FILED

April 16, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1998

GREGORY JONES, ) C.C.A. NO. 01C01-9706-CR-00226

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. J. RANDALL WYATT

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL 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 General and Reporter

222 Second Avenue, North

Suite 350M TIMOTHY F. BEHAN

Nashville, TN 37201 Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

VICTOR S. JOHNSON

District Attorney General

KATRIN MILLER

Assistant District Attorney General

Washington Square, Suite 500

222 Second Avenue North

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

 Tenn. Code Ann. §§ 39-13-202, 39-12-101, 39-13-403.

2 State v. Gregory K. Jones, C.C.A. No. 01C01-9406-CR-00185, Davidson County

(Tenn. Crim. App., Nashville, Dec. 19, 1995), perm. to appeal denied (Tenn. 1996).

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OPINION

The Petitioner, Gregory Jones, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. He was convicted by a Davidson County jury

of felony murder and attempted especially aggravated robbery.1 The trial court

sentenced him to consecutive terms of life imprisonment and fifteen years. His

convictions and sentences were affirmed on appeal to this Court.2 Our supreme

court denied perm ission to appeal on April 22, 1996. He filed a pro se petition for

post-conviction relief on May 20, 1996, which was amended with the assistance

of counsel on August 19, 1996. In his petition for post-conviction relief, the

Petitioner argues that he was denied effective assistance of counsel at his trial.

The trial court conducted an evidentiary hearing on December 18, 1996, and after

considering the evidence, issued an order denying the petition on January 10,

1997. W e affirm the judgment of the trial court.

The record contains little information concerning the circumstances of the

offenses. From the opinion of this Court on direct appeal, it appears that the

offenses occurred in the early morning hours of May 6, 1991. Craig Alexander,

the manager of a Steak and Ale restaurant in Nashville was leaving the

restaurant with his wife, their child, and the assistant manager. They were

confronted by a young black male with a gun. Alexander lunged for the gun and

was killed by a single shot.
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Police officers developed information leading them to David Shelton.

Shelton eventually pleaded guilty to the murder and received a sixty-year

sentence. As part of the plea, Shelton agreed to testify against the Petitioner.

At the Petitioner’s trial, however, Shelton refused to testify for fear of retaliation

by other prisoners and was held in contempt of court. Pursuant to Rule 804(b)(1)

of the Tennessee Rules of Evidence, Shelton’s prior testimony at a pretrial

hearing was admitted at the Petitioner’s trial. That testimony indicated that the

Petitioner was with Shelton when the latter killed Craig Alexander, that the

Petitioner had planned the robbery from his personal knowledge as a former

employee of the restaurant, and that the Petitioner had provided the gun.

To corroborate Shelton’s implication of the Petitioner, the State offered the

testimony of two individuals who were near the scene of the crime at the time of

the crime. One of these individuals saw two black males standing near the front

door of the Steak and Ale restaurant immediately prior to the commission of the

offenses. The other individual testified that he witnessed two black males

running away from the Steak and Ale restaurant immediately after he heard a

gunshot. Neither of these individuals could identify the Petitioner as having been

one of the men they had seen.

The State also offered proof that a duffel bag found in a wooded area

behind the Steak and Ale restaurant had been in the Petitioner’s bedroom closet

approximately one month prior to the com mission of the offenses. The bag

contained a brown glove, a pair of black jogging pants, and scissors. The

Petitioner admitted in a police interview that the scissors belonged to him. Also

located in the wooded area was a .32 caliber handgun. Testimony was
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presented that the .32 caliber handgun was the source of the bullet which killed

Craig Alexander. The wooded area itself lay between the Steak and Ale

restaurant and the apartment complex where the Petitioner and Shelton shared

a unit. A trained police dog tracked a human scent from the Steak and Ale

restaurant through the wooded area to the parking lot of the apartment complex.

In addition, the State offered the testimony of police officers who had

conducted interviews with the Petitioner. In those interviews, the Petitioner stated

that Shelton had told him about committing the crime. The Petitioner’s

statements about how he had first learned of the crime were, however,

inconsistent.

In all, the State presented testimony from ten to fifteen witnesses. The

Petitioner offered no proof. After considering the evidence, the jury found the

Petitioner guilty of felony murder and attempted especially aggravated robbery.

The convictions were affirmed on direct appeal. See State v. Gregory K. Jones,

C.C.A. No. 01C01-9406-CR-00185, Davidson County (Tenn. Crim. App.,

Nashville, Dec. 19, 1995), perm. to appeal denied (Tenn. 1996).

On May 20, 1996, the Petitioner filed a pro se petition for post-conviction

relief, arguing that defense counsel at his trial was ineffective. Counsel was

appointed and amended the petition on August 19, 1996. Through the amended

petition, the Petitioner argued that his trial attorney, Michael Thompson, rendered

ineffective assistance of counsel in two primary ways: (1) that defense counsel

failed to call available witnesses to rebut the State’s proof of motive, and (2) that
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defense counsel failed to cross-examine David Shelton effectively regarding the

plea agreem ent made in exchange for his testimony against the Petitioner.

The trial court conducted an evidentiary hearing on the petition for postconviction relief on December 18, 1996. At the hearing, the Petitioner testified

that he recalled meeting with defense counsel, Michael Thompson, only once, but

they discussed the case several times by telephone. From these discussions,

the Petitioner became aware that the State’s alleged theory of his motivation for

committing the crime was that he had been terminated from his employment at

Steak and Ale and that he needed money to support his drug habit. The

Petitioner stated that he informed Thompson of several witnesses, including his

girlfriend, Tammy Donnelly, who could testify on his behalf to rebut the State’s

theory of motive. According to the Petitioner, Thompson stated that these

witnesses were unnecessary because the State’s case against him was weak.

In addition, to the best of his recollection, the Petitioner did not believe that

Thompson cross-examined David Shelton concerning the deal he had received

in exchange for his testimony. On cross-examination, the Petitioner admitted that

Thompson’s examination of David Shelton was cut short by Shelton’s refusal to

answer further questions.

The Petitioner also offered the testimony of his girlfriend, Tammy Donnelly.

Donnelly testified that she had informed Thompson prior to trial that she was

willing to testify on the Petitioner’s behalf. In particular, she stated that she could

have testified at trial that the Petitioner’s financial situation was fine, that he did

not use drugs, and that he had not been terminated by Steak and Ale. On cross-
3

 Crime Stoppers is a local program which offers reward money for information

leading to the development and arrest of suspects of certain crimes.

-6-

examination, Donnelly adm itted that she had called Crime Stoppers 3 with

information implicating David Shelton in the shooting of Craig Alexander and that

she had received a one thousand dollar ($1000) reward. She further admitted

that the information she reported to Crime Stoppers cam e from the Petitioner.

The only other witness to testify at the post-conviction hearing was the

Petitioner’s trial attorney, Michael Thompson. Thompson testified that he was

licensed as an attorney in 1972 and that his practice consisted of approximately

thirty percent (30%) criminal work. For the Petitioner’s trial, he discussed the

case with the Petitioner by telephone on a number of occasions. He also met

with the Petitioner twice at the jail, during one of which times he also interviewed

David Shelton. In addition, he discussed the case with the Petitioner at hearings

prior to trial. One of these hearings was a parole revocation hearing which

Thompson requested specifically in hopes of gaining information about the

State’s case for the Alexander killing. Thompson also filed the ordinary discovery

motions to gain information about the State’s case against the Petitioner.

From these sources of information, Thompson discovered that the only

witness for the State who could identify the Petitioner as having been at the

scene of the crime was David Shelton. Thompson also discovered that the State

had circumstantial evidence supportingShelton’s implication of the Petitioner, but

Thompson believed that this evidence was relatively weak. Accordingly, the

principal defense strategy was to attack Shelton’s credibility. Of course,

Thompson was prevented from cross-examining Shelton fully, including
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questioning him about the plea bargain he had received from the State, when

Shelton attempted to invoke his Fifth Amendment privilege and refused to answer

further questions. Thompson testified that had he been able to question Shelton

about his plea agreement, he would certainly have done so.

With regard to Tammy Donnelly, Thompson testified that he spoke with her

prior to the Petitioner’s trial. Thompson elected not to call Donnelly as a witness

for the Petitioner for two reasons. First and foremost, the information which

Donnelly had related to Crime Stoppers had come from the Defendant.

According to Thom pson, the nature of this information was such that the jury

could have concluded that the only way the Petitioner knew of these facts was

because he had been involved in the offenses. Second, Donnelly’s testimony

about the Petitioner’s personal and financial circumstances seemed to have been

related to her by the Petitioner himself rather than acquired by independent

knowledge. Thom pson testified that had the Petitioner given him the name of

any other witnesses whose testimony would have attacked the credibility of the

State’s witnesses, he would have called them.

On cross-examination, Thompson admitted that he was able to ask David

Shelton several questions before Shelton refused to testify further. Thompson

also stated that the Petitioner suggested no possible witnesses, character or

otherwise, other than Tammy Donnelly.

After considering the evidence presented at the post-conviction hearing,

the trial court entered a detailed order denying the petition. In short, the trial

court did not find the Petitioner’s proof to be persuasive and instead accredited
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Michael Thompson’s testimony. The trial court found that Thompson’s decision

not to call Tammy Donnelly was a tactical decision supported by the fact that

Donnelly’s Crime Stoppers information would likely have caused the jury to infer

that the Petitioner had been involved in the offenses. Moreover, the trial court

found that the information Donnelly had received with respect to the Petitioner’s

personal and financial status originated “second-hand” through the Petitioner

himself. The trial court found further that the Petitioner had not suggested any

other potential witnesses for Thompson to call at trial.

With regard to the failure of Thompson to cross-examine David Shelton

about his plea bargain with the State, the trial court found that Thompson’s

opportunity to impeach Shelton’s credibility was cut short by Shelton’s refusal to

testify. The trial court noted that this unforseen event did not indicate any

ineffectiveness on the part of Thompson. As a result, the trial court concluded

that Thompson’s representation fell within the range of competence demanded

of attorneys in criminal cases and therefore denied the petition for post-conviction

relief. It is from the order of denial that the Petitioner now appeals.

In determining whether or not counsel provided effective assistance at trial,

the court must decide whether or not counsel’s performance was within the range

of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable result. Strickland v. Washington, 466
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U.S. 668, 687, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner m ust show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcome.” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

When reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S. at 690; see Cooper, 849 S.W.2d at 746.

We note that in post-conviction relief proceedings, the petitioner bears the

burden of proving the allegations in his or her petition by clear and convincing

evidence. Tenn. Code Ann. § 40-30-210(f) (Supp. 1996). Furthermore, the

factual findings of the trial court in post-conviction hearings are conclusive on

appeal unless the evidence preponderates against them. See State v. Buford,

666 S.W .2d 473, 475 (Tenn. Crim. App. 1983).

Applying the above standards to the case sub judice, we believe that the

Petitioner has failed to establish that Thompson’s representation was

constitutionally deficient. The Petitioner testified at the post-conviction hearing

that defense counsel was ineffective in that he failed to call any witnesses on his

behalf, in particular Tammy Donnelly, who could have rebutted the State’s theory
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of the case. In contrast, Michael Thompson testified that the Petitioner provided

him with no potential witnesses other than Tammy Donnelly. After evaluating the

credibility of the witnesses at the post-conviction hearing, the trial court

accredited Thompson’s testimony on this point. The trial court was in a much

better position to evaluate credibility than this Court, and the evidence in the

record does not preponderate against the trial court’s finding. Furthermore, we

agree with the trial court that the decision not to call Donnelly was a tactical

choice supported by the proof in the record. W hile Donnelly m ay have been able

to attack the State’s theory of the Petitioner’s motive for committing the offenses,

she would have been vulnerable to cross-examination regarding information from

which the jury could infer that the Petitioner had, in fact, been involved in the

crime. We believe that the decision not to call Donnelly was a sound strategic

choice given the circumstances confronting Thompson.

With regard to Thompson’s cross-examination of David Shelton, we agree

with the trial court that the record indicates that Thompson’s opportunity to crossexamine Shelton was cut short by Shelton’s attempt to invoke his Fifth

Amendment privilege. The Petitioner seems to imply that Thompson was

ineffective for failing to cross-examine Shelton about his plea agreement during

the few questions asked which Shelton did answer before refusing to testify

further. We believe, however, that Thompson’s failure to ask Shelton about his

plea agreement during the questions which Shelton did answer does not reveal

any ineffectiveness given Shelton’s unforseen refusal to answer further

questions. In fact, it appears that the trial court found Shelton’s Fifth Amendment

privilege inapplicable and ordered him to answer further questions. Shelton

refused to do so and was found in contempt of court. Moreover, Thompson
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testified that had he been able to do so, he would indeed have cross-examined

Shelton about his plea agreement in an attempt to attack Shelton’s credibility.

Under these circumstances, we cannot conclude that Thompson’s inability to

cross-examine Shelton about his plea agreement constituted deficient

representation.

For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction relief. We therefore affirm the judgment of the trial

court.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOSEPH M. TIPTON, JUDGE

___________________________________

JOE G. RILEY, JUDGE