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

Briefs J uly 9, 2002
STEVEN D. KING v. STATE OF TE NNESSEE
Direct Appeal from the Criminal Court for Shelby County No. P-19661 Arthur T. Bennett, Judge

No. W2001-01382-CCA-R3-PC - F iled December 30, 2002

The petitioner, Steven D. King, appeals the denial of his petition for post-conviction re lief from his convictions of felon

y mu rder, e specially

aggravated kidnapping , and es pe ci al ly a ggr av at ed ro bb er y. Upon review of the record and the p arties’ briefs, we affirm the judgme nt of the post-conviction court. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., deliver ed the opinion of the

court, in which J OHN E VERE TT W IL LI AMS and A LAN E. G LENN , JJ., joined.

Addie M. Burk s, Mem phis , Tenn essee, for th e appel lant, Stev en D. K ing.

Paul G. Summers, Attorney Gene ral andReporter; Renee W. Turner, Assistant Attorney Genera l; William L. Gibbons, District Attorney General; and Al onda Hor ne Dwye r, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

I. Fact ual Backgro

und In 1995, the petitioner, was convicted by a jury in the Shelby County

Criminal Court of felony murder , especially a ggravated kidnapping , and espe cially aggravated robbe

ry. I n our opinion on d

irect ap peal, thi s court se

t out the fo llowing f

acts unde rly ing the c onviction s: On June 8, 1992 , at appr

oximately 6:00 P.M., th

e Memphis Police Departmen t was n otified of the disap

pearan ce of the 65-year-ol d victim, Mary Cuches, w

h o was last seen a few hours earlier dr iving
a blue 1984

Buick L aSabre. Within mi n utes, Officer Emmett Ward found the car

and four occupa nts at a shopping mall. The driver of the vehicle sped away

before eventua lly stopping in a chur ch parking lot. Two black male occupants fled, l eaving tw o young f

emales in the backseat of the stolen vehicle.-2- Earlier that afternoon, between 3:30 and 4:00 P.M., siste

rs Nakisi sa and Tametrice Brown saw the [petitioner] and two of his companions outside their apartment building; he explained that he was driving

his aunt's car. His companions, Ty rone James and Greg Jackson, left for fifteen or twenty minutes and then returned for the [petitioner]. About
one and one- half

hours later, the [petitioner] and James returned and invited the sisters to join them at a McDonald's Restau rant. Fro m there, they went to the mall wher e they were

discovered by

the police.

At trial, Nakisisa Brown testified that she had seen the [petitioner] hand Jackson a pistol before Jackson left with James; when he got back, Jackson re

turned it t

o the [peti tioner] who then took it to a
ne ighbo r's house. Ms. Brown recalled that she thought the [petitione r ]
was joking w

hen he sa id “there was a de ad woman

in the back of the trunk.”

When he learned the next morning from his mother that he was wantedby police, the [petitioner], age seventeen, contacted authoriti es. During

an hour o f questio nin g, he signed a statement acknowledgingthat he, Jackson, a nd James saw the victim in the Kroger parking lot, put her in the trunk, and stole her car. The [peti tioner] c onfessed that he shot the victim with a .22 caliber revolver when, about thirty minutes after her abduction, th e victim banged noisily on the trunk of her c ar . The [petitioner] told officers that Jones and Jackson disposed of the body “in the woods.”

The victim, found in a heavily wooded area, had been shot

in the neck and behind the right ear. A pathologist

determined that either of the wounds could have been

fatal. There were bloodstains in the trunk of her car.

The police lo cated the pis to l, serial number 44446; it con

tained six live rounds and one spe

nt round. E

xpert testi m ony

est ablished that
one of two bullets taken from the body was fire d from this.22 pistol. The other bullet had too much damage for a n accurate assessment.
When calledas a

defense witness, Ja

mes invoke d his right to rema in silent. The [petitioner] did not testify. State v. Steven D. King , No. 02C01 -9509-CR- 00280, 199 7 Tenn. Cr im. App. LEXI S 95, at **2-4 (Jackson, Feb. 4, 1997).-3- The petitioner

was s entenced to life in prison for the felony murder conviction, twenty-five years incarceration for the especial ly ag gravated kidnapping conviction, and twe nty-thr e e yearsfor the especially

aggravated robbe

ry conviction. The tria

l court ordered that the sentences for the especially a

ggravated kidnapping

conviction and the especially aggravated robbe

ry conviction
were to be served co ncurrently, bu t consecutively to the sente nce for the murder conviction. The petitioner’s convictions were affirmed by this court on February

4, 1997. Id. The petitioner did not file an a pplicatio n for per

mission to a

ppeal to t he supre me court

. On March 3, 1998, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel. In support of his claim, the petitioner alleg ed numerous grounds for relief. On March 17, 1998, the post-conviction court entered an order dismissing the petition, concluding that the p etition wa s not timely filed. Sub sequentl

y, t he petitio ner file d a motion to reopen his petition, asserting that his petition had been given to prison authorities for mailing on January 28, 1998, and was therefore timely filed. The post-conviction court appointed counsel for the petitioner and an evidentiary hearing was held on Februa ry 2, 2001.

The petitioner asserted in h is petition that trial counsel had provided ineffective assistance of counsel by, inter alia , presenting inarticulate and obtuse opening and closi n g state ments; failing to properly cross-examine witnesses; failing to disclose relevant evidenc e ; allowing false and misleading evidence to be pre sented to the jury; improperly investigating the case; limiting the petitioner’s input on the proceedings; failing to object to the authenticity of evidence; making incorrect and inf lammator y st ateme nt s to the jury; failing to intervie w and subpoena witnesse s; inadequa

tely prepar ing and using pr etrial discovery ; and fai ling to imp each ke y w itnesses. The petitione

r also all eged th at tr ial counsel subjected petitioner to “coercion, threats, conje cture, intimidation and manipulation.”

The petitioner testified at the post-conviction hearing that he pr ovided co unsel with the names, addresses, and telephone numbers of witnesses who w ould testify at trial. The petitioner also aske d counsel to conta ct his mothe

r, Bar bara Jone s, and his sister, Chakita Jones. According to the petiti oner, co

unsel pro mised to spe ak with the m and also

promised to subpoen a witness es. On the day of tr

ial, “[t]hey were

sitting there, but they didn’t testify .” The petitioner also claimed that coun sel assur

ed him tha

t he had sp oken with

his family. However, when the petitioner spoke with his family, “they

haven’t heard from him.”

The petitioner asserted

that counsel failed to visit him in jail, estimating that he saw counsel only four or five

times wh ile h e was in jail awaiting trial. He acknowledg ed that counsel visited on the day bef

ore each court hearing . The petitioner also complained that he and counsel “wasn’t getting along. We wasn’t communicating right. And the thing s that I was asking for him to say to the witness . . . he we ren’t saying

them. Th e things I wa s asking him to do, he wasn’t doing.” Specifically, the pe titioner noted that he needed his mother to testify that when he was arrested she was not notified. The petitioner was a minor at the time of his arrest. His sister

would also have testified regarding his mother’s lack of notice.1 The tr ial tra nscr ipt refl ects t

hat the f irst name of this wi tness is “ Nakisis a.” However, the re cord is cl ear th at Na kisisa and Na rkeshia Bro wn are the sam e indiv idual.
-4-

The petitione

r alle ged that trial counsel prevented him from testify ing at trial. He complainedthat trial counsel told him he should not testify and he was not a ware that he had a choice. According to the petitioner, “[counsel] is the one that was calling the shots.”The petitioner be lieved that his te stimony would hav e been b enefic ial. The p etitioner conced ed that a t trial h e advised the trial court that he did not want to testify a nd that he had no t be en threatened or intimidated.

The petitioner further asserted that trial counsel made numerous errors during t rial. He contended that

during opening and closing ar guments, trial counsel allowed the District Attorney “to say some thing s that wasreally missing, misconduct for a courtro om.” Specifically, the petitioner objecte d to the Dis trict Atto rney ’s st ateme nt in his clo sing ar gument t hat “the re is a Stephen King that writes scary movies but this is the Steven King that make[s] them.” Moreover, trial coun sel faile d to object to the statement. However, the petitioner was unable to rela te other specific concerns, explaining, “I

never got a chance to see [a] transcript on the opening and closing statement because [trial counsel] didn’t order them.”

Ad di ti on al ly, the petitioner main tained that trial counsel’s argument reg arding the murder wea pon w as ineff

ective. Prior to tr

ial, the g un used to k

ill the vic tim was mist

akenly destroyed by the police depa

rtment. Although the petitioner acknowledged that tria l counsel raised the issue in pretrial motions, the petitioner contended that counsel “could have arg ued that issue better than wha t he done. Becau se what he was telling me before we went to court, eve ry day before we go to court was a differe nt thing from what he was say ing to the judge.”
Next, the petitioner alleged t hat trial counsel did not properly c ross-examine
numerous witnesse s. The petitioner recalled that during trial he took notes a nd passed his questions
or concer ns to trial counsel. However, counsel failed to respond. Specif ically, the petitioner

noted his concerns regard

ing trial counsel’s cross-e xamination of Narkeshia Brown. 1 The petitioner related that, “I needed him to ask her about like the statement that she made. I sa y, she seen me

in a car or seen me give someone a gun. A nd I asked him to ask her about the que stions but he didn’t.” The petitioner was also concerned with counsel’s cross-e xamination regarding the

disappearance of the murder weapon.

The petitioner further conte nded that trial counsel failed to disclose relevant eviden ce , including the results of fing erprint a nd gunpo wder re sidue tes ts. Additionally, he alleg ed that trial counsel failed to

prepare and

properly use pr

etrial discovery . On cross-examination, the petitioner conceded that tr ia l c ou ns el pr ov id ed co pi es of di sc ov er y, a copy of his c onfession, and a copy of the trial tra nscript. Finally, the petitioner a lleged that trial counsel s ubjecte d him to “c oercion , threat s, conjecture, intimidation and manipulation.” However, the petitioner was unable to recall s pecific-5-

details of such conduct. Describing how trial counsel’s actions were coercive or manipulative, the petitioner testified, “Because he knew I didn’t – he k new th at I didn’t understand what wa s going on, but y et, still, he ke

pt telling me ever yth ing wasall right. He knew it wasn’t. He kept misleading me, telling me what I should do.” The pe titioner also complaine d that tria l c ounsel was
un responsive, “ And then when I call him or try to talk to him, he’s saying hold on, like he didn’ t even want to talk to me, like he just constantly pushing me off.”

At th e c on cl us io n o f t he pe ti ti on er ’s te st im on y, post-conviction counsel advised the court that the petitioner

had “ indic at[ed ]” to her that Beverly Reed and Chakita Jones were present and willing t

o testify that th ey h ad attempted to call trial counsel to “inquire about the case.” Ad di ti on al ly, Jones would testify that “she wa s aware when the [petitioner] was arrested. And that theywere not present or they were not called when the [petitioner’s] statement was taken and no family members were notified with regar d to the statement.” The post-conviction court noted that the issue regarding the suppression of the pe titioner’s statement

had been addressed by

the trial court in pretrial motions and had also been addressed in the petitioner’s direct appeal; there fore, the issue was moot.
Trial counsel t estif ied that h e had practiced law since 1980 and had r epresented defenda nts in approxima

tely th irty-five to fifty

murder cases. He was appointed to repre sent the petitioner in September 1993. He filed a motion to suppress the petitioner’s statement to police on the basis that the petitione r, who was a minor at the time of his arrest, did not have a parent or guardian present with him at the time he gave his statement at juvenile court. He recalled that there
was a “highly

conte sted” and lengthy

hearing on the motion. Trial counsel specifically recalled speaking with the petitioner’s mother; however, he described their c ontact as sporadic. He was
awarethat

the petitioner’s mother was not present when the statement was given. Nonetheless, he
n oted that the tr

ial cour t determined that b ecause of the pe titioner’ s length

y juvenil e recor

d, th e petitioner was aware of his rights and the presenc e of a parent or guardia n was unnecessary
. Th e issue wasalso addr

essed in t he petitio ner’s di

rect ap peal.

Trial counsel testified that he advised the petitioner of his right to testify. He recalled that the petitioner was asked on t he record if he u nderstood that he had a right to testify and that “nobody ca

n take that right away

from him, not even myself.”

Trial counsel testified that the issue of the missing gun was ra ised at trial and on appeal. He also reviewed the discovery materials with the petitioner and in re sponse to a request from the petitioner

subpoenaed a co-defendant to testify at trial. He denied that the petitioner had asked him to subpoena other witnesses.

On cross -examination, trial counsel estimated that he visited the petitioner approxima

tely ten to fifteen times wh ile the petitioner was in custody. The petitioner never expressed to him concerns about his representation or asked him to contact other witnesses. Trial counsel recalled speaking with Cham ik a Brown who gave a state ment to police implicating the petitioner and two co-defendants. Trial counsel stated that he spoke with the petitioner’s mother and-6-

noted that she was present during part of the trial. He explained that the petitioner’s mother had no relevant infor mati on regar ding t he rob bery, kid nappi ng, or murder. Her testimony was only relevant to the supp

ression is sue whic h had bee n determ ined prio r to trial

. Contrary to the petitioner’s assertion that trial couns el prev ented him fr om tes tifying, trial counsel asserted that the petitioner never in di ca te d t ha t h e w an te d t o t es ti fy. Counsel stated that he discussed the issue w ith the petitioner and the “ultimate decision” was the petitioner’s. Trial counsel testified that the petitioner never expressed dissatisfaction with his representa tion. II. Analysis In a post-conviction proc eeding , the petitioner bears the burden of proving the grounds raised in the petition by clear and convincing evidence . Tenn. Code Ann. § 40-30-210(f) (1997). “Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn f rom the evide nce.” Hicks v. St ate , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and fact subject to de novo review. Statev. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). As such, the

post-con viction c ourt’s findings of fact are ent itled to a p

resumptio n of corr

ectness unless the evidence preponderates against those findings. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). The cre dibility

of the witnesses and the weight and value to be a fforded their testimony a

re questions to be resolved by the post-conviction court and, on appeal, the burden is on the petitioner to prove that the evidence preponderate s against the post-convict ion c ourt’s findings. Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997). However, a post-conviction court’s conclusions of law, such as whether

counsel’s performance was deficient or w hether that deficiency

was prejudicial, are subject to a purely de

novo review with no presumption of correctness. Fields , 40 S.W.3d at 458.

When a petitioner seeks post-conviction relief on the basis of

ineffective assistance of counsel, “the petitioner bears the burden of proving both that counsel’s performance was defic ient and that the deficiency

prejudiced the defense.” Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996) (citi ng Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). To establ ish deficient performance, the petitioner must show t hat co unsel ’s perf orman ce was b elow “ the ran ge of competence demanded of attorney s in criminal ca ses .” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To establ

ish preju dice, the

petitione r must show

that “the re is a reaso nable pr

obability that, but for

counsel’s unprofessional errors, the result of the proc eeding

would hav e been d

iffere nt. A reasonable probability is a probability sufficient to under mine confide nce in the outcome.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. Moreover,

[b]ecause a petitione r must esta

blish both p

rongs o f the test , a failure to prove either

deficie ncy or preju dice pro vides a sufficien t basis to deny relief

on the ineffective assistance claim. I ndeed, a court need notaddress the components in any particul ar orde r or eve

n addres s bothif the [petitioner] makes an in sufficient showing of one componen

t. Goad , 938 S .W.2 d at 37 0 (cit ing Strickland , 466 U.S. at 697, 104 S. Ct. at 2069).-7- Th e petitioner contends that the post-conviction court erred i n finding that he receive d effectiveassistanc e of coun sel. We disa gree. The post- convicti on court n oted th at the issue s regarding suppression of the petitioner’s statement and the absence of the murder weapon had been add ressedin the petitioner’s direct appeal and were moot. Our r eview of the petitioner’s direc t appeal confirms the findings of the post- convicti on court. On appea l, this court addressed the issue of the admission of the petitioner’s statement, specifically acknowledging that the petitioner’s mother was not present when his statement was given. Howe ver, thi s court concl uded that considering the totality of the circumstanc es, the petitioner’s confession was the result of a knowing and intelligent waiver of his constitutional rights.

With regar

d to the pe

titioner’ s alleg ations tha

t trial counsel fa

il ed to cont a ct or subpoena witnesses, the post-con

viction c ourt note d the testimony of trial c ounsel tha

t he spoke with the petitioner’s mother several times. Counsel ex plain ed that he chose not to have her testify because she had no relevant evidence reg arding the offenses an d w ou ld no t b e h el pf ul . A dd it io na ll y, co un sel testifie d that the only witness pe

titioner a sked him to

subpoena

was a co -defendant. Alth ough counsel s ubpoena ed the co -defen dant, he a sserted his Fifth Amendment privilege and refused to testify.

As to the petition er’s clai m that counsel prevented him from testify ing at trial, the post-conviction court found that trial counsel advised the petitioner of the consequences of te stifying butleft the ultimate decision to the petitioner. Moreover, counsel conducted a voir dire outside the presence of the jury to deter mine if the petitioner was aware of his right to testify . The petition e r as su re d t he tr ia l c ou rt th at he di d n ot wa nt to te st if y.
Ad di ti on al ly, the post-conviction court concl uded that althoug h the petitioner c laim e d that trial cou n sel’s ope

ning an d closing

argume nts were improper , the petitioner wa s unable t o support his claim. L ikewise, the post-conviction court found that the petitioner’s claims that trial counsel limited his input on tri al proceedings a nd faile d to dis close rel evant evidence were unfounded.

In addressing the petitioner’s claim that he was coerced, intimidated, threatened, and manipula ted by tri al counsel, the post-conviction court noted that the petitioner admitted that counsel had not made any thre at s against him. Additionally, the petitioner wa s unable to testify as to any specific actions o f counse

l which would suppor

t his claim

. The post-conviction court chose to accredit the testimon y of trial counsel, finding that the petitioner failed to meet his burden of proving his claim by

clear and convincing evidence and that the petitioner’s allegations were without merit. The evidence does not preponderate ag ainst the findi ngs of the trial court. The petitioner has not shown that counsel was ineffective. Moreover, the petitione r has fa iled to sho w that he w as preju diced by counsel’ s actions

. III. Conclusion-8- In summary, we c onclude that the post-conviction court did not err in finding that the petitioner received effective

assistance of counsel. Accordingly , we affirm the judgment of the pos tconvicti on court.

___________________________________ NORMA McGEE OGLE, JUDGE