### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec em be r 4, 200 7

STA CYJOHNS ON v. ST ATE OF TEN NES SEE

Appeal f rom the Cr im inal Cou rt for Shelby Coun ty No. 01-06779 Jam es C. Beasley, Jr ., Judge

No. W2007-00293-C CA-R 3-P C - F iled April 11, 2008

The petitioner, Stacy J ohnson, was convicted of eig ht c ounts of burg lary of a motorv eh i cl e, t wo counts of burgla

ry of a building, and theft of proper ty over $1000. He rece ived an e ffe ctive sente nce of thirty y ear s. He seeks pos t-conviction relief arg uing that he re ceive d the ineff ective a ssistance of counsel at trial. He appea ls the trial court’s denial of post-conviction relief
, argui n g t h at h i s trial counsel wa s ineffe ctive in fa il i ng to move to sever his indictments and in fa iling to investig ate a n alibi defe nse and de fense witnesses. We aff irm the judg ment of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , P.J
., delivere d the opi nion of t he cour t, in which D AVI D G. H AYES and R O BERT W. W EDEMEYER , J J ., joined.

Charles S. Mitchell, Memphis, Tennesse e, for the appe llant, Stacy

J ohnson.

Rob e rt E. C o o p e r , Jr

. , A tt o r

ne y Ge ne ra l and

Re po rt e r; Jenn if

e r L . Sm ith , A ssi sta

nt A tto rn e y

Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Miche le Parks, Assistant District At t o rn ey Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th e pe tit ion e r’ s c on vic tio ns re late to se ve ra l veh ic le br e a k- ins , b re a k- ins a t tw o b us ine sse s, and an automobile theft on Marc h 19, 2001. At the post-conviction hea ring , the petitioner testified that on that day
, he had hired a cab to take him from his mother’s house to Seese l’s g roce ry store. He de nie d a

ny inv olv e me nt i n th e burg lari e s and the ft s and

sa id h e ha d le ft Se e se l’ s to me e t a date

w h e na p o l i c e o f f i c e r a t t a c k e d h i m , ar r e s t e d h i m , an d p u th i m i nc u s t o dy.
The pe titioner testified that his trial counsel did not ask him much about his case the first day the y me t. H e sa id c ouns e l wa s mos tly c on c e rn e d wi th oth e r c a se s h e ha d, a lth ou g h c ouns e l di d a sk him if he ha d a ny wi tne sse s. Th e pe tit ion e r s a id h e ha d a n um ber of “rep or t date s” be fo re tr ia l, during which he reporte d to the t rial court on the progre ss of hi s case . He sa id he met with his trial-2-

c ouns e l on

the se date s for a

bo ut fi ft e e n to twe nty min ute s and that couns e l sp e nt m os t of the tim e talking a bout potential ple a o ff

ers a nd rese tting the c ase. H e said c ounsel did not talk about the inv e sti g a tio n of the pe tit ion e r’ s c a se . T he pe tit ion e r w a s in ja il f ro m th e tim e he wa s arr e ste d unti l the time of trial, but he sa id counsel only visited him i n jail once ove r the course of fifte en months
to discuss a plea offe r. He said trial counsel never presented him with any discovery materia ls and

ne ve r t a lke d to him

a bo ut t he ind ic tme nts and

the e le me nts of

the c ha rg e s a g a inst hi m. He sa id counsel a lso never inf

ormed him of the r ang e of punishment he w as fa cing for his cr imes.

The pe titioner said he tol d counsel about an alibi defe nse–that he had hire d a ca b the day he

was arre sted. He wrote a letter to counsel stating t hat on the eve ning of Marc h 19, 2001, he hire d

a ca b from his mother’s house to Seesel’s. He sa id that, to his knowledge , counsel did not contac t the ca b company

or his mother to verif

y this. He said counsel did not ask him many details about the ca se. The pe titioner said that the first time he wa s prese nted with a plea offe r fr om the state wa s fiftee n months after his arrest. He said he and counsel had a “br eakdown in communication” whe n the petitioner re fused the of fer . He sa id they

had “c ross words” with e ach othe r and y elled at e ach oth e r

. T h e p e ti ti o n e r

s a id th a t, a f te r th a t e p is o d e , h e w r o te le tt e r s to th e B o ar d o f Pr o f e s s ional Responsibili ty

and the tria l court asking that his counsel be dismiss ed and that he be appointed new counsel. He sa id he wante d new c ounsel bec ause he and counse l had a “ lack of communication” a

nd

wer e unable to ag ree on any thing. He said that counsel stopped c ommunicating w ith him and that he re quested many

things of c ounsel that counsel did not do. He said that, for instance, he reque sted

c ouns e l to fi le mot ion s f

or ex cul pato ry

e vid e nc e and

fo r t he state ’s int e nt t o u se e vid e nc e and to provide him with a copy

of t he preliminary hear ing transcr ipt. He sa id counsel did none of this. He said he a lso asked counse l to file a motion to sever h is indictments in order for him to re ceive
separ ate tria ls on the separ ate c harg es.

Th e pe tit ion e r t e sti fi e d th a t hi s tr ia l couns e l nev e r dis c us se d tri a l strate g y wi th him

. He sa id he believe d counsel wa s not interested in represe nting him. He sa id he did not know who the state’ s wi tne sse s w e re or

wh a t th e ir

te sti mony

wo uld be un til the tr ia l. He sa id co un se l told him the state had a surveillance video but did not tell hi m about witnesses who saw him goinginto and out of a stolen car . He sa id counsel neve r aske d him about any mental p ro b l em s, learningdisabiliti es, or drugor alc ohol abuse. He said counsel did not ta lk to him about his testifying at trial, althoug h he did have a hearin g d uri ng whichhe tol d th e c ourt he did no t w ish to t e sti fy . H e sa id h e g ot a dif fe re nt atto rn e y

to r e pr e se nt h im f

or his mot ion

fo r a ne w tri a l and

on a pp e a l.

On cr oss-examination, the pe titioner testified that he g ave his tria l counsel information about the ca b company

and his mother. He said he a lso told counsel that he was me eting a g irlfriend on Marc h 19, 2001, but that he did not want his g irlfriend involved in the c ase be cause she was mar ried

a t th e tim e . H e sa id he wa s pre se nt d ur ingthe pr e lim ina

ry he ari ngand

he ard the e vid e nc e the state prese nted. Ho we v er , he said trial c ounsel neve r talked to him about what was g oing to ha ppen during the trial. He acknow ledg ed that his the ory of the c ase w as that he did not commit the crimes and that trial c ounsel cross- examined the state’s witnesse s who s ai d t h ey could not identify

the petitioner as the pe rson who broke into their car s. He ac k nowledg ed that the state prese nted a surveillance videotape a

nd that trial counsel a

rg ued that the pe rson in the tape was not the petitioner.-3-

He a c kn ow le dg e d that he ha d sev e ra l pri or fe lony c on vic tio ns , w hic h in fl ue nc e d h is d e c isi on no t to testify . Howeve r, he sa id his trial counsel neve r talked to him about his prior convic tions or informed him that he would be sentenc ed as a car eer offe nder.

Th e peti tio ne r’ s tr ia l c ouns e l te sti fi e d th a t he wa s a pp oin te d to re pr e se nt t

he pe tit ion e r i n September 2001. H e said that his prac tice duringa first mee ting with a ne w client is to review the client’s file a

nd the indictments and g et the client’s story about the case

. He said he re membere d the
p et i t i o n er t el l i n g h i m t h at h e d i d

n o tco m m i tt h e c ri m e s i n q u es t i o nan d t h at h e w as m ee t i n g a woman on the nig ht that the crimes occurr ed. The petiti oner would not, howeve r, give c ounsel the

name or contac t information of t h e wom an bec ause she was mar ried a nd he wa nted to protec t her identity . He sa id he did not rec all any one from the petitioner’s family contac ting him. He said that he repe atedly asked the petitioner to g ive him the na me of the w oman the petitioner sa id he met the nig ht o f t he burg lari e s b ut t

hat th e pe tit ion e r r e pe a te dly re fu se d. Tr ia l c ouns e l believ ed th at this woman would be the best witness for the petitioner at the trial and that without her involvement, they “didn’t have any

thing to g o forwa

rd on” e x cept the pe titioner’s word. He said he did not rec all the petitioner giving him information about a cab company
, althoug h he later said he re membere d the petitioner m entioning a cab but that his primary interest was in finding the woman the petitioner met that night.

Counsel testified that he re viewed the petitioner’s c ri m inal history , which he c alled

“ e xten siv e .” He sa id he did no t loo k int o the pe tit ion e r’ s fa mil y or me nta l he a lthhis tor y . H e sa id he neve r questioned the pe titioner’s compete nce. C o u n s el testified that he ne ver intende d to take the ca se to trial but rathe r soug ht to obtain a plea of fer from the st ate with a minim al amount of incar cer ation. He said that the evidenc e ag ainst the petitioner wa s overwhe lming and that he thoug ht
g e tti nga g oo d p le a

a g re e ment was in t

he pe tit ion e r’ s b e st i nte re st. He sa id t hat he did e ve ntu a lly
g et the state to off

er the petitioner a te n-y ear sentenc e but that the petitioner r efuse d the offe r.

Counsel te stified that he viewe d and copie d the state’s f ile and wa s awa

re of all the evidenc e that w ou ld b e pr e se nte d a g a ins t th e pe tit ion e r. Th is e vid e nc e inc lud e d s ur ve ill anc e video tapes , police testimony

that the petitioner wa s driving a stolen car

with s t o l en p roper

ty from other burg larized ca

rs in it, a nd the proxi mity

of the c ars a

nd buildings whe re the burg laries oc curr ed and wher e the pe titioner was found. H e said e vidence in the petitioner’s fa vor included no one seeing the pet it io n e r b u r g la

r iz in g th e c ar s an d th e p o li c e o b ta in in g n o f in g e r p r in ts c o n n e c te d to the petitioner. Counsel s aid he “ could not imag ine” that he did not give the petitioner discover y materia l, although he could not specific ally reme mber what he g ave the petitioner and w hen.

Counsel testified that he had dif ficulty workingwith the peti t i oner. H e said they had
arguments reg ardingthe petitioner’s r efusa l to revea l the identity of the woman he wa s with the night of the burg laries. He said the petitioner would not coope rate with him at tim es and a sked the trial ju d g e to r e mo v e c o u n s e l f r o m t h e c a s e

. H e s a id

th at a f te r th e p e ti ti o n e r

r e je c te d th e te n

- y e ar

plea offe r, his only

available trial strateg y wa s t o question the identity of the pe titioner as the burg lar, which he did throug h his cross-e x amination of witnesses a nd argument that the petitioner wa s not the per son s h o wn i n surveillance videos. He sa id he did not use the ser vices of a n investigator-4-

beca use the pe titioner did not give him the infor mation that would have be en most useful in an investigation, i.e., the identity of t he woman with him the night of the burg laries. He said he talke d to the police office rs involved in the case , althoug h he did not do this when he wa s first appointed to the case

.

Coun s e l t e s t i f

i e d t h a t h e an d t h e p e t i t i o n e r n e v e r d i s c u s s e d t h e i s s u e o f s e v e ri ng his i n d i ct m en t s

. He s ai d

h e ch o s e no t t o ar gu e fo r a se v er an ce b ec au s e h i s s t ra t egy wa s t o get t h ro u gh trial and then obta in concur rent sente nces based on the offenses all being part of one eve nt. He wa s

conce rned a

bout the sentenc es bec ause of the petitioner’s c riminal history

. He said that to obtain a

sever ance , he would have had to ar g ue that the of fense s were separ ate a cts th at s h o u l d be tried
separ ately . He f

ear ed he w ould lose cre dibilit y with the trial court if he argued both things. The state stipulated that the only motion trial counsel filed on the pe t i t i o n er’s behalf w as a motion for discovery

.

The trial c ourt acc redited the testimony of counse l, found that the petitioner did not re ceive the ineff ective a ssistanc e of counsel, and de nied the petition for post-c onviction relief. T he
pe tit ion e r a

pp e a ls this jud g me nt, arguin g that hi s c ouns e l w a s in e ff e c tiv e in n ot m ov ingto s e ve r h is char g es and in not investig ating his al i b i an d defe nse witnesses. The state counte rs that trial counsel’s pe rfor

mance was not def

icient or pre

judicial to the petitioner.

The burde n in a post-conviction proc eedingis on the petitioner to prove his g rounds for r elief by clea r and c onvincing evidenc e. T.C.A. § 40-30- 110(f) . On appe al, we ar e b o und by the trial

c ourt ’s fi nd in gs of fac t un le ss w e c on c lud e that th e e vid e nc e in t he re c or d p re po nd e ra

te s a g a ins t those finding s. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Be cause they relate to mix ed
qu e s ti o n s o f la

w an d f a c t, w e r e v ie w th e tr ia l c o u rt’ s c o n c lu s io n s a s to w h e ther c ounsel’s
pe rf or manc e wa s d e fi c ie nt a

nd wh e the r t hat de fi c ie nc y

wa s p re jud ic ia l un de r a

de no vo s t a

n d a r d w ith

no presumption of correc tness. I d. at 457. Post-conviction relief may only be g iven if a c onviction
or sentenc e is void or voidable be cause of a violation of a constitutional rig ht. T.C.A. § 40-30-103.

Under the Six th Amendment to the United States Constitut ion, when a c laim of ineff ective assistance of counse l is ma de, the burden is on the petitioner to show (1) that counsel’s pe rfor mance was de ficient a

nd (2) that the defic iency was prejudicia l. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct . 2052, 2064 (1984); see L ockhar t v. Fr etwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993) . A petitioner will only preva il on a claim of inef fec tive assistance of cou n sel afte r satisfying both pr ong s of the Strickland test. See H enley v. State, 960 S.W .2d 57 2
, 5 8 0 (Tenn. 1997). The pe rfor

mance prong require s a petitioner raising a claim of ine ffe ctiveness to show that the counse l’s repr esentation fell below an obje ctive standa rd of r easona

bleness or “ outside the wide
rang e of pr ofessionally

competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The prejudice prongrequire s a petitioner to demonstrate that “ther e is a re asonable probability that, but for c ounsel’s unprofe ssional e rror s, the result of the proc eedingwould have be en diffe rent.” I d. at 694, 104 S. Ct . at 2068. “A r easona b l e p ro b ability is a probability

sufficie nt to undermine confide nce in the outc ome.” I d., 104 S. Ct . at 2068. Fa ilure to satisfy either pr ong results in the denial of r elief. I d. at 697, 104 S. Ct. at 2069.-5-

I n Bax ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) , our supre me cour t decided that attorney s should be held to the g ener al standar d of whet h er the service s rende red w ere within the

ra n ge o f co mp et en ce d em an d ed o f at t o rn ey s i n cr i m i n al ca s es

. Fu rt h er , t h e c o u rt s t at edt h at t h e r an ge of c omp e te nc e wa s to be me a sure d b y the du tie s a

nd c ri te ri a se t f or th i n B e a sle y

v. Un ite d St a te s, 491 F.2d 687, 696 ( 6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in revie wing counsel’s c onduct, a “fa ir assessment of attorney perf ormanc e re quires that ever y eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s c halleng ed conduc t, and to evaluate the conduc t from counse l’s
pe rs pe c tiv e a t th e tim e .” Str ic kla nd , 4 66 U. S. at 68 9, 10 4 S. Ct

. at 20 65 . “ Thus , th e fa c t th a t a particula r strate g y or tac tic fa iled or eve n hurt the def ense doe s not, alone, support a c laim of ineffe ctive assistanc e.” Coope r v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992). Def ere nce is m a de to t

ri a l strate g y

or ta c tic a l c ho ic e s if th ey are inf or me d o ne s b a se d u

po n a de qu a te prepa ration. He llard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F .2d at 1201.

I n the pre sent ca se, the pe titioner alleg es t rial counsel rende red the ineffe ctive assistanc e of

couns e l i ntw o w ay s

. F ir s t, h e a ll e g e s th a t c o u n s e l w a s in e f f e c ti v e in f a il in g to s e v e r

th e e leven ind ic tme nts on

wh ic h he wa s c on vic te d. Ho we ve r, the pe tit ion e r h a s n ot p re se nte d e vid e nc e that a motion to sever offe nses would have been succe ssful. We note that this court previously considere d whether it was err or for

the trial cour

t not to sever the pe titioner’s cha rg es. The c ourt held:

We c a nn o t c o n c l u d e t h a t t h e t r i a l c o u rt e r r e d w h e nit

c on so lid a te d th e [pe ti ti on e r’ s] of fe ns e s. Th e of

fe ns e s in thi s c a se appea r t o be part of a common scheme or plan bec ause the y

are part of the same c ri min a l e pis od e . T he of fe ns e s o c c ur

re d in the same g eog raphic are a duringthe same time pe riod, and evide nce of many of the c rimes was f

ound in the vehicle in which the [ petitioner] was
appre hended. This c onnection shows a common plan a n d
, further, evidenc e of one offe nse would be admissible in the trial of the other offe nses if the offe nses had been sever ed. There for e, we conclude that th e tr ia l c ourt

did no t e rr by a llo wi ng the of

fe ns e s in thi s c a se to be consolidate d.

State v. Sta c y John so n, No

. W20 04 -0 04 64 -C CA -R 3- CD
, She lby County , sli p o p. a t 13 (T e nn . Cr im. App. M ar. 15, 2005). Alt houg h the petitioner now c laims that it was trial counsel, as oppose d to the trial court, who err ed in not seeking to se ver the offe nses, our c ourt’s prior opinion on the seve ranc e issue leads us to conc lude that a motion by trial counsel to seve r cha rg es likely

would not have be en

succe ssful. Furthe r, as this court pr eviously conclude d, even if

the charg es were se vere d, evidenc e of the diff

ere nt char g es would have been a dmissibl e in the sepa rate trials. T h er ef

o re , we a re not convince d that the result of the case would have be en diffe rent ha d counsel moved f or a se vera

nce of off enses. The petitioner has not shown t h at h e was pre judiced by

the ac tions of counsel and, there fore , has not shown ineff ectivene ss on this i ssue.-6-

Reg arding the petit ioner’s second allega tion of counsel’s inef

fec tiveness, that counse l failed to investigate his alibi a

nd other defe nse witnesses, we note that “[w]hen a petitioner conte nds that
tr ia l c ouns e l f

a ile d to dis c ov e r, int e rv ie w, or pr e se nt w itn ess es in su

pp or t of his de fe ns e , th e se wi tnesses should be pre sented by the petitioner at the evidentiar y hear ing.” Bla ck v. State, 795 S.W .2d 752, 757 (Tenn. Crim. App. 1990) . Although the petitioner testified at the post-conviction hear ing that he had a

n alibi and potential defe nse wit nesses, he did not prese nt these witnesse s at the
po st- c on vic tio n h e ari ngto t e sti fy a s to wh a t cou ns e l w ou ld h a ve dis c ov e re d u po n a de qu a te inv e sti g a tio n. With ou t th is e vid e nc e , w e c ann ot c on c lud e tha t t he re su lt o f t

he pe tit ion e r’ s c a se would have be en diffe rent ha d counsel done further investigation. Ag ain, t he petiti oner ha s failed to show that the ac tions of counsel prejudiced him. We cannot conc lude that his trial counsel wa s ineffe ctive.

For the fore g oing r easons, we conclude that the trial court did not err in denying the petitioner post-conviction re lief. The judg ment of the trial c ourt is affir med.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE