IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2012

SHAWN SIMMONS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lincoln County

No. S1100100 Robert Crigler, Judge

No. M2012-00987-CCA-R3-PC - Filed March 27, 2013

A Lincoln County jury convicted petitioner, Shawn Simmons, of first degree murder. After

an unsuccessful direct appeal, petitioner filed a petition for post-conviction relief alleging

that he received ineffective assistance of counsel. The post-conviction court denied relief,

and petitioner now appeals. Upon review, we discern no error and affirm the judgment of

the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

NORMA MCGEE OGLE, JJ., joined.

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Shawn Simmons.

Robert E. Cooper, Jr. Attorney General and Reporter; Rachel Harmon, Assistant Attorney

General; Charles Frank Crawford, Jr., District Attorney General; and Ann L. Filer, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Procedural History and Facts

In our opinion on petitioner’s direct appeal, this courtsummarized the facts underlying

petitioner’s conviction as follows:

On February 3, 2008, a group of friends and relatives planned to gather

at the home of Keith and Jana Buchanan in Fayetteville, Tennessee to watch

the Super Bowl game. Rodney Howard, Mr. Buchanan’s half-brother, Richard

Askins, James Battle, Shevonta Love, and Stephen Whitaker all planned to
watch the game at the Buchanan residence. Early in the afternoon, the

partygoers were sitting in the house when [petitioner] and Angie Hill walked

into the house. Ms. Hill is the sister of Mr. Buchanan and Mr. Howard.

Petitioner walked across the living room and asked Mr. Whitaker to see him

outside. Mr. Whitaker followed [petitioner] out of the house. Mr. Whitaker

came back shortly thereafter, and [petitioner] left.

Mr. Buchanan was agitated that [petitioner] would walk into their house

without acknowledging either him or his wife. Soon thereafter, [petitioner]

walked back into the house, telling Mr. Buchanan that he had “disrespected”

his family for the last time. [Petitioner] added that Mr. Buchanan was no

longer welcome in his home. [Petitioner] told Mr. Buchanan, “I got you”

before he left the residence.

At that point, most of the people at the party left to go home and take

showers prior to the Super Bowl game. After the game started, Mrs. Buchanan

informed Mr. Buchanan that his sister called to tell them that [petitioner] was

beating her.

The two brothers left the house, along with the three other men, in Mr.

Howard’s red Cadillac with twenty-two inch rims. The men left unarmed. On

the way to Ms. Hill’s house, they spotted Ms. Hill and her truck on the side of

Hedgemont Avenue. [Petitioner] wasstanding next to Ms. Hill’struck, talking

to her.

When they got close to the scene, Mr. Howard threw the car in park and

got out. Mr. Howard threw his hands up in the air, demanding to know what

was going on. They all wanted to know what was going on with [petitioner]

and Ms. Hill. Mr. Buchanan also exited the vehicle and went around towards

[petitioner]. At that time, a shot was fired that hit Mr. Buchanan. Ms. Hill

exclaimed, “I can’t believe you shot my brother, Shawn!” Mr. Buchanan was

placed back in the car and driven to the hospital where he later died from a

gunshot wound to the upper torso.

A witness living nearby called 911 and reported the incident. Police

were dispatched to the area and witnessed [petitioner] walking down Wilson

Parkway, about 250 yards from the crime scene. [Petitioner] began to walk

faster when he saw the police and was seen lobbing an object onto the top of

a building. [Petitioner] was wearing a glove on his left hand and holding a

glove in his right hand.

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[Petitioner] was subsequently arrested. When the area around the

building wassearched, officerslocated a .38 caliber revolver, one spent casing,

and one unspent casing.

During the investigation, police located an empty gun holster at the

home of Ms. Hill and a fanny pack that held shells similar to those used in the

shooting. Ms. Hill had not given [petitioner] permission to use her weapon.

Forensic tests determined that the gun found near the scene fired the shot that

killed Mr. Buchanan. Additionally, [petitioner]’s shirt indicated the presence

of gunshot primer residue.

State v. Shawn Simmons, No. M2009-01362-CCA-R3-CD, 2010 WL 3719167, at *1-2 (Tenn.

Crim. App. Sept. 23, 2010). Upon this evidence, the jury convicted petitioner of first degree

murder. This court affirmed his conviction on direct appeal. Id. at *1.

Petitioner filed a pro se petition for post-conviction relief alleging that trial counsel

1

were ineffective for the following reasons: (1) replacing his original counsel; (2) inadequate

2

preparation and investigation; (3) failure to request a sequestered jury; (4) failure to file a

motion to suppress; (5) failure to question a witness about petitioner’s carrying a weapon

prior to the shooting; (6) failure to make certain objections; (7) failure to supplement the

record; and (8) failure to raise the issue of “publicity” on appeal. The post-conviction court

appointed counsel, who filed an amended petition that incorporated the pro se petition. The

amended petition further alleged that trial counsel’s performance was ineffective for failing

to fully investigate all possible defenses, that petitioner did not receive full discovery, and

that the State failed to disclose evidence favorable to petitioner and mentioned a prior charge

at trial that had been dismissed at the preliminary hearing. The post-conviction court held

a hearing on the petition March 20, 2012, at which the parties presented the following

evidence:

Petitioner testified that trial counsel began representing him after his preliminary

hearing. He initially was represented by preliminary counsel; however, she was removed

from his case and replaced with trial counsel one. Petitioner stated that he was happy with

Petitioner had three attorneys from the District Public Defender’s Office who represented him at 1

trial. For clarity, we will refer to them as “trial counsel one,” “trial counsel two,” and “trial counsel three”

individually. Collectively, we will refer to them as “trial counsel.” Petitioner was represented by another

attorney from that office during his preliminary hearing. We will refer to that attorney as “preliminary

counsel.”

Petitioner apparently preferred preliminarycounsel,who represented himinGeneral Sessions court. 

2

In his petition for post-conviction relief, he complains about her being replaced with subsequent counsel. 

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preliminary counsel’s performance. He did not know why preliminary counsel was replaced

with trial counsel one.

Petitioner further testified that trial counsel two was added to petitioner’s case two or

three days before trial, and trial counsel three was added approximately six days before trial.

Petitioner stated that trial counsel two was inadequate in his defense because he did not meet

with petitioner until three or four days before trial. Petitioner felt that was not enough time

to prepare for a first degree murder case. He stated that trial counsel two was not fully aware

of what transpired during the earlier stages of his case. Petitioner said that he only met with

trial counsel two once for about three minutes and that he and trial counsel two did not

discuss trial strategy at this meeting. Petitioner testified that trial counsel two was only

present for the first day of trial and part of the second day. Petitioner said he did not see him

again until deliberation.

Petitioner stated that trial counsel three was present during his meeting with trial

counsel two, and according to petitioner, trial counsel two was more interested in what trial

counsel three was saying than what petitioner was saying. In addition, trial counsel three was

present during a meeting between petitioner and preliminary counsel. Petitioner met with

trial counsel three a third time for approximately ten minutes.

Petitioner testified that on the first day of his trial, he sat next to trial counsel two. He

said that he asked his trial counsel to object on several occasions because “[s]ome of the

things that were said in trial . . . contradicted . . . the things that were said in a previous

hearing.” He further said, “Certain witnesses said certain things that could have been

objected to if [trial counsel two] would have took [sic] the initiative to object.” Petitioner

stated that trial counsel two told him that he was not familiar with what had occurred at the

preliminary hearing. Petitioner maintained that trial counsel two should have made the

requested objections nonetheless. Petitioner further said,

All of the lawyers should have been on the same page and been aware of

everything all at one time. That way, if I wanted an objection or asked for an

objection, one would know what was going on, instead of just saying, I don’t

know nothing [sic] about that, so I am going to let that go. They should have

been on one accord.

Petitioner explained that he was also dissatisfied with trial counsel one’s failure to ask

the court to sequester the jury after petitioner had asked him to do so. Petitioner said trial

counsel one told him that he would request a sequestered jury, and petitioner was under the

impression the jury had been sequestered. He discovered that the court had not sequestered

the jury when the trial judge instructed the jury not to discuss the case when they went home.

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Petitioner testified that on the third day of his trial, he became aware that four jurors

had read a newspaper article about his case. Two of those jurors were dismissed, and the

remaining two were allowed to remain on the jury panel because they had only read the

headline of the article. Petitioner stated that he asked trial counsel three if they could

question the other jurors to determine whether these four jurors had discussed the article with

them, but he did not get a response. He recalled that trial counsel one only asked the jurors

what they read and that the court did the majority of the questioning. Petitioner said he felt

that he did not receive a fair trial because the two jurors who remained on the jury panel

might have contaminated the other jurors with what they had read in the newspaper.

Petitioner also felt that trial counsel should have conducted a more in-depth questioning of

the jurors regarding any possible contamination.

Petitioner stated that trial counsel were ineffective for failing to file a motion to

suppress his statements to police. He stated that an officer questioned him in a holding cell

on the night of his arrest and that he asked the officer for a lawyer during the questioning.

He stated that the officer left the cell, and another officer came in and continued to question

him. Petitioner said he told the second officer that he wanted a lawyer present, and the

second officer left. Petitioner felt that his statements should have been suppressed because

he invoked his right to counsel, yet the officers continued to question him. Petitioner

testified that he, trial counsel one, and two other individuals watched a recording of his

interview. Petitioner recalled that the officers brought up his past during the interview,

which was “irrelevant to what [he] was arrested for.” Petitioner stated that if trial counsel

had filed a motion to suppress his statement, the “defense strategy may have been different.”

Petitioner stated that he took issue with Lieutenant Massey’s testimony at trial that

petitioner signed a waiver of rights form. Petitioner denied signing the written form and said

Lieutenant Massey only orally advised him of his rights. Petitioner said he went through the

discovery materials with trial counsel one, and the discovery did not include a written waiver

of rights form.

Next, petitioner testified that trial counsel were ineffective for failing to question a

witness about petitioner’s carrying a weapon on different occasions. Petitioner recalled that

there was evidence presented at trial that he had stolen the gun used in the shooting. He

stated that there was a witness available who would have testified that petitioner did not steal

the gun. Petitioner said he had carried the gun on “numerous occasions,” and he did not

procure it to commit the murder in this case. Petitioner testified that he asked trial counsel

one to speak with this potential witness.

Petitioner further testified that trial counsel were ineffective for failing to object when

the State used his previous charge for theft of a weapon, which had been dismissed, during

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his trial. Petitioner recalled that when he asked trial counsel one to object to the State’s

mentioning this charge, trial counsel one informed him that it did not really matter because

the State mentioned it in closing arguments. Petitioner said he felt that it mattered because

he was not on trial for that charge. He further said,

Well, in closing arguments, you are directing your last words to the jury. If

your last words are bringing up a charge that I am not on charge [sic] for, then

that sways their mind to what has been said already to what is being used

against me now that was in a lower court.

Petitioner recalled that the State brought up the theft charge both during trial and in closing

arguments, and his trial counsel never objected. Petitioner said that the State also mentioned

that petitioner had stolen the gun to commit the murder, and trial counsel did not object.

According to petitioner, the State did not disclose all of the witnesses whom the State

intended to use at trial. Petitioner recalled that Eddie Nance, a State witness, was in the

courtroom during jury selection. Petitioner said he knew Mr. Nance because they were in

the same line of work. Petitioner asked the investigator for his case and trial counsel one

why Mr. Nance was in the courtroom. Petitioner said neither man knew why Mr. Nance was

in the courtroom, but they told petitioner that he was not there for his case. Petitioner stated

that Mr. Nance testified for the State on the third day of his trial. Petitioner recalled Mr.

Nance’s being present in the courtroom during the testimony of Rodney Howard. Petitioner

believed that Mr. Nance was called as a witness because he had mentioned Mr. Nance’s

name when the investigators questioned him. Trial counsel did not object to the State’s

calling Mr. Nance as a witness or to any of Mr. Nance’s testimony. Petitioner stated that trial

counsel were ineffective for failure to fully investigate the case, specifically whether Mr.

Nance was going to testify at trial.

Petitionerstated that he discussed having hisfriend,Jamie White, as a witness at trial.

3

Petitioner spoke with Mr. White on the telephone the day of the shooting in this case.

Petitioner recounted that he was threatened numerous times before the actual incident and

that he wanted to leave town. Petitioner called Mr. White and asked Mr. White to come get

him. Petitioner said he told trial counsel one and trial counsel three about Mr. White. He

Petitioner addressed this issue for the first time at the evidentiary hearing. He failed to include it 3

in his pro se petition or the amended petition filed by counsel. “A post-conviction petitioner may not raise

grounds on appeal that were not alleged in the petition for post-conviction relief.” Patrick Thurmond v.

State, No. M2005-00214-CCA-R3-PC, 2006 WL 680924, at *7 (Tenn. Crim. App. Mar. 15, 2006); Long v.

State, 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974). However, because the post-conviction court erroneously

received evidence with regard to the issue and addressed it in the order denying relief, we will consider it

in this appeal. 

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stated that they investigated Mr. White and told petitioner that Mr. White was incarcerated

at the Maury County jail. Petitioner called the jail and Mr. White’s mother to verify, and he

discovered that Mr. White was not incarcerated.

Petitioner testified that trial counsel did notsupplement the record for his direct appeal

with transcripts of the preliminary hearing. He recalled having numerous conversations and

writing many letters to trial counsel one requesting that he supplement the record with the

transcripts. According to petitioner, the testimony at the trial contradicted the testimony

during the preliminary hearing. Petitioner stated that this conflicting evidence was not

included in his appeal, and because of this, the facts stated in the opinion on direct appeal

were incorrect. Petitioner further stated that trial counsel were ineffective for failing to file

a petition to rehear based on the allegedly incorrect statement of facts in the opinion on direct

appeal. Petitioner said trial counsel one advised him that the issue could be pursued in a

petition for post-conviction relief; however, petitioner felt that the issue was appropriate for

a petition to rehear.

Petitioner further testified that trial counsel were ineffective for failing to include the

“publicity issues” on appeal. He explained that trial counsel asked the trial court to declare

a mistrial based on the jurors’ reading the article, and the trial court denied the request.

Petitioner said that trial counsel one told him that he would raise the issue of the trial court’s

denial of the motion for mistrial on appeal, but trial counsel one only included the issue in

the motion for new trial and did not include it in his appellate brief.

Petitioner stated that after he read the opinion from his direct appeal, he asked trial

counsel one to file a motion for an extraordinary appeal. He said that trial counsel one did

not respond. Petitioner later received a letter from trial counsel one in which trial counsel

one informed petitioner that he was no longer representing him and that petitioner could

present the issues that he had in a petition for post-conviction relief.

Petitioner testified that he discussed the jury instructions with trial counsel one.

Petitioner asked trial counsel one to ask the court for a “curative instruction on intent,

premeditation, and deliberation.” He explained that he feltsuch an instruction was necessary

because the instructions would have shown that the “elements didn’t fit around the incident

that took place.” He said that the murder was a “spur of the moment action” that was not

planned or premeditated. Petitioner stated that if the jury knew what the elements meant,

they would have acquitted him or convicted him of a lesser-included offense.

On cross-examination, petitioner agreed that trial counsel one began representing him

after his case was bound over to the grand jury. He further agreed that he received a letter

advising him that his preliminary counsel would not represent him on the circuit court level

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and would be replaced with trial counsel. Petitioner said that trial counsel one was the only

attorney who came to visit him in jail and that he met with his other attorneys at the

courthouse.

Petitioner further agreed that the trial judge admonished the jury not to read the

newspapers. He said when trial counsel one discovered that four jurors “had some contact”

with the newspaper, trial counsel one immediately brought it to the attention of the trial court,

and the jurors were questioned. Two of the jurors informed the court that they read the

headline and upon realizing that it concerned petitioner’s case, they did not read the article.

The other two jurors admitted reading the article, and the judge excused them from the jury.

After denying the motion for a mistrial, the trial court again admonished the jury not to read

anything regarding petitioner’s case.

Petitioner acknowledged that hisstatement, which he wanted trial counsel to suppress,

was consistent with his theory of self-defense. His statement recounted how a vehicle

approached him, and several people exited the vehicle, causing him to fear for his life.

However, petitioner maintained that the statement should not have been admitted because it

contained prejudicial information about his past.

Petitioner stated that although he and trial counsel one met and went over the

discovery, he had never seen the State’s supplemental proposed witness list, which was filed

on March 10, 2009, until the post-conviction hearing. Eddie Nance was the first name on the

supplemental proposed witness list. Likewise, petitioner said he did not see the trial

subpoena for Mr. Nance until the post-conviction hearing. Petitioner admitted, however, that

during jury selection, he told trial counsel about his altercation with Mr. Nance that occurred

before the shooting.

When asked if he was faulting his trial counsel “for not telling the jury that [he was]

in the habit of carrying a .38-caliber handgun,” petitioner answered that trial counsel should

have done so to show the jury that he did not procure a weapon to shoot the victim. He said

this evidence would have altered the jury’s way of thinking. Petitioner recalled that his

girlfriend testified at trial that the weapon petitioner used had been taken the day of the

shooting, but he stated that she testified in that regard because she was unaware that

petitioner had the gun. He explained that his girlfriend did not “always know what particular

time [petitioner] . . . got [the gun], but if it [was] not there, she [knew] who [had] it.”

Petitioner stated that he and trial counsel one discussed petitioner’s trying to leave

town before the shooting happened and petitioner’s telephone conversations with Jamie

White. Petitioner was not aware that Mr. White had an extensive criminal record but said

they had previously been incarcerated together in the Giles County jail. Petitioner agreed that

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Mr. White was not mentioned in his pro se petition for post-conviction relief or the first

amended petition.

Petitioner stated that he never informed the trial judge that he was having a problem

with trial counsel or that he wanted Mr. White to testify. Petitioner reviewed the jury

instructions from his case and agreed that the trial judge instructed the jury regarding the

definitions for premeditation, deliberation, and intent. Petitioner recalled that trial counsel

one requested a special jury instruction on self-defense, which the trial court granted.

Trial counsel one testified that he was the lead trial counsel for petitioner’s case, and

trial counsel two and trial counsel three assisted him. He stated that when he was assigned

to petitioner’s case, he consulted with preliminary counsel. He and preliminary counsel had

several conversations about the facts of the case. Trial counsel one did not dispute that

petitioner was present during one of his meetings with preliminary counsel. Trial counsel

recalled meeting with petitioner at least five or six times. Two or three of the meetings

occurred at the jail, and the remaining meetings were at the courthouse.

Trial counsel one stated that trial counsel two had not been with the public defender’s

office for very long before being assigned to assist with petitioner’s case. Trial counsel one

stated that trial counsel two’s duties were to observe the trial and “cross-examine some

witnesses to get his name in the technical record, or to get his name in the transcript for

purposes of the record.” Trial counsel one said that he was the attorney who was most

responsible for the trial strategy; however, he discussed what trial counsel were going to do

at trial and the expected testimony with trial counsel two and trial counsel three.

Regarding sequestration of the jury, trial counsel one testified that he spoke with

investigators and coworkers in his office who lived in the area and that he did not think that

there was “sufficient publicity, knowledge, or any type of passion in the community that

would cause a bias by either selecting a jury from this county or from sequestering the jury.”

He stated that if he had learned that many people had known of the case, had heard about the

case, had discussed the case with others, or had reached an opinion about the case, he would

have asked the trial court to sequester the jury. Trial counsel one denied that he “point

blank” told petitioner that he would ask to sequester the jury.

Trial counsel one stated that he learned four jurors had read a newspaper article

regarding petitioner’s case. Trial counsel one notified the judge about the issue, questioned

the four jurors about their reading the newspaper, and asked the court to declare a mistrial.

Trial counsel one did not question the remaining jurors, but the trial judge did. He stated that

in hindsight, he would have asked the court to sequester the jury.

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Trial counsel one explained that he did not file a motion to suppress petitioner’s

statement because he felt that the statement was self-serving. He further explained that the

statement verified petitioner’s claim of self-defense because petitioner stated that he was

jumped by a number of people and fired the shot in self-defense. Trial counsel one was

aware of petitioner’s prior criminal history and said that if petitioner testified, much of his

criminal history would be admitted at trial. He felt that petitioner’s statement was “a way of

getting [petitioner’s] testimony in front of the jury without having the State sit and read his

prior conviction to him.”

Trial counsel one testified that he spoke with petitioner about Angie Hill’s testifying

that petitioner carried a weapon on numerous occasions. Trial counsel one stated that he did

not want evidence that petitioner frequently went armed presented to the jury. Petitioner was

charged with felony possession of a handgun; however, that charge was dismissed at the

general sessions level. Trial counsel one recalled the State’s mentioning a theft of a weapon

charge. He explained that he did not object to the prosecutor doing so because one of the

defense witnesses had testified that petitioner took the gun without permission the night of

the shooting. He further explained that he did not think “the [prosecutor] made the statement

with regard to . . . theft charges. I think the statement was made about the taking of the

weapon.”

Trial counsel one testified that Mr. Nance was not on the original witness list, but the

State supplemented its witness list and added him. He said that he “probably” did not speak

to petitioner about Mr. Nance’s testifying because his conversations with petitioner involved

the original proposed witness list submitted by the State. He stated that he knew of Mr.

Nance through petitioner’s girlfriend, and he did not recall petitioner’s mentioning Mr.

Nance during his interview with police. According to trial counsel one, Mr. Nance and

several other witnesses remained in the courtroom during jury selection because he did not

invoke the rule of witness sequestration until after jury selection. Trial counsel one said that

4

he personally interviewed petitioner and petitioner’s girlfriend before trial. Preliminary

counsel and investigators interviewed other witnesses and gave the information to trial

counsel one.

Trial counsel one recalled that petitioner sent him at least one letter asking him to

supplement the record on appeal with a transcript of the preliminary hearing. Trial counsel

It was not improper for the witnesses to remain in the courtroom until jury selection was 4

completed. Tennessee Rule of Evidence 615 states, “At the request of a party the courtshall order witnesses,

including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court’s discretion, the

requested sequestration may be effective before voir dire, but in any event shall be effective before opening

statements.” 

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one declined to supplement the record with the transcript because he felt that it would not add

anything to the appeal. Regarding his not raising the “publicity issue” on appeal, trial

counsel one explained that he likely told petitioner that he would raise the issue on appeal

because he was “ill about the jurors reading the paper” and because the trial judge denied his

motion for a mistrial. However, trial counsel one decided not to include the “publicity issue”

on appeal because after researching the issue, he felt “the action taken by the trial judge and

the dismissal of the jurors was adequate, and that issue would have been frivolous or without

merit.”

Trial counsel one did not recall petitioner’s asking him to file a petition to rehear. He

read the opinion from petitioner’s direct appeal and stated that he did not feel like he

“need[ed] to file anything to get the language straight” because the changes would not

change the opinion of the Court of Criminal Appeals.

Trial counsel one recalled discussing special jury instructions with petitioner. He said

that the defense team’s main concern was having the court instruct the jury on self-defense.

Trial counsel one stated that he “made the decision to ride two horse[s]. One was going to

be self-defense; and if you don’t believe the self-defense . . . then would you consider

second-degree murder or voluntary manslaughter.” Nonetheless, he felt petitioner received

a fair trial.

On cross-examination, trial counsel one agreed that a downside to sequestering a jury

was that some members of the jury may be disgruntled at the fact that they are kept away

from their homes and families. He further agreed that if he could keep a jury “free,” it would

keep them happier. Trial counsel one stated that the trial judge thoroughly admonished the

jurors in petitioner’s case regarding what they were and were not allowed to do.

On redirect examination, trial counsel one testified that he only met with petitioner

approximately five times, but there were many more meetings and investigations held outside

of petitioner’s presence. He stated that petitioner was cooperative during the meetings and

was “more than willing and very pleasant to speak with about the facts and what happened.”

Trial counsel one felt that he had adequately met with petitioner, understood the case, and

understood the witnesses’ testimony. He said that there was no question that petitioner killed

the victim, and the only issue was whether it was self-defense, second degree murder, or

voluntary manslaughter. He also said that he felt the defense team was fully prepared, that

there were no surprises at trial, and that the witnesses testified as expected.

Preliminary counsel testified that she represented petitioner at the general sessions

level, “probably a little bit past arraignment.” She stated that petitioner’s charge of being a

felon in possession of a handgun was dismissed the day of his preliminary hearing, and the

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rest of the charges were bound over to the grand jury. She estimated that she met with

petitioner more than five times before his case was set for trial. She recalled that her

meetings with petitioner at the courthouse would last for approximately twenty minutes and

that she would spend more than an hour with petitioner when they met at the jail.

Preliminary counsel stated that she was removed from the case when it was set for

trial. She conferred with trial counsel about the case and provided them with the information

she had collected while preparing for the preliminary hearing. Part of her preparation for the

preliminary hearing was interviewing petitioner’s girlfriend and family members.

On cross-examination, preliminary counsel testified that the trial court appointed her

entire office to represent petitioner, and all members of her office worked on the case. She

stated that she never assured petitioner that she would be his attorney at trial.

Trial counsel two testified that he began representing petitioner a few weeks before

trial. He met with petitioner once or twice, and trial counsel one and trial counsel three were

present during the meetings. He stated that he was present for the entire first day of trial,

none of the second day, and part of the third day. During the first day of trial, petitioner sat

next to trial counsel two and was able to ask him questions. Trial counsel two stated that his

primary role during petitioner’s trial was to assist petitioner’s other counsel and gain

experience defending a murder case.

Trial counsel two stated that he did not recall telling petitioner that he was not familiar

with any part of petitioner’s case. Trial counsel two said that he spent several hours

familiarizing himself with the case and that he spoke with trial counsel one and three about

the case. He also spoke with preliminary counsel about the case.

Trial counsel two was involved in the voir dire of the jury, but he did not recall

petitioner’s asking him to sequester the jury. Trial counsel two stated that he felt he was

competent to be the third chair in petitioner’s trial and that he was adequately prepared. On

cross-examination, trial counsel two testified that he cross-examined at least one witness

during the trial.

Trial counsel three testified that he was assigned to handle petitioner’s case, but he

could not recall how far before trial he was assigned. He stated that preliminary counsel was

assigned to handle the case during the preliminary hearing, and he was sure that he spoke

with her in preparation for trial. Trial counsel three did not interview any witnesses, but he

met with petitioner before trial. He stated that trial counsel one was the lead attorney, and

he relied on what trial counsel one and preliminary counsel knew about the case. Trial

counsel three stated that trial counsel two was not present during the entire trial. He

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explained that trial counsel two’s role was to voir dire jurors to determine whether they

should be excused for cause and to speak with witnesses.

Trial counsel three did not recall if he went over the discovery or discussed jury

instructions with petitioner. He also did not recall where petitioner sat during trial, but he

said that if he was sitting next to petitioner and petitioner had questions, he would have

answered them. Trial counsel three was not involved in petitioner’s appeal and did not know

anything about it.

Jamie Lamont White, Jr. testified that he had been petitioner’s friend since they were

around fourteen years old. He recalled speaking with petitioner the day of the shooting. He

said petitioner asked him “to get out of a situation that occurred between [petitioner] and his

girlfriend . . . .” Petitioner told Mr. White that he had to “get away.” In turn, Mr. White told

petitioner to walk away from the house, and he would go get him. While Mr. White was on

the way to pick up petitioner, he received a call from a friend telling him about the shooting.

Mr. White stated that he spoke with someone at trial counsel’s office. He told that

person that he was not present at the scene, but he “could shed a little light on it[.]” Mr.

White said that he was willing to testify at petitioner’s trial and that one of petitioner’s

attorneys called him, but he missed their call because he was at work. He returned the call,

but he was unable to get in touch with anyone. Mr. White said that he called again after a

few days, but he still did not get an answer or a call back. He stated that he assumed that

they did not need him to be witness and “just left it alone.”

On cross-examination, Mr. White testified that he was related to one of petitioner’s

co-defendants in an unrelated case. He stated that he did not pursue being a witness in

petitioner’s case because he had his own case going on and was on parole. He explained, “I

didn’t know if my testimony would even be credible or hurt his case at the time, so I really

wasn’t excited about it.” Mr. White admitted to having several convictions for drug-related

offenses.

After hearing the evidence, the post-conviction court took the matter under

advisement. On April 3, 2013, the post-conviction court filed a “Memorandum Order”

finding that petitioner failed to show that trial counsel’s performance was deficient or that

petitioner was prejudiced by any alleged deficiencies. Accordingly, the post-conviction court

denied relief. From that denial of post-conviction relief petitioner now appeals.

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II. Analysis

On appeal, petitioner alleges several instances of ineffective assistance of counsel.

5

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that his or her

“conviction or sentence is void or voidable because of the abridgement of any right

guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.

Code Ann. § 40-30-103 (2012). A post-conviction petitioner bears the burden of proving his

or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)

(2012); Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (citing Grindstaff v. State, 297

S.W.3d 208, 216 (Tenn. 2009)). “‘Evidence is clear and convincing when there is no serious

or substantial doubt about the correctness of the conclusions drawn from the evidence.’”

Lane, 316 S.W.3d at 562 (quoting Grindstaff, 297 S.W.3d at 216).

Appellate courts do not reassess the trial court’s determination of the credibility of

witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245

S.W.3d 356, 362 (Tenn. 2008)). Questions regarding the credibility of witnesses are matters

entrusted to the trial judge as the trier of fact. Dellinger, 279 S.W.3d at 292 (citing State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are

conclusive on appeal unless the preponderance of the evidence is otherwise. Rigger v. State,

341 S.W.3d 299, 307 (Tenn. Crim. App. 2010) (citing Henley v. State, 960 S.W.2d 572, 578-

79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997)). However,

conclusions of law receive no presumption of correctness on appeal. Rigger, 341 S.W.3d at

307 (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001)). As a mixed question of law

and fact, this court’s review of petitioner’sineffective assistance of counsel claims is de novo

with no presumption of correctness. Dellinger, 279 S.W.3d at 294 (citing Finch v. State, 226

S.W.3d 307, 315 (Tenn. 2007)).

The Sixth Amendment to the United States Constitution, made applicable to the states

through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution

require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,

145 S.W.3d 571, 598 (Tenn. 2004) (citing Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975)).

The constitutional right to counsel attaches when adversarial judicial proceedings are

initiated against the defendant. State v. Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980).

“Initiation” is construed as issuance of an arrest warrant, the time of the preliminary hearing

in cases where an arrest warrant is not first issued, or by indictment or presentment issued

by a grand jury. Id. at 286.

Petitioner presented many issues in his petition for post-conviction relief that were not included 5

or argued in his appellate brief. We treat any issues not included in appellant’s brief as waived. See Tenn.

R. App. P. 27(a)(7); Tenn. R. Crim. App. 10(b). 

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To prevail on his claim of ineffective assistance of counsel, petitioner must

demonstrate both that his lawyer’s performance was deficient and that the deficiency

prejudiced the defense. Finch, 226 S.W.3d at 315; Vaughn v. State, 202 S.W.3d 106, 116

(Tenn. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter, 523

S.W.2d at 936)). To prove that counsel’s performance was deficient, petitioner must

establish that his attorney’s conduct fell below an objective standard of “‘reasonableness

under prevailing professional norms.’” Finch, 226 S.W.3d at 315 (quoting Strickland, 466

U.S. at 688). As our supreme court has previously held:

“[T]he assistance of counsel required under the Sixth Amendment is counsel

reasonably likely to render and rendering reasonably effective assistance. It

is a violation of this standard for defense counsel to deprive a criminal

defendant of a substantial defense by his own ineffectiveness or incompetence

. . . . Defense counsel must perform at least as well as a lawyer with ordinary

training and skill in the criminal law and must conscientiously protect his

client’s interest, undeflected by conflicting considerations.”

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974)). On appellate review of trial counsel’s performance, this court “must make every

effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that time.”

Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689); see

Finch, 226 S.W.3d at 316.

To establish that petitioner suffered prejudice as a result of counsel’s deficient

performance, petitioner “‘must establish a reasonable probability that but for counsel’s errors

the result of the proceeding would have been different.’” Finch, 226 S.W.3d at 316 (quoting

Vaughn, 202 S.W.3d at 116). “A ‘reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Vaughn, 202 S.W.3d at 116 (quoting Strickland,

466 U.S. at 694); see Finch, 226 S.W.3d at 316. As such, petitioner must establish that his

attorney’s deficient performance was of such magnitude that he was deprived of a fair trial

and the reliability of the outcome was called into question. Vaughn, 202 S.W.3d at 116

(citing Strickland, 466 U.S. at 694; State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

Petitioner must establish both deficient performance and prejudice therefrom to be

entitled to post-conviction relief. Vaughn, 202 S.W.3d at 116; Howell, 185 S.W.3d at 326.

It follows that if this court holds that either prong is not met, we are not compelled to

consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004).

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A. Failure to Call a Witness

Petitioner contends that trial counsel were ineffective for failing to call Jamie White

as a defense witness. According to petitioner, Mr. White’s testimony would have bolstered

petitioner’s claim of self-defense. Petitioner presented Mr. White’s testimony at the postconviction hearing. Mr. White stated that someone from petitioner’s defense team contacted

him about being a witness, but after no one followed up with him, he “left it alone.”

Petitioner did not question trial counsel about the decision not to use Mr. White as a witness.

However, Mr. White’s testimony showed that he had a history of criminal convictions, and

by his own admission, he was not likely a credible witness because he was dealing with his

own criminal case at the time of petitioner’s trial. Mr. White was not present at the scene of

the shooting, and the only evidence he offered regarding petitioner’s acting in self-defense

was that petitioner told him that he had been in an altercation and wanted to “get away.”

Information regarding the altercation and petitioner’s claim of self-defense was included in

his statement to authorities. Thus, there is no reasonable probability that Mr. White’s

testimony would have changed the outcome of the case. Petitioner has failed to show that

trial counsel were ineffective for failing to present the questionable testimony of Mr. White

or that he was prejudiced by any alleged deficiency. This issue is without merit.

B. Replacement of Counsel

Petitioner argues that he received ineffective assistance because preliminary counsel

was replaced with “attorneys who rarely met with petitioner, and if they did, it was for a short

period of time.”

The evidence at the post-conviction hearing showed that preliminary counsel was

assigned to represent petitioner at the general sessions level only, and trial counsel one was

the lead attorney on petitioner’s case at the circuit court level. Trial counsel two and trial

counsel three assisted trial counsel one with petitioner’s case. All three attorneys testified

that they met with preliminary counsel and received all of the information that she had

regarding petitioner’s case. They also testified that they met with petitioner multiple times

to discuss the case. Trial counsel one described petitioner as cooperative and stated that

petitioner assisted trial counsel with their defense. As the post-conviction court noted, trial

counsel were adequately prepared and consulted with preliminary counsel while representing

petitioner. It is clear that petitioner would have preferred to have been represented by

preliminary counsel at trial. However, his preference for one attorney does not per se render

that counsel’s replacement ineffective. Moreover, while trial counsel two was assigned later

in the case, he was not lead counsel and was only there to assist trial counsel one. Thus, his

late assignment to the case did not prejudice petitioner. Petitioner has not shown that trial

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counsel were deficient for replacing preliminary counsel or that their replacing preliminary

counsel prejudiced him.

C. Sequestration of Jury

Next, petitioner challenges trial counsel’s failure to request sequestration of the jury.

Trial counsel testified that he discussed sequestering the jury with petitioner but decided that

it was not necessary. He further stated that sequestering a jury can have a negative effect,

including irritating the jury by separating them from their families and everyday lives. The

post-conviction court agreed with trial counsel one’s testimony that there was no need to

sequester the jury and found that petitioner failed to show that he was prejudiced by trial

counsel’s failure to move to sequester the jury. Petitioner has not shown that trial counsel’s

tactical decision to not seek sequestration of the jury was unreasonable or deficient.

Petitioner further argues that he was prejudiced by not having a sequestered jury

because several jurors read a newspaper article regarding the trial. The post-conviction court

found that petitioner did not present adequate proof that a mistrial was warranted based on

the jurors’ reading the newspaper and agreed with trial counsel’stestimony that it would have

been frivolous to pursue the issue on appeal. When trial counsel one discovered that some

jurors had read the newspaper, he brought it the attention of the court and moved for a

mistrial. Upon questioning from the court, it was determined that two jurors read the article

and that two only read the headline. The two jurors who read the article were dismissed from

the jury. Petitioner did not present any proof that the two jurors who read only the headline

of the article were tainted or that they contaminated the remaining jurors. Thus, petitioner

has failed to show deficient performance and prejudice regarding the jury’s not being

sequestered. This issue is without merit.

D. Failure to Object

Petitioner asserts that trial counsel were deficient for failing to object to the

prosecutor’s “using charges that were dismissed at the preliminary hearing against

[petitioner] at trial.” Specifically, he complains that there was testimony that he stole the

murder weapon and claims that this evidence was improper because the theft of a weapon

charge was dismissed. As noted by the post-conviction court, the evidence that petitioner

took the murder weapon without permission from where his girlfriend kept it was highly

probative of petitioner’s intent and premeditation. Further, trial counsel one testified that he

made a tactical decision not to object to the testimony regarding petitioner’s stealing the gun

used to shoot the victim because petitioner’s girlfriend, a defense witness, was the person

who offered the testimony. This court will not “second guess” tactical and strategical

choices pertaining to defense matters. Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993)

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(citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Petitioner has failed to show trial

counsel was deficient in this regard, and he is not entitled to relief.

E. Failure to File a Motion to Suppress

Finally, petitioner argues that trial counsel were deficient for failing to file a motion

to suppress his statement to law enforcement officers. The post-conviction court determined

that petitioner was given his Miranda rights and that once petitioner made an unequivocal

6

request for an attorney, the police stopped questioning him. The court further noted that

there was no evidence that petitioner was intimidated, coerced, threatened, or otherwise

induced into making a statement. After reviewing the video of the interrogation, we agree

with the post-conviction court’s assessment. Moreover, trial counsel one testified that it was

his strategy to have the statement admitted as a way to get petitioner’s theory of self-defense

before the jury without petitioner’s testifying and being subjected to a rigorous crossexamination. Again, we will not second guess this reasonable strategy. Cooper, 849 S.W.2d

at 747 (citing Hellard, 629 S.W.2d at 9). Petitioner has not shown that trial counsel were

deficient or that any alleged deficiency prejudiced him. Thus, he is not entitled to relief on

this issue.

CONCLUSION

Based on our review of the record and foregoing authorities, we discern no error and

affirm the judgment of the post-conviction court.

_________________________________

ROGER A. PAGE, JUDGE

See Miranda v. Arizona, 384 U.S. 436 (1966). 6

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