### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J une 19, 2002 JOHN ROBERT BENSO N v. STATE OF TE NNESSEE Direct Appeal from the Circuit Court for Bedford County

No. 8659 Charles Lee, Judge

No. M2001-02510-CCA-R3-PC - Filed December 12, 2002

The petitioner was convicted of two counts of attempted first degree murder and three counts of reckle ss endangerment and rece ived an effective sentence of thirty years. O n direct appeal, this court affirmed the petitioner’s convictions and sentence. The petitioner now contends that his trial couns e l provided ineffective representation. After r eviewing therecord, we conclude that the petitioner has fa iled to meet his burden of demonstrating that his trial counsel provided ineffective assistance. Accordingly , we affirm the denial of the petition for post-conviction relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and R OBER T W. W EDEMEYER , JJ., joined. Larry F. Wallace, Jr., Shelbyville, Tennessee , for the appellant, John Robert Benson.
Paul G. Summers, A tto rney Genera l and Repo

rter; John H . Bledso e, Assista nt Attorne

y General ; William Michael McCown , District Attorney Gene ral; and Robert Crigler, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
FACTS
On March 7, 1998, the petitioner, John Ro be rt Be ns on , w as co nv ic te d b y a jury of two counts of attempted first degree murder a nd three counts of

reckless endangerment. On April 20, 1998, the trial court sentenced

him as a Range I of

fender to concurrent sentences of twenty-two y

ears for the attempted first degree murder convictions, and as a Ra nge II , multiple offender to four y ears for each reckle ss endangerment conviction. The petitioner re ceived concurrent terms fo r two of th e three reckle ss endangerment convictions, and was orde red to serve the reckless endangerment sente nces consecu tively to the atte mpted fir st degr

ee murde r sentences, for

an effective se

ntence o f thirty

ye ars. On direct a

ppeal to t his court , he cha

llenge d the suff

iciency of the evidence t

o sustain his convictions1 See Benson , 200 0 W L 19 535 , at **1-5, fo r a mo re de tailed ve rsion o f the facts o f the sho oting a nd trial. -2- and the length of his sentence. This court de nied relief. See State v. John Robert Benson , No. 01C01-9806-CC-00239, 2000 WL 19535, at *1 (Tenn. Crim. App. Jan. 13, 2000), perm. to appeal denied (Tenn. Oct. 16, 2000).
The petitioner the n filed a pro se petition for post-conviction relief, alleging ineff ective assistance of trial counsel. Counsel was appoi nted, and an amended petition was filed. After an evidentiary

hearing, the post-conviction c ourt denied the petition. A timely notice of a ppeal was filed. Although a number of claimsof in effe ctive as sistance were a sserted

in his pro se petition, amended petition, a

nd at the p ost-conviction he aring, the petiti oner con fines hims elf on appeal t

o arguing that

trial counsel provided ineffective assistance by failing to move for a mistrial based on an incident of pretrial “misidentification” of the petitioner.
Trial
The facts surrounding the petitioner’s convictions involve a shoot ing that occurred at the Shelbyville, Tennessee, apar tment of Jenine McBride in the early morning hours of August 17, 1997. 1 Present at the apartment were Jenine McBride, James McBri de, Andr ew Rankin s, Trishia Pease, and Ashley

Benson. Ashley

Benson, who was twenty months old at the time, is the daughter of the petitioner and Trishia Pease. The relationship between the two ended about a month before the shooting, and Pease had since become roma ntically involved with Rankins.
At trial, Rankins testified that, sometime before sunrise, he heard gunshots coming from the front of the apartment. Rankins then proceeded to the living room where he observed a man armed witha rifle a

nd wear ing a sto cking to

cover hi s face. A fte r unsuccessfully a ttempting to stop the intruder f rom ente ring the house, Rankins grabbed the bar rel of the rifle and both men fell to the floor. During the ensuing struggle, the intruder’s face was exposed. Rankins testified that, despite the darknes s of the room, he was able to observe the intruder’s face “clearly

” for about two minutes before he fled the apart ment. According to his testimony, Ra nkins recognized the intruder as the petitioner and told him during the struggle, “You could ha ve killed your baby .” Id. at *1. Alth ough unable to positive

ly id entify the in tr uder, Jame s McBrid

e testifi ed that the petition er’s “s tocky” build matched that of the intruder. Id. at *3.
Members of the Shelbyville Police Depar tment arrived

shortly thereaf

ter and interviewed

the witnesses at the apartment. Some of those q uestione d stated th at there may have be en two intr

uders. Ra nkins indicated that he believed the gunman to be the petitioner, a nd Pease gav e the police a description of the petitioner’s car. Approximat

ely fifteen minutes later, the police apprehended Timmy Reese, the petitioner’s cousin, a nd broug ht him to the apartment for a “show-up” identification. The testimony differs as to what occurred next. Rankins testified that, although he was initially unsur e whether Reese was the intruder, he stated, “No, that’s not the guy ” after Pease explained that Reese was the petitioner’s-3-

cousin. Id. at *2. Off

icer Trey Clanton was present during the identification and testified that Rankins looked at Reese and said, “I’m not sure if this is him” and then, “No, it’s not him.” Id. at *4. Pease testified, however, that Rankins affirmatively identified Reese as the intru der before learning that

the suspect’s name was Timmy Reese. It was only

then, Pease testified, that Rankins claimedthat Rees e was “n ot the gu y.” It is this “misidentification” that forms the factual basis of the petitioner’s appeal. Approximat

ely ten minute s later, t

he petitio ner, who

lived in Faye tteville, was apprehended in Shelbyville in his car a fe w blocks away f

rom the scene of the shooting. Rankins and Pease were brought to the site of

the arrest and, according to Off icer Clanton, Rankins immediately identified the petitioner as the shooter exclaiming, “This is the man that was inside the house.” Id. At trial, Rankins again identified

the petitioner as the gunman, testify ing that he was “positive” and “certa in” of the identification. Id. at *2.
At trial, the petitioner denied any participation in the shooting, and his sister testified that he was with her the night before the shooting. Ac cording to her testimony , they returne d t o he r apartme nt, she went

to bed by 4:00 a.m., and, sometime between 6:00 and 6:30 a.m., the petitioner woke her to say

that he was leaving.
Evidentiar y Hearing
Three witnesse s testifie d at th e evident iary hearing : two inves tigator s for the public defender’s office and the assistant district public defender who repr esented the petiti oner at t

rial. Only trial counsel’s testimony is releva nt to the issue raised on appeal. The petitione r did not testify on hi s beha lf at t he evi denti ary hearin g.
In the opinion of trial counsel, there was , in fact, a misidentification. He testified that the Statefailed to

give not ice of any

misidentification although it was exculpatory e vidence which should have been p roduc ed. Ap parent ly, the t rial j udge had aske d trial co unsel if he was g oing to move for a mistrial in light of the State’s failure to produ ce evidence o f the misidentification. Explaining

why he did not m

ove for a mistrial, t

rial cou nsel testi fied:
I think the Judge made that offer to me. But I think he also said something to the effect you can’t have your cake and eat it, too. He was asking that because the Stat e had t echnica

lly f ailed to c omply withdis cove ry on the misidentification by Andrew Rankins. That was somet hing I was fully informed of through interviews with Tr

icia [sic] Pease. I knew full well wh at had happened or what he was going to say happene d. So it would have b een a litt le hard to say Judge, h ere is some exculpatory e vidence. We would like an opportuni ty to explore thatwhen I was better informed a bout it than probably the State was. So I guess if I

had moved for

a mistrial and the Judge had granted it, that would have give n the State a greater-4- period of time to d

o damag e contro l on that mi side ntification than forging ahead at

trial. I didn’t think it was wise at that time [to move for a mist rial] because I think I

thought we ha d the uppe r han d. We had knowledge of misidentification. I don’t think [the State] did.
Trial counsel has been licensed to p ract ice law since 1991, and most of his practice has consisted of crimin al defe nse work . Explaining

that the e

leme nt of surpr ise is “[o]ne of the few advantages the defense has,” h e tes tified that this was a calculated tactical decision aimed at precluding the State from using their identification evidenc e. Add itionally , he testif ied that h is strat egyfor trial was to highlight the defici en cies with regard to the police depar tment’s investigation of the shoot ing.
At the conclusion of the hearing, the post-conviction court denied the petition, finding that the petitioner had failed to carry his burde

n of demon strating

ineffe ctive as sistance

of counse

l. Sp ec if ic al ly, the post- convicti on court f ound that t

rial cou nsel “exe rcised mo

re than a dequate judgment in his presentation of the [petitioner’s] proof” and perfor med bette r “than a nyo ne could have expected” in light of the State’s “overwhe lming case against the [petitioner].”
ANALYSIS The sole issue raised on appeal is whether the conductof the petitioner’s trial counsel was within the standard demanded of competent defense counsel. Specifically , the petitioner asserts that his trial counsel’s performance was deficient because he chose not to move for a mistrial based on the pretrial incident of “misidentification.”
I. Post-Conviction Standard of Review
The post-conviction petitioner bears the bu rden of pro ving his allegations by clear and convincing evidence. SeeTenn. Cod e Ann. § 40 -30-210(f). When a n evident iary hearing is held in the post-conviction setting, the findings of fact made by the court ar

e conclusi ve on app eal unle ss the evidenc e preponderate s again st them. See Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate court should not reweigh or reeval uate the evidence. See Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to the

facts of the ca se is de novo , with no presumption of correctness. See Ruff v. Sta te , 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counse l and possible p

rejudic e to the de

fense a re mixed qu estions of

law and f

act and, thus, subject to de novo review by the appella te court. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).
II. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counse l, the petitioner has the burden to show boththat trial cou nsel’s performance was deficient, and tha t counsel’s deficient performance-5-

prejudiced

the outcome of the proceeding. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d

674 (1984 ); see also State v. Taylor , 968 S.W.2d 9 00, 905 (T enn. Crim. App. 1997) (noti ng that s ame stan dard for determin ing inef fective assistanc e of coun sel that is applied in federal cases also applies in Tennessee ). The Strickland standar d is a two- prong te st: First, the defe

ndant must

show that c ounsel’sperfor ma nc e was deficie nt. This requires showing that counsel made error s so serious that counsel was not functioning as the “counsel” guarantee d the defendant by the Sixth Amendment

. Second, t he defe ndant must show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose r esult is reliable. 466 U.S. at 687, 104 S. Ct. at 2064.
The de fi ci en t p er fo rm an ce pr on g o f t he te st is sa ti sf ie d b y s howing t

h at “counsel’s acts or omissions were so serious as to fall be low an obj ective s tandard of reas onablene ss under prevailing professional norms.” Goad v. State , 938 S .W.2 d 363, 369 (T enn. 1 996) ( citi ng Strickland , 466 U.S. at 688, 104 S. C t. at 2065; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975)). Theprejudice prong of the test is satisfied by showing a reasonable probability , i.e ., a “probab ility

sufficie nt to undermine confidencein the outcome,” that “but for counsel ’s unprofe ss ional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068.
Becau se both pr ongs of the test must be satisfied, a failure to show either def icient performance

or resul ting pre judice r esults in a failure to establish the claim. See Henley , 960 S.W.2d at 580. For this reason, cour ts need not appro ach the Stricklandtest in a specific order or even “ad dress both compo nents of the inqu iry if the defend ant ma kes an insu ffici ent sh owing on one. ” 466 U.S. at 697 , 104 S. Ct. at 2069; see also Goad , 938 S.W.2d at 370 (stating that “failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief

on the ineffective assistance claim”).
On appeal, the only issue raised is whethe r trial counsel provided ineffective assistance by failing to move for a

mistrial. At the evidentiary hea ring, however, the petitioner did not testify or offer an instance of trial counsel’s alleged inadequate performance

or any resulting prejudic e. Postconviction petitions and hearings are gove rned by the

Post-Conviction Procedure Act of 1995 which mandates that “[t]he

petitione r sh all app ear and give testimony at the evidentiary

hearing if such petition raises su

bstantial questionsof fact

as to events in which the petitioner participated” and that “[t]he petitioner shall have the burden of proving the alleg ations of fact by clear and convincing evidence.” See Tenn. Code Ann. § 40-30-210(a), (f). During the hearing, the petitioner merely questione d his defe

nse team about the events of the trial and pret

rial inve stigatio n. In

matters o f the cr

edibility of witnes ses, we defer to the judgment of the post- convicti on c ourt. Michael Russo v. Sta

te , No. M2000 -009 19-CC A-R3 -PC, 2 001 WL-6-

605156, at *8 (Te

nn. Crim. App. June 5, 2001). Trial counsel defended his strategical decision to notmove for

a mistria l, and the petitioner presented no proof to the contrary

to demonstrate deficient performance

or prejudice. For the petitioner’s petition to succeed, we wou ld have to as sume that bothtrial counsel’s performance was def icient and that

counsel’s deficient

performance prejudiced the outcome

of the proceeding. See Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. Neithe r assumption is justified in any way

. Applying the S tri ckland

holding that we must “evaluate the conduct from counse l’s perspective at the time” the decisions had to be made, that we must “indulge a strong presumption that counsel’s conduct

falls within the

wide range of r

easonab le profe ssional a ssistance ,” 466 U.S

. at 689, 104 S. Ct. at 2065 , and that in challenging counsel’s conduct a pe titioner must show that “no compete nt counse l would have taken the action,” Chandler v. United States , 218 F.3d 1305, 1315 (11th Cir. 2000), cert. denied , 531 U.S. 1 204, 121 S. Ct. 1217, 149 L. Ed. 2d 129 (2001), we conclude that

the petiti oner hasfailed to show t hat hi s tri al cou nsel d id no t perf orm wi thin the ran ge of compe tence r equired of attorn ey s in crimin al case s. CONCLUSION Having reviewed the entire record in this case , we conclude that the petitioner has failed to meet his burden of demons trating that he wa s denied t

he effective as sistance

of counse

l. Accordingly , we affirm the post-conviction court’s denial of the petition.

___________________________________ ALAN E. GL

ENN, JUDGE