### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 5, 200 7

GLEN COO K v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. P -23297 W. F red Axley, Judge

No. W2006-01514-C CA-R 3-P C - F iled March 27, 2008

The pe titioner, Glen Cook, appea ls the denial of his petition for post-conviction relief and ar g ues that he re ceive d ineffe ctive assistanc e of counsel and that he was sentenc ed im proper ly

. Specifica lly , he argues that counse l failed to interview witnesses, neve r discussed tria l strateg y with the petitioner,

and fa ile d to fi le pr op e r mot ion s. Af te r c are fu l re vie w, we a ff ir m the jud g me nt fr om the postconviction cour

t.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OHN E VE R E TT W I L L I AMS , J
., delivere d the opinion of the cour t, in which A L AN E. G L EN N and J.C. M C L IN , J J ., joined.

L arr y E. Copeland, Jr., Memphis, Tennessee , for the a ppellant, Glen Cook.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l a n d R e p o r t e r ; Da vid H. F ind le y , A ssi sta

nt A tto rn e y

Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Tr acy e N. J o n es , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th e pe tit ion e r a

nd his tw in b ro the r w e re c on vic te d o f m ult ipl e of fe ns e s a ft e r a

jur y tr ia l. Both brothe rs appe aled their convictions, but this post -convic tion appeal pe rtains t o only Glen Cook. The fa cts underly

ing the petitioner’s c onviction were summarized by this c ourt on direc t appea l as fo llo ws : The re cord r efle cts th at t he def endants a re ide ntical twins. Christopher F un c he s te sti fi e d th a t on

Ap ri l 14, 199 6, he we nt to a p art y a t L a ke Poi nt A

pa rtme nts with his sis ter, Mar

ti Func hes, and Marti’s fiancé, Tony Gar rett. He said that as they le ft the pa rt y a t a bo ut 2 :00 a. m. and wer e wa lki ngdo wn the ste ps , th e de fe nd ants approa ched them. He sa id Mr. Gar rett wa s in front of him and Ms. Func hes, and one of the de fenda

nts struck Mr. Ga

rre tt in the face

. He s ai d M s

. Func hes beg anA l t ho ugh the vi ct i m s were no t a b l e t o identi f y the d ef end ant s i nd i vi d ual l y by nam e, m uch o f t hei r t est i m o ny 1

d i st i ngui shes be t ween t he t wo ba sed up o n whi ch weap o n t he d ef end ant w as carry i ng. F o r p urpo ses o f thi s o p i ni o n, t he def en dan t c ar r y i n g t h e r ev ol v er wi l l be r ef er r ed t o a s D ef

en dan t O n e, a n d t h e def en dan t c ar r y i n g t h e r i f

l e, s h ot g u n or pi pe wi l l be r ef

er r ed t o a s D ef

en dan t T wo.

-2- scre aming , and he tr ied to calm her down. He said that one de fenda nt had a r evolver
, and the other

had a r ifle or a

shotgun. 1

Mr. Func hes testified that De fenda nt T wo approache d Mr. Gar rett and threatened him. He sa id that Defe ndant One robbed Mr. Gar rett and told hi m to ge t into Mr. Gar

rett’s car

. He stated that the def endants took Ms. Func hes’s jew elry , and they rea ched into Mr. Gar

rett’s pockets and might have taken something . He testified that the def

endants did not attempt to rob him but asked him if he had a pistol, which he did not. He sa id the defe ndants did not pat hi m down or sea rch him. He said the defe ndants then for ced the three of them into Mr. Gar rett’s car by pointing a pistol

a t th e m. He state d th a t he and Ms. F un c he s w e re in t

he ba c ks e a t, M r. Ga

rr e tt w a s in the driver’ s seat, and Def endant One was in the front passeng er seat. He s ai d t hat Def endant T wo fo l l owed them in anothe r ca r. He said that in Mr. Gar rett’s c ar, De fe nd ant O ne thr e a te ne d to sh oo t Mr . G arr e tt. He sa id t hat he ple a de d w ith Def endant One not to shoot Mr. Garrett because he and Ms. Funche s were eng ag ed. He tes ti fi ed tha t D e fe nd ant O ne sa id t hat if the y tol d a ny on e of the inc ide nt, Ms. Func hes would be a

widow.

Mr. Func hes testified that Def endant One forc ed Mr. Gar rett to dr ive to the apar tment Mr

. Gar

rett and Ms. F unches share d at Perkins Woods. He said that when they arr ived, Defenda

nt One force d Mr. Garrett out of the c ar a nd into the apar

tment

a t g un po int . H e sa id t

hat D e fe nd ant T wo , w ho ha d a ri fl e , sta y e d w ithhim

and Ms. Func hes at the c ar. H e said that a bout ten to fifteen minutes later, Defe ndant One a nd Mr. Gar rett ca me out s i d e. He sa id that one of the de fenda nts reac hed into Mr. Gar re t t 's pocket a

nd took some money . He sa id the defe ndants demande d money fr om M s. F un c he s, bu t sh e did no t have any

. He sa id t he de fe nd ants the n g ot i n th e ir

c ar a nd le ft . M r. F un c he s te sti fi e d th a t he fe are d f or his lif e duri ngthe inc ide nt.

On c ro ss- e xami natio n, Mr . F un c he s te sti fi e d th a t li g ht c a me fr om s tr e e tli g hts not far f rom the bottom of the steps at L ake Point Apartments and from lig hts in the stairwell. He said that he had seen the defe ndants befor e and that Mr. Gar rett knew the de fe nd ants . H e sa id t hat wh e n D e fe nd ant O ne fi rs t a pp ro a c he d M r. Ga

rr e tt, Def endant One said, “Where y our sh** at.” He sa id he could not hea r whe ther Mr. Gar rett said any

thing to De fenda

nt One. He said the def

endants took Ms. Func hes’s neckla ce a

t L ake Point Apar

tments. He stated that the defe ndants asked him “if he ha d a ny thi ng , if he ha d a g un .” He sa id h e tho ug ht the de fe nd ants we re a sk inghim if he ha d a ny mon e y and if he ha d a g un . H e sa id t

hat a lth ou g h h e wa s n e ve r d ir e c tly-3-

threatened, he felt his life was threatened because if they would kill Mr. Gar rett, they

wo uld a lso kil l hi m.

Mr. Func hes testified that at Perkins Woo d s Ap artments, Defenda nt Two stay ed in the ca

r with him and Ms. Func hes, and he did not reme mber if De fenda nt Two had a gun. He sa id D e fe nd ant T wo did no t th re ate n th e m w itha g un . H e sa id that a ft e r De fe nd ant On e and Mr

. Ga rr e tt c a me ba c k ou tsi de
, De fe nd ant On e we nt t o the passeng er side of

the ca r and said, “Give me y our money .” He said that afte r they g ot money

from Ms. Func hes, they left. He said that Def endant Two neve r ra ised or pointed his gun.

Mr . F un c he s te sti fi e d tha t the y did no t ca ll the po lic e that ni g ht b e c a us e Ms. Func hes wa s afr aid. He sa id Ms. Func hes wa s scar ed bec ause the defe ndants knew wh e re sh e a

nd Mr . Garr e tt live d, and the y ha d thre a te ne d to kil l Mr . G arr e tt. He sa id that af te r the inc ide nt, Mr . Garr e tt told him that he kne w the de fe nd ants a s se c ur ity g ua rd s. He sa id t

hat Ms . F un c he s d id n ot k no w the de fe nd ants

.

On re dir e c t e xami natio n, Mr . F un c he s te sti fi e d th a t a t L a k e P o i nt A p a r t m e nts , the def endants a sked him “if [he] had an y thing” and if he had a gun. He sa id he thought they

wer e asking him if he had any money or a gun. He sa id he thoug ht the de fe nd ants sti ll h a d th e ir

g un s at Pe rk ins Woo ds Ap artme nts

. Tony Gar rett testified that h e had a fe lony conviction for posse ssion of

coca ine. He stated that on April 14, he, his fia ncee Marti Func hes, and he r brother Christopher Func hes attende d a par ty at L ake Point Apa rt m ents . He sa id that they left the pa rty at about 2:00 a.m. and that as they went down the sta irs, he noticed the defe ndants exit ing a

g ra y C h evrolet Cavalier. He said the def endants a pproac hed him and told him to “drop it off.” He said Defe ndant One ha d a .38 ca liber pistol and Def endant Tw o had a 12-g aug e g un. He said he told the defe ndants that he did not have any mon e y , and on e of the de fe nd ants hit him in t he e y e . H e sa id t

he de fe nd ants then sea rche d his pockets and took eig ht hundred dollars from him . He testified that the money

was part of Ms. F unches’ s income tax refund che ck that they had ca shed

e ar l i e r t h a td ay.

Mr. Garrett testified that Ms. Func hes panic ked, and the defe ndants took

a bo ut t hir ty do lla rs and a he rr ing

bo ne ne c kla c e fr om he r. He sa id that th e de fe nd ants

as k edM r. Fu n ch es wh at h e h ad o n h i m b u tt h at M r. Fu n ch es d i d n o th av e a n y

t h i n g. Mr. Gar rett stated that the de fenda nts forc ed every one int o his car. H e said that he was for ced into the dr iver’s sid e o f t h e ca r, and one of the de fenda nts got into the passeng er’ s side and for ced Mr . Gar rett to drive to his a

nd Ms. Funche s’s apa

rtment at g unpoint. He s aid t hat Defenda nt Two followed them in the defendants’ car. He
state d tha t the de fe nd ants ma de thr e a ts an d told Mr . Garr e tt that he wa s g oin g to d ie and that Ms. Func hes wa s g oing to be a widow.-4- Mr. Gar rett testified that he was for ced into h i s apar tment at g unpoint by Def endant One while M r. and Ms. Func hes remained in the ca r with Def endant Tw o. He sa id De fe nd ant On e se arc he d his a pa rtme nt bu t did no t f

ind any mon e y . H e sa id Def endant One forc ed him back outside, and the defe ndants patted him down ag ain. H e s a i d t h e d e f e n d an t s l e f

t w h e n t h e y r e a l i z e d t h a t h e d i d n o th a v e an y m o r e m o n e y, but they threatened to kill him if any one ca lled the police. He state d that beca use of these thre ats, Ms. Func hes did not want to the call the police that night but that the next day he convinc ed her

that they should notify

the police.

On c ro ss- e xami na

tio n, Mr . G a

rr ett tes ti fi ed t hat he re cogni z ed t he d efen da nts ’

car from th e n ei g hborhood. He said the def endants a pproac hed him toge ther, a nd the y we re bo th arm e d. He sa id t hat w he n o ne of

the de fe nd ants tol d h im t o “ dr op it of f, ” he tho ug ht the y we re de mand ing mon e y fr om him

. He sa id he did no t r e c a ll i f the de fe nd ants sa id a

ny thi nga bo ut h im h a vin g a g un

that be lon g e d to the m. H e sa id the de fe nd ants a lso tol d M s. F un c he s to “ dr op it of f. ” He sa id t

he y se arc he d M s. Func hes and took the m o n ey that was in her purse, a nd he said they

asked Mr

. Fu n ch es wh at h e h ad
, b u th e d i d n o th av e a n y

t h i n g.

Mr. Gar rett testi fi ed that at Per

kins W oods Apartments, De fenda nt Two threatened to shoot Mr. and Ms. Func hes i f t hey moved. He sa id that Defe ndant One did no t a sk him a bo ut a g un . H e sa id h e wa s no t an a c qu a int anc e of the de fe nd ants , bu t he ha d k

no wn the m f or a bo ut f our m on ths and kne w the y wo rk e d a s se c ur ity g uards. He stated that he mig ht have g iven the def endants his pag er numbe r and that he had se en them the we ek bef ore the incident at EZ Pawnshop. He said he did not know what they wer e looking at, and he did not know if the de fenda nts bought guns at the paw nshop. He stated that he had not see n the def endants a rmed until the robber y . He testified that he did not own any g uns until after the inci d ent. Mr. Gar rett stated that the de fenda nts had pag ed him once, but they did not pag e him on the da y of the inc ide nt, and

he did no t bo rr owa

g un fr om t he m.

M r. Ga rr et t t es t i fi ed t h at h e as s u m ed De fe n d an t T wo wa s ca rry i n g a 1 2 -ga u ge g un beca use half o f t h e gu n was sti cking out, and he kne w what a 12-g aug e g un loo ke d like . H e sa id t

hat no thi ngwa s ta

ke n a t Pe rk ins Woo ds Ap artme nts be c a us e the def endants ha d alre ady

tak en ev er y

t hing. H e said the de fenda nts asked Mr. Func hes if he ha d any

money , but Mr. Func hes told them that he did not . He testified that he and

Ms. F un c he s st ay e d in

a ho te l a ft e r t

he inc ide nt.

Mr. Gar rett wa s shown a photog raph of the defendants, and he descr ibed the defe ndan t in p h o to g r a

p h n u mb e r 9 6 4 0 0 7 8 8

- 3 5 a s th e c a lm o n e

. H e s tate d th a t the defe ndant in the photog raph a ppear ed t o be L inn Cook, but he was not positive beca use they wer e identica l twins. He testified that he sa w one of the defendants at Circle K a fter c harg es had be en fi l ed
, an d t h at def endant be g g ed him to drop the char g es. He said he late r saw the calm one, and he de nied telling that defe ndant that-5-

he pr e sse d c ha

rg e s b e c a us e he wa s e mba

rr a sse d a bo ut b e ing hit

in f ro nt o f h is fianc ee.

Marti Func hes testified that she, Mr . Gar rett, and he r brother

left the party

at L ake Point Apar

tments at a

bout 2:00 a.m. on April 14. She said that as they walked down the steps, the de fend an t s jumped out of their ca r and a pproac hed them. She said that one of the defe ndants had h i s h an d d o wn by his side. She said that Mr. Ga rr e tt kn e w the de fe nd ants and that he state d, “ What’ s up De uc e Ma n. ” She sa id Def endant One pulle d out a larg e silver .38 c aliber gun, and she sa id it looked like Def endant Tw o had a stick or a pipe. She testified that the bottom of the stairs wa s unlit and she panicke d.

Ms. Funche s testified that Def endant One told Mr. Garrett to “drop that sh** off” and then struc k Mr. Gar rett. She said Def

endant Two said “what y ou g ot” and
too k h e r n e c kla c e . Sh e state d th a t De fe nd ant Tw o told he r a nd Mr . F un c he s n ot t o

mov e . Sh e state d th a t De fe nd ant On e fo rc e d Mr

. Ga rr e tt int o the dr ive r’ s si de of his

car and for ced he r and Mr . Func hes into the bac kseat. She testified that Def endant One told her

that she wa s g oing to be a widow, a nd she said she thoug ht she was g oing to die.

Ms. Funche s testified that Def endant One forc ed Mr. Gar rett to dr ive to the apar tment she share d with him, then Defe ndant One f orce d Mr. Gar

rett i n to the apar tment at g unpoint while D efe ndant Two stay ed with her and Mr. F unches. She said Def endant One and Mr. Ga

rre tt were in t h e apa

rtment for a

bout four or f

ive minutes, and when the y

came out, the defe ndants forc ed Mr. Ga rre tt into hi s car , then the y g ot int o the ir c ar and le ft

. She sa id t he de fe nd ants state d th a t th e y wo uld c ome back f or them if they called the police. She said she and Mr. Gar rett droppe d off Mr. Func hes at their mother ’s house, then she and Mr. Ga rre tt spe n t the nig ht at Mr. Gar re t t ’s m o t h er’ s house. She said she did not want to ca ll the police bec ause she

was sca red, but Mr. G arr ett convince d her the next day that they should notify

the police.

On cr oss-examination, Ms. Funches testified t h at she re cog nized the defe ndants. She said she ha d been in the car a couple of t imes when Mr. G arr ett had seen the defe ndants walking on t h e stree t and had g iven them a r ide. She said Mr. Gar rett told her that the de fenda nts were secur ity

g uards. She stated that she did not keep guns in the apar

tment that s h e s h ar ed with Mr. Ga rre tt. She said that on the night of the incident, she did not hea r either defe ndant ask Mr. Garr ett if he ha d a g un he was ho ld ingfo r t

he m. S he state d th a t th e e ig ht h un dr e d d oll ars the de fe nd ants took from Mr. Ga

rre tt was part of

the money

from her income tax refund.

Ms. F unches testified that Def endant Two pointed an object at Mr. F unches that looked like a pipe or a stick. She said Def endant One a sked Mr. F unches if he-6-

had a gun, but the defendants did not sear ch or pat down Mr. F unches. She te stified
t h a tD e f e n d an tT w o r i p p e d

o f f h e r n e c k l a c e , an d

s h e g a v e t h e m a

b o u tt h i rt y o r

t h i rt yfi ve do lla rs . Init ia lly , she sa id she g a ve the m her mon e y a t L a ke Poi nt A

pa rtme nts , but she later stated that she gave them her money at P erkins W oods Apar tments. She said that she and Mr . Gar rett stay ed with M r. Ga

rre tt’s mother afte r the incide nt be c a us e a ll the ho te ls w e re bo ok e d. She sa id sh e wa s no t awa re of any g un s k e pt i n he r a pa rtme nt a ft e r t

he inc ide nt.

Offic er R o dn e y

A d a ir o f th e M e mp h is Po li c e D e p artm e n t t e s ti f ie d th a t he

rec eived a dispatch at a

bout 3:00 p.m. on April 14 reporting shots fired at L ake Point Apar tments. He said he spoke with se curity office rs at the apar tments w ho informed him that the su sp e c ts ha d lef t and mig ht be he a de d tow ard Ge tw e ll Gard e ns . H e sa id the suspects we re de scribed a s two black males, possibly twins, driving a

g ray , fourdoor Chevrole t Cavalier.

Of fi c e r A da ir te sti fi e d that a s he pu lle d in to G e tw e ll G ard e ns , th e de fe nd ants

wer e pulling out in a g ray

Cavalier. H e said he turned on his blue lights, stopped the

c ar, and or de re d the de fe nd ants ou t of the c ar. He sa id h e dr e w h is w e a po n b e c a us e he had inf ormation that the suspec ts were arme d and had f ired shots. He sa id that the passeng er g ot out of t he car, raised hi s hands, and dropped to the gr ound as orde red. He sa id the driver g ot out of the ca r and r aised his ha n d s , an d he noticed that the driver w as we aringa shoulder holster but did not have a wea pon. He sa id the driver was be ing dif

ficult and would no t ge t on the g round as or dere d. He sa id another office r ar rived a bout ten seconds late r, and the driver f inally complied.

Offic er A d a ir

te stified that he patted dow n the passeng er a nd found six rounds of .38 caliber ammunition in his ha nds. He said ne ither def

endant ha d wea

pons on them, but a sea

rch of the ca r produc ed two h an d gu n s and a shotgun. He sa id the

wea pons were in the front par t of the ca

r, and th e s h o t gu n and a ha ndg un wer e loaded. He testified that ammunition was found in the trunk of the car

.

On c ros s-exami natio n, Of

fi c e r A da ir

a dmi tte d th a t a c c or din g to t he arr e st ticket, both defe ndants l ay fl at on t he g round bef ore othe r off

icer s arr ived. He testified that the bar

rel of the shotgun the y rec overe d was hot, but he did not know if it wa s hot f

rom ly ing in the sun. He said he had no knowledg e of an y spent shotgun she lls or bullets found in the car

.

Offic er Paul Bishop of the Memphis Poli ce D epar tment testified that he wa s called to Ea stwood Hospital at a bout 3:30 p.m. on Apr il 14 to take a robbe ry repor t from the victims. He sa id that Mr. Gar rett’s left ey e was swollen. He sa id he hea rd

a ca ll over the ra dio reg ardingshots fired, and he put out a broadc ast reg ardingthe robber y and kidnappingbeca

use he t h o u gh t the desc riptions of the suspects we re simil ar.-7- Offic er Monda

y Quinn of the Memphis Police De partm ent t estified that he

rec eived a

call to g o to Getwell G ar d en s on the repor t of shots fired. He said that when he arr ived, the def

endants we re out of the ir ca r, and O ffice r Ada ir had his g un draw n and wa s order ing the m to ge t on the g round. He said the passeng er c omplied, but the driver did not. He said he asked the driver his na me, and the dr iver said he was Gle n Cook. He said the driver was we aring a shoulder holster . He state d that in the front of the car , he found a loaded, sa

wed- off shotg un co n taining six rounds of ammunitio n an d two loaded .38 c aliber ha ndg uns. He said he also found

a mmunit ion . O n c ro ss- e xami natio n, he state d that he did no t se e any sp e nt sh e lls in the ca r.

B.F . Hada

way , J r., an inve stigator with the T en n essee Depa rtment of Com me rc e and

I ns ur anc e Re g ulator

y B oa rd s, te stifi e d th a t th e B oa rd s r e g ulate

secur ity companies a

nd that one must g o throug h a ce rt ai n proce dure to be come a commiss i o n ed s ec urity

office r in Tenne ssee. He said that one must file a le ng thy application and unde rg o FB Iand TB Ibackg round che cks. He said that a pe rson cannot work as an arme d secur ity g uard in Tenne ssee until they have be en ce rtified by the state. The aff

idavit of Donna Ha

ncock, A dminist rative D irec tor of Te nnessee Privat e P rotec tive Security Guar d Service s, was admitted into evidenc e. In her aff idavit, Ms. Hancoc k stated that a c omplete re cord se arc h reveal ed that the defe ndants did not hold armed g uard re gistration, nor was ther e any rec ord of a

n application filed by

the def endants. The defendants wer e convic ted upon the fore g oing e vidence

.

S t a t e v

. Li n nC o o k

an d G l e n n C o o k
, N o

. 0 2 C 0 1

- 9 7 1 2

- C R

- 0 0 4 8 2
, 1 9 9 9 T e n n

. C r i m

. A p p

. LE X IS 627, at *3-17 (T enn. Crim. App. J une 30, 1999).

T h e po s t -c o n v i ct i o n h ea ri n g o cc u rr ed o n t wo d ay s

. Du ri n g th e f i rs tp o s t -c o n v i ct i o nh ea ri n g, which wa s conducte d on J uly 25, 2005, the petitioner testified that trial counsel should have called Of fi c e r Ju s t i nF o x t o t e s t i f

y a tt r i a l t o i mp e a c h t h e t e s t i m o n y o f o t h e r o f f i c e r s c o n c e r

n i n g t h e ir involvement in the case

. He also argued that the arrest t icket was falsified by police. He said that Offic er F ox ’s testimony

indicated that he did not arre st the defe ndant even though his name was on the arr e st t ic ke t. T he pe tit ion e r c la ime d th a t th e arr e st tic ke t w a s f a lsi fi e d s o th e State c ou ld maliciously

prosec ute him and his brother.

Th e pe tit ion e r a lso argue d th a t hi s att or ne y wa s in e ff

e c tiv e be c a

us e sh e on ly

me t w ithhim

once or twice while he was in jail and did not discuss trial strateg y

. He sa id he aske d her to file a motion to s uppress, but she f ailed to do so. The pe titioner said he and his brothe r we re ne ver involved in a robbe ry or a kidnapping

. He arg ued that the vi ctims wer e “ma nufac tured” and that he and his brother

did not know them. The petitioner said that trial c ounsel failed to utilize the office r’s te sti mony to i mpe a c h th e State wi tne sse s.-8-

T h e p et i t i o n er

t es t i fi edt h at t ri al co u n s el d i d n o t s h ar e an y d i s co v ery o r di s cu s s t ri al s t ra t egy with him. He said that neither his attorney nor his brother’s attorney prese nted a de fense for them at trial. The pe titioner testified that counsel did not contac t or interview a ny of the witnesse s they sug g ested.

The pe titioner said that he and his brothe r were both diag nosed wit h para noid schizophrenia, bu t tr ia l c ouns e l di d n ot inv e sti g a te his ill ne ss. He sa id tr ia l couns e l did n ot c omm un ic a te wi th h im about his potential sentencingexposure and should ha ve filed a motion to suppress the initial stop beca use the off

icer s had fa

bricated proba

ble ca use.

Duri ngc ro ss- e xami na

tio n, the pe tit ion e r te sti fi e d th a t hi s atto rn e y did no thi ngand

that hi s brother’ s attorney

offe red the only

argument befor e the c ourt. He said that both of the off icer s listed

on the arr e st t ic ke t te sti fi e d at tr ia l a s to a “ sh ots -f ir e d” c a ll bu t no t to a

ro bb e ry and kid na pin g . A ll of the thre e alleg ed victims t es t i fi ed d u ring the trial about a robber y that occur

red to them at the hands of the petitioner and his brother . The pe titioner said that he wa nted a jury

trial but said that the lack of

action by his tria l c ounsel allowed only the state’s version to be prese nted to the jury . He also said that, bec ause he was “ g ag g ed” by the judge
, he did not have a n opportunity

to tell counsel the questions he wa

nted her to ask during cross-e x amination.

When confronte d with his te s timony during voir-dire , the petitioner a g ree d that he said he ha d r e vi ewed th e case wi th c ouns e l. H e a lso a c kn ow le dg e d th a t he te sti fi e d th a t he ha d me t w ith counsel seve ral times reg arding testimony elicited during the course of t he trial. Fur ther, he said he had met and disc ussed the ca se with counsel a nd had dec ided not to testify on his ow n behalf

. The petitioner also said that c ounsel told him t here was no ne ed for him to testi fy

beca use they wer e g oin g to u se the te sti mony of Of fi c e r F ox. He sai d th ey

we re le d to be lie ve c ouns e l w ou ld c a ll Of fi c e r F ox bu t, a s so on

a s h e a g re e d n ot t o te sti fy , c ouns e l r e ste d h is c a se . H e sa id h e did no t r a ise this to t he trial judge at the time be cause he had been g ag g ed by the trial judge and would have be en

re m o v edfr o m t h e c o u rt ro o m i f h e h ads ai d an y t h i n g.
The pe titioner said t h at al l the alleg ed victims were ly ing a nd that the offe nses neve r

oc c ur re d. Th e pe tit ion e r s a id c ouns e l sh ou ld h ave in ter view e d th e pe rs on wh o o wn e d th e ho me wh e re the e ve nts we re a lle g e d to have oc c ur re d. He sa id s he wa s an a lle g e d e y e wi tne ss a nd sh ou ld have be en ca lled to testify

.

The defe nse rested their proof at the conc lusion of the petitioner’s testimony . The he aring

wa s th e n cont in ued

un til Se pte mbe r 2 2, 20 05 . T ri a l c ouns e l te sti fi e d th a t sh e wa s a pp oin te d to

re pr e se nt t

he pe tit ion e r at tr ia l. Couns e l te sti fi e d th a t sh e ha d tr ou ble wi th t he pe tit ion e r d

ur ingmos t of the tim e sh e wa s a

pp oin te d to re pr e se nt h im. She sa id t hat sh e ha d tr ie d o ne oth e r c ri min a l c a se involving an a g g ravated burg lary

. Counsel said she only rec alled filing one motion in the case , and it w a s a mot ion fo r d isc ov e ry

. Ho we ve r, sh e wa s un a ble to l oc a te he r f

ile in t his ma tte r a

nd c ou ld not be ce rtain that wa s the only motion filed. Counsel said that she ordinarily prese rves he r client files for a three -y ear

period to a f

ive-y ear period.-9-

Couns e l di d n ot r e c a ll f

ili nga ny wr itt e n p re tr ial mo ti on s bu t di d ma ke an o ra l mo tio n in lim ine be fo re tr ia l. She re c a lle d the pe tit ion e r c omp la ini ng that sh e did no t f ile thi rt y -s ix mot ion s. She believed the number “ thirty -six ” ca me from the pe titioner being char g ed pre viously with other,

more serious cr imes that might re quire that many pretria l motions . Counsel testified that she did not

rec all any specific motions t he petitioner a sked her to file.

C o u n sel testified that she f elt like she prope rly

repr esente d the petitioner. She said the petitioner filed a complaint with the Boa rd of Professional Responsibili ty and complained that she did not make an objec tion to cer t ai n testimony reg ardingwhether

the police we re r esponding to a “shots fired” call. I t was her contention that she did m ak e an o b j ection at the outset and that the objection was c ontinuing in nature

. She said she shared t he dis cover y materia ls with the petitioner.

Counsel testified t hat s he was not awa re that she could have asked f or an inve stigator to be appointed to the petitioner. She believed that her investigation a nd the investigative work c onducted by the c o -d ef

endant’s counsel wa s sufficient. Counsel said that she did not intervie w the State’s witnesses prior to trial. She we nt to the scene of the a l l ege d cr i m e. C o unsel did not issue any subpoenas a

nd did not put on any

proof.

On cr oss-examination, counsel testified that she met with the pe titioner ten to fiftee n times p r i o r t o t r i a l

. S h e s a i d

s h e w a s u n a

b l e t o l o c a t e o n e o f

t h e p e o p l e t h e p e t i t i o n e r w an t e d t o t e s t i f y. She participated in the cross-e x amination of the State’s w itness but let counsel for the co-de fenda nt go fi rs ti ncr o s s -e x am i n at i o nb ec au s e t h e c o -d ef en d an t ’s n am e w as fi rs to nt h e i n d i ct m en t

. I f c o u n s el fo r t he c o- de fe nd ant d id n ot a sk qu e sti on s tha t she fe lt we re ne c e ssa ry , she a sk e d th os e qu e sti on s. Counsel testified that it is he r policy to ask her c lients if they

have a dditional questions they want asked be fore she finishes questioning the witnesses. She then makes an indepe ndent dec ision about whether or not their questions ar e re levant. S h e m ade sur e the pe titioner participate d in the trial proce ss, including que stioning and jury selec tion. Counsel sa id that she tries to provide the c lient

a copy of the entire file and that it mirror s closely the file she use s, with the exception of her attorney work produc t.

Couns e l r e c a lle d h avi ng the pe tit ion e r e va luate d b e c a us e he ha d c omp la ine d o f p ro ble ms with schizophrenia. She s aid t hat t esting reve aled he was c ompetent to assist in prepar ation for tria l

and wa s c omp e te nt t o und e rs tand the c on se qu e nc e s o f h is c on du c t.

An a ly sis

The pe titioner contends that he w as denie d eff ective a ssistance of c ounsel and that he was sentenc ed improper ly

beca use he r ece ived sentenc es above the minimum rang e for eac h offe nse. Specifica lly , the petitioner a rg ues that counse l was ineff ective f or fa iling to: interview the State’s witnesses prior to trial; dis cuss t rial st rate g y with him prior to trial; file m otions that he wa nted filed; and subpoena

two witnesses, Off

icer Fox and Keisha H are , he dee med important to his defense

. Additionally , the petitioner c ont en d s t h at counse l was ineff ective f or fa iling to use his history of schizophrenia to his advanta g e.-10-

This court re views a claim of ineffe ctive assistanc e of c ounsel under the standards of Bax ter

v. Ros e , 5 23 S.W. 2d

93 0 ( Te nn . 1 97 5), and

Str ic kla nd v. Was hin g ton , 4 66 U. S. 6 68 , 1 04 S. Ct

. 2052, 80 L . Ed. 2d 674 (1984). The petition er h as t he burde n to prove that (1) the attorne y ’s perf ormanc e wa s deficie nt, and (2) the defic ient perf ormanc e resulted in prejudice to the defe ndant

so as to de prive him of a fa ir trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W .2d 363, 369 (Tenn. 1996) ; Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990)

. The fa ilure to p ro ve e ith e r d e fi c ie nc y or pr e jud ic e jus tif

ie s d e nia l of re lie f; the re fo re , the c ourt ne e d n ot a dd re ss the components in any

particula r orde r or e ven addr ess both if one is insufficient. Goa d, 938 S.W .2d

a t 370. I n o rd e r t o e sta

bli shpr e jud ic e , th e pe tit ion e r m

us t e sta bli sha “ re a so na ble pr ob a bil ity that, but for counsel’s unprofe ssional error s, the result of the pr ocee ding w ould have be en diffe rent. A

rea sonable proba

bi l i t y i s a proba

bility sufficie nt to undermine conf idence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

The test in Tenne ssee to determine whether counsel provided e ffe ctive assistanc e is whethe r his or he r p e rf or manc e wa s w ith in the ra

ng e of c omp e te nc e de mand e d o f atto rn e y s in c ri min a l c a se s. Bax ter, 523 S.W .2d at 936. The petiti oner must overc ome t he presumption that counsel’s c onduct falls within the wide ra

ng e of a cce ptable prof

essional assistance . Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; State v. Honeycutt, 54 S.W .3d 762, 769 (Tenn. 2001) . There fore , in order to pr ove a deficienc y , a petitioner must show “that counsel’s a cts or omissions were so se rious as to fall below an objec tive standard of

rea sonablene ss under prevailing profe ssional norms.” Goa d, 938 S.W .2d at 369 (c iting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

I n r e vie wi ngc ouns e l’ s c on du c t, a “ fa ir a sse ssm e nt

. . . re qu ir e s th a t e ve ry e ff or t be ma de to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of counsel’s c h alleng ed conduct, a

nd to evaluate the conduc t from counse l’s perspe ctive at the time.” Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The f act that

a pa rt ic ula r s tr a te g y or ta c tic fa ile d or h

ur t th e de fe ns e do e s n ot, sta nd inga lon e , e sta

bli sh

unrea sonable re prese ntation. Howeve r, def ere nce to matters of strateg y and tac tical choice s applies only if the choices are informed ones based upon a dequate prepa ration. He nley

v. State, 960 S.W .2d 572, 579 (Tenn. 1997) ; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

Her e, the post-c onviction co u rt found that the police office r’s testimony would not have pr ov ide d a

ny he lp t o th e pe tit ion e r s inc e the of fi c e r’ s te sti mony

duri ngthe pr e lim ina

ry he ari ngdid

n o t c o n t r a d i c t an y o f t h e t e s t i m o n y e l i c i t e d a t t r i a l

. F u rt h e r , w e n o t e t h e p e t i t i o n e r did no t c a ll Offic er F ox to testify

at his post-conviction hea ring . “When a petitioner conte nds that trial counsel fa ile d to disc ov e r, int e rv ie w, or pr e se nt wit ne sse s in su pp or t of his de fe ns e , th e se wi tne sse s sh ou ld be pre sented by

the petitioner at the evidentiar y hear ing.” Bla ck v. S t at e, 7 9 4 S.W .2d 752, 757 (Tenn. Crim. App. 1990 ); s ee al s o Scott v. St ate, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a g ener al rule, this is the only way the petitioner c an esta blish that (1) a mate rial witness existed who could have been discovere d but f or counse l’s neg lige nt investigation of the ca se; (2) a known wi tne ss w a s n ot i nte rv ie we d; ( 3) the fai lure to d isc ov e r o r i nte rv ie w the wi tne ss c a us e d h im prejudice ; or (4) the failure to present a known witness re sulted in the denial of c ritical evide nce wh ic h c a us e d the peti tio ne r p re

jud ic e . B la c k, 79 4 S. W.2 d at 75 7. Ne ith e r t he tr ia l c ourt

no r t his-11-

court c an spec ulate on what a witness’s testimo n y m i g ht have be en if introduce d by counsel. I d. There fore , this iss ue is waive d.

Wit h reg ard to the pe titioner’s contention that counsel was ineff ective f or not producing Keisha H are as a w itness at trial, we a lso conclude the issue is without m erit. The petitioner di d not provide a ny valid information to aid counse l in locating the proposed witness. Counsel te stified that sh e un su c c e ssf

ull y tr ie d to loc a te the wi tnes s. B e c a us e he fa ile d to pr od

uc e the pr op os e d w itn e ss during the post-conviction hea ring , the petitioner ha s waived this issue. See I d.

The post-c onviction court found that counsel was not ineffe ctive in her investigation of the pe tit ion e r’ s c a se . T he pet it io ner c on te nd s th a t c ouns e l w a s n ot a de qu a te ly pr e pa re d to de fe nd

his

case and spec ifically

contends that c ounsel’s fa i l u re t o interview the witnesses for the State was pr e jud ic ia l to hi s case . I t is the pe tit ion e r’ s b ur de n to e sta bli shthat th e re e xiste d a re a so na ble probability

that, but for counse l’s unprofe ssiona l e rror s, the result of the pr ocee ding w ould have be en differ ent. Her e, the pe titioner has not provided any proof that additional investigation would have bee n b e n e f

ic ia l. H e h a s n o t p r o d

u c e d an y w it

n e s s e s w h o c o u ld s u

b s ta n ti a te h is c la im s th at there

wer e inconsistencie s in the evidenc e. We conc lude that the petitioner ha s failed to show that counsel’s r epre sentation fell below a n objective standa

rd of r easona

bleness under preva iling profe ssional norms. I t might have been be nefic ial for c ounsel to interview the police prior to tria l but “might” is inadequate for the pe titioner to meet his burden. Counsel testified that she ha d all the discovery materia ls she felt she nee ded, including the ar rest ticket a

nd related mater ials, to review prior to trial.

I n his brief, the pe titioner makes a br ief mention that he wa s g reatly prejudice d by

the absenc e of a

motion to s ever

his cas e from that of his twin brother. Howeve r, he pr ovides no

a uth or ity to s up po rt

his c on te nti on . T his iss ue is w a ive d a s th e pe tit ion e r h a s f a ile d to c ite a

uth or ity to sup p o rt h is ar g u me n t. T e n n

. Ct

. Cr im

. A p p

. R. 1 0 ( b ) ; St a te v

. Sc h a ll e r , 9 7 5 S. W. 2 d 313, 318 (Tenn. Crim. App. 1997)

. The pe titioner also contends c ounsel was inef fec tive for f

ailing to c ontact h i s friends a nd doctors re g ardinghis diag nosis as a pa ranoid schizophrenic . Howeve r, the State c orre ctly points out that counsel testified she had the pe titioner evaluated and the r esulting dia g nosis found him to be competent to stand trial a nd participate in his defense . Ag ain, the petit i o n er failed to ca ll any witnesses to support his contentions and has f ailed to meet his burde n of proof

.

Withre g a rd to t he e ff e c tiv e a ssi sta

nc e of tr ia l c ouns e l, t

he pe tit ion e r ha s fa ile d to m e e t hi s burden of proof, a nd the judg ment from the tria l court is aff irmed.

Th e p e ti ti o n e r

a ls o ar g u e s th a t h e w a s s e n te n c e d im p r o p e r ly

. H e ar g u e s th a t h is s entenc e violated B lakely

v. Washington, 542 U.S. 296 (2004), beca use the trial court enhanc ed his sentence

. Th e S tat e ar g ue s th a t he did no t r a ise thi s is su e on

dir e c t a pp e a l and ha s thus wa ive d th is c la im pursuan t t o T e n n e s s e e Co d e A n n o tate d s e c ti o n4 0

- 3 0

- 1 0 6 ( g )

. We c o n c lu d e th a t t h e p e ti ti oner’ s claim must fail even if

a B lakely violation occurr ed. This court ha s previously held that B lakely

does-12-

no t a pp ly re tr oa c tiv e ly

to c a se s o n c oll a te ra l a

pp e a l. S e e Bil ly

Me rl e Me e ks v. Ric ky

J. B e ll, War de n, No . M 20 05 -0 06 26 -C CA -R 3- HC , 2 00 7 T e nn . Cr im. Ap p. L EX I S 96 2, a t *1 7 ( Te nn . Cr im. App., Nashville, Nov. 13, 2007) . This court, in the unreported dec ision of Meeks v. B ell, conclude d that the weig ht of authority stemming fr om Cunningham v. California , 549 U.S. ___, 127 S. C t. 856 (2007) a nd Appre ndi v

. New J erse y , 530 U.S. 466, 120 S. C t. 2348 (2000), and its prog eny are contra ry to the petitioner’s a ssertions which ar e mirror ed her e by the petitioner. As to the retroac tive

a pp lic a tio n o f B lake ly , w e c on c lud e , a s th e c ourt in M e e ks c on c lud e d, that th e ho ldi ng s o f B lake ly

are not to be applied re troac tively . Meeks, No. M2005- 00626-CCA-R3-HC, 2007 Tenn. Crim. App. 96 2, a t *1 9. Ad dit ion a lly , th is c ourt ha s p re vio us ly

he ld t hat B lake ly

do e s n ot a

pp ly re tr oa c tiv e ly
to cas es o n co l l ater al appe al in the post-conviction setting . See Timothy R. Bowles v. State, N o. M2006-01685-CCA-R3-HC, 2007 Tenn. Crim. Ap p. L EXI S 355, at *7-8 (Te nn. Crim. App. at Na sh vil le
, May 1, 20 07 ); Carl John so n v. State , No

. W20 03 -0 27 60 -C CA -R 3- PC, 2 00 5 T e nn . Cr im. App. L EXI S 65, at *11-12 (Te nn. Crim. App. at J ackson, J an. 25, 2005). There fore
, the petitioner is not entitl ed to any

relief on this iss ue.

Conclusion

B a se d o n th e fo re g oin g and the re c or d a s a

wh ole , w e a ff

ir m th e jud g me nt f

ro m th e po stconviction cour

t.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE