### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON September 12,

2000 Session
JIMMY LEE PIERCE v. STATE OF TEN NESSEE
Direct Appeal from the Circuit Court for Fayette County Nos. 4514 and 4515 Jon Kerry Blackwood, Judge

No. W2000-00630-CCA-R3-CD - Filed November 2, 2000

The petitioner, Jimmy Lee Pierce, was convicted of agg ravated kidnapping and was sentenced to a term of 11 year

s. Because the p

etitioner recei

ved the effecti

ve assistance of

counsel at trial an d because there is no merit to

his claim that the evidence

was insufficient

to convict, he is

not entitled to post-conviction relief.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.

G ARY R. W ADE , P.J., delivered the opinion of the court, in whichD AVID G. H AYES and T HOMAS T. W OODALL , JJ., joined. William S. Rhea, Somerville, Tennessee, for the appellant, Jimmy Lee Pierce.

Paul G. Summers, Attorney General and Reporter, L ucian D. Geise, Assistant Attorne y G eneral, Elizabeth Rice, Assistant District Attorney General, for the appellee, State of Tennessee

.

OPINION

The petiti on er, Jimmy L

ee Pierce, appe

als the trial cour

t's denial of his p

etition for postconviction relief. The issues presented for review are whether the petitioner was denied e ffective assistance of counsel at trial and whether there was sufficient evide nce to convict. Th

e judgment is affirmed.

On May 17, 1997, the victim, Samuel Richardson, was driving his gray Ford LTD through Fayette County. Lou Ann Vester was a passenger. When the victim saw the petitioner and two other men, Jermaine Johnson and Terrance Hunt, he offere

d them a ride. Alon

g the way, Ms. Vester told the victim that she wantedto purcha se some beer . The victi m, who did n ot want to go drinking, drove to Ms. Vester's house and gave the petitioner his car keys. The petitioner, Johnson, and Hunt were supposed to buy some beer and then return with the victim's car. When they failed to return, the victim began to search for them.-2-

The victim testified that he eventually saw the petitioner

driving his car a

nd signaled him to stop. The victim then asked the petitio ner why he had not returned the automobile. When the petitioner answered that he had to "take care of business," an argume nt ens u ed and the petitioner drove to a dead-end street and stopped the vehicle. The petitioner, Johnson, and Hunt then assaulted the victim and forced him into the trunk of the car. As a vehicle pass ed near the assa

ilants, however, the victim was able to e

scape. The petit

ioner and his

friends then turned the car around and seized the victim a

second time. They were attempting to shove the victim into the trunk when the police intervened.

At trial, the petitioner claimed that the only rea

son the victim offe

red him and his frie

nds a ride was because he needed drug money. He explained that the victim offered to let him use the car for five hours in exchange for 30 dollars. During this time, the petitioner and his friends damaged the car trunk so that i

twould notcompletely

close. The petitio

ner maintained th

at when the victim flagged down the car and saw the damaged trunk, he became enraged. He contended that the victim swung at him with a baseball bat, but missed. The petitioner, claiming self-defense, testified that he punched the victim

in the mouth, knocking

him down. He then asse

rted that he helpe

d the victim to his feet. It was at this point that Officer Chearis arrived on scene.

The jury returned a guilty ve rdict for aggravated k

idn apping. On direct appeal, this court affirmed. State v. Pierce , No. 02C01-9807-CC-00227 (Tenn. Crim. App., at Jack son, June 17, 1999). Our supreme court denied permission to appeal on October 29, 1999.

In his petition for post-convi ction relief, the petitioner asserted that trial counsel was ineffectivefor failing to adequately communicate with him or otherwise prepare a proper defense; for failing to investigate; and for failing to interview witnesses. At the conclusion of the evidentiary hearing, the post-conviction court ruled that the petitioner received effective assis

tance of counse

l. It concluded that trial counsel adequat ely communic

ated with the petitioner and that the petitioner
was unable to establish how the investigation was inadequate or how Ms. Vera Anderson's testimony would have been beneficial at trial. The trial court dismissed altogether the attack upon th e sufficiency of the evidence. In a post-conviction proceeding, the petitioner has the burden of proving factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the trial court are conclusive on app eal unless the petitioner is able to establish that the evidence preponderates against those findings. Cle n ny v. State , 576 S.W.2d 12 (Tenn. Crim. App. 1978); Graves v. State

, 512 S.W.2d 603 (Tenn. Crim. App. 1973).

When a petitioner see

ks post -conv iction relief on the basis of ineffective assistance of counsel, he must

first establish that the services rendered or the advic e given was be low "the range of compe tence d emanded of attorneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "act ually had an adverse effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984).-3-

On a claim of

ineffective assistance of counsel, the petitioner is not entitled to the benefit of hindsight, may not

second-g uess a rea sonably based tri al strate gy, a nd cannot criticize a sound, but unsuccessful,

tactical decision made duringthe course of proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App . 1994). Such deference to the tactical decisions of counsel, however, applies only if the choices are made after adequate pr eparation for the case. Coop er v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). In this appeal, the petitioner first argues that his trialattorney failed to adequately prepare two witnesses, Jermaine Johnson andTerrance Hunt. He claims that the witnesses could have had
a greater impact on the

jury if they had been more " polished" in the presentation of the ir t est imo ny. At trial, Johnson testified that petitioner was acting in self-defense aft er th e victim swung at h

im witha baseball bat. H

unt's testimony

was s ubs tan tia lly the same. Each witness substantiated the petition er's claim of self-defense. The petitioner alleges no particular error on the par t of trial counsel, but is d issatisfied that the jury chose to believe the testimony of the victim and other witnesses for the state over that provided by the petitioner and h is wi tnesses. The "weight and credibility

of testimony of a

witness, and the r

econciliation of

conflicts of testimony, are, of course, matters entrusted exclusively to the jury as the triers of fact." Sta te v . Boyd , No. 01C01-9 109- CR-00281 (Tenn. Cri m. App., at Nashville , November 2 4, 1996) (q uoting Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). At the post -convicti on hearing, the petitioner
was unable to demonstr

atehow his trial counsel might have better prepared Johnson and Hunt so as to enhance their credibility. Absent that, this court cannot grant relief.

The petitioner

also argues that his t

rial counsel was u

nprepared to ca

ll a witness by

the name of Vera Anderson, who, he claims, could have rebutted the testimony of Na tasha Reed, one of the state's witnesses. At trial, Ms. Reed, who was working inside the salon, testified that she ran outside,
saw the victim, and hea

rd him yelling for help. Ms. Reed identified the pe

titioner and over

heard his threat to kill the victim. At th

e post-conviction

hearing, Ms. An

derson, who was in

side the same beauty salon when someone ran inside with news of a fig

ht, testified that "[e]verybody went outside, and

. . . I didn't see

anything. " She said that she heard some "co

mmotion" and then r

eturned to the salon. Ms. Anderson testified that she never saw anyone being placed in an automobile trunk. She also opined that Ms. Reedcould not have seen anyone being placed in a trunk either, since Ms. Reed hadbeen standing near her. The record of the trial, however, shows that Ms. Reed never testified that she saw the victim being placed into the trunk. In fact, the "commotion"that Ms. Anderson described does not conflict

with Ms. Reed's a

ccount of the eve

nts. Under these

circumstances, trial
cou nse l ca nno t be hel d to hav e per for med ine ffec tiv ely.
Second, the petitioner claims that trial counsel was ineffective becau se he failed to adequate ly andproperly interview the state's witnesses. The record, h owever, indicates that tria l counsel did elicit evidence of the

alleged baseb

all bat attack thr

ough the testimony

of th e pet itioner, Jermaine Johnson, and Terrance Hunt. The self-defense claim was presented. Again, the weight and credibility

of witnesses' testimony are exclusively within the province of the jury as the trier

of fact. State v. Locus

t , 914 S.W.2d 554, 558 (Tenn. Crim. App 1995). The petitioner has been unable to demonstrate

how his tri al counsel might have better prepared for the cross-examination of the-4-

witnesses for the state, in

order to support th

e self-defense

theory. Thu

s, there is no basis

for relief on this claim.
Third, the petitioner claims that trial counsel was ineffective because he failed to adequa

tely communicate

with him and otherwise prepare his defense for trial. Attorney Shana Mc Coy-Johnson, who was initially appointed as counsel, left the public defender's office on ma ternity leave. Gary Antrican was appointed as re placemen t counsel. The proof presented at the evidentiary hearing establishedtha t At tor ney A ntr ica n an d/o r At tor ney M cCoy-Johns on met with the petitioner on at least three occasions

. They discussed various defenses, talked about trial procedure, addressed the cross-examination of state witnesses, and discussed possible

defense witnesses. The petitioner gave Attorney Antrican a list of

potential witnesse

s, including Jerma

ine Johnso n, Terranc e Hunt, Shaquita Holmes, Jamie Scott and Vera Anderson. All but Ms. Anderson testif

ied at the trial.

While there could have been more communication between the petitioner andhis trial attorneys, the petitioner is unabl e to show h ow he was prejudiced by only thre e instances of direct communication. Each defense witness either te

stified at the trial or was unable to provide information helpful to the defe nse. Cer tai nly, the evidence does n ot preponderate against the post-conviction court's conclusion that there was adequate communication.
Fourth, the pe ti tioner claims that trial counsel failed to point out the differences between Officer Dennis Chearis' trial testimony and the information he provided to Officer Cly de Wilson. At trial, Officer Chea ris testif ied that he was respond ing to a call when he saw t he headligh ts on th e victim's car going up and down. He contended that he saw four men at the back of the car; the trunk
was open. He testified that he saw the petitioner holding the victim and that when he turned on

his blue lights, the petitio

ner and his two fr

iends hurriedly

entered the victim's car and sped away. On cross-examination, Officer Chearis acknowledged that he never saw the victim in the trunk. In the offense report prepared by Officer Wilson, however, Officer Chear

is is quoted as having observed three black males trying to shut the trunk lid on a fourth

male. The report provided that when the three individuals saw him, they jumped i

nto the car and the

victim escaped from the trunk. In this appeal, the petitioner cla ims that his trial cou

nsel' s failure to

attack Officer

Chearis' cred

ibility constituted ineffectiveassistance of counsel. In order to establish a claim of ineffective assistance, the petitioner must

establish that tria

l counsel's fail

ure to attack his c

redibility f

ell below the ra nge of competenc e demanded o f attorneys in criminal cases and that, but for his counsel's deficient performance, the result of his trial would have been different. Strickland , 466 U.S. at 693; Baxter , 523 S.W.2d at 936. In

this instance, the petitioner has failed to meet his initial burden. Because the content of t he re por t wa s mo re i ncri min ati ng th an O ffi cer C hear is' t est imo ny, there could have been at least one strategic r

eason not to

attack his credi

bility. Trial

counsel may

have wanted to re

strict,
as much as possible, any reference to the victim being place d inside the trunk. This court may not second-guess

the tac tical and st

rategic choices made by trial counsel unless those choices a re uninformedbecause of inadequate preparation

. Hellar d v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel may

not be deemed ineffective merely because a different procedure or strategy might have produced a diff

erent result. Williams v. State , 599 S.W.2d 276, 281 (T enn. Crim. App. 1980). The burden is on the petitioner to prove his allegations by a preponderance of the evidence. McGee
v. State , 739 S.W.2d 789 (Tenn. Crim. Ap p. 1 973). Even if trial counsel's performance was-5-

deficient,petitioner has not shown that the result of the trial woul d have been different if his trial counsel had cross-examined the officer on the inconsistent statements. Without such ashowing, no relief can be granted.

As his final allegation of ineffective assistance, the petitioner claims that his trial counsel failed, during argument, to point out that Johnson and Hunt were not charged

in the incident; failed to argue that th e victim's bloody nose w as a result of self-defense on the part of the petitioner; failed to underscorethat Ms. Reed neve r saw someone in

the trunk; and failed to argue the inconsistencies in Officer Chearis' testimony. To warrant relief, the petitioner

must show that there

is a "reasonable probability," which is a probabi lity sufficient to undermine confidence in the outcome, that, but for counsel's unprofessional errors, the result of the proceeding would have been diff e rent. See Strickland , 466 U. S. at 693. In our view, the petitioner has failed to show how any of the alleged errors would hav

e changed the o

utcome of the tria

l.

As a separate issue, the petitioner asser ts that a judgment of acquittal should be granted, because there was insufficient evidence. On direct appeal, however, this court concluded that there
was sufficient evidence

to convict petitioner for aggravated kidnapping. Pierce , No. 02C01-9807- CC-00227. Post-conv iction pro ceedings may not be employed to raise and rel itiga te or r eview questions decided and d ispo sed of in a direct appeal from a conviction. Morgan v. State , 1 Tenn. Cr im. App . 454, 445 S.W.2d 477 (1969). This issue has been previously determined. See Tenn. Code Ann. § 40-30-206(f). Therefore, this issue is without merit. Accordingly, the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE