### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ugus t 5, 200 8 S es sio n

KEV IN LA WREN CE v. ST ATE OF TEN NES SEE

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

No. 99-12786 P aula S kahan , Judge

No. W2007-02021-C CA-R 3-PC - Filed April 17, 2009

The pe titioner, Kevin L awr ence , was convicted of felony murder a nd was sente nced to life with the possibili ty

of par ole. Subsequently , the petitioner filed a petition for post-conviction relief, a lleg ing that his trial counsel we re ine ffe ctive. The post-conviction court found that the petitioner’s c ounsel

we re n o ti n ef

fe ct i v e a n d

d en i edt h e p et i t i o n

. On ap p ea l
, t h e pe t i t i o n er ch al l en ges t h e co u rt ’s ru l i n g. Upon re view, we aff

irm the judg ment of the post-c onviction court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt is Affi rm ed.

N OR MA M C G EE O G LE , J ., delivere d the opi nion of the cour t, in which T H O M A S T. W O O D A LL and D. K EL L Y T HOMAS , J R ., J J ., joined.

J ames P. DeRossitt, I V, Memphis, Tenne ssee, f or the a ppellant, Kevin L awr ence

.

R o b e rtE

. C o o p e r , J r

. , A t t o r n e y G e n e r a l a n d R e p o rt e r ; J

. R o s s D y e r , S e n i o r C o u n s e l ; W i l l i a m L. Gibbons, District Attorney Gene ral; and Chris Scrug g s, Assistant D istrict Attorney Gene ral, for

the appellee , State of Tenne ssee.

OP IN ION

I. F ac tu al B ac kgr ound
The pe titioner was orig inally indicted for the preme ditated first deg ree murder a nd the fe lony murder of the victim, Rodney Foster . The proof

at trial re veale d that on the eve ning of Dec ember 28 , 19 98 , th e vic tim ; hi s mo the r, Willi e F os te r; his g ir lf ri e nd , T if fa ny B utt s; h is s ist e r, Ki mbe rl y Foster ; Kimberly

Foster ’s two childre n; and the victim’s frie nd, Marc us L ee, w ere at Will ie Foste r’s apar tment in t h e W o o d ale Condom inum complex . Around 8:00 p.m., two men ente red the apar tment. One of the men, later identified as the pe titioner, took the victim int o the kitchen. The second ma

n took the other individuals into a bedroom a nd held them at g unpoint. W h i l e the-2-

petitioner and the victim we re in the kitchen, the victim wa s shot; howe ver, none of the witnesse s saw the shooting . After

the shooting, the perpe trators ra n out of the apa

rtment.

As the petitioner was running awa y , he was chase d by police. Despite the c old weathe r, the petitioner discar ded his black c oat while he w as running ; notably , a blac k co at wa s o n e o f the identify ing c hara cter istics of one of the pe rpetrators. When the petitioner was a pprehe nded, he ha d duct tape on his fing ertips. Howe ver, w hen the pe titioner was re moved from the police squad ca r, the duct tape was no long er on the petitio n er ’s fi n ger s and wa s instead stuffe d in the cra ck of the seat. Additionally , police found a revo l v er an d a m ask alongthe petitioner’s f light path. Te sting la te r r e ve a le d th a t th e re vo lve r w a s th e mur de r w e a po n. Pol ic e c on du c te d a

g un sh ot r e sid

ue te st upon the petitioner, a

nd the test came bac k positive.

Tesea n Br own testified that the pe titioner reque sted that he relate a fabr icated story to police to expl ain t h e g unshot residue. The petitioner’s mother, Sher lie L awr ence , testified that the pe tit ion e r c on fe sse d to he r his inv olv e me nt i n th e c ri me . Sh e a sse rt e d th a t sh e wa s te sti fy inga g a ins t h e r s o n i n c o mp l i a n c e w i t h v i s i o n s a n d i n s t r u c t i o n s s h e h a d r e c e i v e d f r o m G o d

. S t a t e v

. K e v i n L. L awr ence , No. W2001-02638-CCA-R3-CD, 2003 WL 22318461, at **1-7 (Tenn. Crim

. Ap p

. at J ackson, O ct. 9, 2003), aff ’d by State v. L awr ence , 154 S.W .3d 71 (Tenn. 2005). Ba sed upon t he fore g oing pr oof, t he petitioner w as convic ted of murde r committed during the commission of a robber y , also known as felony murder, and of second deg ree murder as a lesse r-include d offe nse of preme ditated first deg ree murder. T he sec ond deg ree murder c onviction was merg ed into the fe lony murder c onviction, and the petitioner w as sentenc ed to life in pr ison with the possibi lity of par ole. I d. at *7.

Subsequently , the petitioner filed a petition for post-conviction re lief, making numerous alleg ations that his trial counsel wer e inef fec tive. Specifica lly , the petitioner c omplained re g arding trial counsel’ s failure to object to ref ere nces to t he re ligious belief s of the prose cutor a

nd the petitioner’s mother dur ing the State’s closing arg ument.
At the post-conviction hea ring , the petitioner testified that his counsel wer e re tained; one

c ouns e l se rv e d a s p ri mary c ouns e l and

the oth e r wa s c o- c ouns e l. He fe lt that his tr ia l c ouns e l c ou ld have done a better job and been m ore involved in his case

. The pe titioner said that his trial counsel

me t w it h h im a f e w ti me s , b u t th e y n e v e r to ld h im o f a n y p r o g r e s s b e in g ma d e o n h is c a s e . The pe tit ion e r s a id t

hat an in ve sti g a tor

wo rk e d o n h is c a se , b ut t he inv e sti g a tor

wa s n ot c a lle d a s a witness at trial.

Th e pe tit ion e r c omp la ine d th a t the wi tne sse s at tri a l we re a ble to ide nti fy him

on ly be c a us e police let the witnesse s see him af ter he was apprehe nded. The petiti oner sa id that witness Tiffany Butts was one of the individuals who identified the pe titioner as one of the per petrators. During Butts’ trial testimony , she said that eve ry one in t he neig hborhood knew“they” did it. Trial counse l objected to this testimony and requested a mistrial. The trial court denied the re quest for mistrial and instead g ave the jury

a cur ative instruction.T h is na m e is also sp e lled “S h irle y L a w re n c e ” in the re c o rd

. 1

T h e p e tit io n e r’s c o -co u n se l d id no t t e stif y a t t h e p o st-co n v ic tio n he a rin g

. 2

-3- The pe titioner acknow ledg ed that trial counsel cross-examined the witnesses r eg ardingthe pe tit ion e r’ s id e nti ty

a s th e pe rp e tr a tor . H ow e ve r, the pe tit ion e r c on te nd e d th a t tr ia l c ouns e l sh ou ld have be en more thoroug h in their cross- examination.

The pe titioner said that his mother, Sherlie L awr ence , testified for the prosec ution that the 1 petitioner had c onfesse d to her his involvement in the murder . The pe titioner stated t hat he ha d not tol d L a wren c e that he ha d c omm itt e d th e mur de r; he ha d o nly e xpla ine d to he r t

he re a so n f

or his

ar re s t

. T h e petiti oner sa id his wife was pr esent duringthe conve rsation and testified at trial that L awr ence was c onfused a bout the conver sation. The petitioner sa id that L awr ence believed that he

was c alled to have a “prison minis try .” He believed that without L awr ence ’s testimony , he “wouldn’t have ende d up with a life sente nce.”
The pe titio n er s t ated that trial counsel should have attacked L awr ence reg ardingher tria l te sti mony . H ow e ve r, a t th e tim e , tr ia l c ouns e l e xpla ine d to him that it wo uld no t be a g oo d id e a to attack he r while she w as emotional on the stand.

The pe titioner said that during the State’s closing argument, the prosec utor told the jury that she could not quote scripture like L awr ence and “ba sically ma[de] m y

mother out to be some sort of a prophet. L ike what she say s has got to be the truth beca use i t’s [m y ] mother.” The petitioner maintained that trial counsel should ha ve objected to the State’s comments, but “they just let it g o.”

Th e p e t i t i o n e r ’ s l e a d t r i a l c o u n s e l t e s t i f i e d a t t h e p o s t

- c o n v i c t i o n h e a r i n g t h a t he wa s a
cer tified criminal trial spec ialist who had been prac ticing for twenty -five y ear s. Trial counse l stated 2 that a ft e r t

he pe tit ion e r wa s de c lare d ind ig e nt, the de fe ns e hir e d a n in ve sti g a tor . T ri a l c ouns e l sa id that he coul d n ot rec all how often he met with the petitioner, but he kne w that he, c o-counse l, or another member of

his office met with the petitioner at ever y court da te. Additionally , trial counsel said that the investig ator a lso met with the petitioner. Trial counsel stated that he maintained c ontact with the petitioner and his fa mily and believe d that they

had a g ood relationship.

Trial counse l rec alled that prior to tria l, he filed various motions to suppress. Trial counse l said that the def

ense he employ ed at t rial wa s misidentification. Trial counsel r eca lled that the peti t i o n er h ad another rea son for be ing in the a rea . Additionally , the petitioner said that he was running when he was found by police beca use he was frig htened afte r hear ing a g unshot in the area

. Trial counse l said that he cr oss-examined eac h ey ewitness re g ardingthe id en t i fi cation of the pe tit ion e r a s a

pe rp e tr a tor , p oin tin g ou t th a t e a c h w itn e ss h a d o ri g ina lly be e n una ble to i de nti fy

him

. Tr ia l c o u n s e l s a id th a t in h in d s ig h t, h e h a d n o mi s g iv in g s a b o u t th e d e f

e n s e , n o ti n g that misidentification was the only viable def

ense.

Tr ia l c ouns e l sa id t

hat he c a lle d th e pe tit ion e r’ s w if e to t e sti fy

a t tr ia l in a n atte mpt

to-4-

discredit L awr ence ’s testimony that the petitioner c onfesse d to the crime. Tr ial counsel re called that L awr ence had testified that God had spoken to her a nd had compe lled her to testify ag ainst her son beca use it was the right thi ng to do. Trial counsel wanted the jury to see that L awr ence was “ a ver y nic e pe rs on

bu t no t a c omp le te ly

sta ble pe rs on ” wh o h a d misund e rs too d he r son ’s e xplanatio n o f h is

a rr e st. Tr ia l c ouns e l be lie ve d a pp ro a c hin g L a wr e nc e in a n und e rs tand ingwa

y wa s th e be st c ours e of ac tion. Tr ial counsel noted that L awr ence ’s testimony was problematic, espec ially beca use her testimon y was consistent with t hat of Te sean B rown who ha d testified re g ardingthe petitioner’s de sir e fo r B ro wn

to h e lp h im f

abri cat e a pla

us ibl e e xplanatio n f

or g un sh ot r e sid

ue be ingon

his hands.

Trial counse l s ai d t h at by testify ing “ that she had ha d a vision from God,” L awr ence had broug ht “ spiritual matters into it from the start.” Tria l counsel had trie d to emphasize to the jury that her te stimony

ag ainst the petitioner wa s based lar g ely upon her “ visions and talks with God.” Th e re fo re , tr ia l c ouns e l w a s unc on c e rn ed whe n the Sta te re fe re nc e d L a wr e nc e ’s sp ir itu a lity in closing argument. Trial counse l opined that the prosec utor’s ref ere nce to he r own chur ch attenda nce

“ c e rt a inl y br us he [d] up a g a ins t” be ing imp ro pe r. Ho we ve r, tr ia l c ouns e l ma de the de c isi on no t to ob je c t to the c omm e nts , e xpla ini ngthat th e c omm e nts we re “ a pa ssi ngre fe re nc e ” a nd

that he “ jus t didn’t thin k it was worth objec ting ove r.” Mor eover , trial counsel did not believe a cur ative instruction would have be en bene ficial.

At the conc lusion of the hear i n g, t h e post-convic tion court found that the pe titioner’s trial counsel we re not inef

fec tive and fur

ther found that the petitioner had not suf fer ed any prejudice by counsel’s a lleg ed er

rors. On a

ppeal, the pe titioner challeng es the post-c onviction court’s ruling

.

II. Ana lys is

To be succ essful in his claim for post-conviction relief , the petitioner must prove a ll factua l alleg ations contained in his post-conviction petition by clea r and convincing evidenc e. See T enn. Code Ann. § 40-30-110( f) (2006). “‘Clea r and c onvincing evidenc e mea ns evidenc e in which ther e is no serious or substantial doubt abo u t the cor rec tness of the c onclusions drawn f rom the

e vid e nc e .’ ” Sta te v. Ho lde r, 15 S.W. 3d 90 5, 91 1 (T e nn

. Cr im. Ap p. 19 99 ) ( qu oti ngHo dg e s v . S. C. To of & Co. , 8 33 S.W. 2d

89 6, 90 1 n .3 (T e nn

. 19 92 ))

. I ssu e s re g a rd ingthe c re dib ili ty of wi tne sse s, the weig ht and value to be acc orded the ir testimony , and the f actua l questions raised by the evidenc e adduce d at trial ar e to be r esolved by t h e p o s t -c o nviction court as the tr ier of f act. See Henley

v. S t at e, 9 6 0 S

. W

. 2 d 5 7 2 , 5 7 9 (T en n

. 1 9 9 7 ). T h er ef o re , we af fo rd t h e po s t -c o n v i ct i o n co u rt ’s fi n d i n gs of fa ct the weig ht of a jury verdic t, with such findings be ing c onclusive on appe al abse nt a showing that the evidenc e in the re cord pr eponder ates a g ainst those finding s. I d. at 578.

A c la im o f i ne ff

e c tiv e a ssi sta

nc e of c ouns e l is a mixe d que sti on of law an d fa c t. See Sta te v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo wit h a pre sumption t hat those finding s are corr ect. See Fields v. State, 40 S.W.3d 450, 45 8 (T e nn

. 20 01 ). Ho we ve r, we wi ll re vie w the po st- c on vic tio n c ourt ’s c on c lus ion s of law p ur e ly de novo. I d.-5-

When a p eti tioner see ks post-conviction relief on the basis of inef

fec tive assistance of counsel, “ the petit ioner bears the burden of proving both that counsel’s pe rfor mance was de ficient and that the de ficienc y

prejudice d the def

ense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (c iti ngStr ic kla

nd v. Was hin g ton , 4 66 U. S. 6 68 , 687 , 104 S. Ct. 205 2, 20 64 (1 98 4) ). To e sta bli sh d ef i ci en t p er fo rm an ce , t h e pe t i t i o n er m u s ts h o w t h at co u n s el ’s p er fo rm an ce wa s b el o w “ t h e r an ge of compe tence demande d of attorne y s in criminal case s.” B axter v. Rose , 523 S.W .2d 930, 936 (T e nn . 197 5)

. To e sta

bli sh pr e jud ic e , th e pe tit ion e r m

us t sh owthat “ the re is a

re a so na ble pr ob a bil ity that, b ut f or c ouns e l’ s unp ro fe ssi on a l er ro rs , the re su lt of the pr oc e e din g wo uld have be e n d if fe re nt. A re asonable probability is a pro b ab i l ity

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

[b]e c a us e a pe tit ion e r mus t e sta bli shbo th p ro ng s o f t

he te st, a fa ilure to prove e ither def iciency or prejudice provides a suffic ient basis to den y relief

on the ineff

ective a ssistance c laim. I ndeed, a court ne ed not a ddress the components in any particula r orde r or e ven addre ss both if the [petit ioner] makes an insuff icient showing of one

c omp on e nt.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

On a pp e a l, t he pe tit ion e r s ta te s:
The religious arg uments made by a prose cutor in her

closing statement in [the petitioner’s] trial for f irst deg ree murder . . .

c on sti tut e d p ro se c uto ri a l mi sc on du c t. T he prose c uti on so ug ht t o pe rs ua de the jur

y to c on vic t [th e pe tit ion e r] b y ur g ingthe jur

y to consider the testimony

of [the pe titioner’s] mother (who testified for the prosec ution) as espe cially cre dible d u e to her

devout Christian faith, and the Christian faith of the prose cutor. . . .
The pe titioner argues that trial counsel’ s failure to object to this closing ar g ument was de ficient a nd prejudicia l.

Gene rally , “ar g ument of counsel is a va luable privileg e that should not be unduly restric ted.” Smith v . Stat e , 527 S.W. 2d 73 7, 73 9 (T e nn . 197 5) . How e ve r, “ a pr os e c uto r’ s c los inga rgume nt m us t be temperate, must be based on the evidenc e introduced at trial and must be pertinent to the issues in the case .” State v. B anks, 271 S.W.3d 90, 131 (Tenn. 2008).

Th e c on te ste d p or

tio n o f t he Sta te ’s c los inga rg

ume nt i s a s f

oll ow s:

Sherlie L awr ence sat here and she cried. I ’ve g one to chur ch all m y life and I

can’ t quote scripture that way and wouldn’t be-6- a llo we d to if

Ic ou ld. B ut the e sse nc e of wh a t sh e sa id .

. . is r ig ht i s ri g ht, wr on g is w ro ng , a

nd I ’m sp e a kin g fo r Ms. L a wr e nc e , I ha d to do the rig ht thing. Tha t i s what she sa id. And the rig ht thing wa s being honest and truthful. And mix ed with that ver y painful testimony she neve r once appea led to y ou to do any thing e lse.

The post-c onviction court found that dur ing c losing a rg ument, “the pr os e c uti o n w a s r e fer ring to the testimony

of Petitioner’s m o ther, whic h was substantially based upon he r re ligion. . . . Be cause Petitioner’s mother’s testimony w a s s u b s ta n tially based upon he r re ligion, the pr osecution’s use of he r testimony

did not rise to the level of pr osecutoria l misconduct.” We ag ree

. Our re view of the trial tra

nscript re veals that the pe titioner’s mother did not ref ere nce he r re ligion during dire ct examination and only spoke of her relig ious be liefs afte r being direc tly questioned by

the petitioner’s trial counsel a

bout the subject. At trial, the State objec ted to the line of questioning . Trial counse l

e xpla ine d to the tr ia l c ourt ,

[M]y po sit ion in a sk ingthi s lin e of

qu e sti on ingis i t is ve ry

po ssi ble that she is overly

exuberant in her r elig ion and is hear ing voices. S he ha s li te ra lly

sa id t hat G od ha s ta lke d to he r.

. . . [T]he thi nga bo ut i t is in w h e th e r s h e th in k s [G o d ta lk e d to h e r ] a n d it a p p e a r s on her

cre dibilit y

and it is very

probative.

We conclude that, in light of trial counse l questioning the c redibility o f t h e p et i t i oner’ s mother’s testimony beca use of he r re ligious fe rvor, the State was entitled to a rg ue that the witness’ re ligious beliefs did not neg atively impact her

cre dibilit y

.

Fur ther, the post-conviction court ag ree d with trial counsel’s testimony that the prosec utor’s ref ere nce to he r own c hurch attendance “brushe [d] up ag ainst” impropriety , but the post-conviction

c ourt fo un d th a t th e c omm e nt d id n ot p re jud ic e the pe tit ion e r. Our su pr e me c ourt ha s p re vio us ly cautioned that “re fer ence s to bibli cal pa ssag es or r elig ious law during a cr iminal trial are inappropriate.” State v. B err y , 141 S.W .3d 549, 586 (Tenn. 2004) . Howeve r, such r efe renc es ar e not reve rsible er

ror unless it i s clea

rly established that the c omments “‘“a ffe cted the ve rdict to the prejudice of the de fenda

nt.”’” I d. (quoting State v. Middlebrooks
, 9 9 5 S.W .2d 550, 559 (Tenn. 1999)). In deter

mining the prejudicia l effe ct of a n improper c omment during closing argument, we

mus t c on sid e r:
1) the c onduct complained of , v i ewe d in light of the f acts a nd circ umstances of the ca se; 2) the c urative me asure s undertake n by the court and the pr osecution; 3) the intent of the prosec utor in making the improper a

rg uments; 4) the cumulative eff ec t o f the improper

c on du c t and

a ny oth e r e rr or s in the re c or d; a nd 5) the re la tiv e str e ng th and we akness of

the ca se.

I d.-7-

I n the instant case , the post-conviction cour t found that the evide nce a g ainst the peti tioner

wa s st ro ng ; “ [t]he re fo re , th e lik e lih oo d th a t th e pr os e c uto r’ s so lit a ry state me nt c ha ng e d th e ou tc ome of the c ase is hig hly

unlikely .” We ag ree with the post-con v i ct i o n co u rt. The pr osecutor’ s
c omm e nts re g a rd inghe r c hurc h atte nd a nc e a nd the pe tit ion e r’ s mo the r’ s r e lig iou s b e lie fs we re on ly

a bri ef port ion

of the Sta te ’s c los inga rgume nts . A lso , a s w e no te d e a rl ie r, mos t of the c omm e nts

wer e in direc t response to trial c ounsel’s questioning of the pe titioner’s mother. Additionally , as the post-conviction court found, the State’s case ag ainst the petitioner was strong . There fore , we, like the post-conviction cour

t, conclude that the comments did not aff ect the ve rdict to the pre

judice of the petitioner.

Moreove r, we note that trial counse l te stified that he made a tactica l de cision not to objec t to t he pr os e c uto r’ s c omm e nts be c a us e he be lie ve d th e stat e me nts we re no t so inf lammator y a s to

war rant objec tion. On appea l, this co u rt m ay n o t second- g uess the tac tical or strateg ic choice s of counsel unless those c hoices a re ba sed upon inadequate pre paration, nor may we mea sure c ounsel’s beh av i o r by

“20-20 hindsig ht.” See State v. He llard, 629 S.W.2d 4, 9 (Tenn. 1982). Typically, “[a]ll eg ations of ineff

ective a ssistance of counsel relating to matters of trial strateg y or tac tics do not provide a basis for post-c onviction relief.” Taylor v. State, 814 S.W .2d 374, 378 (Tenn. Crim. App. 1991). I n the instant case , trial counsel’ s decision not to object wa s a reasoned, strate g ic choice

. There fore , we c onclude that tria l counsel’s fa ilure to object to the State’s c losing a rg ument did not rende r counse l’s repr esentation ineffec tive.

III. Conclusi on

Ba sed upon the for eg oing, w e af firm the judg ment of the post-c onviction court.

___________________________________ NORMA McGEE OGL E, J UDGE