IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 15, 2004

JEFFERY LEE MILLER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Montgomery County

No. 40000723 John H. Gasaway, III, Judge

No. M2003-02841-CCA-R3-PC -Filed April 19, 2005

The petitioner, Jeffery Lee Miller, was convicted by a jury in the MontgomeryCounty Circuit Court

of premeditated first degree murder. The petitioner received a sentence of life imprisonment in the

Tennessee Department of Correction without the possibility of parole. Subsequently, the petitioner

filed a petition for post-conviction relief, alleging that he received the ineffective assistance of

counsel. After a hearing, the post-conviction court denied the petition. The petitioner now appeals.

Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction

court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN

EVERETT WILLIAMS, JJ., joined.

William F. Kroeger, Springfield, Tennessee, for the appellant, Jeffery Lee Miller.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

John Wesley Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The petitioner was charged with one count of premeditated first degree murder, and a trial

was held on April 28, 1997. At the conclusion of the trial, the jury was unable to agree on a verdict,

and a mistrial was declared. A second trial began on August 25, 1997, and the petitioner was

convicted of the charged offense. This court affirmed the conviction on direct appeal, and, in doing

so, outlined the facts underlying the conviction as follows:
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The evidence at trial established that on September 1, 1996,

the [petitioner] shot and killed the victim, Josh Kelley. The evidence

indicated that earlier that evening, three young ladies, Tennille,

Cassie, and Heather, were driving “up and down” Riverside Drive in

Clarksville, Tennessee. They visited a motel where [Michael]

Powers, Cassie’s boyfriend, was throwing a party. While in the motel

room, Tennille saw the [petitioner] preparing to leave the room, at

which point someone handed a gun to him. The [petitioner] then left

the party. Shortly thereafter, the three young ladies decided to go

cruising on Riverside Drive again. They pulled in the parking lot of

Page and Taylor’s Sporting Goods Store to change drivers. As they

were changing seats, a young man in the parking lot told them to

“suck [his] dick or leave.” The three young ladies left the area and

returned to the party at the motel.

When they arrived at the motel, the ladies told Mr. Powers

about the young man’s comment. At this point, Mr. Powers and the

[petitioner], who had returned to the motel, went to the [petitioner’s]

car, and the [petitioner] followed the ladies to the parking lot of Page

and Taylor’s Sporting Goods Store. According to the [petitioner’s]

second statement to the police, upon arrival at the parking lot, the

[petitioner] told Mr. Powers to “get the gun from under the passenger

seat.” According to at least one witness, when Mr. Powers exited the

vehicle, he had a gun in his waistband. The [petitioner] and Mr.

Powers then approached a group of teenagers standing in the parking

lot. The evidence at trial indicated that Mr. Powers asked which of

them had told his girlfriend to “suck [his] dick.” In response, the

victim stepped forward and said, “We don’t know you. We don’t

know your girlfriend. We didn’t say anything to anybody.” Mr.

Powers then pulled the gun from his waistband and pointed it at the

victim. According to one witness, the [petitioner] told Mr. Powers to

“cap [the victim].” Mr. Powers lowered the gun to his side, at which

point the [petitioner] took the gun out of Mr. Powers’ hand. The

[petitioner] cocked the gun, pulled the slide back, pointed the gun at

the ground in front of the victim’s feet, and fired. The [petitioner]

then raised the gun, pointed it at the victim’s chest, and fired. After

the shooting, the [petitioner] and Mr. Powers left the scene.

State v. Jeffery Miller, No. 01C01-9801-CC-00029, 1999 WL 398188, at *1 (Tenn. Crim. App. at

Nashville, June 18, 1999). Our supreme court denied permission to appeal. 

Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his trial

counsel was ineffective in failing to call his co-defendant, Michael Powers, as a witness in the
 Powers was convicted under the theory of criminal responsibility.

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second trial, when Powers testified at the first trial which resulted in a hung jury. Additionally, the

petitioner alleged that trial counsel was ineffective in failing to request the trial court to instruct the

jury on all lesser-included offenses of premeditated first degree murder. 

The petitioner testified at the post-conviction hearing that Powers was called as a State’s

witness at the first trial. Against the petitioner’s wishes, trial counsel failed to call Powers as a

witness at the petitioner’s second trial. The petitioner acknowledged that he and trial counsel

discussed calling Powers as a witness. Trial counsel informed the petitioner that he did not believe

calling Powers as a witness would be in the petitioner’s best interest. 

The petitioner stated that he asked trial counsel to call Powers as a witness at the second trial

because Powers’ version of events was substantially the same as the account given by the petitioner.

The petitioner maintained that the testimony of other witnesses at both his first and second trials left

the impression that the petitioner got the gun from Powers, fired into the ground at the victim’s feet,

aimed for the victim’s chest, then fired. The petitioner contended that he got the gun from Powers,

fired into the ground at the victim’s feet, and as he turned to run, and the gun accidentally fired. The

petitioner conceded that at the first trial, Powers testified that the petitioner shot the ground then shot

the victim, but failed to mention that the second shot was accidental. The petitioner also conceded

that several witnesses at the second trial testified that the petitioner shot the ground then shot the

victim. This testimony was substantially similar to Powers’ testimony at the petitioner’s first trial.

The petitioner further complained that at the second trial, trial counsel failed to request

instructions on any lesser-included offenses. 

Michael Powers testified at the post-conviction hearing that he was serving sentences for

reckless homicide and aggravated assault based upon the same facts underlying the petitioner’s

conviction for first degree murder. Powers was originally convicted of second degree murder; 1

however, his conviction was reversed on appeal due to the trial court’s failure to charge all lesserincluded offenses. 

Powers stated that he was available to testify at the petitioner’s second trial, but he was not

called as a witness. Powers asserted that the petitioner shot at the ground near the victim’s feet, then,

“[a]s he was turning to run he stumbled back and the gun went off.” Powers acknowledged that he

did not testify at his own trial. He conceded that at the petitioner’s first trial he did not mention that

the petitioner stumbled and accidentally discharged the fatal round. Further, Powers conceded that

he never told police that the fatal shot was accidental. In fact, Powers admitted that the first time he

ever mentioned that the second shot was accidental was at the petitioner’s post-conviction hearing.

The petitioner’s trial counsel testified that he represented the petitioner at both his first and

second trials. Trial counsel recalled having several conversations with the petitioner regarding the

witnesses they would call for the second trial. Counsel outlined the “pros and cons” of each witness.
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Counsel could not specifically recall discussing the possibility of Powers testifying on the

petitioner’s behalf. However, he surmised that he likely told the petitioner that he would not

recommend subpoenaing Powers. Counsel did not recall the petitioner asking for Powers to be a

witness at his second trial. Trial counsel asserted that if the petitioner had requested that Powers

testify at the second trial, counsel would have subpoenaed Powers. Trial counsel admitted that he

did not interview Powers prior to the second trial. 

Trial counsel noted that the State called Powers to testify at the petitioner’s first trial. Trial

counsel opined that the State was surprised by Powers testimony that he, not the petitioner, brought

the gun to the scene of the crime. However, the remainder of Powers’ testimony was substantially

the same as that of other witnesses at both trials, making his testimony cumulative. When the State

gave trial counsel its witness list for the second trial, trial counsel noticed that Powers’ name was

not on the list. Counsel maintained that 

it was my belief that they had modified their questioning and their

testimony and other – might have had rebuttal witnesses which they

didn’t bring forward to negate his testimony. I thought he would be

– they were laying – they might have been laying a trap, so to speak,

hoping I would call Mr. Powers.

At the conclusion of the proof, the post-conviction court denied the petition for postconviction relief. The court found that the petitioner failed to prove by clear and convincing

evidence that he received the ineffective assistance of counsel. The petitioner now appeals this

ruling.

II. Analysis

To be successful in his claim for post-conviction relief, the petitioner must prove all factual

allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.

Code Ann. § 40-30-110(f) (2003). “‘Clear and convincing evidence means evidence in which there

is no serious or substantial doubt about the correctness of the conclusions drawn from the

evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.

Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,

the weight and value to be accorded their testimony, and the factual questions raised by the evidence

adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.

State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings

of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing

that the evidence in the record preponderates against those findings. Id. at 578.

A claim of ineffective assistance of counsel is a mixed question of law and fact. See State

v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of

fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
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458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely

de novo. Id. 

“To establish ineffective assistance of counsel, the petitioner bears the burden of proving

both that counsel’s performance was deficient and that the deficiencyprejudiced the defense.” Goad

v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court

must determine whether counsel’s performance was within the range of competence required of

attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Moreover,

[b]ecause a petitioner must establish both prongs of the test, a failure

to prove either deficiency or prejudice provides a sufficient basis to

deny relief on the ineffective assistance claim. Indeed, a court need

not address the components in any particular order or even address

both if the [petitioner] makes an insufficient showing of one

component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

As we have noted, the petitioner contends that trial counsel should have called Powers to

testify at his second trial. Powers testified at the post-conviction hearing that the fatal shot occurred

when the petitioner stumbled as he turned to run from the victim. However, Powers admitted that

prior to the post-conviction hearing, he had never told anyone that the fatal shot was fired

accidentally, even though the information would have been important to the petitioner’s defense and

to Power’s own defense. Additionally, trial counsel testified that Powers’ testimony at the first trial

was largely cumulative to that of the other witnesses. Further, even though the State chose not to

utilize Powers in the second trial, counsel feared that having Powers testify as a witness for the

defense could ultimately damage the petitioner’s case. Therefore, he determined that having Powers

testify was not in the petitioner’s best interest. It is apparent that counsel’s decision not to call

Powers was a strategic choice. On appeal, this court may not second-guess the tactical or strategic

choices of counsel unless those choices are based upon inadequate preparation, nor may we measure

counsel’s behavior by “20-20 hindsight.” See State v. Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). The

petitioner has failed to prove trial counsel’s ineffectiveness in this regard. 

As his final complaint of ineffective assistance, the petitioner asserts that counsel should have

requested that the trial court instruct the jury on all lesser-included offenses of premeditated first

degree murder. At the petitioner’s second trial, the trial court instructed the jury on first degree

murder and second degree murder. The trial court did not instruct the jury on voluntary

manslaughter, criminally negligent homicide, or reckless homicide. 

Regarding lesser-included offense instructions, our supreme court has noted that “[t]he trial

court’s duty to charge juries as to the law of each offense included in an indictment applies whether

or not a defendant requests such an instruction.” State v. Wilson, 92 S.W.3d 391, 394 (Tenn. 2002);
 We note that the petitioner raised this issue as the ineffective assistance of trial counsel, not as the 2

ineffectiveness of appellate counsel.

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see also Tenn. Code Ann. § 40-18-110(a) (1997); Yasmond Fenderson v. State, No. E2001-01088-

CCA-R3-PC, 2002 WL 832205, at *5 (Tenn. Crim. App. at Knoxville, May 2, 2002), perm. to

appeal denied, (Tenn. 2002). Based upon the trial court’s duty to instruct the jury regardless of

counsel’s request, this court has previously declined to find that counsel was ineffective for failing

to pursue lesser-included offense instructions at trial. See Terrance L. Turner v. State, No. M2002-

02429-CCA-R3-PC, 2004 WL 587636, at *5 (Tenn. Crim. App. at Nashville, Mar. 25, 2004), perm.

to appeal denied, (Tenn. 2004); Terry David Stephens v. State, No. M2001-01036-CCA-R3-PC,

2002 WL 31890860, at *7 (Tenn. Crim. App. at Nashville, Dec. 30, 2002), perm. to appeal denied,

(Tenn. 2003). Accordingly, we conclude that the petitioner also failed to establish the ineffective

assistance of counsel in this regard. 

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III. Conclusion

Finding no error, we affirm the judgment of the post-conviction court.

___________________________________ 

NORMA McGEE OGLE, JUDGE