T he D ef endan t was convi ct ed of bo t h fel ony murder and premedi t at ed murder wi t h r es pect t o a s i ng l e mur der 1

v ic tim . T h e se two c o n v ic tio n s w e re su b se q u e n tly m e rg e d into a sing le c o u n t o f f irst d e g re e m u rd e r. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON A ssi gne d on Br ie fs O ct obe r 4, 200 5

BER NA RD O C . L AN E v. S TAT E OF TEN NES SEE

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

No. P -24886 Joseph B. Dailey, Jud ge

No. W2004-01882-C CA-R 3-P C - F iled Novem ber 22, 2005

The De fenda nt, Be rnar do C. L ane, pe titioned for post-conviction re lief, alleg ing ine ffe ctive assistance of counse l. After an evidentiary hearing, the trial court denied relief

. This dir ect a ppeal fo llo we d. We a ff

ir m th e jud g me nt o f the tr ia l c ou rt

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

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which J ER R Y L. S MI TH and A L AN E. G L EN N , J J ., joined.

Scott Hall, Memphis, Tennessee , for the a ppellant, B erna

rdo L ane.

Paul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Se th P . K e stn e r, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L

. Gi bbons, District Attorney Gene ral; and B etsy

Carnesa le, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

F AC TS

The De fenda nt was convic ted af ter a jury trial of one count of fir st deg ree murder, one count 1 of espe cially

ag g ravated robbe ry , three counts of ag g ravated robbery
, and one count of a g g ravated burg lary . These c onvictions arose out of a 1993 home invasion during which fo u r p er s o n s were robbed. The four victims wer e B illyMosley , his wife Artis Mosl ey , their son, Kenne th Mosley , and their daug hter, Da ny ale Da vis. During the home inva sion, Kenneth Mosley was shot once in the back and killed. The De fenda nt was tried with his two code fendants, Andre Hamilton and Redonna T. Hanna . The De fenda nt’s convictions wer e af fi rmed on dire ct appe al. See State v. Redonna T.La t er i n hi s t est i m o ny , t he D efend ant s t at ed t hat he gave C o unsel t he nam es of C hri s G ray , R egi nal d H i l l and 2

N ic o le J o h n so n a s a lib i witn e sse s.

-2- Hanna , No. 02C01-9806-CR-00165, 1999 WL 689414 (Tenn. Crim. App., J ackson, Sept. 7, 1999). The De fenda nt now s ee k s t o h av e his convictions overturned a nd this matter rema nded for a new tr ia l on the ba sis that he re c e ive d in e ff e c tiv e a ssi stanc e of

c ou ns e l a t tria l.

At his post-conviction hearing, the Def endant testified that, on the ni g ht of the c rimes, he wa s with his sister, Shekeitha L ane. He informed hi s trial lawy er (“Counsel”) of that fa ct. He a lso ga ve Counsel the names of two othe r witnesses, Regina ld Hill and Chris W rig ht. The De fendant stated 2 that Counsel spoke with e ach of these pe rsons and filed a notice of a libi on the basis of what one of them told her. Counsel did not, however , call this alibi wi t n es s at t ri al

. Counsel also obtained aff idavits from the Defenda nt’s codef endants in which the y

stated that the De fendant was not prese nt during the commission of the crimes. Counsel did not attempt to have the se af fidavits admitted at trial.

The De fenda nt also testified t hat C ounsel did not attempt to suppress a pre trial identification of him made fr om a photo-spre ad. Nor did Counsel arra ng e to have Ar t i s Mosley , one of the vic tim s, lis te n to a

se ri e s of vo ices inor de r t o d e te rm ine if sh e c ou ld i de nti fy

the De fe nd a nt’ s. Counsel further

failed to e ffe ctively

cross-e x amine vict i m Da n y ale Da vis with respec t to her inconsistent statements. Counsel also failed to prope rly object to the introduction of a note that had not been pr eviously

provided during discovery . The De fendant also comp l ai n ed about C ounsel’s failure to move the trial court for a se verance of his case f

rom that of his codefe ndants. Counsel further failed to obta in a handwriting expert reg arding the note that the prosec ution maintained had been w ritten by

the Def endant.

Th e De fe nd a nt s ta te d th a t Co un se l sh ou ld ha ve c a lle d his arr e sti ng of fi c e r t o te sti fy

be c aus e the offic er co u l d h av e d escribed the De fendant’s hairc ut at the time of his arr est. The De fenda nt stated that he w as we aring his hair in “dre adlocks” at the time. Howe ver, t h e d es cripti on of the suspect’s ha ircut at the time of the cri m e wa s “a low hairc ut with a curl like top fa de.” T he De f e n d a n t a l s o s t a t e d t h a t C o u n s e l s h o u l d h a v e r e q u e s t e d c e r t a i n l e s s e r

- i n c l u d e d of fe ns e instructions.

On cr o s s -e x am i n at i o n , t h e D ef en d an tad m i t t ed t o h av i n g s i g n e d a d o cu m en ts t at i n g,

“ [Cou ns e l] di d v isi t me in j a il; we dis c us se d th e pr oc e du re fo r the ha nd writi ng e xamp le a ndwa s to ld that [Cou ns e l] a nd a

ha nd writi ng e xpe rt

wo uldc ometo t ake sa mpl e s o n Satur day , I tol d [Co un se l] that I did not wish to g ive samples.” T he De fendant maintained, howeve r, that his ref usal to g ive

a handwriting sample was made in c onjunction w ith a differ ent case , in which he wa s repr esente d by another lawy er.

Shekeitha L ane te stified that she is the Def endant’ s sister. She stated that, on De cembe r 27, 1993, the day of t he crimes, she was at hom e. She reme mbere d the date beca use she ha d planned to host a g athering that day in honor of the De fendant’s planned e ntry into J o b C o rp s

. S he spoke-3-

with Counsel prior to the trial and informed her that the Def

endant ha d b ee n wi t h h er when the

c ri me s w e re be ing c omm itt e d. She tho ug ht sh e wa s g oin g to te sti fy bu t, d uring the De fe nd a nt’ s tria l, Counsel told her that she “would be hurting his c ase beca use [she] was his sister, and [she] wouldn’t do him any g ood as coming on the s tand and speaking up for him.” Acc ording ly , she did not testify on the Def

endant’ s behalf.

Counsel te stified that she was appointed to r epre sent the Def endant in January

1995; the trial was he ld in Febr

uary 1998. She met with the Def endant while he was incar cer ated “ sever al times.” She dis cus sed p ote nti a l de fe ns e str a te g ie s w ith him . T he De fe nd a nt d id n ot m e nti on a n a lib i un til months after she beg an visiting him. She spoke wit h the Defenda nt’s sister and filed a noti ce of alibi naming the Def

endant’ s sister as the witness. She a lso spoke with Nicole J ohnson and Christopher Gra y

. She was told a

bout the Def

endant’ s party in celebr ation of his entry into J ob Corps, but she

was una ble to obtain the information she ne eded to verify his acc eptanc e into the Corps. She was

a lso un able to c on fi rm

wh o e lse wa s a t th e pa

rt y . L a te r, t he Defen dan t toldhe r that he wa s a t hi s sister’s house that day beca use she had ha d surg ery

and nee ded his help looking afte r her children. Counsel stated that she “w as g etting . . . ma ny conflicting statements from them a bout this alibi .” She stated that she a dvised the De fendant that it was “g oing to look pretty bad if [his] own witnesses come in with conf

licting state ments.”

Cou ns e l te sti fi e d that he r fi le c on ta ine d a no te fr om C hris G ray statin g that “ a ll h e kn e w i s what he w as being told, and he didn’t know anything specific or anything de finite about what was g oin g on .” She te sti fi e d, “ I tho ug ht it wo uld da ma g e [the De fe nd a nt], a ndI re c omm e nd e d to him not to put him on.” She further testified that the De fendant ag ree d with her. The y jointlydecide d to abandon the a libi defense. T he De fendant also decide d not to testify on his own behalf.

Counse l a c k n o w le d g e d th a t th e D e f e n d a n t h a d a n o th e r c a s e p e n d in g th a t a ls o in v o lved a ha nd wr it t e n n o t e

. I n h e r

c a s e , h o w e v e r , s h e h a do b t a i n e d a c o u r to r d e r

f o r a h a n d w r i t i n g e xp e rt

. Neve rtheless, the Def

endant declined to submit a handwriting sample, and sig ned a doc ument to that eff ect.

On cr oss-examination, Couns el re called a pieceof evide nce be ing a dmitted at t rial that had

no t be e n p ro du c e d d uring dis c ov e ry . Sh e c ou ld n ot r ecal l if it w a s th e ha nd writt e n n ote . Sh e did

rec all Billy

Mosley testify ing that the Defenda nt had left the not e at the Mosley house for his son, Kenne th. She could not rec all what, if an y , objections she lodg ed to the introduction of the note

. Pos t- c on vic tio n d e fe ns e c ou ns e l the re up on e nte re d the pe rt ine nt vo lum e of the tr ia l tr a ns c ri pt i nto evidenc e.

Cou ns e l te sti fi e d th a t sh e tr ie d to c on ta c t othe r p e ople who se name s h a d b e e n p ro vid e d to her by the Def endant, but she w as unsucc essful in eliciting a re sponse from a ny of them.

Af te r h e ari ng thi s p ro of

, th e tr ia l c ou rt

e nte re d a w ri tte n o rd e r d e nying the De fe nd a nt’ s c la im fo r r e lie f, fi nd ing that “ e a c h a nde ve ry on e of [the De fe nd a nt’ s] alle g a tio ns is u nf ou nd e d a ndwh oll y without merit . . . .” The De fenda nt now complains that the trial court erre d in its decision.-4- STA ND AR D O F RE VI EW To sustain a petition for post-c onviction relief, a d ef en d ant must prove his or her fac tual alleg ations by

clea r and c onvincing evidenc e at a n evidentiary hearing. See Tenn. Code A nn. § 40- 30-110(f ); Momon v. State, 18 S.W .3d 152, 156 (Tenn. 1999) . Upon re view, this Court will not reweig h or re -eva luate the evidenc e below; all questions conce rning the credibility of witnesses, the weig ht and value to be g iven their testimony , and the f actua l issues raised by

the evidenc e ar e to be resolved by

the trial judg e, not the appellate courts. See Momon, 18 S.W .3d at 156; Henley v. State, 96 0 S. W.2d 57 2, 578- 79 (T e nn . 1 99 7) . T he tr ia l ju dg e ’s fi nd ing s o f f a c t ona pe tit ion fo r p os tconviction re lief ar e af

forde d the weig ht of a jury verdic t an d ar e co n cl u s ive on appe al unless the evidenc e pre ponderates ag ainst those finding s. See Momon, 18 S.W .3d at 156; H enley , 960 S.W .2d at 578.

Both the Six th Amendment to the Unit ed S tates C onstitut ion and Article I , Section 9 of the Tenne ssee Constitution guar antee a criminal defendant the rig ht to repr esentation by counsel. See State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999); Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975)

. Both the U nited States Supreme Court and the Tennessee Supreme C ourt have rec og nized that the rig ht to such represe ntation includes the rig ht to “rea sonably eff ective” assistance , that is, within t he rang e of competenc e demanded of attorney s in criminal cases. See Strickland v. Washing ton, 466 U.S. 668, 687 (1984); B urns, 6 S.W.3d at 461; Baxt er, 523 S.W.2d at 936.

A law y er’s a ssi sta nc e to h is o r h e r c lie nt i s in e ff e c tiv e if the la wy e r’ s c on du c t “ so undermined the proper

functioning of the a dversa ri al proc ess that the trial c annot be r elied on as having produce d a just result.” Strickland, 466 U.S. at 686. This over all standard is c omprised of two components: defic ient perf ormanc e by

the def endant’s lawy er, and actua l prejudice to the defe nse caused by

the def icient perf

ormanc e. See id. at 687; Burns, 6 S.W.3d at 461. The def endant bear s the burden of

establishing both of these components by clea r and convincing evidenc e. See Tenn. Code Ann. § 40- 30-110(f ); Burns, 6 S.W .3d at 461. The defe ndant’s failure to prove e ither defic iency or prejudice is a sufficie nt ba sis upon which to de ny relief on an ineffe ctive assistance of counsel c laim. See B urns, 6 S.W.3d at 461; Goad v. State, 938 S.W .2d 363, 370 (Tenn. 1996)

.

I n evaluating a

lawy er’ s perf

ormanc e, the r eviewing co u rt uses an obje ctive standa rd of “re asonable ness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W .3d at 462. The r eviewing court must be highly

defe rential to counse l’s choice s “and should indul g e a strong presumption that counsel’s c onduct fa lls withi n the wide r ang e of r easona ble p ro fe s s i onal assistance .” B urns, 6 S.W .3d at 4 6 2 ; s ee also Strickland, 466 U.S. at 689. The c ourt should not use the bene fit of hindsight to second- g uess trial strate g y or to criticize counse l’s tactic s , s ee Hellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982) , and counse l’s alleg ed er rors should be judg ed in light of all the fa cts and circ umstances a s of the time they wer e made , see Strickland, 466 U .S. at 690; Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

.
A trial court’s determination of an ineff ective assistance of counsel c laim presents a mix ed q u e s t i o n o f l a w a n d f

a c t o n ap p e a l

. S e e F i e l d s v

. S t a t e , 4 0 S

. W

. 3 d 4 5 0
, 4 5 8 ( T e n n

. 20 01 ). Th is Court review s the trial court’s finding s of fa ct with reg ard to the eff ectivene ss of counsel unde r a deT h e D ef en dan t ’ s a men ded pet i t i on for pos t

- con v i ct i on r el i ef pu r por t s t o c on t ai n a c opy of t h e ph ot o- s pr ea d. 3

H o wever, do cum ent s t hat are merel y a t t ached to b ri ef s are no t c o gni zab l e as p art o f a n a p p el l at e reco rd. S ee Stat e v. M a tthe w s, 8 0 5 S .W .2 d 7 7 6 , 7 8 3 -8 4 (T e n n . C rim . A p p . 1 9 9 0 ).

-5- novo standard, a ccompa nied with a pre sumption t hat those findings ar e corr ect unless the preponde ranc e of the evidenc e is otherwise. See id. “ Howeve r, a tria l court’s c onclusions of law-- such as whe ther c ounsel’s per formanc e was defic ient or whe ther that de ficienc y was pre judicial--a

re revie wed unde r a pur ely

de novo st an d ar d
, wi t h no presumption of cor rec tness g iven to the trial court’s c onclusions.” I d.

AN AL YSI S We will now address the Defenda nt’s specific alleg ations of ineff ective a ssistance of c ounsel

as ar g ued in his appellate brief.

The De fendan t ar g ues that Counsel was de ficient in fa iling to pre sent his alibi defense

. Howeve r, Counsel explained that she discussed he r conc erns a bout this defense w ith the Defe ndant and they toge ther de termined not to pu rs u e it . This was a strateg ic dec ision based on a suff icient inv e sti g a tio n in to the fa c ts. Th e De fe nd a nt i s n ot e nti tle d to re lie f o n th is b a sis

.

Th e De fe nd a nt a

rg ue s th a t Co un se l w a s defi cie nt in fa ili ng to f ile a mot ionto s up pr e ss a photogr aphic identific ation of hi m. The recor d befor e thi s Court on this appea l contains no proof of this photogr aphic spread. The Defendant has t here fore failed to prove his alleg ations conce rning 3 thi s matte r andis, a c c or din g ly , e nti tle d to no re lie f o n th is b a sis

.

Th e De fe nd a nt a

rg ue s th a t Co un se l w a s d e fi c ie nt in faili ng to i ntr od uc e no tari zedstate me nts of his c od e fe nd a nts . B e c a us e the se state me nts we re no t a dmi tte d in to e vid e nc e a t th e po stconviction hea

ring , they are not in the rec ord bef

ore this Court on this appeal. The Def endant ha s the re fo re faile d to pr ov e the se a lle g a tio ns a ndis, a c c or din g ly , n ot e nti tle d to re lie f o n th is b a sis

.
The De fenda nt arg ues that Couns el was de ficient in fa iling to re quest “a voice line- up pr oc e du re to t e st thea c c ur a c y of wi tne ss Artis Mo sle y .” Th e De fe nd a nt ha s f a ile d to de mon str a te how such a proce dure would have be nefitted him at trial. Ac cording ly , the Def endant is not entitled to r e lie f o n th is b a sis

.
The De fenda nt arg ues that Counsel was de ficient in her cross-e x aminations of Artis Mosley

a ndDa ny a le Da vis . T he Defen dan t ha s f a ile d to de mon str a te a ny

pr e jud ic e re su lti ng fr om this

a lle g e d d e fi c ie nc y . A c c or din g ly , th e De fe nd a nt i s n ot e nti tle d to re lie f o n th is b a sis

.
The De fenda nt arg ues that Counsel “failed to raise a n adequate objection to the introduction of a no te .” Th e De fe nd a nt c on te nd s that th is n ote wa s n ot p ro vid e d u nti l th e da y of tr ia l a ndits inadmissibil ity

and/or a continuance should have be en soug ht on that bas i s

. Ho we v er, the rec ord indicates that the note was provide d in sufficient time to permit Counsel t o o b t ain an or der f or a ha nd writi ng e xpe rt . T his a lle g a tio n is , th e re fo re , w ith ou t me ri t.-6-

The De fenda nt next contends that Counsel wa s defic i ent i n failing to reque st a sever ance

. The De fenda nt has failed to demonstrate that he wa s entitled to a sever ance ; he has ther efor e fa iled to demo n s tr a te a n y p r e

ju d ic e r e s u lt in g f

r o m Co u n s e l’ s in a c ti o n in th is r e g ar d

. A c c o r d in g ly , the De fe nd a nt i s n ot e nti tle d to re lie f o n th is b a sis

.

T h e D e f e n d a n t n e x t ar g u e s t h a t t h e tr i a l c o u rt e rr e d i n i t s i n s tru c t i o n s t o t h e j u r y. In i t i a l l y,
we no te that this is an iss ue that cou ld ha ve be e n ra ise d on dir e c t app e a l. F or the pu rp os e s o f this proce eding , this iss ue is therefore waived. See Tenn. Code Ann. § 40- 30-106(g ). More over, the

rec ord bef

ore this Court on thi s ap p ea l d o es not contain a copy of the a lleg edly

inacc urate jury instructions. Accor dingly , the Def endant ha s failed to prove his alleg ations in this reg ard.

The De fenda nt also arg ues that “[t] rial and appellate c ounsel was inef fec tive for not challeng ing the [Defenda nt’s] conviction for ag g ravated robbe ry of B illyMosley ” on the ba sis that the State fa iled to pr ove that the assailants took any thing from the “per son” of B illyMosley . Cf. id. § 39-13-402( a)( 1) (defining ag g ravated robbery as t he int entional or knowing thef t of property

from the per son of another

by violence or putting the person in fea r, ac complished with a dea dly wea pon or by display of any article used to lead the victim to reasonably believe it to be a

deadly wea pon). The sing le volume of the transcript of e vidence from the De fendant’s trial which is included in the

rec ord bef

ore us include s Mr. Mosley ’s t estimony

. He testified that sever al items of his were taken fr om h is b e dr oo m w hil e he wa s inthe a djo ini ng bathr oo m. T hu s, the De fe nd a nt i s c or re c t in his

assertion that these items were not literally taken from Mr. Mosley ’s body . Howeve r, this Court has he ld that

since 1989, if an offender , with the intent to deprive the ow ner, a sserts control ove r property by means of the owner or possessor be ing r emoved f rom the pre sence of the property by forc e or fea

r, t he offense of robbery is committed to the s ame deg ree that it is i f the off

ender car ries the pr operty

away from the victim’s pre sence

.

Sta te v. Ni x, 92 2 S. W.2 d 8 94 , 9 01 (T e nn . Crim . A pp . 1 99 5) . In th is c a se , M r. Mo sle y te sti fi e d th a t, when the intrude rs enter ed his house, he started to le ave his be droom. As he wa s doing so, one of the intruders pla ced a

g un in his fac e and told him t o g et bac k in his room. Mr. Mosley , who testified that he “thoug ht they

wer e g oing to kill us all,” then retre ated to the bathroom that adjoined the bedroom a nd closed the door . He late r hea rd two per sons in his bedroom. After the y left the house, he discove red that severa l personal it em s wer e missing f rom his bedroom. This testimony was suffici en t t o establish the ag g ravated robbe ry of B illyMosley . Acc ording ly , the Def endant’ s
c on te nti on in this re g ardis w ith ou t me ri t.

The De fenda nt next alleg es t hat Counsel was de ficient in fa iling to ca ll his arresting office r to the stand. Be cause the Defenda nt has failed to establish what thi s office r would have stated, the Def endant ha s failed to e stablish any prejudice arising from this alleg ed def iciency . The De fenda nt is the re fo re e nti tle d to no re lie f o n th is b a sis

.-7-

F ina lly , th e De fe nd a nt c omp la ins that Co un se l w a s ine ff e c tiv e in faili ng to f

ile a mot ionto suppress a be eper

seized in conjunction w i t h t h e Defendant’s arr est. The De fendant testified that he was arr ested at his sister’ s house and that the police sear ched the house without a war rant. The

re co rd conta ins no proof as to whe ther the police had conse nt to perform the sear ch. B eca use the Def endant ha s failed t o es t ab l i sh that Counsel had a va lid basis for making such a motion, he ha s failed to prove that she wa s deficie nt for not doing so. Acc ording ly , the Def endant i s not entitled to r e lie f o n th is b a sis

.
The e vidence does not preponde rate ag ainst the finding s of the trial c ourt. The De fenda nt has not shown that he was prejudice d by any of t he alleg ed def iciencie s of Counsel. The De fendant thus failed to establish t h at h e i s entitled to post-conviction relief on the basis of inef

fec tive

a ssi sta nc e of

c ou ns e l. We a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ DAVID H. WELLES, J UDGE