### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Jul y 13, 200 4 S es sio n
AN THON Y D . C UTT LE v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. P -20307 J.C. M cLin, Ju dge

No. W2003-00684-C CA-R 3-P C - F iled Septem ber 28, 2004

Th e pe tit ion e r a

pp e a ls the de nia l of

his pe tit ion fo r p os t-con vi cti on re lie f, arg uin g that th e po stc on vic tion cou rt

e rr e d in fi nd ing he re c e ive d e ff e c tiv e a ssi sta nc e of

c ou ns e l a ndin d e nying his reque st to repre sent himself at the post-conviction proce eding

. Following our re view, we aff irm the denial of the petition.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opi nion of the c ourt, in which N OR MA M C G EE O G LE , J ., joined. J OHN E VE R E TT W I L L I AMS , J ., filed a c oncurring opinion.
Marty B. Mc Afe e, Memphis, Tenne ssee, f or the a ppellant, Anthony

D. Cuttle.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Jenn if e r L . Bl e ds oe , Ass ist a nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and V anessa

King , Assistant District A t torney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION

F ACTS AND P ROCEDURAL HISTORY

I n Aug ust 1995, the petitioner, Anthony D. Cuttl e, wa s tried in the Shelby CountyCriminal Court on two counts of attempted espec ially ag g ravated kidnapping

. The jury acquitted him of one count but convicted him of the other, for which he rec eived a twenty -y ear

sentenc e in the De partment of Corre ction as a Rang e I I offe nder. See State v. Anthony D. Cuttle, No. 02C01-9605-CR-00153, 1997 WL 730255, at *1 (Te nn. Crim. App. Nov. 25, 1997), perm. to appeal de nied (Te nn. J uly 13, 1998). The petitioner’s conviction and sente nce w ere subsequently aff irmed by this court, and our supreme c ourt denied his application for permission t o appea l. I d.

Ou r d ir e c t app e a l op ini on pr ov ide s th e fo llo wi ng a c c ou nt o f the c ri me :-2- On the nig ht of April 5, 1994, the victim, Norma V oy les was sitti ng in her car outside her home w hen the [petitioner] approac hed her ve hicle, stuck a g un to he r head, and order ed her to open the door. Whe n th e [pe tit ion e r] i ns ist e d o n ta kin g the drive r’ s sea

t, the vic tim strug g led and mana g ed to esc ape to the driveway wher e the [petit ioner] he ld his cocke d g un to her he ad and thr eate ned to kill her. The strug g le lasted for

around t en minutes before the victim’s son he ardthe sc re a ms a nde me rg e d f ro m th e ir res iden c e . A t th a t po int , the [petiti oner] pushed the victim to the g round and r an aw ay

. The victim ca lled police who arrived s ome five minutes later. When the investigating office rs rec eived word that a man f itting the assailant’s de scription had bee n taken into custody , the victim was asked to make an identification. I nitially uncertain, the victim made
a p o s i t i v e i d e n t i f

i c a t i o n a f t e r t h e [p e t i t i o n e r ] p u t o n t h e h o o d o f his
swea tshirt. L ater , the victim was able to identify the [petiti oner] two more times, once in a lineup at t h e police station and a g ain at the preliminary

hearing.

On the same night, only

a fe w minutes later, De bra H anna w as attacke d by

a man she identified as the [petit ioner]. She stated that as she wa s unlocking her r esidenc e door, the [petit ioner] a pproac hed her holding a g un. Ms. Hanna w as able to ge t inside, loc k the door, a nd call police. Within ten minutes, poli ce a rrived and reported that they ha d ta k e n a ma n in to c u s to d y o n ly a f e w h o u s e s a w a y , w ho fit her description of the attacke r. When escorted by the police to whe re the [peti t i oner] was he ld, Ms. Hanna identifie d the [petiti oner] as her assailant.

. . . . W h en ap p re h en d ed , t h e [ p et i t i o n er ] w a s c a rr y i n g a butcher knife but had no g un. At trial, the [petitioner] denied any involvement in eit her
a tta c k. He c la ime d th a t he an d a f ri e ndha d b e e n v isi tin g wi th h is cousin. He a sserted tha t he had de cided to visit his ex -g i rl fr i en d, walked over to her apartment, and, unable to locate her , was re turning to his cousin’s residenc e whe n stopped by police.

Antoine Thompson, a witness for the defe nse, claimed that he
a n d th e [p e ti ti o n e r ] w e r e a t a mu tu a l f r ie n d ’ s r e s id e n c e w a tc hing television until som etime betwe en 10:30 and 11:30 p.m. Thompson
re called that when he w ent to bed, the [petitioner] was still at the residenc e.-3-

I d.
The post-c onviction proce eding s in this case ar e somewhat c omplex . Although not include d in the re c or d, the pe tit ion e r a pp are ntl y fi le d a n o ri g inal pro se pe tit ion fo r pos t- c on vic tio n r e lie f i n Aug ust 1998, which was summarily dismiss ed af

ter the a ppointment of counsel. On F ebrua ry 15, 2 0 0 1 , th e p e ti ti o n e r f

il ed a p ro se mot ion to r e op e n h is p os t- c on vic tio n p e tit ion , w hic h w a s, appar ently , g rante d by

the post-conviction court. Counsel was subsequen t l y ap p o inted and an amende d petition f

or post-conviction relief

, incorporating the pro se petition and alleg ing ine ffe ctive assistance of trial counse l, was filed on Nove mber 6, 2001. The amende d petition was followe d by a supplementa l amended pe tition on J une 14, 2002, and a second supplemental ame nded petition on October 29, 2002, which, tog ethe r, alleg ed counse l was ineff ective, inter alia, fo r f

a ili ng to adequately investigate and prepa re f or the c ase, f

ailing to e ffe ctively

cross-e x amine witnesses, a nd
r e f u s i n g t o a s s i s tt h e p e t i t i o n e r w i t h h i s tr i a l t e s t i m o n y. The post-conviction court g rante d the petitioner’s motion to proce ed pro se on Aug ust 15, 2002, but reve rsed itself a pproxi mately

one we ek later , reappointing c ounsel on Aug ust 26. An
e vid e nti ary

he ari ng , a t w hic h th e po st- c on vic tio n c ou rt a llo we d b othc ou ns e l a ndthe pe tit ion e r t o prese nt separate proof a n d ar g uments, was held on Septembe r 26, 2002, Oc tober 29, 2002, a nd F e b ru ar y 7 , 2 0 0 3

. O n O c to b e r 2 9 , 2 0 0 2 , th e p e ti ti o n e r f il ed a pro s e a me nd e d p e tit ion fo r p os tconviction re lief.

On Marc h 7, 2003, the post-conviction court entere d a deta iled written orde r d en y i ng the petition for post-conviction re lief. Diff ere nt counsel wa s appointed to repr esent the pe ti t i oner on appea l, and a notice of appe al was f iled that sam e d ay

. Nonetheless, the petitioner filed a pr o s e notice of a

ppeal on Ma

rch 13, 2003, a pro se brief on Septe mber 4, 2003, a nd a pro s e “ Mo tio n to Consider Appellant’s Pro Se B rief a s the I nitial Brief ” on October 21, 2003. On October 31, 2003, thi s c ou rt e nte re d a n or de r de ny ing the pe tit ion e r’ s mot ion to ha ve his pro se brief considere d and ordering that all future plea dings be filed by the petitioner’s a

ppellat e co u n s el

. On Novembe r 6, 2003, appellate counsel filed his brie f with this court. On A pril 3, 2003, the petitioner filed a pr o se “Motion to Dismis s Cou rt-Appointed Appe llate Counsel,” alleg ing ine ffe ctive assistanc e of appellate counsel a nd reque sting t hat he be allowed to proc eed pro s e with his appeal. This court denied his motion by

order enter ed on April 22, 2003.

I n h is pro se petitions and at the evidentiary hearing, the petitioner contended he was entitled to post-conviction relief on four gr ounds: (1) he was unlawfully arr ested; (2) illega l evidenc e wa s int ro du c e d a t his tr ia l; (3 ) the pr os e c uto r, his tr ia l c ou ns e l, andthe tr ia l c ou rt c on sp ir e d to su pp re ss exculpatory

evidenc e; and ( 4) he r ece ived ineff ective a ssistance of tri al co u n s el . His claim of ine ff e c tiv e a ssi sta nc e wa s b a se d o n a nu mbe r of a lle g a tio ns , inc lud ing that c ou ns e l c on sp ir e d w ith the trial court and the prosec utor to suppr ess a police dispatch transcript, which would have show n the discre pancie s betwee n the petitioner’s appea ranc e at the time of

his arre st and the desc riptions the vic tim s p ro vid e d to po lic e of the ir a tta c ke r, a s we ll as the tim e that e laps e d b e tw e e n th e vic tim s’ calls to police; counse l failed to ca ll an alibi witness to testify at trial; counsel insisted on contac ting that sa me a lib i w itn e ss d e sp ite the pe tit ion e r’ s ins truc tio ns to s top bo the ri ng he r; c ou ns e l f a ile d to-4-

c ro ss- e xami ne the vic tim s o n a lle g e d in c on sis te nc ie s in the ir te sti mon y ; an d cou ns el f a ile d to subpoena a nd introduce a second police dispatch re cord, w hich would have reve aled that the petitioner’s a

rre sting off

icer lied and fr amed the pe titioner for the c rime.

Trial counse l, who had thirty y ear s experience in criminal defe nse a t t h e t i m e of the evidentiary

hearing, te stified he re prese nted the petitioner in c riminal court in his capa city as an assistant public defe nder. His prepa ration of the c ase inc luded interview ing w itnesses, rese arc hing the law, a nd revie wing the evidenc e. He was c onfident he r ece ived and r evie we d a co p y of the tr a ns c ri pt o f the pr e lim ina ry he ari ng . Tr ia l c ou ns e l be lie ve d o ne of the c e ntr a l is su e s in the c a se inv olv ing Ms. Ha nn a wa s that the pe tit ion e r wa s “ mis ind ic te d, ” be c a us e the fa c ts a lle g e d did no t f it a kidnapping . He a

rg ued the issue to the jury and believe d it formed the ba s i s for the petitioner’s acquittal on that count.

Trial counse l testified the petitioner provide d him with the names of t wo potential alibi witnesses: Antoine Thompson, who testi fi ed at trial but provided less than an a irtight a libi, and J eannine Conley , whom the petitioner c laimed would be a ble to pla ce him e lsewher e at the time of the attac ks. Trial counsel said Conley informed him she had been dia g nosed as manic depre ssive, was on medic ation for de pression and hyperte nsion, a nd could not r eca ll whe n or whe re she had see n the petitioner. The ref

ore, he conclude d her te stimonywould not be helpful.

Trial counse l testified he advise d the petitioner he thought it woul d b e devastating for the petitioner to testify

beca use the State would be able to introduce his prior convic tion for murder as well as possibly

his p ri o r ar m ed robbery conviction. The pe titioner ag ree d and maintained throug hout the trial that he did not wish to take t h e s t an d . Howeve r, af ter he had bee n voir dired about his decision not to testify and both the S tate and the defense ha d rested, he suddenly jumped to his feet and “ exploded” with the announce ment that he now wishe d to testify

.
Tria l c ou ns e l a c kn ow le dg e d h e wa s p ro ba bly up se t w ith the pe tit ion e r a nd mig ht ha ve los t his temper. As for

whether he wa s wrong in refusing to assist the petitioner’s testimony , counsel testified that he thoug ht as k ing que stions would “compound the damag e” and that he “ma y have made a mistake,” but thought he would “make the same . . . de cision ag ain.” Trial counsel c oncede d the petitioner’s te stimonyprobably would have be en smoother ha d h e direc ted it. He insisted, howeve r, that his participa tion would not ha ve been enoug h to “ overc ome the devasta ting thing s that
occur red f rom [the petitioner’s] testi mony .” More over, he would not have been able t o control the petitioner’s de meanor

and cocky attitude. On cross-e x amination, trial counsel a g ree d the petitioner would not ha ve been able to e x plain the fa cts underlying his prior convictions if counse l had direc ted his testimonyby

asking specific questions r equiring responsive answe rs. Counsel testified he had g one over

the eve nts of the nig ht i n q u es t ion with the petitioner, but had not prepa red a list of questions because the pe titioner had consistently expressed his intention of not testify ing. In trial counsel’s opinion, the petitioner’s te stimonyresolved in f avor of the State any

doubt the jury

may have ha d about his g uilt.-5-

Trial counse l acknowle dg ed his file contained a copy of a police report show ing that a latent fi ng e rp ri nt l if

te d f ro m th e vic tim ’s c ar d id n ot m a tc h the pe tit ion e r. He c ou ld no t re c a ll if he c ro sse xami ne d a ny

po lic e of fi c e rs on that f

a c t a nd didno t th ink

he c a lle d th e fi ng e rp ri nt t e c hn ic ia n to t es t i fy

. Howeve r, he did not believe the fing erprint evidence would have he lped the petitioner’ s case

. Trial counsel testified t he petiti oner w anted him to introduce a dispatch transc ript at trial that he believe d would prove he was not the perpetrator

. I n counsel’s opinion, t he evide nce w ould have hu rt , r a the r tha n h e lpe d, the pe tit ion e r’ s c a se , a s h e e xpla ine d:

A. Wel l, I

su bp oe na e d th e re c or ds fr om the dispat c he r. An d a s I
rec all there was a

bout a twenty

minute ga

p betwee n the first ca ll from M s . Voy les, when Ms. Voy les ca lled the police a nd made he r c omp la int a ndwh e n Ms. Ha nn a did it. I t w a s a bo ut a tw e nty min ute differ ence

.
I had my investiga tor g o out and measure the distance in his car betwee n the Creig hton addre ss wher e Ms. Hanna was a nd the Nava

ho addr ess wher e Ms. Voy les was. And he reported bac k that it was about a mile and a

half be tween the two spots. I n my calc ulation, I mean, c erta inly

a car could trave l betwee n those two spots in less than tw e nty min ute s. Q. Sure.

A. A man wa lking f

ast or jog g ing c ould probably d o i t . I didn’t think that would help [ the petitioner] to show that, to put that evidenc e on to show whe n those ca ll s we re made to the dispatche r. I n fac t, I thought it would show that he had e very opportunity

to be at both places tha t night bec ause of the diff er en ce i n the ca lls. I f the
c a lls ha d c omein a

min ute a pa rt [sic ], I c e rt a inl y wo uldha d d on e it. B ut the re wa s a

tw e nty -- I thi nk a s I re me mbe r ri g ht, a

tw e nty min ute dif fe re nti a l.

And as I should say , [t he petiti oner] wanted me to do it any way and that’s a nother de cision I made on my

own. Q. Okay . I t was not a twe nt y m i n ute move but twenty -four min ute s, so me thi ng lik e that. D oe s th a t so un d a bo ut rig ht?

A. Ye a h, that’ s th e be st I re c oll e c t.

Trial cou n s el ac k n o wl ed ged t h e d i s p at ch tra n s cr i p td es cr i b ed M s. Voyles’s attac ker a s a blac k male in his late tee ns or early twenties, although t he petiti oner was t hirty y ear s old at the time of the crime. He could not rec all if the clothi ng description contained in the r eport matc hed the pe titioner’s-6-

clothing, but thoug ht he re called that Ms. Voy les, who wa s a “very g ood witness,” desc ribed the perpe trator’ s clothing when she r eporte d the crime to the police and that the petitioner wa s wea ring simil ar clothing when arr ested. I n addition, he believed Ms. V oy les identified the petitioner as the perpe trator se vera l times, including at the time of his a rre st, f rom a later photogr aphic lineup, a nd ag ain at trial. Ac cording to trial counsel, Ms. Voy les’s testimony fo rm ed the ba sis for the State’s
case

. During the petit ioner’s leng thy , rambling , and repetitive evidentiary hearing testimony , he
asserted, int e r a lia , that Memphis Poli ce O ffice r R. D. Harrell framed him for the crime; the othe r police off icer s who testified at trial committed pe rjury at Offic er H arr ell’s behe st; trial counsel, the pro s e c u to r , an d the trial court “cove red up” the offic er’ s actions and c onspired to pre vent exculpatory evidenc e, in the form of the dispatch transc ript that rec orded the time the victims reported the attacks
a n d t h e p e rp e tr a t o r ’ s d e s c r i p t i o n , f r o m g o i n g t o t h e j u r y; a n d t h e v i c t i m s l i e d d u r i n g t h e i r t e s t i m o n y. The pe titioner also asserted that a se cond dis patch tra nscript, which the Me mphis P olice De partment had since destroy ed, would have proved he was arr ested less than ten minutes after leaving his home.

The re cord r evea ls the alleg ed “e x culpatory ” dispatch transcript was, at the prose cutor’s sug g estion, marked a s an exhibit at the trial for identification purpose s afte r defe nse counse l sought
a ndre c e ive d the tr ia l c ou rt ’s app ro va l of his de c isi on no t to c a ll the po lic e dis patc he r a s a wi tne ss. A re view of w hat transpire d at trial i s h elpful i n understanding the petitioner’s c laim with respec t to this evidence:

[TR I AL COUNSEL ]: I

don’t know, we may

have to e x cuse the jury to ge t this on t he re cord, I don’t know. B ut this m an I h av e under subpoena, a

dispatcher

with the Memphis Poli ce D epartment, who would testify

when the calls, complaints came in. And of c ourse they sit [sic ] exa c tly wi th w ha t th e pr os e c uti on wi tne sse s h a ve te sti fi e d to
abo ut w he n the se thi ng s hap pe ne d. An d my c lie nt i ns ist [s] that I

c a ll him a s a witness and prove when complaints wer e made to p o l i ce dis pa tc he r. An d I a m no t g oin g to d o it be c a us e it j us t w ou ldn ’t

- - it would just help inc riminate him. And I don’t know if y ou want to, do y ou think we m ay h ave to put him on the re cord a nd air this out or
no t? May

be we sh ou ld. B ut I

a m no t g oin g to c a ll the ma n ju st beca use he w ants me to. I

think it i s not - - THE COURT: Do y ou think it wil l hurt his case?
[TR I AL COUNSEL ]: I

think definitely

it will hurt hi s case

. THE COURT: We don’ t ne ed to put it on the rec ord, I mean, e x cept wh a t w e are do in g ri ght now u nle ss y ou wa nt t o. I c e rt a inl y understand y ou know, y ou’ve be en trying c ases f or twenty y ear s, and y ou kno w wh en y ou oug ht to try to help somebody . SometimesT he phot ogr aph t ake n at t he t i me of hi s arr es t sh ows t he pet i t i oner d r es s ed i n a medi um t o dark bl ue hood ed 1

sw e a tsh irt, d a rk gr a y ja c k e t, a n d gr a y je a n s.
-7-

people don’ t understand that y ou are try ing to help them as best y ou can.

. . . .
THE CO UR T: Wel l, j us t f or theba sis of

thi s r e c or d, the Cou rt

is g oing to r ule that it is not necessary that y ou call the witness that y ou think would be d et ri m en tal to y our client e ven thoug h he thinks he should be ca lled. I

think y ou’re looking out for his be st inter est. And y ou stated on the re cord that from wh at y o u tell me is true, and I ’m sure y ou chec ked it, that it wouldn’t do anything but put in the jury ’s
m i n d a s e c o n d t i m e t h e t i m e s t h a tt h e s e arr e s t[ s i c ] o c c u rr e d

. It
wo uldc e rt a inl y

se e m to thi s Co urt th a t it wo uld be to the de fe nd a nt,
so. [PROS ECU TO R]: A lon g that li ne , y ou r H on or , if it wo uld he lp o ut,
we c an make an exhibi t that will not go to the jury , obviously , of the
re c or d tha t I ha ve wh ic h b a sic a lly su bs ta nti a te [s] wh a t [tr ia l c ou ns e l] is say ing. T he times falling exactly with ours, wi t h what our witnesses have said.

T H E C O U R T : D o y o u w a n tt o d o t h a t , [ tr i a l c o u n s e l ] ?
[TRIAL CO UN SEL ]: Ye s, I

wo uldlik e to h a ve that a s a n e xhibi t.

TH E CO UR T: L e t’ s ma ke th at part of

the re c or d a ndy ou c a n te ll y our client we ’ll do that and it can g o up on appea l.

T h i s d i s p at ch tra n s cr i p t , wh i ch wa s i n tro d u ce d as an ex h i b i tt o t h e p o s t -c o n v i ct i o n h ea ri n g, describes Ms. Voy les’s attac ker a s a male bla ck in his teens or ea rly twenties, we aring a dar

k g ray hooded swe atshirt and blue jeans and armed with a pi s t o l o f u n known ca liber, and Ms. Ha nna’s
a tta c ke r a s a

ma le bla c k w e ari ng a

da rk -c olo re d h oo de d sw e a tsh irt a ndarm e d w ith a g un . D e sp ite the po st- c on vic tio n c ou rt ’s ob se rv a tio n that th e ph oto g ra ph take n o f the pe tit ion e r at th e tim e of his
arr est shows he wa s dressed in similar clothing , the petitioner re peate dly cited the diff

ere nces 1 betwee n the descriptions of the perpe trator and his a ppear ance as evidenc e that would have pr oved his innocence . He a lso cited the above -quoted int er ac t i o n as evidenc e that the tria l judge , the prosec utor, and trial c ounsel conspire d to preve nt the evidenc e fr om going to the jury

.P o st

- co nvi ct i o n co unsel i nt rod uced as an exhi b i t t o t he evi d ent i ary heari ng a l et t er f rom W i l l ai ne H am p t o n, 2
manag er of

“ M emp hi s P ol i ce C om muni cat i ons , ” s t at i ng t hat t he di s pat ch r ecor ds for 1994 wer e n o l onger av ai l abl e.
-8- The pe titioner testif

i ed h e and trial counsel discussed the e vents of April 5, 1994, and he informed c ounsel of how Offic er H arr ell had “se t [ him] up.” When aske d if trial counse l review ed wi th h im the ty

pe of qu e sti on s h e wo uldbe a sk e d if he te sti fi e d at tria l, the pe tit ion e r r e pli e d:

No . H e tol d me , h e ba sic a lly tol d me in tri a l tha t if

I te sti fi e d in my own def

ense, tha t I

was g oing to be found g uiltybeca use base d on my past rec ord. That’s why when I did de cide to ta ke the stand and testify in my behalf and tol d the jury , I

let them know that I

did have a past re cord but don’t hold it ag ainst me. That’s the only rea son why I was kind of r eluctant a

bout taking the stand in my own def ense. When he told me that, my past rec ord wa s g oing to g et me convic ted, I believed it. But when he re fused to ca ll that dispatcher on the sta nd to a ssi st m e , th a t’ s whe n I re a lize d tha t Iha d to do so me thi ng be c a us e he wa sn’t try ing to do nothing for me.

Th e po st- c on vic tio n co urt con tin ue d the e vid e nti ary he ari ng fr om S e pte mbe r 2 6, 20 02 , u nti l Oc tob e r 2 9, 20 02 , to a llo w the pe tit ion e r tim e to su bp oe na wi tne sse s h e ins ist e d w e re ne c e ssa ry to pr ov e his a lle g a tio ns . A t th e Oc tob e r d a te , th e a ssi sta nt d ist ri c t a tto rn e y

wh o p ro se c ute d th e c a se testified he pr ovided open f ile discovery to trial counsel. He said he would have liked for the jury to h a ve se e n th e dis pa tc h tr a ns c ri pt, bu t di d n ot se e k to ha ve it int ro du c e d a s a

tr ia l e xhibi t be c a us e he thoug ht it was inadmissibl e h earsay . Antoine Thompson testified the petitioner’ s trial counsel
never interviewe d him prior to trial, but acknowle d ged h e t estified fr eely at trial and ha d no new information to add. Serg eant J. D. S i m o n and Lieutenant Dana Stine, two of the Memphis police of fi c e rs inv olv e d in the pe tit ion e r’ s arr e st, te sti fi e d the y turne d in the ir pa pe rw or k in c on ne c tio n w ith the c a se a nd th erefore no lon g e r h a d a ny re c or ds of

the pe tit ion e r’ s a

rr e st. Th e pe tit ion e r a lso 2 soug ht to call the victim, Ms. Voy les, as a w itness at the evidentiary hearing, stating that he nee ded her te stimonyto prove she f alsely acc used him of the crime, but the post-conviction court denied the reque st.

I n its written finding s of fact and conclusions of law, the post-conviction court found, inter ali a , that c o u n s e l’ s d e te r mi n a ti o n s n o t t o imp e a c h th e v ic ti ms w ith th e ir p r e li mi n ar y

h e ar ing testimonyor to introduce the fing erprint or dispatch t ape e vidence amounted to tactica l decisions ba se d o n a n o bje c tiv e ly

re a so na ble tr ia l st rate g y ; th a t c ou ns e l w a s u nr e a so na ble fo r r e fu sin g to a ssi st the petit ioner’s trial testimony ; and that the petit ioner had failed to show that c ounsel’s def iciency in assisting his testimonyprejudice d the outcome of his case. A ccording ly , the court denied the petition for post-conviction re lief.

AN AL YSI S

I. Inef fective Assistance of Cou nsel-9-

Th e pe tit ion e r c on te nd s o n a pp e a l th a t tria l c ou ns e l w a s in e ff e c tiv e fo r f

a ili ng to a ssi st h im wi th h is t ri al tes ti mo ny , fa ili ng to a de qu a te ly pr e pa re fo r t ri a l, andfaili ng to e ff

e c tiv e ly c ro ssexamine witnesses. He f

urther c ontends that the post-convic tion court applied an incor rec t standard of proof to the prejudice prong of the Strickland test, requiring him to show clea r a n d co n v incing evidenc e, rather than a rea sonable probability , that counsel’s failure to a ssist with his trial testimony
a ff e c te d th e ou tc ome of

his tr ia l.

A. P ost-Conviction Standard of Review The pe titioner bear s the burden of proving the alleg ations contained in his post-conviction petition by

clea r and c onvincing evidenc e. See T enn. Code Ann. § 40-30-110( f) ( 2003). When an evidentiary hearing is he ld in the post-conviction setting , the finding s of fa ct made by the court are conclusive on a

ppeal unless the e vidence preponde rate s ag ainst them. See State v. B urns, 6 S.W.3d 453, 461 (Tenn. 1999) ; Tidwell v. State, 922 S.W .2d 497, 500 (Tenn. 1996)

. Howeve r, re view of the p os t- c on vic tio n c ou rt ’s app lic a tio n o f the la w t o th e fa c ts o f the c a se is de novo , with no p r e s u mp ti o n o f c o rr e c tn e s s

. Se e Ru f f v

. St a te , 9 7 8 S. W. 2 d 9 5 , 9 6 ( T e n n

. 1 9 9 8 )

. T h e is s ue of ineffe ctive assistance of counsel, which prese nts mixed que stions of fac t and l aw , i s re v i ewed de
novo , w ith a

pr e su mpt ion of

c or re c tne ss g ive n o nly

to the po st- c on vic tio n c ou rt ’s fi nd ing s o f f a c t. See F ields v. State, 40 S.W .3d 450, 458 (Tenn. 2001) ; Burns, 6 S.W.3d at 461.

To establish a c laim of ineff ective a ssistance of c ounsel, the petitioner ha s the burden to show b o t h t h at trial counsel’ s perf ormanc e wa s deficie nt and that counse l’s defic ient perf ormanc e pr e jud ic e d th e ou tc ome of the pr oc e e din g . Stri c klandv. Was hin g ton , 4 66 U. S. 6 68 , 6 87 , 1 04 S. Ct

. 2052, 2064, 80 L . Ed. 2d 674 (1984); see State v. Tay lor, 968 S.W .2d 900, 905 (Tenn. Crim. App. 19 97 ) ( no tin g that sa me sta nd ard fo r de te rm ini ng ine ff e c tiv e a ssi sta nc e of c ou ns e l th a t is app lie d in fe de ra l c a se s a lso app lie s in Te nn e sse e ). Th e Str ic klandsta nd ardis a tw o- pr on g te st:
First, the de fenda nt must sh o w that counse l’s perf ormanc e wa s defic ient. This require s showing that counsel made err ors so serious that counsel wa s not funct ioning a s the “c ounsel”g uara nteed the de fe ndant by

the Sixth A me nd me nt. Se c on d, the de fe nd a nt m us t sh ow that th e de fi c ie nt p e rf orma nc e pr e

jud ic e d th e de fe ns e . T his require s showing that counsel’s error s wer e so serious as to deprive the def endant of a fa ir trial, a tria l whose re sult is reliable.
466 U.S. at 687, 104 S. Ct . at 2064.

The de ficient pe rfor m an ce p rong of the test is satisfied by showing that “counse l’s acts or omissions wer e so serious 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. 2d36 3, 36 9 ( Te nn . 1 99 6) (c iti ng Str ic kland , 4 66 U. S. at 688, 104 S

. Ct. at 2065; Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) ). F urthermor e, the
re v i ew i n g co u rt m u s ti n d u l ge a s tro n g p re s u m p t i o n t h at t h e co n d u ct o f co u n s el fa l l s wi t h i n t h e r an ge of re asonable profe ssional assistance, se e Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may-10-

not second-g uess the tac tical and strateg ic choice s made by trial counsel unless those c hoices we re uninformed be cause of inade quate pr epar ation. See He llard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Th e pr e jud ic e pr on g of the te st is sa tis fi e d by sh ow ing a re a so na ble pr ob abil ity , i.e ., a

“ pr ob abil ity
su ff ic ie nt to un de rm ine c on fi de nc e in the ou tc ome ,” that “ bu t f or c ou ns e l’ s u np ro fe ssi on a l e rr or s, the re sult of the proce eding would have been differ ent.” Strickland, 466 U.S. at 694, 104 S. Ct . at 2068.

B. F ail ur e to As sis t P e ti ti one r ’s Te st im ony The pe titioner first indicated hi s d es i re to testifyafte r both the State and the defe nse had
re s te d a n d c o u n s e l w e r e d is c u s s in g ju r y in s tr u c ti o n s w ith th e c o u r t. T r ia l c o u n s e l, who was obviouslycaug ht off-g uard, a dvised the petitioner that ther e wa s “no wa y in the world [he could] arg ue ar ound [t he petitioner’ s] past record,” and the trial court, additionally , warned the petitioner that th e Sta te c ou ld int

ro du c e his c ri min a l re c or d if he te sti fi e d. Whe n th e pe tit ion e r c on tin ue d to express his desire to take the stand, the trial court ordere d a re cess for counsel to discuss the issue with him f

u r th e r

. A t i ts c o n c lu s io n , tria l c o u n s e l i n f o r me d th e c o u r t th a t th e p e ti ti o n e r r e ma ined
a da ma nt a

bo ut t e sti fying :
THE COURT: You all nee d some more time?
[TR I AL COUNSEL ]: No, y our Honor. My cl i en t insists on testify ing. I

have advised him that if he does, he is on his ow n. I am not going to assist him in his testimony beca use I think the case has
a lr e a dy be e n d e va statin g e no ug h, in m y op ini on , a nd thi s is g oin g to make it eve n worse. H e’s been advised, and we voir dired him, that t h e s e p r i o r

c o n v i c t i o n s o f

h i s c a n b e u s e d t o i m p e a c h h i s c r e d i b i l i t y. Th e j u r y f i n d s o u tt h a th e h a s c o n v i c t i o n s f o r v i o l e n tc r i m e s , i tis g oi n g t o e r a s e a n y d o u b t t h e y m a y h a v e i n t h i s c a s e

. S o w ith tha t, having advised him that he shouldn’t do it, and ag ainst my advice , I am not g oing to a ssist hi m if he insists on testi fy ing.
THE COURT: All rig ht. Well, of course, we don’t know what a jury is g oin g to do

. B ut it is y ou r a dv ic e the n that y ou ’r e sti ll a dv isi ng him
n o tt o t e s t i f

y?
[TRIAL CO UN SEL ]: Ye s, sir . I ha ve so a dv ise d h im.

. . . . THE COURT: Well, thi s certainly does put the Court in a dilemma. L et me ask y ou -- stand up a g ain, please , sir. Do y ou understand the j eo p ar d y that y ou are putting y ourself in by taking the stand? Your l aw y er h as ad v i s ed y o u n o t t o t ak e th e st an d , an d y o u w e n t t h r o u gh-11- this one other time and sa id y ou didn’t want to take the st an d

. And now y ou’ve c hang ed y our mind and say y ou do want to take the sta nd. And y ou are awa

re that sever al, if not all, of these prior convictions will be rea d into the rec ord and c ould b e d et ri m ental to y ou even though the Court will ch arg e and te ll the jury that they should not consider the m for any

purpose whatsoever a s fa r as a guilt or innocenc e is conc erne d. Have y ou understood what I just said?
THE [PETI TI ONER]: Yes, sir.
THE COURT: And do y ou still want to take the stand, do y ou?
THE [PETI TI ONER]: Yes, sir.

Th e re a ft e r, the pe tit ion e r t oo k th e sta nd , in fo rm e d th e jury he ha d a re c or d, a ndbe g a n to
re c ite the de ta ils of

his se c on d d e g re e mur de r c on vic tio n, statin g it o c c ur re d w he n h e wa s a

juv e nil e and in the compa ny

of anothe r man who c ommitt ed the c ri m e. I n t h e midst of his recital, the fo llo wi ng tr a ns pir e d:

[P ROSECU T O R] : O b

je c ti o n , y o u r H o n o r

. I w o u ld o b je c t to the statement being g iven. I would as k that this be in question and
a ns we r f orm.

T HE C OU R T : Al l ri gh t , s i r, t h at i s s u s t ai n e d

. Yo u ’l l h av e t o go ahea d and g ive a statement, pl ease , sir, and not ra mble. Do y ou want to try a n d e xa mi n e h im , [tr ia l c o u n s e l] ?
[TR I AL COUNSEL ]: Can we a

pproac h?
THE COURT: Yes, sir.

At the benc h hearing, trial counsel e x plained his rea sons for not participating in the pe tit ion e r’ s te sti mon y

by qu e sti on ing him :
[TRIAL CO UN SEL ]: I do n’ t ha ve a ny ide a wh a t is he [sic ] g oin g to
sa y . I mea n, I kn ow wh a t to a sk

him . A nd , a g a in, it i s to ta lly
c on tr ary to m y a dv ic e fo r h im t o e ve n b e sit tin g t her e . A ndI jus t do n’ t f e e l th a t I c a n a ssi st h im. I mean, if he wants to make a statement, if he s ay s something that is objectionable, [ the prosecutor] is g oing to objec t and the jury
c a n b e ins truc te d to dis re g ardit.-12- THE COURT: That is g oing to be difficult to g et him into a question and answ er. H e doesn’ t know how to do that.
[TRIAL CO UNSE L ]: I

jus t c a n’ t he lp h im. I ’m no t g oin g to h e lp him

. Th e p et itioner contends c ounsel’s re fusal to par ticipate in his testimonyconstituted a de fi c ie nc y

in r e pr e se ntatio n w hic h p re jud ic e d th e ou tc ome of his c a se . Sp e c if ic a lly , h e arg ue s th a t, beca use he “ was not pre pare d for a nd aided in his prese ntation of proof, he went into se vera l are as that wer e not rele vant to the case , and actua lly prejudicia l to the de fense theory .” As a n example, he cites his testimony

about “se vera l old convictions,” which he asserts would not h av e bee n admissible to impeach his testimony . Wit h respe ct to this claim, the post-conviction court c oncluded
a s f oll ow s:
Trial counsel’s failure to assist the Petit ioner during testimony

does [not] fall to the level of ineffe ctive assistance of counse l. Under the c ir c ums ta nc e s, it w a s u nr e a so na ble fo r c ou ns e l no t to a ssi st h is client’s dec isi on, albeit late a nd unfore seen, to testify . Howeve r defic ient trial counsel’ s perf ormanc e wa s, it did n o t however , prejudice the Petitioner’s ca se. Ac cording to the t ra n s cripts, the Petitioner did not prove bey ond clea r and c onvincing evidenc e that [t rial counse l’s] performanc e denie d the [petiti oner] a fa ir trial.

Furthermore , the Petitioner was a llowed t o te s ti f y mo re, w ithout the help of [t rial counsel] , than i f [ trial counsel] would have a ssisted him. The Petitio n er h ad his chanc e to tell the jury his side of the sto ry , y e t th e jury

sti ll f ou ndhim g uil ty . It w a s th e [pe tit io ner’s] decision to testify

and he was allowed to do so. Petitioner has fa iled to prove both prong s of Strickland.

I nitially , we disag ree with the petitioner’s c laim t h at t he post-convic tion court applied a n incorrec t s t an d ard of

proof in utiliz ing the prejudice prong of the Strickland test. De spite the la ng ua g e the c ou rt

us e d in the po rt ion of

its or de r q uo te d a

bo ve , e lse wh e re in the or de r i t c or re c tly stated that the post-conviction petitioner bea rs the burde n of proving “the all e ga tio ns of f ac t in h is petition by

clea r and convincing evidenc e” (empha sis a dded). Furthermore , it corre ctly stated that a petitioner w ho alleg es i neff ective assistance of counsel be ars the bur den of showing that counsel’s pe rf or ma nc e fe ll b e low a n o bje c tiv e sta nd ardof re a so na ble ne ss andthat “ the re is a re as on able probabilit

y that, but for counse l’s unprofe ssional error s, the result of the p ro ce eding would have been dif fer ent” ( emphasis adde d and interna l quotations omi tted).
The pe titioner’s direc t testimonycover s more than twe nty -three pag es of the trial transcript
a nd wa s littl e e nc umb e re d by the la ws of e vid e nc e

. Du ri ng his te sti mon y , th e pe tit ion e r v e he me ntl y denied his involvement in the crime, explained his wher eabouts and actions on the nig ht in question,-13-

and off ere d his version of the f

acts unde rly ing his prior

convictions for se cond deg ree murder a nd possession of coca ine with the intent to sell. Although he asserts on appea l that the prior convic tions he br ou g ht up wo uld no t ha ve be e n a dmi ssi ble to i mpe a c h h is c re dib ili ty , th e re c or d c le arl y re fl e c ts that the trial court had ruled the murder and drug convictions admissible for impeac hment purposes and that the pe titioner was aw are of that fa ct bef ore he b ega n his testimony . There fore , trial counsel’s assistance with the testimony would not ha ve preve nted the damag ing information about the prior c onvictions from rea ching the jury . More o v er , the State had a compelling case even without evidence of the prior convictions, prese nting proof that the petitioner was a rre sted in the are a shortly afte r the re port of t he crimes, essentially matched the descriptions of the attacke r, and w as identified by

eac h victim as her a ssailant.
Additionally , by t h e timing of his demand to testify , the petitioner put trial counse l in an
u n t e n ab l e p o s i t i o n

. B e c a u s e o f t h e p e t i t i o n e r ’ s p r e v i o u s a n d c o n t i n u i n g d e c i s i o n n o tt o t e s t i f y, counsel ha d not prepa

red him for direct or cross-e x amination. The nature of the char g es and pr oof ag ainst the petitioner would have require d counsel to spend a substantial amount of time prepa ring the petit ioner’s testimony

. I t is clear f rom his unaided trial testimony that the petitioner ha d a lot he wanted to sa y and would have been difficult to r estrain. Given all of this, a nd the fac t the jury was expecting to he ar final arg uments afte r the rec ess ra ther than taking a very leng thy rec ess followed by the pe tit ion e r’ s te sti mo ny , we c on c lud e that th e pe tit ion e r’ s su rp ri se e le ve nthho ur de ma ndto testify simplywas unre asonable

. Under these c ircumstance s, we have no hesitation in c oncluding that the petitioner ha s failed to s ho w a re a so na

ble pr ob abil ity that cou ns e l’ s fa ilu re to dir e c t his tes tim on y a ff e c te d th e ou tc ome of his trial.

B e c a us e a fa ilu re to e sta

bli sh e ith e r pr on g of the Str ic klandte st r e su lts in a failu re to e sta

bli sh the claim, we need not c onsider whe ther c ounsel was de ficient for failing to dir ect the petitioner’s testimony . Howeve r, without making a dete rmination on this is s u e, we note that counse l was an
e xp e r ie n c e d d e f

e n s e a tt o r n e y w h o , a s is v e r y c le ar f r o m th e r e c o r d , w a s w e ll p r e p ar e d f o r tria l. We note, furthe r, t hat counse l provided a c onsistent ex planation for his de cision not to assist t he petitioner at trial a nd at the evide ntiary hearing, stating that he had no idea what the pe titioner was g oing to sa y and believed asking questions would not have helpe d and mig ht have c ompounded the damag e ca

used by the testimony . I t is hard to view counse l’s failure to re h ea rse the testimonyor prepa re a list of questions as unreasonable , g iven t he petitioner’ s continual expression of his intent not to testify . Although c ounsel simplymight have gone to such fallback que stions for the petitioner as “What happe ned nex t? ”, we cannot conclude that this proce dure w ould have r esulted in a diff ere nt
ve rd ic t.

B. Failure t o P reparefor Trial

The petitioner next contends that trial counsel failed to f amiliarize himself wit h t he pr e lim ina ry he ari ng te sti mon y , w hic h r e nd e re d h im u np re pa re d to a de qu a te ly

imp e a c h th e vic tim s’ tr ia l te sti mon y . He fu rthe r co nte nd s tha t tria l c ou ns e l c omm itt e d s e ve ra l othe r e rr or s, inc lud ing his-14-

failure to introduce the f

inge rprint or dispatch evidenc e and to point out discrepanc ies betwe en the de sc ri pti on s o f the att a c ke r andhis app e aranc e a t th e tim e of his arr e st, wh ic h c umu la tiv e ly
a mou nte d to ine ff

e c tiv e a ssi sta nc e of

c ou ns e l.
The pe titioner bases his assertion that counse l was unfa miliar with the preliminary hearing transcript on the following e x chang e that occur re d d u ring the petitioner’s c ross-examination te sti mon y : Q. An d y ou thi nk the tw o v ic tim s in the c ou rt ro om a re inv olv e d in t h i s r a c i a l l y m o t i v a t e d c o n s p i r a c y?

A. Yes, sir. I

have right he re in this preliminary hearing –
[TR I AL COUNSEL ]: I

haven’ t even looked at that.

A. -- my

preliminary

hearing tr anscript from the lady – [P ROSE CU T O R] : O b

je c ti o n

. I w o u ld

- - th is is h e ar s ay . I ob je c t to it.

THE COURT: That is sustaine d. You can’ t me ntion that, sir, what happe ned.

Ho we ver, a t th e e vid e nti ary he ari ng , tria l c ou ns e l e xpre sse d h is c on fi de nc e that he ha d, in fac t, review ed the preliminary hearing transcript and testi fied he did not know what he had me ant by the above statement. The post-conviction court acc redited trial counsel’s te stimonyon this iss ue, finding that counsel wa s fully prepa red a nd that his decisions with respec t to the dispatch transc ript
a ndfi ng e rp ri nt e vid e nc e we re ba se d o n s ou ndtr ia l st rate g y . The re c or d d oe s n ot p re po nd e rate ag a in s t th e p o s t- c o n v ic ti o n c o u r t’ s f in d in g s

. A c c o r d in g ly , w e c o n c lu d e th a t th e p e ti ti o n e r is not entitled to post-conviction relief based on his cla im of ineffe ctive assistanc e of c ounsel.

II. De nia l of P e ti ti one r ’s Re que st to P r oc e e d Pr

o Se The pe titioner contends the post-c onviction court violated his Six th Amend me n t r ig h t t o selfrepr esentation, t h er eby

committing re versible e rror , by deny ing his re peate d reque sts to represe nt himself at the post-convic tion procee dings. We re spectfully disag ree

. The c onstitut ional rig ht to self-r epre sentation, aff orded by both the Six th Amendment of the Un ite d St a te s Co ns tituti on a ndArtic le I , s e c tio n 9 of the Te nn e sse e Con sti tut ion , is no t app lic able to post-co n v iction proce eding s. Cole v. State, 798 S.W .2d 261, 263 (Tenn. Crim. App. 1990)

. Ho we ve r, a

po st- c on vic tio n p e ti ti on er h a s a c omm on la w rig ht t o s e lf -r e pr e se ntatio n, imp lic itl y e sta bli sh e d b y

Te nn e sse e Sup re me Cou rt Rul e 13

. I d. Th is c omm on la w rig ht i s n ot f un da me nta l, and a post-c onviction court may there fore appoint counsel to re prese nt a petitioner if ne cessa ry for-15-

the prope r admini stration of j ustice. Charles W illiam Young v. State, No. M2002-01815-CCA-R3- PC, 2004 W L

305790, at *4 (Te nn. Crim. App. Feb. 18, 2004) (citations omitted).

The re cord r evea ls that the petitioner initiallysoug ht substit ution of counsel rathe r than the righ t t o p ro ce ed pro s e , stating at an Aug ust 15, 2002, hearing that his appointed counsel wa s not including a ll the claims he wa nted raised and that he ther efor e wa nted “someone who [was] m ore conce rned a

bout [ his] situation.” The post-convic tion court denied the petitioner’s re q u es t for substitut e counse l but gr anted his subseque nt reque st to re prese nt himself. Howeve r, on Aug ust 26, 20 02 , th e po st- c on vic tio n c ou rt re ve rs e d it se lf, e xpla ini ng to the pe tit ion e r that i t wa s g oin g to
re qu ir e po st- c on vic tio n co un se l to c on tin ue to r e pr e se nt h im b ut w ou ld a lso a llo w the pe tit ion e r t o prese nt the claims he wa nted ra ised. The pe titioner protested and, in so doing , reve aled that his re al desire continued to be for the substitution of counsel and/or a delay in the proce eding s, rather than the rig ht to self-re prese ntation:

[THE PETI TI ONER]: But I can’ t do it -- I

can’ t repre sent my self. I mean, I don’t want this -- I

don’t trust, first of all, [trial court], and –

THE COURT: Y ou’ll have the opportunity to present whatever

other issues y o u have. [Post-conviction counsel] I ’m sure w ill cover that proce dure w ith y ou.
[THE PETI TI ONER]: And his amended petition is incomplete.

THE C OURT: As I

said, y ou will have the right to pre sent any other i s s u e s t h a t y o u
- - t h a t ar e r e l e v a n t t o t h i s m a t t e r

. An d [po stconviction counse l] will cover the proce dure f or doing so with y ou, but we will proce ed on the date that I ’ve g iven. You will have f rom now -- if there are any additional things y ou want to bring with y ou, y ou ha ve fr om n ow un til the da te th at w e ’v e g ive n to ha ve tho se matters her e and w e’ll proc eed.

At the e vid e nti ary

he ari ng , th e po st- c on vic tio n c ou rt a ll o w e d the pe tit ion e r t o r a ise the c la ims his counsel had de emed to be without merit, to make his own assertions and a rg ument, and, with the
e xce pti on of

the vic tim , to c a ll the wi tnesse s h e a sse rt e d w e re e sse nti a l to pr ov e his a lle g a tio ns

. Thus, we a g ree with the State that there wer e no cla ims or evidence that the petitioner wa s preve nted from ra ising by

the post-conviction court’s denial of his reque sts to represe nt himself. We, therefor e, c on c lud e that th is i ssu e is w ith ou t me ri t.-16- CO NC LU SION

Ba s ed o n the fore g oing a uthorities and re asoning , we a ffirm the de nial of the pe tition for post-conviction re lief.

___________________________________ ALAN E. GL

ENN, JUDGE