### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 10, 2001 QUANTREAL UNDERWOOD v. STA TE OF TENNESSEE Post-Conviction Appeal from the Criminal Court for Shelby County

No. P-21303 Carolyn Wade Blackett, Judge

No. W2000-01774-CCA-R3-PC - Filed March 14, 2002

The appellant, Quantreal Underwood, was convicte d of second degree murder and two coun ts o f aggravated

robbery. He received a Range I sentence of twenty -five ye ars for the murder

conviction and two concurrent e

ight y ear ter ms for the robbery convicti ons. His convictions and sentences were affirmed by this Court on direct appea l. State v. Quantreal Underwood , No. 02C01-9 604-CR -00120, 1997 Tenn. Crim. App. Lexis 1018 (Tenn. Crim. App. at Jackson Oct. 9, 1997). The appellant filed a po st -c on vi ct io n p et it io n i n M ay, 1999, wherein he alleged that his trial counsel wa s ineffective and thus deficie

nt within the meaning of the Sixth Amendment to the UnitedStates Constitution. That petition was deni ed, and th e appell ant now br

ings the instant ap

peal. We have reviewed the record and find n o error . Therefore, w e affir m the judgment of the

trial cou rt. Tenn. R. App.P. Appeal as of Right; Judgment of the Cr iminal Cour

t is Affir med.
J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined. Glenn I. Wright, Memphis, Tennessee, for appellant, Quantr eal Underwood.
Paul G. S ummers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney Gene ral ; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney, for appellee, State of Tennessee.
OPINION
As backg round, the following is this Court’s direct appeal summary of the facts leading to the appellant’s conviction.

During the ear

ly mo rning ho urs of Au gust 28, 1993, th e vict im, Dorrell Eggleston, was shot during a robbery of the Ser

ve-Rite M arket in Memphis. Twenty -three ye ars of a

ge at th e ti me of th e shooting, the victim died forty da ys later.-2- Jerome Bond, Jr., was attempting to leave the store when four or five armedmales in black ski mas ks entere d the stor e and ord ered its occupa nts to the floor. According to Bond, four or f ive shots were fired. One of the robber s, who had a knee to Bond’s back and a gun to his face, took his wallet, containing approxima tely $140.00. Bond recal l ed that another of the robbers, in response to a customer who was notcoope ratin g, ordered another robber to “clock” the customer; however, no more shots were fired. I t was only after

the robbers left that Bon d discove

red that the victim

had bee n shot.
Bon d, who knew the defendant “by face,” recalled seeing

hi m standing outside the store just before the robb ery; howeve r, he was unable to identify any

of the masked robbers. Bond remembered that one of the robbers had a .380 automatic pistol and that one of the shots sound

ed like a shotgun blast.
Andrew Bolden, the night manager at t he market, was tending the cash register and talking

on th e t el ep ho ne at th e t im e o f t he ro bb er y. He testified that there were about five customers in the s tore, includ ing Bond and the victim, when three armed men wearing stocking masks ent

ered the st ore and ordered the occupants to the floor. He recalled that

one of the robbe rs order ed anothe r to shoot a handicapped

customer who was unable t o lie on the floor. The customer was not shot. Bolden recalled that one of the robbers took money from the c ash register.
After t he r obbery , Bolden

discover ed that the victim ha

d been sh ot. Bolden recalled hearin g four s hots, some of which sounded different than others. He observed a bu llet hole in the storage area nea r the victim and what appeared to be shotgun pellets above the door.
Caroline Hollister of the Memphis Police Department testified that when she arrive d at the market, she asked the victim who had shot him. Describing the victim as scared and agitated, the officer recalled that the victim named the defendant and a Spencer Pay ne. Anthony Yarborough witne ssed the latte r part of the Serve -Rite ro bb er y. After hearing shots from his residence, he looked across the street in time to see some me n exit the Se

rve -Rite and enter two different cars; one was a white Hy undai and the oth er a maroon Chevrole t. Yarborough recalled see ing a shotgun and

observed that on e of the men had a stocking over his head. He recognized one of th e two g etaway

cars as that of Roderick Turner who lived in the-3- neighborhood. Yarborough testified that he had observe d the defenda nt, whom he di d not k

now but had seen before, driving the white car earlier in the day . Explaining that he was ner vous and afraid for his fa

mily , Yarbor

ough wa s unable t

o poin t out the defendant from the witness stand.
Demetrius Henderson, who had pled guilty to second de gree murder and two count s of agg

ravate d robber

y because of

this i ncident , testified for the state. He recalled that on the day of the robbery , the defenda nt, who was accompanied by his cousin, claimed that he had been robbed of his cocaine and would pay $700.00 and an ounce of cocaine for his assistance in this matter. Henderson testified that he joined with the defendant and six othe

r men, all of whom were in two cars, a Hy undai and a Chevrolet, in an effort to find the defendant’s robber. The def

endant, D ennis Smith, and Demarcus Radliff were in the Hyundai. Hende

rson, Charles McGaughy , Thomas Watkins, Lee Antonio B oyd , and Car

l Porter g ot into the C hevrole t.
Hendersontestifie d tha t they first went to a re sidence but found no one at home. He stated that the men then proceeded to the Serve

Rite. Accord

ing to He nderson, th e def

endant, who had purchased masks, handed them out to each of the pa rticipan ts before they

went into the store. All but one was armed. The defendant, who g ave Radliff .32 caliber bullets, had a .380 and another man had a shotgun. Porter, who wa s the only one without a g un, stayed in the ca

r. Hendersonsaid he had a .22, Boyd a .32, Ra dl if f a .3 2, Mc Ga ug hy a .380, and Watkins a 12 gauge shotgun. He nderson identified McGaughy

as the robber who ordered the store occupa nts to the floor. He recalled that the robber with the shotgun, Watkins, firedbefore the oth ers. Hender son, who de nied firing a sho t, testified that “a lo t o f people fired.” He stated that Watkins and the defendant went

to the ba ck of th e s to re du ri ng th e c ou rs e o f t he ro bb er y. By the time of this trial, McGaughy had also p led guilty to second degree murder and two counts of aggr avated robbery

. A witness for the state, he testified that the defendant claimed that he ha d been robbedand wanted some help. He recalled that the de fendant stopped to acquire some stocking caps before the men enter ed the Serve-Rite. McGaughy

claimed that he was without his mask and never fired his weapon, a .380, but conceded that he had “laid [two] people down” during the rob bery. He claimed that he never rece ived the quarter ounce of cocaine, the“juice” of crack, or the $700.00 the def endant represented he would pay . McGaughy admitted driving a burgundy-4- Chevrolet and said t he defe ndant wa s ina small wh

ite sports car. On cross-examination, McGaughy admitted that he had failed to mention to police that the defendant entered the store. He acknowledged that he had told officers that Watkins, wh o he said had s hot the victim, an d H en de rs on di d t he sh oo ti ng du ri ng th e r ob be ry.
Dr. Jerry Fra

ncisco, t he Sh elby County Medical Examiner, performed an autopsy . He testi fied tha t t h e victim had two gunshot wounds which did damage to the spinal c ord and his lungs, liver, and other internal organs. Dr. Francisco mea sured one of the bullets at32/100 of an inch. He explained that the victim, who was paraly zed from the neck dow n becau se of the shooting, died from the infections caused by t he wounds

. The defendant presented no proof.
Id. at *2 - *7 (footnote omitted). Post-Conviction Hearing During his trial, the appellant was represented by

attorney Mar

vin Ballin. According to the appella nt, Ballin did not properly investig ate the case, did not obtain copies of police r eports, n or did he speak with any of the witnesse s on the indictment or those listed in the reporter. Specifically , the appellant complained that his attorney did not spea k pre-trial with Jerome Bond, Jr., Andre Bolden, and C.J. Hollister.
C. J. Hollister is the Memphis police officer who testified that the victim identified the appellant as the person who shot him. Accordingto the appellant, when Hollister testified, it was a complete surprise to both the appellant an d his la wyer. Ac cording to the appellant, his attorney apologized to him and his family and said it was the first time he heard about the evidence.
Fo llowi ng his conviction, the appellant received a copy of the police report from Ballin’s office. The rep ort listed

severa l additiona

l people w

ho were in the store, i ncluding

Jacob Potts, Tommy Randle, Alfred Jones, and Larry Hill. The appellant stated that he di d not receive any discover y ma terials p rior to tr ial. According to the app ellant, h is trial c ounsel tol d him that th e testimon

y of the co-d efenda nts would not be sufficie

nt to convict him during trial. Counsel explained that additional information would be required. The appellant claimed that his attorne y ma inta ined during his entire repres entation

that the Sta

te did not h ave suff

icient inf ormation t

o convict him. During the preparation for the trial, the appellant was offered severa l deals by the State. He said the last offer was for a total of four y ears in jail. He rejected the offer based on counsel’s advice-5-

and because

he was in nocent. A

t the time o f his arr

est, the appellant

was a junior in college. He had never been arrested befor e. The appellant testified that he wanted to testify at the end of

the trial about his presenceat the scene. However, his lawy er suggested that his testimony would have corroborated the testimony of his co-defendants. Counse l also believed that at the time, the appellant would be convicted of sec ond deg ree mu rde r. If he testified, the appellant may have faced

a life sentence. Based on that ad vi ce , t he ap pe ll an t d ec id ed no t t o t es ti fy.
If he had te stif

ied, the a ppellant would have explained that he had been robbed of $2,700. He was at the cr

ime scene to

recove r some of that mone

y. He stated

that he to ok his co- defenda nt, Demarcus Ratliff, with him for protection. The person with the money did not show up at the store. However, Ratliff and his friends decided to rob the store. T he appellant then went outside. Attorney Marvin Ballin testified that he has practiced law for thirt y- six or thirty

-seven y ears. During the last ten year s his practice has focused on crimina

l law. Thr oughout the trial prepar ations, the appellant maintained his innocence.
As the preparations continued, the co-defendants in this case were entering guilty

pleas. Mr. Ballin was aware of their statements and knew wha

t the co-d

efenda nts would sa

y du ring tr ial. According to the co-defendants, the appellant employ ed them to get

his mone y back. How ever, counsel believed that he told the appellant that the clerk or someone would put him at the scene and explained that to his client. Yet, the appellant maintained that he was not at the store.
The trial attorney a

cknowledged that he told the appellant that the co-defendant’s testimony alone would not b e suffic ient for a convicti on. But he did not tell him that the case was “a lock.” Mr. Ballin believed

that he had finally g otten a plea offer from the State for three years. He begged the appellant and his family to ac cept the deal. Because of the low of fer, counsel explained that the Statemight have some problems with the case. However, the appellant maintained his innocence.
On the Sunday befor

e trial, counsel tried again to resolve the c ase with aplea ag reemen t. However, a new prosecutor had been assigned the case. She was prepared f or trial. Even at that time, the appellant did not want to deal. Counsel noted that he could not force his client to take a plea.
Mr. Ballin explained that the testimony of Office r Hollister regarding the victim’s identification of the appellant was surprising and devasta ting. Ho wever, as provid ed in the repo rt, the office r wrote t h at t he victim had “advised [the officer] that male black Spencer Pay ne and Quantreal Underwo od were responsi ble for h is shooting .” The e

xact testimo ny a

t tria l is not included with the r

ecord in this appe al.
Counsel did not believe that he was entitled to the report until after

th e offic er t est ifi ed. In fa ct , t he pr os ec ut or ha d a n o pe n f il e p ol ic y, a nd co un se l t oo k a dv an ta ge of th is po li cy.-6-

Mr. Ballin a

cknowle dged th at he could have ob tained a copy of the pol ice rep ort in this c ase for fo ur dollars. Private Investiga tor Curtis Mull explained that a Memphis Police Department repo r t can be obt ained fo r ten dollars. The state stipulated that the report at issue would have bee n available.
Post-Conviction Standard of Review
In analyzing the

issue ra ised, we first note that a petitioner bringing a post-conviction petition for relief bears the burden

of proving the allegations asserted in the pe tition by clear

and convincing evidence. See Tenn. Cod e Ann. § 40 -30-210(f) (1997 ); Hicks v. St ate , 983 S.W.2d 240, 245 (Tenn. Crim. App.1998). "Evidence is clear and c onvincing when there is no serious or substantialdoubt about the correctnes s of the concl usions dra wn from the ev idence." Hicks , 983 S .W.2 d at 245 (citing Hodges v. S.C. Toof & Co. , 833 S. W.2d 8 96, 901 n.3 (Tenn. 1992)). Furthermore, the appella te court is bo und by th e tria l cour t's fi ndin gs of fact, unless the record prepond erates agains t those findings. Hicks , 983 S.W.2d at 245.
Effectiveness of Assistance of Counsel
When a petitioner seeks post-conviction relief on the basis of ineffective assi stance of counsel, the petiti oner bea rs the bur den of sho wing tha

t (a) the servic e s rendered by

trial counsel were deficient and

(b) that t he defic ient per

formanc e was pr

ejudicia l. Powers v. State , 942 S.W.2d 551, 558 (Tenn. Crim. App. 1 996 ). In order to demonstrate deficient performanc e, the petitioner must show that the s ervices rend ered or the advice given wa s below the range of competence demanded

of attorn ey s in crimi nal cases. Baxter v. Rose , 52 3 S .W .2d 930 , 93 6 (T enn . 19 75) . In order to demonst

rate pr ejudice , the petitioner mus t show that there is a reaso nable

probabil ity t hat, butfor counsel's de fici ent perf ormance , the res ult of the p roceed ing woul d have been diffe rent. S trickl and v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Becau se a petitioner must establish both prongs of the test to p revail on a cl aim of ineffective assistanc e of coun sel, failure to prove either deficient performance or resulting prejudice provides a sufficient

basis to deny relief

on the claim. Henley

v. State , 960 S.W.2d 572, 580 (Tenn. 1997). Moreover, on appea

l, the find ings o f fact made by

the trial court are conclusive and will not be disturbed unless the

evidenc e contained in the record prepond erates agains t them. Adkins v. State , 9 11 S.W.2d 334, 3 47 (Tenn . Crim. App . 1994). T he burde n is on the p etitioner

to show th at th e evidence preponderated ag ainst those findings. Id.
On claims of ineffectiveassistanc e of coun sel, the p etitioner is not entitled to the benefit of hindsigh t. This Court may

not second-gue ss a

re as on ab ly b as ed tr ia l s tr at eg y, and we cannot grant relief based on a sound, but unsuccessful, tactical decision made during the cou rse of t he procee dings. Adkins , 911 S.W.2d at 347. However, such deference to the tactical decisions of counsel applies o nly

if counse

l makes tho se decis ions afte r adequa te p reparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).-7- Failure to Interview

Witnesses
Alth ough the appe llan t claims that his attorney failed to intervie w several witnesses who would hav e provided informa tion helpf ul to the de

fense, t he appellant did

not call th

esewitnesses at the post-conviction hearing, and this Court cannot guess what their te stimony would have been. The appellant has ther efore f aile d to demonstrate any pr ejudice from this alleged deficiency

. See Black v . State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Failure to Obtain Police Report
The appel lant has likewise failed to demonstr

ate pre judice f rom couns el’s omiss ion in obtaining a police report filed by Officer Hollister wherein the victim identified the appella nt and Spencer Payne as the pe

rpetrators of the crime in question. This Court held on direc t appeal

that this statement of the victim was admissible at trial as a n excited u

tteranc e and thusan except ion to the hearsay rule. Underwood , 1997 Tenn. Crim. App. LEXI S 1018, at *4. Therefore, even if counsel had obtained the report

earlier, the statement of the victim identifying the appellant could not have been excluded. In thi s appeal the appellant argues that ha d counsel obtained the report earlier he could have use d it for som

e unspecified impeachment purposes. However, the victim and Spencer Payne were bo th dead a

t the time o f trial. So

it is difficult to see how this impeachment might have proceeded.
The appella

nt also mak

es the ba re asse rtion that had he kn own in adv ance of trial tha t the victim had given an admissible statement identifying

the appellant as the man who shot and robbed the victim , he would

have en tered a “best inte

rest plea” pursuant to North

Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970 ). At the t ime of his t

rial the a ppellant steadfa stly maintained his innocence . He cont inued to do

so at the p ost-conv

iction he aring a

nd on appe al. Despite his attorney ’s entre aties, the appella nt r efused to ac cept a plea bargain offe r wherein he would have served only three to four ye ars in prison. The appellant’s uncorroborated alleg ation that he would have pled guilty had he known of

the victim ’s statem

ent to polic e is simply

insuffic ient to carry his burden to prove by clear and convincing evidence that he is entitled to relief. See State v. Kerley , 820 S.W.2d 753, 757 (Tenn. Crim. App. 1991).
Conclusion
In light of the foregoing, the Court is of the opinion that there is no reve rsible error presented by this record. Ac cordingly , the judgment of the trial court is affirmed.

___________________________________ JERRY L. SMITH, JUDGE