### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs S ep te mb er 19, 200 7

JAC OB ED WAR D C AM PB ELL v. STA TE OF TEN NES SEE

Appeal from t he Criminal Court for Davidson County No. 2001-B-896 J. Randall Wyatt, Jr., Judge

No. M2006- 02727-CCA -R3-P C - Filed Novem ber 30, 2007

The Appe llant, J acob E dwar d Campbell, appea ls the dismis sal of his petition for post-convic tion relief by the Davidson County Criminal Court. Af ter a jury trial in 2002, Campbell was convic ted

o f fi rs t -degr ee mur der a

nd robber y , and he w as orde red to ser ve conse cutive sente nces of life imprisonment and ten y ear s. On appe al, Campbell argues that he w as denied his Si x th Amendment rig ht to the effe ctive assistanc e of c ounsel. After a thoroug h revie w of the recor d on appea l and the arguments of the par

ties, we a ffirm.

Tenn. R. App . P. 3; Judgment of the C riminal Court Aff irme d

D AVI D G. H AYES , J., delivere d the opinion of the court, in which J ER R Y L. S MIT H and T H O M A S T. W OOD ALL , JJ., joined.

J. Chase Gobe r, Na shville, Tennessee , for the A ppellant, Jac ob Edwar d Campbell.

Rob e rt E. Coo pe r, Jr
., At torne y G e ne ra l a ndRe po rt e r; Al ic e B. Lu str e , As sis ta nt At torne y G e ne ra l; Victor S. Johnson III, D istrict Attorney Ge nera l; and Katrin Mi l l er , As sistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION

Fa c tu al B ac kgr ound

A b ri e f s umm a

ry of the fa c ts unde rl yingthe Ap pe lla nt’ s c on vic tio ns we re re c ite d b y thi s
c ourt on dir e c t a pp e a l:

This case involves the death of eig hty -two y ear old Wil liam Satterfield, whose body was found in the ba sement of his ea st Na s hville home on J uly 17, 2000, afte r int ru de rs bo un d h is h and s and ank le s with a te le ph on e c or d a nd du c t ta pe , s tuf fe d h is

mouth wit

h a wa d of pa

pe r tow e ls, ta

pe d his mouth wit

h duc t ta pe , p la c e d a

pla sti c g roce ry bagover his hea d and sea led the bagaround his neck wi t h duct tape. T he intruders sto l e t h e victim ’s ca r, guns, jewelry

and other

items from his home. The-2-

Davidson County

Gra nd J ury indicted the [Appellant]

. . . [and co-def endant Jarre t Guy ] for premeditate d first deg ree murder, f elony murder a nd robber y for the c rimes committed ag ainst the victim.

. . . .

. . . Ang ela Guy testified that she ove rhea rd the [Appellant] and her husba nd, J arr et Guy
, talking about “makingsome money ,” and the [Appellant] “mentioned that he knew whe re to make some money . A frie nd of his g randf ather ’s kept lar g e sums of

mon e y be c a us e he di dn ’t bel iev e in b ank s.

. . . H e me nti on e d th a t he wa s an o ld

man. ” An gela Guy

testified that the [Appellant] st ated that the vic tim li ved in the Eng lewood ar ea ne ar a

Krog er’ s g roce ry

store. . . .

An g e la Guy te sti fi e d that the [Ap pe lla nt] an d he r h

us ba nd le ft the a pa rtme nt o n July 16, 2000, and at about 3: 00 or 4: 00 p.m., “Jarret [ Guy ] called and s aid he was g oing to go to K rog er’ s.

. . . That mea

nt that they

wer e g oing to g o brea

k into the house.” She state d th a t the [Ap pe lla nt] a nd Jar re t G uy re tur ne d to he r h ome late r t

hat da y in . . . [t he victim’s] new white Oldsmo b i l e and that they ran ba ck and f

orth taking proper ty out of t he car, including guns, m oney , pills, shot g un shells and bullets. She

e xpla ine d th a t th e [Ap pe lla nt] a nd Jar re t Guy dis c us se d whi c h it e ms the y c ou ld s e ll to make the most money

and that they

split a larg e amount of c ash betwe en them. . . . Andre w Parke r, who wa s the [Appellant’s] room mate for a fe w day s at the Cr imi na l Just ic e Ce nte r i n N a sh vil le , te sti fi e d that the [Ap pe lla nt] co nf e sse d to hi m that he ha d r ob be d a

nd mur de re d th e vic tim

.
The evidence established that the [Appellant] participated in the r obbery of the victim, spli t some of the proc eeds of the robbery
, and then tried t o sell some of the stolen g oods. The [App ellant] was arr ested in a motel room whe re police found some of these stolen g oods. . . .

Sta te v

. J ac ob Ed war d Ca mp be ll
, No. M2003-00597-CCA-R3-CD (T enn. Crim. App. at Na shville, Mar. 15, 2004)
, perm. to appe al denied (Tenn. O ct. 4, 2004). On Aug ust 15, 2002, the Appellant

was c onvicted by a Davidson County jury of pre meditated first de g ree murder, f elony murder, a

nd robber y . The trial c ourt merg ed the two murde r c o n v i ct i ons into a single of fense of first deg ree murder, and t he Appellant was sentenced to consec utive terms of life i mprisonment and ten y ear s in the Tenne ssee De partment of Corr ection. On dire ct app ea l to this court, we af firmed the judgme nts of the trial cour t. Id

.

I n 2005, the Appellant f

iled a pro se petition for post-conviction re lief in the Dav idson County Criminal Court. He was a ppointed counsel, who filed an a mended pe tition on J une 29, 2006,

a sse rt inga

de nia l of his c on sti tut ion a l r ig hts ba se d upo n th e ine ff e c tiv e a ssi sta

nc e of tr ia l c ouns e l. A hea ring was he ld on November 2, 2006, at which the A ppellant and tria l counsel provided-3-

testimony . On Dec ember 1, 2006, the post-conviction cour t entere d an orde r deny

ing the petition for post-c onviction relief. T he Appe llant timely appea led to this court.

Ana lys is

On a pp e a l, t he Ap pe lla

nt c on te nd s th a t tr ia l c ouns e l wa s def ic ie nt in the fo llo wi ngre sp e c ts: (1) by failing to throug hly

investigate seve ral shoe pr ints found at the murder scene ; (2) by

failing to thoroug hly

investigate the ava ilability of a purported a libi witness, Tracy Gar rett, for the purposes of her testifying at trial; (3) by

failing to fully

investigate the bac kg round of Mike Sing leton, who

was a car eg iver for

the victim and a witness f or the prose cution; (4) by failing to locate a potential defe nse witness, B rian B ry an t , b ef ore tria l; and (5) by

failing to reque st a cha

ng e of ve nue base d upon publicity

that the trial re ceive d by

local media.

In or de r t o p re va il o n a

po st- c on vic tio n p e tit ion , th e pe tition e r must estab lis h th a t hi s conviction or sente nce is void or voidable due to the abridgement of a constitutional right. T.C.A. § 4 0- 30 -1 03 (2 00 3) ; Howellv . S tat e , 151 S.W.3d 450, 460 (Tenn. 2004) . In a post-c onviction proce eding, the burden is on the petit ioner to prove his allegations by clea r and c onvincing evidenc e. T.C.A. § 40-30-110( f) (2003). Clea r and c onvincing evidenc e mea ns evidenc e in which ther e is no serious or substanti al d o u b t about the cor rec tness of the c onclusions drawn f rom the evide nce. Hodges v . S.C. Toof

& Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992)

.
Both the Si xth Amendment to the United S tates C onstitut ion and Article I, S ection 9 of the Tenne ssee Const itution guarantee a criminally accuse d the right to repr esenta tion by counsel. Sta te v. Burns , 6 S.W .3 d 4 53 , 4 61 (T e nn . 1 99 9) . Bo th the Un ite d Stat e s Supr e me Cou rt a nd ou r s up re me
c ou rt ha ve re c og niz e d th a t th e ri gh t to su c h r e pr e se ntatio n encom passe s th e ri gh t to “ re a so na bly eff ective” assistance , that is repre sentation within the range of competenc e demande d of attorne ys in criminal ca ses. Id

. To establish ineff ective a ssistance of c ounsel, the petitioner be ars the bur den of proving both that counse l’s perf ormanc e wa s deficie nt and that th e d efic iency pr ejudiced the defe nse. Go ad

v . S tat e , 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington , 466 U. S. 6 68 , 6 87 , 1 04 S

. Ct. 20 52 , 2 06 4 ( 19 84 ); Ov e rto n v . S tat e , 874 S.W.2d 6, 11 (Tenn. 1994) ; Bu tle r v . S tat e , 789 S.W.2d 898, 899 (Tenn. 1990) ).

To p r o v e a d e f

ic ie n c y in r e p r e s e n tati o n , th e p e ti ti o n e r mu s t s h o w th a t c o u n s e l’ s a c ts or omissions wer e so serious a s to f all below an objective standard of rea sonablene ss under pre vailing p r o f e s s io n a l n o r ms. Goad
, 9 3 8 S.W.2d at 369 (c iting Strickland , 466 U.S. at 688, 104 S. Ct . at 20 65 ; Ba x te r v . R os e , 523 S.W.2d 930, 936 (Tenn. 1975)). To establish that a def iciency r esulted in prejudice , a petitioner “ must show that there is a r easona ble proba bil i t y t h at, but for c ounsel’s

un pr of e ssi on a l e rr or s, the re su lt o f the pr oc e e din g w ou ld h a ve be e n d if feren t. A r e a so na

ble probability is a probability sufficie nt to undermine confide nce in the outc ome.” Id . at 370 (quoting Strickland , 466 U.S. at 694, 104 S. Ct . at 2068)). T his court has he ld:

Wher e a c laim of incompetenc y of counsel is alleged, this Court will not reverse the-4-

find i n g o f t h e trial judge dismissing such petition if the action of trial c ounsel was based upon le gitimate trial tactics and strategy. Sta te v . M artin , 6 2 7 S

. W. 2 d 139 (T e nn . Cr . A pp . 1 98 1) . H ow e ve r, if the re c or d s ho ws the a c tio n o f t ri a l c ou ns e l, i n the circ umstances shown, has no rational or logical basis, then the legitimacy of the tactics e mployed must be scrutinized under the requirement of Ba x te r v . R os e , 523 S.W.2d 930 (Tenn. 1975)

.

Sta te v . B ufo rd , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983)

.

In re vie wi ng c ou ns e l’ s c on du c t, a “ fair a sse ssm e nt . . . r e qu ir e s th a t e ve ry e ff ort be ma de to eliminate the distorting effe cts of hindsight, to reconstruc t the circ umsta n c e s of counse l’s challenge d conduct, a nd to evaluate the conduc t from counse l’s perspe ctive at the time.” Strickland , 4 66 U. S.

a t 68 9, 10 4 S. Ct. a t 20 65 ; Sta te v . H on ey c utt , 5 4 S. W .3 d 76 2, 76 8 (Te nn . 2 00 1) . T he fa c t th a t a pa rt ic ula r s tr a te gy or ta c tic faile d or hu rt the de fe ns e do e s no t, sta nd ing a lon e , e sta bli sh un re a so na

ble repr esentation. However , defe renc e t o m at ters of strategy and tac tical choice s applies only if the choice s are informed ones based upon a dequate prepa ration. He nle

y v . S tat e , 960 S.W.2d 572, 579 (T e nn . 1 99 7) ; He lla rd

v . S tat e , 629 S.W.2d 4, 9 (Tenn. 1982)

.
The issues of de ficie n t p er formanc e by counse l and possible prejudice to the defe nse ar e mixed questions of law a nd fac t. Burns
, 6 S.W.3d at 461. A trial court’s findings of fac t underlying a cla im of ineffe ctive assistanc e of c ounsel are revie wed on a ppeal unde r a de novo standard,

acc ompanied with a pr esumption that those findings are c orre ct unless the pre pondera nce of the evidenc e is otherwise

. Fi e lds v . S tat e , 4 0 S. W .3 d 4 50 , 4 58 (T e nn . 2 00 1) (c iti ng Te nn

. R. A pp . P. 13(d)) . Howeve r, conc l u s i o n s of law a re r eviewe d under a

purely de novo standard w ith no presumption of cor

rec tness. Id

.
I. Fa ilur e to Inv e st iga teShoe Pr int s a t C r im e Sc e ne

Th eAp pel lan t f

ir st con ten ds th at t ri al c ou ns el w as i neff ect iv e forfai li ng to in ves tigatec e rt ain sh oe print s d isc ov e re d in the ho us e wh e re the vic tim was fou nd mu rd e re d in the ba se me nt. Hi s statement of the f

acts summariz es his testimony from the post-conviction hea ring in this regard:

During testimony, [the] Appe llant confirmed t h at h e had disc ussed with [t]ria l [c] ounsel that ac cording to disc overy seven separ ate shoe prints wer e discove red at the house whe re the murder oc curr ed. . . . Appe llant further testified that as far a s he i s aware, none of the shoe prints were e ver c ompare d to the shoes he a nd his codefe ndant wer e we aring at the time of their ar rest. . . . Although [the] Appellant wa s not made aw are of any positive identification r egar ding his shoes orthe shoes his codefe ndant was w earing, [th e] Appellant testified that State’s witness Mike Singleton’s prints were f

ound throughout the house, including the do orjamb to the baseme nt.
A p e tit ion e r wh o a sse rt s that he re c e ive d th e ine ff e c tiv e a ssi sta nc e of

c ou ns e l ba se d u po n h is attorney’ s failure to i n v est igate a c ase pr operly be ars the bur den at the post-c onviction hearing of-5-

demonstrating what that investigation would have reve aled. O w e n s v

. S tate , 1 3 S

. W. 3d 742, 756 (Tenn. Crim. App. 1999) . The Appe llant has failed to sa tisfy his burden on this issue.

T h e p o s t -convic tion court clea rly ac cre dited the testimony of trial counsel that he did not believe that the discovery of Singleton’s shoe print would benef it the defe nse bec ause Singleton was

a ca reta ker of the elderly victim and, therefor e, his prese nce in the hous e would not have be en out of the ordina

ry. The post-c onviction court f o u n d that trial counsel e ffe ctively investigated a nd prepa red f o r trial on this issue and, further, that the A ppellant had f ailed to demonstrate any prejudice from any a lleged lack of investigation of the shoe prints. Afte r re view, we agre e that the post-conviction court appropriately denied r elief on this basis.

II. Fa ilur e to Inv e st iga teAl ibi W it ne ss
At the post-conviction hea ring, the Appellant testified that around 11:00 a.m. on the day that the mur de r o c c ur

re d, he wa s a t th e ho me of his c o- de fe nd a nt, Ja

rr e tt G uy , ta lki ng on the ph on e wi th his frie ndTr a c y G arr e tt. He te sti fi e d that he trie d to raise the iss ue of thi s p ur po rt e d a lib i w itn e ss wi th t ri a l c ou ns e l, b ut c ou ns e l w a s not c on vin c e d th a t th is e vid e nc e wo ulda id the de fe ns e . O n c ro ssexamination, the Appe llant conce ded that ther e had not been a “state d time” that the homicide a nd robbery had take n place

. Contrarily, trial counsel testified that he ha d no rec ollection of a discussion

re ga rd ing Ga rr e tt a s a n a lib i w itn e ss, bu t he state d that he wo uld ha ve a dv ise d th e Ap pe lla nt a ga ins t putting on proof that he had been at the Guy residenc e on the day in question, “be cause there was much more e vidence linking Mr. Guy to the commi ssion of t he offense .

. . than [the A ppellant].”

In its order de nying relief, the post-conviction court summarized the testimony from the

e vid e nti ary hear in g on this is su e a ndfo un d th a t th e pr op os e d te sti mon y o f G arr e tt “ wo uldon ly

acc ount for the [ Appellant]’ s activities and whe rea bouts for a minimal period of time during the day the victim was murde red.” The post-c onviction court found tria l counsel’s re asoning, that such testimony would not be benefic ial to the defe nse, wa s valid and conc luded that t h e Appe llant had failed to show a ny prejudice as a r esult of the fa ilure to ca ll Garre tt as a witness.

“Whe n a p e ti ti o n e r c o n te n d s th a t tria l c o u n s e l f a il e d to d is c o v e r , in te r v ie w , o r prese nt witnesses in support of his defe nse, these w itnesses should be pre sented by the pe titioner at the evidentiary hearing.” Bl ac k v . S tat e , 79 4 S.W .2 d 75 2, 75 7 ( Te nn . Crim. Ap p. 19 90 ); se e als o S c ott

v . S tat e , 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996)

. As a gener al rule, this is t he only way the petitioner ca n establish that: ( 1) a material witness e xisted who could have been disc overe d but for counsel’s negligent investigation of the ca se; (2) a known witness was not intervie wed; (3) the failu re to d isc ov e r o r i nte rv ie w the wi tne ss cau sed hi m pre jud ic e ; or (4 ) the failu re to p re se nt a known wit ness or call the witness to the stand re sulted in the denial of c ritical evide nce w hich caused the petitioner pre

judice. Black , 794 S.W.2d at 757.

Clearly, t h e Appellant did not call Ga rre tt as a witness at the post-c onviction hearing, and the evidenc e does not preponder ate against the findi ngs of t he post -convic tion court on this issue. We, the ref

ore, c onclude that the A ppellant has failed to demonstrate r esulting prejudice on this issue. Acc ordingly, the issue is without merit.-6-

III . F ail ur e to Inv e st iga teBac kgr ound o f S ta teWit ne ss

Th e Ap pe lla nt n e xt c on te nd s that he wa s pr e jud ic e d b y tria l c ou ns e l’ s f a ilu re to i nv e sti ga te the ba c kg ro un d of Sta te wi tne ss Mik e Sin gle ton , who ha d a c te d a s a liv e -i n c are giv e r f

or the vic tim for se vera l months i n 1999, prior to the victim’s murder in 2000. The Appe llant testified that he asked tria l counsel to interview Singleton, whose “ fingerprints were a ll ove r the house,” but that he did not believe trial c ounsel followed up on this reque st. The po st-conviction court found that Singleton was eff

ectively c ross-examined by trial counsel durin g t h e trial and, further, that the Appellant had f

ailed to pre sent any proof at the post-convic tion hearing that would e stablish that Singleton’s background w ould have be nefitted the de fense . When a claim of inef

fec tive assistance of c o u n s e l i s p r e d i c a t e d u p o n a f a i l u r e t o i n v e s t i g a t e , t h e p e t i t i o n e r i s o b l i g a t e d t o s h o w wh a t a

re as o n able investigation would have reve aled. Owens
, 1 3 S. W

. 3 d a t 7 5 6

. T h e s o le b a s is f or the Appellant’s argument on t his issue is his own testimony from the post-convic tion hearing that the witness “wa s supposedly a bum that wa s l iving off of [the victim]” and tha t “he stole fr om [the victim] all the time.” This self-se rving testimony wa s clea rly insufficient to satisfy the Appe llant’s burden f or such a claim. Ther efor e, we conclude that this iss ue is without merit.

IV. Failure to Locat e a Pote ntial Defense Witness Bef ore Tr ial

Th e Ap pe lla nt al le ge s tha t tria l cou ns e l wa s def ic ie nt in f a ili ng to l oc a te a

po te nti a l de fe ns e wi tne ss, Br ia n Brya nt, wh o h e c la ims c ou ld h a ve pr ov ide d tes tim on y co ntr a dic tory to th a t of Sta te witness Angela G uy. Bryant’s propose d testimony related to an a lleged c o n v ersation between Bryant, the Appellant, his c o-def endant Jarr et Guy, and Guy’ s wife Ange la, prior to the murde r. The Appellant testified at the post-conviction hea ring that an investigator was hire d to locate Brya nt on the first day of

trial but that he wa s never found. The Ap p el lant testified that Bryant should have been e a s il y lo c a te d
, b e c a u s e h e w a s in c u s to d y o f th e T e n n e s s e e D e p ar tm e n t o f Co rr e c tion a t the time of trial. At the post-convic tion hearing, trial c ounsel testified that he considere d Bryant a risky de fe ns e wi tne ss, be c a us e his te sti mon y wo uld ha ve a ga in p la c e d th e Ap pe lla nt i n c los e pr ox imi ty to his co-def

endant ne ar the time of the m urder

. Trial counsel stated t hat he had a subpoe na issued for Brya nt, which had not bee n serve d by the time of trial. He additional l y rec alled that an investigator had be en hire d to locate Brya nt, but these eff orts wer e also unsucc essful. He fu rt her testified that he had tried to elicit some of t he information that Bryant might have provide d through his cross-e xamination of Ange la Guy at tria l.

The post-c onviction court ac cre dited the testimony of trial counsel on this iss ue and f ound that the decision not to present Bryant a s a witness wa s a tac tical one, not to be se cond-gue ssed. It further determined that the Appellant f ailed to demonstrate resulting prejudice from the a bsence of Bryant’s purported testimony. Again, we note that “[w ]hen a petitioner contends that trial c ounsel fails to d isc ov e r, int e rv ie w, or pr e se nt w itn e sse s in su pp ort of hi s def e ns e , th e se wi tne sse s sh ou ld be presented by the petit ioner at the evidentiary hearing.” Black
, 794 S.W.2d at 757. It is clear that the Ap pe lla nt f

a ile d to e sta

bli sh pr e jud ic e on thi s is su e , a nd , a c c or din gly , it is w ith ou t me ri t.

V. Fa ilur e to Re que st

Cha nge of

Ve nue-7-

The Appe llant alleges that he rec eived inef fec ti v e as s i stance of counse l based upon trial counsel’s f

ailure to move f

or a ch ange of venue “due to the amount of publicity the case ha d

re c e ive d. ” At the po st- c on vic tio n he ari ng , he te sti fi e d tha t hi s c o- de fe nd a nt’ s tria l w a s h e ld a mon th prior to his own and that “it was on the news every night . . . it was all in the newspape r . . . [a ]nd it s a id [ th e A p p e ll a n t] w a s c o n v ic te d b e f o r e [ th e A p p e ll a n t] e v e n w a lk e d in th e c o u r tr o om . . . .” Tria l c ou ns e l te sti fi e d th a t he didno t r e c a ll a ny dis c us sio ns wi th the Ap pe lla nt a s to pr e tr ia l pu bli c ity

or re questing a cha nge of v en u e and, f urther, that he did not rec all any juror ha ving been e xcused for e xposure or

knowledge of

the ca se.

“ Ve nu e ma y b e c ha ng e d . . . if it a pp e ars to the c ou rt

that, d ue to u nd ue e xc ite me nt a ga ins t the de fe nd a nt i n th e c ou nty wh e re the of fe ns e wa s com mit te d or an y othe r c a us e , a fair tr ia l pr ob ably could not be had.” Tenn. R. Crim. P. 21(a)

. The ult imate t est is whether the j urors who actually sat and re ndere d verdic ts were prejudice d by the pre trial publicity. State v. Garland , 617 S.W.2d 176, 187 (Tenn. Crim. App. 1981)

.

We c onclude that the A ppellant failed to satisfy his burde n to establish that trial counsel’s acts or omissions were so serious as to fa ll below an objec tiv e st andar d of re asonable ness under preva iling professional norms. Moreove r, the e vidence does not preponde rate against t he finding of t he trial court that the A ppellant fa iled to demonstrate a ny prejudice resulting from trial c ounsel’s failure to move for a change of venue , which wa s based upon the te stimony of the Appellant and tria l

c ou ns e l a t th e po st- c on vic tio n h e ari ng . A c c or din gly , th is i ssu e is w ith ou t me ri t.

CONCLUSION

Based upon the foregoing, the j udgment of t he Davidson County Criminal Court is affirmed.

___________________________________ DAVI D G. HAY ES, JUDGE