 S.W.2d at 747. The pe titioner has fa iled to show that it was objectively unrea sonable for

counsel to not appe al the tr ial co ur

t’ s d e nia l of

a mis tr ia l. M or e ov e r, we do no t di sc e rn a ny pr e jud ic e c a us e d b y thi s alleg ed def

iciency

.

Whe the r t o d e c lare a

mis tr ia l li e s w ith in t

he so un d d isc re tio n o f t

he tr ial c ourt , a

nd its decision in this reg ard will not be overturned on a ppeal a bsent a showing of an a

buse of discr etion. State v. L and, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A mistrial should be dec lare d in a cri m i n al ca se only

when something has occ urre d that would preve nt an impartial ver dict, there by resulting in a miscarr iag e of justice if a mistrial is not dec lare d. See id. (c iting State v. McPher son, 88 2 S. W.2 d 3 65 , 370 (T e nn . Crim . App . 199 4) ); Sta te v. Jone s, 15 S.W. 3d 88 0, 89 3 ( Te nn . Cr im. A p p

. 1 9 9 9 ) ( c i t i n g A r

n o l d v

. S t a t e , 5 6 3 S

. W

. 2 d 7 9 2
, 7 9 4 ( T e n n

. C r i m

. A p p

. 1 9 7 7 ) )

. “ G e n e r a l l y a mistrial will be declar ed in a criminal case only when there is a ‘ manifest nec essity ’ re quiring such acti o n b y t h e t rial judg e.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold, 563 S.W .2d at 794). The burden to show the ne cessity for a mistrial falls upon the party seekingthe mistrial. L and, 34 S.W .3d at 527 (citing State v. Wil liams, 929 S.W .2d 385, 388 (Tenn. Crim. App. 1996) ).

As noted above , the trial cour t addre ssed its reasons f

or dec lining to g rant a

mistrial, a

nd the

re c or d b e fo re us su

pport s it s r e a so nin g . We sim ply c a nn ot c on c lud e that th e re is a ny re a so na ble probabili ty

th a t h a d th is is s u e b e e n a

p p e a le d
, th e r e v ie w in g c o u rt w o u ld h a v e d e te r

mi n e d th a t the trial court a

bused its discretion in denying the petitioner’s motion for a mistrial.

CO NC LU SION

Ba sed on the for eg oing a uthorities and re asoning , we a ffirm the post-c onviction court’s denial of the petition for post-conviction re lief.

___________________________________ ALAN E. G LENN, JUD GE