# FILED April 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1998 GREGORY JONES, ) C.C.A. NO. 01C01-9706- CR-00226 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : PAUL J. BRUNO JOHN KNOX WALKUP Washington Square Bldg. Attorney Generaland Reporter 222 Se cond A venue, N orth Suite 350M TIMOTHY F. BEHAN Nashvill e, TN 37201 Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 VICTOR S . JOHN SON Distri ct Attorney General KATRIN MILLE R Assistant Distri ct Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code Ann. §§ 39-13-20 2, 39-12-101, 39-13-403.
2 State v. Gregory K. Jones , C.C.A. No. 01C01-9406 -CR-00185, D

avidson C

ounty (Tenn. Crim. A

pp., Nashv

ille, Dec. 19, 1995), perm. to appeal denied (Tenn. 1996). -2- 

# OPINION

The Petitioner, Gregory Jones, ap peals as of right pursuant to Rule 3 of t he Tennessee Rules of Appellate Procedure from the trial co urt’s deni al of his petiti on for pos t-conv ic t ion relief. He was co nvicted by a Da vidson Cou nty jury of felony murder

and attem pted espec ially aggravated rob bery. 1 The trialcourt sentenced him to co nsecu tive terms of life imprisonment and fifteen ye ars. H is convicti ons and sentences were affi rmed on app eal to this C ourt. 2 Our supr eme court denie d perm ission to app eal on April 22, 1996. He filed a pro se petiti on for post-convi ction relief

on May 20, 1996, whi ch was amended with theassistance of counsel on August 19 , 1996. In his petition for post- convicti on relief , the Petiti onerargues that he was denie d effec tive ass istanc e of co unse l at his tria l. The trialcourt conducted an evidenti ary heari ng on December 18, 1996, and af ter consideri ng the evidence, issued an order denying the pet ition on Jan u ary 10, 1997. W e affirm the judgm ent of the tria l court.

The record contai ns litt le information concerni ng the circ umstances of the offenses. From the opini on of this Court on dir

ec t appea l, it appears that the offensesoccurred in the early morni ng hours of May 6, 1991. Craig Alexan der, the manager of a Steak a nd Ale restaur ant in Nashvi lle was l eaving the restaurant

with his wife, the ir child, a nd the assis tan t manage r. They were confronted by a you ng bla ck m ale with a gun. Alexander l unged for thegun and was killed by a single shot.-3- Police officer

s developed inf ormation leadi ng them to David Shel ton. Shelton eventually pleaded guilty to t he murder and received a sixty-year sentence. As part o f th e plea , Sh elton agreed to testify against the Petitione r. At the Peti tioner’ s trial , however, Shelton refused to testify for fear of retal iation by other prison ers an d was held in conte mpt o f court. P ursua nt to R ule 804(b)(1) of the Ten nesse e Rules of Eviden ce, She lton’s prior tes timony a t a pretri al hearin g was adm itted at th e Petitio ner’s trial . That test imony indicated that t he Petiti onerwas with Shelt on when the lat

ter kil led Craig Al exander, t hat the Petiti onerhad pla nnedtherob ber y f rom h is per sonal knowledge as a former employee of the r

estaurant, and that th e Petiti oner had provi ded the gun.

To corroborate S helton’s implication o f the Petitioner, the State of fered the testimony

of twoindivi duals who were near the scene of t he crime at t he time of the crime. One of t hese indivi duals sawtwo black males standing near the front doorof the Ste ak an d Ale restaurant immediately prior to the commission of the offenses. The other individual testifi ed that he wi tnessed two bl ack males running away

from t he Steak and Ale restaur ant immediatel y after he heard a gunsh ot. Neithe r of thes e individ uals co uld identif y the Peti tioner

as having been one of the men they

had seen.

The State also offered pr oof that a d uffel bag found i n a woo ded area behind the Steak and Ale restaurant had been in the Pet itioner’s bedroom closet appro ximate ly one m onth prio r to the com mission of the offen ses. The bag contained a brown glove, a pair of black joggi ng pants, and s cissors . The Petiti oneradm itted in a police interview t hat the scissors belonged to hi m. Also located in the wooded area was a .32 caliber h andgun. Testimony was-4-

presented that the . 32 caliber handgun was the source of the bull et which ki lled Craig Al exander . The woo ded are a itself lay b etween the Steak and Al e restaurant

and the apa rtment com plex where the Petit ioner and Shelton share d
a unit. A traine d police d og tracke d a hum an sce nt from th e Steak and Ale restaurant

through the wooded area to the parkin g lot of the apartment complex.

In additio n, the State offered t he testi mony of police office rs who had conducted interv iews with t he Petitioner. In those i ntervi ews, the Peti tioner stated t hat Shelton had tol d him about committi ng the crime. The Petiti on er’ s statem ents about how he had first learned of the crime we re, however, inconsis tent.

In all, the State pr

esented test imony from ten to fifteen witnesses . Th e Petiti oneroffered no pr oof. After consideri ng the evidence, the jury fo und the Petiti onerguilty

of felony

murd er and attem pted e spec ially aggravated robbery. The convic tions w ere affir med on dire ct app eal. See State v. Grego ry K. Jones , C.C.A. No. 01C01-9406-CR-00185, D avidson Coun ty (Tenn . Crim. A pp., Nash ville, Dec. 19 , 1995), perm. to appeal denied (Tenn. 199 6).
On May 20, 1996, t he Petiti oner fil ed a pro se petiti on for post- convicti on relief, arguin g that d efens e cou nsel a t his trial w as ineffect ive. Counselwas appointed and amended the petit ion on August 19, 1996. Through the amended petiti on, the Pe titio ner ar gued that hi s trialattorney , Michael Thompson, r endered ineffective assistance of counsel in t

wo primary ways: (1) that defense counsel failedto callavailabl e witnessesto rebut the State’s proof of motive, and (2) that-5-

defense counsel failed to cross -exam ine Da vid Shelton effectively regardi ng the plea agreem ent made in exchange for his testimony ag ainst the Petitioner.

The trialcourt conducted an evidenti ary heari ng on the pet itio n for pos tconvicti on relief on D ecem ber 18, 1996. At the heari ng, the Peti tioner testifi ed thathe recalled meeting with defense counse l, Michael T hompson, only once, but theydiscussed the case several ti mes by telephone. From these discussions, the Petiti onerbeca me a ware th at the S tate’s a lleged theory of his motivati on for committing t he crime was that he had been terminated from his employmentat Steakand Ale and thathe needed money to support his drug habi t. The Petiti onerstated that he i nformed Thompson of severa l witnes ses, in cludin g his girlf riend, Tammy Donnelly, who coul d testif y on his behal f to rebu t the Sta te’s theory of motive . Accord ing to the P etitioner, T homp son state d that th es e witnesseswere unnecess ary because the State’s case against him was weak. In addition, t o the best of his recol lectio n, the Peti tioner di d not beli eve that Thompson cross-examined Dav id Shelton concerning t he deal he had received in exchange for his tes timony. On cr oss-examinati on, the Peti tioner admit ted that Tho mps on’s examination of David Shelton was c ut sho rt by Sh elton’s refusal to answer further questions.

The Petiti oneralso offered the tes timony of his girlfriend, Ta mmy D onnelly. Don nelly testifie d that she had i nformed Thompson prior to trialthat she was willi ng to testify on the Petitioner’s behalf. In parti cular, sh e stated t hat she could have testi fied at tri al that t he Petiti oner’s fi nancial si tuation was fine, t hat he did not use drugs, and t hat he had not been terminated by Steak and Ale. On cross-3 Crime Stoppers is a lo cal program which offers reward money for information leading to the development and arrest of suspects of certain crimes. -6- exa mination, Donnelly adm itted that she had c alled Crime S toppers 3 with informati on implicat ing David Shel ton in theshooting of Craig Alexander and t hat she had re ceived a one thous and d olla r ($1000 ) reward. She further admitted that the information she reported to Crime S toppers cam e from the P etitioner.

The only other

witness to testif

y at the post-convict ion h earing was the Petition er’s trial atto rney, M ichael Thompson. Thompson test ified t hat he was licensed as an attorney in 1972 and that

his pract ice consisted of app roxim ately thirty percent (30%) criminal work . For the Pet itione r’s tria l, he di scussed the
case with the Pet itioner by telephone on a number of occasions . He also met with the Petit ioner twi ce at thejail , during one of which t imes he also in tervi ewed David Shelton

. In additi on, he discussedthe case wit h the Petit ioner at hearings prior to trial . One of these hearings was a parole revocati on hearing which Thompson requested speci fically in hopes of gaining i nformation about the State ’s case for th e Alexan der killing. Thompson also fil ed the ordinary disco very motions to ga in information ab out the State’s ca se against the Petitioner.

From these sources of inf o rmatio n, Th omp son d iscove red tha t the on ly witness for the Sta te who c ould iden tify th e Pe titi oner as having be en at the
scene of the cri me was David Shelton. Thompson also discover ed that theState had circum stantia l evid ence supporting She lton’s implicat ion of thePetiti oner, but Thompson believed th at this evide nce wa s relatively we ak. Accord ingly, the princip a l defense str ategy was to at

tack Shelton’ s credibi lity . Of course, Thompson was prev en ted from cross -examining Shel ton fully, incl uding-7-

questioni ng him about the plea bar gain he had received from the State, when She lton attempted to invoke his Fifth Amendment privilege and r efused to answer further ques tions. T hom pson testified that ha d he b een a ble to question Shel ton about his pl ea agreement, he woul d certainly have done so.

With regard to Tammy Donnelly , Thompson testifi ed that he spoke with her prior to the Petitioner’ s trial . Thompson elected not to call Donnell y as a witness forthe Petition er for two re asons . First an d foremost, the information which Don nelly had related to Crime S top pers ha d com e from th e Defe ndant. According to Thom pson, th e nature of this inform ation was suc h that the jury could have concluded t hat the onl y way the Petitioner knew of the se facts was because he had been invol ved in the of fenses. Second, Donn ell y’s test imony about the Petit ioner’s p ersonal and f inanc ial circumst ances seemed to have been related to her b y the P etitio ner h imself rat her than acqui red by independent knowledge. Thom pson testified that ha d the P etit ioner g iven him the name of any other witnesses whose testimony woul d have attacke d the credibil ity of the State’ s wi tne sse s, h e wou ld h avecal ledthe m.

On cross-examinat ion, Thompson admitted that he was a ble to ask David Shelton several quest ions before Shelton ref used to testif y furth er. Thompson also stat ed that the Petiti oner suggested no possi ble witnes ses, character or otherwise, othe r than Tam my Don nelly.

After consideri ng the evidence presented at the post-convicti on hearing, the trialcourt ent ered a de tailed o rder denyi ng the peti tion. I n short, t he trial court d id not find the Petit ioner’s p roofto be persuasi ve and insteadaccredited-8-

Michael Tho mps on’s testimony. The trialcourt found thatThompson’s decision not to callTammy Donnelly was a tact ical deci sion supported b y the fa ct that Don nelly’s Crime Stoppers i nformation woul d likel y have caused the jury to infer thatthe Petit ioner had been i nvolved in the offens es. Moreove r, the trial court found that the i nformation Donn elly had rec eived with respec t to the Pe titioner’s personal and financi al statu s originated “second-hand ” through the Pet itioner himse lf. The trialcourt found further thatthe Petiti oner had not suggested any other p otentia l witnes ses fo r Tho mps on to c all at trial.

With regard to th e failur e of Thompson to cross- examine David Shelt on about his plea barga in with th e State , the trial c ourt fou nd tha t Tho mps on’s opportu nity to impeach Shelton’s cred ibility was cut short by She lton’s refus al to testify. The trialcourt not e d that thi s unforseen event did not i ndicate any ineffecti veness on the part of T hom pson . As a re sult, the trial court concl uded that T hom pson ’s repre senta tion fell within t he range of competence demanded of attorneys in cri minal cases and therefore denied the petiti on for post- convicti on relief. It is f rom the order of denial that the Petitioner now appeals.

In determining w hether or not co unsel provi ded effective assista nce a t trial, the court mus t decid e whe ther or not co unse l’s perfo rman ce wa s within the range of competence demanded of attorneys in crim in al cases
. Baxter v. Rose , 523 S.W.2d 93 0 (Te nn. 19 75). T o suc ceed on a cla im tha t his cou nsel wa s ineffective at tri al, a petitioner bear s the burden of showing t hat his counselmade
errors so serious t hat he was not funct ioning as counse l as guaranteed under the Sixth Amendment and that the def icient representat ion prejudi ced the petiti oner resulting in a failure to produ ce a reliab le result. Strickland v. Washington , 466-9-

U.S. 668, 68 7, reh’g denied , 467 U.S. 12 67 (198 4); Coop er v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te , 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy this second prong the pe titioner m ust sh ow a re ason able probab ility that, but for counsel’s un reasonab le error, the fac t finder w ould have h ad rea sona ble doubt regarding petitioner’s g uilt. Strickl and , 466 U.S. at 695. T his rea sona ble probab ilitymust be “su fficient to undermine confidence in the outcome .” Harris v. State , 875 S.W .2d 662, 665 (Tenn. 199 4).

When reviewing tri al counse l’s acti ons, th is cour t shou ld not u se the bene fit of hindsight

to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard
v. State , 629 S.W.2d 4, 9 (Tenn . 19 82). Counsel’ s alleged er rors should be judged at the ti me they were made in l ight of all facts and circumstances. Strickl and , 466 U.S . at 690; see Cooper , 849 S.W.2d at 746.

We note th at in post-convi ction rel ief proceedi ngs, the petiti oner bears the b urden of provi ng the all egations i n his or her petiti on by clear and convincing evidence. Tenn. Code Ann. § 40-30-21 0(f) (S upp. 1996). Fur thermore, t he factual findings o f t he trialcourt in post-convi ction heari ngs are conclusive on appeal unless the ev idence preponderates against t hem
. See State v. Buford , 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).
Applying t he above standards to the case sub judice , we believe that t he Petiti onerhas fail ed to establ ish that Thompson’s representat ion was
cons titutiona lly deficient. The Petiti oner testified at t he post-convi ction heari ng thatdefense coun sel wa s ineffe ctive in that he failed to call any witnes ses o n his behalf, in parti cular

Tammy Donnelly, who coul d have rebutted the State’s theory-10-

of the case . In contras t, Michael Thompson test ified that the Petiti oner provi ded him with no potenti al witnesses ot her than Tammy Donnelly. After eval uating the credibility of the wit nesses at the p ost-c onviction hearing , the trial court accreditedThompson ’s testi mony on this point. The tri al court was in a much bet terposition to eval uate credibility than this Court , and the evidence in th e record does not pr

eponderate against

the trial co urt’ s find ing. Fu rther more, we agree wit h the tri al court that the decisi on not to cal l Donnelly was a tacti cal choice supported by t he proofin the re cord. W hile Do nnelly m ay hav e bee n able to attack the Sta te’s the ory of th e Petitio ner’s motive for committing the offenses, she would have been vul nerable to c ross-examinat ion regardi ng inf ormation from which the jury

could infer that t he Petiti oner had, in fact, been involved in the crime. We believe that t he dec is ion no t to call D onne lly was a soun d strate gic choice given the circ umstances confront ing Thompson.

With regard to Tho mps on’s cross-examinat ion of Davi d Shelton, we agr ee with the tri al court t hat the record ind icates tha t Thom pson’s o pportun ity to crossexamine S helton was cut short b y Shelton ’s attemp t to invoke h is Fifth Ame ndment privi lege. The Peti tioner seems to imply that Thompson was ineffective for failing to cross-examine Shelton about his pl ea agreement during the few quest ions a sked w hich Sh elton did a nswer b efore refu sing to tes tify further. We believe, howeve r, that Thompson’s failure to ask Shelto n abo ut his plea agreement during the questions which Shelton did answer does not reveal any ineffec

tiveness given Shelton’ s unforseen refusal to answe r furt her questions. In fact, it appears that the tri al court f ound Shelton’s

Fifth Amendment privi lege inappli cabl e and ordered him to answer furt her questions . Shelton refused to do so and was found in contempt of cou rt. More over, Thompson-11-

testif ied that h ad he been able to do so, he would indeed have cross-examined Shelto n about his plea a greeme nt in an attemp t to attack Shelton’s c redibility. Under these cir

cumstances, we can n ot conclu de that T homp son’s ina bility to cross-examineShelton about his pl ea agreement consti tuted defi cient representat ion.

For the reas ons se t forth in the d iscussio n above , we con clude tha t th e Petiti onerhas fail ed to demonstrate t hat the trial court erred in deny ing the petiti on for post- convicti on relief . We ther efore aff irm the judg ment of the t rial court.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ JOE G. RILE Y, J UDGE