### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE November 20, 2002 Sessi on STEVEN L. HASSELL v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Hickman County Nos. P-5013CRI, P-5018CRII, P -5070CRI Russ Heldman, Judge

No. M2001-02888-CCA-R3-PC - Filed January 9, 2003

The petitioner was originally convicted of first degree murde r and attempted

second degree

murder and sentenc ed to an effectiv e life te rm. He now appeals the denial of post-conviction relief, arg uing trial counsel denied him the right to testify and inef fective ly f ailed to pres ent c losin g ar

gume nt. We affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OE G. R ILEY , J., delive

red the o pinio n of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined. John S. Colley , II

I, Col umbia, Te

nnessee , for the

appella nt, Steven L. Ha ssell.
Paul G. Summers, Attorney Gene ral and Reporter; Jennifer L. B ledsoe, Assistant Attorney Genera l; Ronald L. Davis, District Attorney General; and Michael Joseph (J ay) Fa he y, II , Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION
The petit ioner is ser ving a life sentence for first degree premeditated murder and a concurrent ten-yea r sentenc e for at

tempted second deg

ree mur der. We a ffirmed the judg ments on di

rect ap peal. See State v. Ste

ven L . Hassell

, No. M1998-00063-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 266 (Tenn. Crim. App. Mar. 9, 2000, at Nashville). The following is a summary of the proof presented to the jury

during h is trial:
On the night of October 26, 1996, defendant and his fr iend, William Frierson, attended a birthday party

in their honor at the Rare Bloo d Motorcycle Club in Hickman County . Since the cl u b remained open to the public, there were also people present who w ere not associated with the birthday pa rty.-2- Around midnight, a minor altercation broke out on the dance floor. Defendant was not involved but his friend Frierson was. The confrontation seemed to end, and then resum ed. Several witnesses testified that Antho ny V anleer , the murd er victim , swung at Frierson. At this point, the club management turned on the lights, turned off the music, and ordered every body to leave. Timothy Vanleer, A

nthony’s brother, preceded Anthony out the front door of the club. As he looked out, h e saw defendant running up the parking lot in a crouched position. Defendant held up a pistol, and Timothy turned to Ant hony, w ho was behind him, and told him about the gun. He tried to push Anthony , and t hen f elt a burning sensation in his side. Bythis time, he had heard a shot. A bullethad gone through Timothy , and h e fell on his side. He heard two or three moreshots, and as he look

ed back at his brother, he saw Anthony fall. Timothyknew that Anthony usually carried a gun, and he saw Anthony’s pistol when Anthony hit the ground. He got the gun a nd tried to pursue defendant, who was running in the pa rking l ot. He was unable to catch defendant due t o his wound, and retu

rned to check on Anthony. When he rea lized t hat Antho ny w as seriously wounded, he went over to Anthony ’s Suburban truck and, when he grabbed the lu ggage rack, the gun went off, hitting the rack. Timothy then pass ed out.
Shawn L. Modena was behind Anthony as they walked out of the club. Modena testified that, as he walked o ut the door, he saw defendant standing ten to fif teen fe et away

witha pistol in his hand, pointed at the door. Modena r

etreated back int

o the club, and heard three gunshots: one followed by a short pause, and then two more. Leroy Moss was sitting in his car in the pa r king lot w

hile people were exiting the club. He testified tha t he sa w defen dant go to a car, open the door, reach inside, a nd then go to the middle

of the parking lot. Moss testif

ied that d efenda nt then sho t a pistol tw ice into the ground, at which point the crowd “dispersed. ” T imothy then came out o f the club, and defendant fired ag ain. When Anthony c ame out , according to Moss, defendant fired two or three more times. M oss saw Anthony turn and fa ll over. Moss then heard two o r three louder shots coming from the corner of the buildi ng, an d defendant ran off. Moss was “positive” that defendant was the initial shooter.-3- Torez Sowell wa s one of th e worke rs at the c lub that n

ight

. After an unrelated dispute, Sowell escorted someone out of the club throu gh the side door. As he was returning along the side of the buil ding, he heard

two shots. He ran to the corner and saw Anthony fall. He also saw defendant with a gun in f

ront of the club. Defendant

shot aga in, and So well saw Timothy try ing to g et to An th on y. He observed defendant prepar ing to shoot again, so he fir ed his .45 two or three times over defendant’s head. D efendan t took off run ning.
Friersontestified that Anthony had appr oached hi m in the club with one h and behind his back , causing him to worry that Anthony had a weapon. He did not see Anthony produce a weapon, however. Defendant had b een sta nding next to Frierson when Anthony swung at him. Frierson was insi de the club during the shooting and did not see what happened.
C lifton Brown testified that he left the club when Anthony swu ng at Frierson. He walked across the pa rking lot to the street where he was parked. He then saw defe ndant jogging down

the road. Shortly thereafter, he saw defenda n t h eading back to the club. He then hea rd five g unshots.
Moni ca McBri de was i n the p arkin g lot d uring t he sho otin g. She had been talking with a friend named “Jug”when she saw defendant walk up. She aske d him where he was going, a nd he responded

that he was preparing to leave, a nd wanted to check

with Friersoninside the club to see what Fri erson was going to do. She testifi ed that, at th

is point, de

fendant did not hav e any

thing in h

is hand. She then saw Anthony coming out of the doorway , and he and defendant made eye

contact. She testified that she saw A nthony tugging at the right side of his pants and then saw defendant pulling something out of his pants. At that point, she testified, Jug threw her onto the ground and

laid on top of her. She heard two shots, and then heard some more shots. She then heard some louder shots from the side of the building. She later saw somebody over at the Suburban. She admitted t

hat, on Octobe

r 29, 1996 , she had

told the police that she had seen

defenda nt pullout a

gun, and then saw Anthony pulling at his shir t. Bobby Sowell also wor ked at the club that night. He was behind Anthony as Anthony started out the front doo r. He testified that, as A nthony started o ut, he bac ked up an d bumped in

to Sowell. Sowell saw An thony rea

ch back and pull his gun out of the back of his pants with

his right hand. Sowell testified that Anthony held the1 The record does no t reflect the nature of the offense or offenses. -4- gun stra ight down behind him. Anthony hea ded out the door, and Sowell heard shots fired. He testified it was “kind of rapid shooting.” He then heard m ore shots, but d id not see

who was f

iring them. Sowell saw Ti mothy kneel over Anthony , retrieve Anthony ’s gun, and take off . Later, he testified, he sa w Timothy “kind of drape d” over the Suburban with the gun in his hand, and the gun fired.
Dr. Charles Harlan performe d the autopsy on Anthony , and testified that Anthony had died of a gunshot wound to the chest. He recovered the bullet fro m Anthon y’s body and turned it over to law enfor cem ent. Robert Daniel Royse, a firearms examiner for the T.B.I., t esti fied that the bullet recovered from Anthony ’s body had been fired from the sam e gu n as a bull et reco vered f rom the crime scene. Steven L . Hassell , 2000 Tenn. Crim. App. LEXI S 266, at **2-7 (footnotes omitted).

POST-CONVICTION HEARING
The p etit ioner filed the instant post-conviction relief action in which he alleg ed his trial counsel deprived him of the right to testify and deficiently f

ailed to present a c losing a rgume nt. During the post-conviction hearing, the petitioner testified his trial counsel waited until the end of his trial to discu ss whether he wo uld testify. He said he met with his attorney five or six times before his trial, and during those m eetings trial counsel told him the state would use his prior criminal history

agains t him if he t

estified . The pet

itioner sa id his prior criminal history consisted of charges brought ag ainst him in Maury County to whi ch he ple d guil ty w hile awa iting tri al in Hi ck ma n C ou nt y. 1
The petitioner testified he and trial cou nsel disc ussed his version of the events in question, butthat she did not prepare him to testify. A ccording to the petitioner, it was on the final day of his trial when his attorney a sked him if he wanted to testify . He stated she did not tell him that he had the ri gh t t o t es ti fy. He said he asked her for a prog nosis of his trial, and she replied that “every thing was looking all right.” Trial counsel testified she did not recall this interchange. Ac cording to the petitioner, he wanted to testify , but declined because he was not prepar ed.
The petitioner

testifie d his trial attorney did not prese nt a closing argument. He stated that after she failed to do so, he realized he should have testified. According to the petitioner, his trial testimonywould have be en that he shot and killed victim Anthony Vanleer in self-defense. The petitioner stated he saw Anthony Va nleer pull out a gun. The petitioner said he thought Vanleer was going to shoot him, so he drew his own gun and fired two shots. The petitioner testified he shot one person and did not shoot Timothy Vanleer

.-5-

The petitioner’s grandmother, Ollie Gillespie, testified she was pre sen t during threemeeti ngs betweenthe petiti oner and his trial c ounsel, bu

t spoke w ith trial c ounsel on n umerous o ccasion s. According to Gillespie, trial counsel stated she was not going to present the petitioner’s testimony because it would harm his case. Gillespie testified s he was not present during the last day of the petitioner’s trial.
The petitioner’s trial counsel testified at thepost-convi ction hearing that she and the petitioner had previously discussed whe ther he would testify, but the f inal decision was made during a brief conference just before the close of the petitioner’s proof. Trial counsel stated she a sked the petitioner if he was goi ng to testify, and he “a greed” that he would not testify . She said that sometime after the defens e had rested , the petitioner told her, “I’m still not sure about not testifying,”to which she responded, “I t’s too late.” According to trial c ounsel, w hen the pe

titioner d ecided n ot to testif

y, h e knew he

could testify if desired and it was his decision not to testify. She stated she advised the petitioner of the advantages and disadvantages of testify ing. She testified she had also given him general instructions on testifying, including

the form of the que stions she

would ask , question s he could expect from the state, and advis ed him re garding his dem eanor a nd to avoid

ramb ling answers or volunteering information.
Trial counsel t

estified she advis ed the pe

titioner i t would be best that he not testify. She stated she was concerned the petitioner’s arr ogant attitude and lack of remorse a bout Anthon y Vanleer’s death would harm his case. She said sh e was als o conce

rned tha t he would

not perform well during cross-examination. She testified she shared these conc erns with the petitioner.
Trial counsel s tated tha

t th e petitionerhad entered pleas of nolo contendere to the Maury County charg es pursuant to a diver sion agr eement, and the tr

ial cour t ruled the

convicti ons could notbe used to impeach the petitioner. Ac cording to trial counsel, the petitioner was aware of the trial court’s ruling when he made his decision not to testify

. She testified that she decided to forego closing arguments after the state’s closing argument was not as st

rong as it could have been; she opined that the prosec utor’s rebuttal argument had a tendency to be more forceful

than the initial closing argument. She believed it was best not to give the state an opportunity to prese nt a m ore effec tive closing argument during re buttal. She further testified that she f

elt she ha d effectively

cross-e xami ned the stat e’s witnesses and shown the jury the discrepancies in their testimony

. The post-con

viction c ourt fully

accre dited the

testimony

of trial c ounse l and found the petitioner was not

deprivedof his rig

ht to testif

y. I t further found the

petitione r failed to establi sh by clear and convincing evidence that, had he testified at trial in accordance with his testimony at the post- convicti on hearing, the result at trial would have been diffe rent.-6-

I. INEFF

ECTIVE ASSISTA NCE OF C OUNSEL - STAN DARD OF

REVIEW
When a claim of ineffective assistance of counsel is made under theSixth Amendment, the burden is upon the complaining party to show (1) that

counsel’s performance was def icient, and (2) the defici ency was pr ejudi cial i n term s of ren derin g a reasonab le probability that the result of the trial was unreliable or the proceeding s fund ame ntally unfair. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984) . Our supreme court has applied the Strickland standard to the right to counsel under Article I , Section 9 of the Tennessee Constitution. See State v. Melson , 772 S.W.2d 417, 419 n. 2 (Tenn. 1989).
In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the services be rende

red within the ran ge of c ompetenc e demand ed of att orney s in crimina l cases. Further, the court stated that the rang e of comp etence

was to be measure d by

the dutie s and criteria set forth in Beasley

v. United States , 491 F.2d 687 (6th Cir. 1974), and United States v. DeCoster , 487 F.2d 1197 (D.C. Cir. 1973). In reviewing counsel’s conduct, a “fair asse ssment of a ttor ney performance

requires that every

effort be made t o elimi nate the distorting

effec ts of hinds ight, to rec onstruct

the circumstances of counsel’s challeng ed conduct, and to evaluate the conduct fr o m counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 10 4 S. Ct. at 20 65; s ee Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982).
It is unnecessary

for a court to address deficiency and pre judice in an y particular

order, or even to address both if the petitioner makes an insufficient showing on either. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069. In or der to es tablish pr

ejudice , the petitioner mus t establis h a “rea sonable probabil ity that but for counsel’s unprofessional errors, the result of the proceeding would have been differe nt. A reasonable probability is a probability sufficien t to under

mi ne confidence in the o utcome.” State v. Burns , 6 S. W.3d 453, 4 63 (Te nn. 19 99) (q uoti ng Strickland , 466 U.S. at 694 , 104 S.Ct. at 2068) (citations omitted).
The petitioner bears the burden of proving the factual allegations that would entitle petitioner to relief by c lear and

convincing evidence. Tenn. Code Ann. § 40-30-210(f). We review thepostconviction court’s factua

l finding s underly

ing a cl aim of ine

ffective assista

nce of c ounse l u nder a de novo standard with a presumption that those findings are correct – unless the preponderance of the evidence establishes otherwise. Burns , 6 S.W.3d at 461. However, the post-conviction court’s conclusions of law – suc h as whether counsel’s performance was deficient or whether that deficiency

was prejudicial – are reviewed unde r a de novo standard with no presum pti on of correctness. Fields v. State , 40 S.W.3d 450, 457 (Tenn. 2001) (citations omitted)

. II. RI GHT TO TEST IFY
The petitioner complains he declined to testify because his trial counselfailedto prepa re him to testify, did not

seriously discuss his right to testify until the end of trial, andadvised h im not to te st if y. The trial court accredited trial counsel’s testimony in which she testified that the petitioner was aw ar e o f h is ri gh t t o t es ti fy, th ey d is cu ss ed hi s p ot en ti al te st im on y a nd its ad vantages and disadvantages prior to trial, and that the petitioner made the d ecision no t to testify. Questions concerning the

credibility of

witnesses and the weight and value to be given to their testimony are-7-

resolvedby t

he post-c onviction

court, not th is court. B urns , 6 S.W.3d at 461. Trial counsel’s testimonyprovided

sufficie nt proof t o support t

he trial c ourt’s imp licit find ing that the peti tio ner made an informed decision not to testify a nd, therefore, was not deprived of his ri ght to do s o
. Further, we conclude trial counsel’s recomme ndation to petitione r that he not testif y w as well w ithin th e r an ge of

co mp et en ce fo r a cr im in al de fe ns e a tt or ne y.
We note that the petition er’s t rial washeld in 199 7, befor e the publ

ication o f our sta

te supreme court’s decision in State v. M omon , 18 S.W.3d 152,162 (Tenn. 1999), upon which the petitioner relies. Momon establish ed procedures fo

r ensuri ng an a

ccused’ s waiv er of his right to test ify is knowing, voluntary, a nd intelligent. Id. The requirements set forth in Momon are not retroa ctive an d apply

only to cases tried after it was decided. Id . at 163. Therefore, at the time of the defend ant’s t

rial, it was not necessary for trial counsel to comply with the procedural re qu ir em en ts ma nd at ed by Momon

. We question t he correct ness of the post-conviction court’s additional ruling that the petitioner had not me

t his burde

n of esta blishin g a r easonable probability that, had the petitioner testified at trial, the result would ha ve been no diffe rent. I f a petiti oner has bee n deprived of the right to testify , the state

must estab lish harml es sness beyond a r easonable doubt. Id. at 168. The post-conviction court did not utilize this standard in ruling on the prejudice issue. Nevertheless, we neednot address prejudice in light of our findi ng that defendant was not d eprived of his rig ht to testify. See Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.

III. DECISION TO FOREGO CLOSING ARGUMENT
The p etition er contends the post-conviction court erred in failing to find trial counsel ineffective for waiving closing arg ument. Trial counsel testified she decided not to make a closing argument after the state’s closing arg ument was less effective than it could have been. Based on

her past experience, she concluded it was best not to give the prosecutors the opportunity to strengthen their closing argument during r ebuttal. Further, she opined she had effe ctively made he

r points to the jury during h er cros s-examina

tion of the

state’s witnesses.
The pe ti ti on er ma y no t s ec on d- gu es s a re as on ab ly b as ed tr ia l s tr at eg y; the petitioner may not crit icize a sound, but unsuccessful, tactical decision made after a dequat e prepar ation for the case. Adkins v. State , 911 S.W.2d 3 34, 347 (T enn. Crim. App. 1994 ); see Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). We c onclude t rial cou nsel made a reaso nable

tactical decision to forego a

closing argument. See Bell v. Cone , 535 U.S. 685, , 122 S. Ct. 1843, 1854, 152 L. Ed. 2d 91 4 (2002) (holding waiver of final arg ument during sentencing phase of Te nnessee capital murder trial was reasonable tactical decision and did not constitute ineffective assistance of counsel). Further , it is our de terminat ion that the

petitione r has fa iled to est

ablish a r easonab le probabil ity that the result of the trial would have bee n any diffe rent had counsel made a closing argume nt.-8-

Ac co rd in gl y, we conclude the post-conviction co ur t proper ly d enied the petition for postconvicti on relief and af

firm the j udgmen

t of the po st-convi ction cou rt.

___________________________________ JOE G. RILEY, JUDGE