### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Bri efs November 4, 2003

BILLY B. B ROW N V. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Shelby County No. P-19936 Bernie Weinman, Judge

No. W2002-00986-CCA-R3-PC - F iled November 14, 2003

The petitioner appeals the denial of post-conviction relief. He arg ues the post-conviction court erred in determining he received the effective assistanc e of counsel at his trial. We affirm the judgment of the pos t-convic tion cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID H. W ELLES and J OHN E VERE TT W IL LI AMS , JJ., joined. Gray W. Ba

rtlett, Memphis, Tennessee, for the appellant, Billy B. Brown.

Paul G. Summers , Attorne y G eneral and Repor

ter; P. Robi n Dixon, Jr., A ssistant A ttorney Genera l; William L. Gibbons, District Attorney General; and Scot A. Bearup, As sistan t District Attorney General, for the appellee, State of Te nnessee.
OPINION

A Shelby County

jury convicted the pe

titioner of one count

o f premeditated first degree murder and two counts of attempted first degree murde r. The trial court imposed a life sent ence wi th the possibility of parole and two twenty -year sentences, all to be served concurrently . The petitioner’s convictions were affirmed on appeal. See State v. Billy B. B rown , No. 02CO1-9805-CR-00157, 1999 Tenn. Cri m. App. LEXI S 521 (Tenn. Crim. App. May 26, 1999, at Jackson), perm. to app. denied (T enn. 1999). Th

e petitioner soug

ht post-c onviction

relief o n the gr

ounds his tr

ial couns e l wa s ineffective. The post-conviction court denied relief ; this appeal followed.
BACKGROUND The facts presented at the petitioner’s trial are set forth in th

is court’ s opinion a

ffirming his convicti ons:-2- The state’s proof revealed that the defendant wa s married to Nicole Burrow; however, they were

estranged. Burrow wa s dating Jerry Jerome Parker (hereinafter “Parker”) which ange

red the defendant. . . .

On the early mor

ning of March 26, 1996, Burrow ca lled defendant’s employer to make certain that the defendant was at work. Upon ascertaining that he was, Burrow, Parker, Thomas Parker (Parker’s sixty -three-y ear-old fathe r), and Thomas Parker’s friend went to defendant’s apartment to secure B urrow’s belongings. Unk nown to Burrow, defendant left his employment shortly after Burrow’s phone call. Upon arriving in the parking lot, they

observed the defendant firing at them with a pistol from the second floor balcony. A

neighbor heard the defen dant state, “Nicole, my w ife, I've got you de ad to right.”

Parker exited the vehicle and fled across the street while the defe ndant fired at him. Burrow attempted to flee the parking lot in the car. Defend ant conti nued to fir e, and one of the bullets entered the rear window a nd struck the elder Thomas Parker in the head. Thomas Parker died as a r esult of the gunshot wound.

Other state witnesses observed the defen da nt firing from the second floor ba lc on y. No witnes s testifie d that the y ob served a

nyb ody in the Bur

row vehi cle with any kind of wea

pon.
Id. at **2-3.
PROOF AT POST-CONVICTION HEARING

At the post-conviction hearing, the petitioner initially testified

trial cou nsel met w ith him only twice prior to trial. He later stated t hey met fou

r times. H e said ea

ch meetin g was lim

ited to approxima

tely ten minut es. The petitioner further complained trial counsel was not we ll-prepared for trial. Accord

ing to the petitione r, he ask ed trial c ounsel to i ntervie w Cathy Williams, who lived in the apartment complex and witnessed the shooting, but counsel failed to do so. The petit ioner al so said trial counsel never advised him of a plea offe r from the state.

Trial counsel t

estified at t he heari ng that s he met wit h the peti tioner “ [q]uite a fe

w times” while she represented him. She explained she met fr

equently with the pe

titioner b ecause

“he was one of the clients that you . . . have to hold his hand.” She stated the petitioner’s testimony regarding the number and leng th of their meeting s was inac curate . She said s he and the petitione r discuss ed his
case extensively, she reviewe d the facts with him, she gav e him disco very informa tion, and she discusse d the possi

ble pena lties with h

im. According to trial counsel, she advised the petitioner of the state’s offer to allow him to plead guilty to second degree murder in exchang e for a twenty -five or thirty-y ear sentence. She stated the petitioner rejected the offer beca

use he insisted he

was not g uilty and belie ved the ju ry would ac quit him.-3-

Trial counsel testified she attempted to locate Cathy Williams, but Williams had moved from the apartment complex. Trial counsel stated she interviewed the other two witnesses named by the petitioner, and those witnesses testified at trial. She said she also went to the apartment complex and interviewed

residen ts in an effort to locate other witnesses to the shooting, but was unable to find any other witnesses to support the petitioner’s theory of self-defense.

No oth er wit nesse s test ified at the post -conv icti on hea ring.
POST-CONVICTION COURT’S FINDINGS AND CONCLUSIONS

In its order denying

post-conviction relief, the post-conviction court found trial counsel thoroug hly prepared the petitioner’s case for trial; met with the

petitione r on numer

ous occa sions; properl y investig ated the

case; tr ied, but f ailed to lo cate

Cathy Williams; and negotiated a plea offer , which th e p et it io ne r r ej ec te d. Ac co rd in gl y, the post-conviction court concluded the advice given a nd services rendered by

trial counsel were within the range of competence demanded

from an attorney in a criminal case.

INEFF ECTIVE ASSISTA NCE OF C OUNSEL

The petitioner argues the post-conviction court err ed in concluding he received the effective assistance of counsel because trial counsel: (1) met with him only twice prior to trial ; (2) fai l ed to interview and secu

re the te stimony

of Cathy Williams; and (3) failed

to communicate the state’s plea offer to the petiti oner. Hi s argum ents are without me

rit.

When a claim of ineffective assistance of counse l is made under the Sixth Amendment, the burden is upon the complain ing par ty to show (1) that counsel’s performance was de ficient, and (2) the deficiency

was pre judicial i n terms of rendering a reasona ble probability that the result of the tria l
was unrel iable or the procee dings fundamentally unfa ir. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct . 20 52, 206 4, 8 0 L. Ed. 2d 674 (1984) . In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the service s be rendered within the ran ge o f competence demanded

of attorn ey s in crimin al case s. In

order to establish prejudic e, the pe

titioner m ust estab lish a “‘re asonable

probabil ity t hat, but f or counse l’s unpro fessiona

l errors , the res ult

of the proceeding would have been differe

nt. A reasona

ble probabil

ity is a probabil

ity sufficient to undermine confidence in the outcome.’” State v. Burns , 6 S. W.3d 453, 4 63 (Te nn. 19 99) (q uoti ng Strickland , 466 U.S. at 694, 104 S. Ct. at 2068).

The petitioner bears the burden of proving the factual allegations that would entitle petitioner to relief by

clear and convincing evidence

. Tenn. Code Ann. § 40-30-110(f) (2003). We review the post-conviction court’s factual findings underly ing a claim of ineffective assistance of counsel under
a de novo standard with a presumption that those findings are correc t – unless the preponderance of the evidence establishes otherwise. Burns , 6 S.W.3d at 461.

The proof in the record before us does no t prepond erate a gainst t he findin gs of the

postconviction court. The post-conviction court accredited the testimony of trial counsel, who indicated that she met fr

equently with the pe

titioner p rior to trial and properly

prepared for trial. Further, the-4-

post-conviction court found trial cou nsel tried to locate Cathy Williams, but her effor ts were
unsucce ssful. We also note the p etitioner has faile d to estab lish prejudice with regard to this potential witness since she did not testify at the post-conviction hearing. See Black v . State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Tr ial c ounsel interviewed other witnesses who testified at trial and tried to find witnesses to support the petitioner’s theory

of self-defense. Trial counsel neg otiated a plea offer with the state and convey ed the offer

to the petitioner; however, he rejected it. Based upon these fin dings an d the rec ord, we a ffirm the judgmen t of the po st-convi ction cou rt.

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_________________________ JOE G. RILEY, JUDGE