1 The petit ioner was in dicted un der the n ame "Poaso Pitts ," but t he name El Paso Pit

ts was used intercha ngea bly at trial. T he pe tition for p ost-co nviction relief was filed in the nam e of E l Paso Pitts. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs D ecem

ber 5, 2001
EL PASO PITTS v. STATE OF TENN ESSEE Appeal from the Criminal Court for Shelby County No. P-23499 Chris Craft, Judge

No. W2001-01563-CCA-R3-PC - F iled April 17, 2002

The petitione

r, El Paso P

itts, 1 appeals the trial court's denial of post-conviction re lief. In this appeal of right, the petitioner contends that he was denied the effective assistance of counsel and argues that the trial cou

rt erre d by

allowing his trial c ounsel to

be present during the evidentiary hearing. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID H. W ELLES andD AVID G. H AYES , JJ., joined.
Robert L ittle, Mem

phis, Ten nessee, for the a

ppellant , El Paso Pitt s.
Paul G. Summ

ers, Atto rney Genera l & Repor ter; Kim R. Helper, Assistant Attorney General; and Katrina Earley , Assistant District Attorney Gene ral, for the appellee, State of Tennessee

. OPINION
On October 23, 1996, the petitioner fired several shots in the direction of the victim, Ricky Green, w ho was hiding behind a chair located inside his residenc e. Clifford Roy was a lso i n th e roomwhen the shots w ere fir ed. The p etitioner

was conv icted of attempte d first

degree murder and aggr avate d ass ault and r

eceive d concur

rent, Range I

sentenc es of 23 y

ears and three y

ears, re sp ec ti ve ly. The judgment was affirmed on direct appeal. State v. Poaso Pitts , No. 02C01-9803- CR-00091 (Tenn. Crim. App., at Jackson, Jan. 22, 1999). Application for permission to appea l to the supreme court was denied on June 14, 1999.
At the evidentiary he aring, th e petitioner testified that he was dissatisfied with his trial counsel, Dianne Thackery , because she had failed to adequately investigate the circumstances of the offense and to establish through available witnesses that the victim, Ricky Green, was not inside the-2-

residenceat the time the shots were fired. The petitioner acknowledg ed that he had argued with the victim, threate

ned him, and ente

red his r esidenc e while a

rmed with a pistol. He contended, however, that the victim

Green h ad left th

e reside nce by the time the shots were fired and that his trial counsel could have utilized indep endent w itnesses t o establish that. He was especially critical of the fact that Renaldo Gatewood and his first cousin, David Gatewood, were ne ither interviewed by

his counsel, who had their addresses and phone numbers, nor subpoenaed a s witnesses for the trial . Th e petitioner also expressed his displeasure at his trial counsel's suggestion that he not testify on his own behalf due to prior theft convictions. W hen asked specific ally whether he wante d to testif

y a t his trial, however, thepetitione r answe red, "I told her I did but I didn't." The petitioner also complained that his trial counsel d

id not adequately

establish that at the

time of the

shooting , the vict

imand the others "were all drinking toge ther." He pointed out that the witnesses, if called to testify , could have been helpful in establishing that alcohol was a significa nt factor in the incident.
When produced as a witness at the evidentiar y h earing, David Gatewood testified that he arrived at the sc ene of th

e crime "at the last tip end of it." He recalled seeing the victim Green flee from the back door along with the other victim when he hea rd two shots, explaining that that was all he had seen. Gatewood testified that he would have appeared had he been subpoenaed for trial andcontended

that at the time, the petitione r "had t wo number s" for h

im and he w as stay

ing at hi s parents ' at the trailer park where the shots were fired. He stated he was neve r interviewed

by police. During cross-examination, Gatewood clarified his testimony , acknowledging that he saw Green "coming out th e back door, aft er the shots ."
Trial counsel t

estified that she a

ttempted t

o subpoen a a Davi d Gatewo od or a Da vid Moss, whose add ress was list ed as the Pleasant Ridge Trailer Park on Noleview , but learned that the operators of the trailer park had no information on either name. When she r eviewed the "half a dozen or so letters" from the petitioner in the file, she found no mention of a Rena ldo Gatewood. While stating that she had no specific recollection of the issue, trial cou nsel testi fied tha

t she would have likely advised the p e titioner, who had a prior criminal record, not to testify , even though he would make the ultimate decision.
The trial court denied relief, concluding that the testimony of David Gatewood wou ld no t have been helpful to the petitioner. It first obser ved th at Gatewood testified at the evidentiary hearing that he had just a

rrived a t the trai ler par

k from wor

k when he

saw the victims flee from the residence and th

us was una

ble to assist the

petitione r's cla im that the

shooting occurr ed as a r esult of over-consumption of alcohol by each of the indiv iduals involved. Secondly, the trial court determinedthat Gate

wood act ually contradicted thepetitioner's defense theory by stating that he sa

w the victims coming o

ut the bac k door af ter the shots were

fired. B ecause

the petiti oner wa s unable to produce

Renaldo G atewood

as a witness, the trial court determined that the petitioner had failed to substan

tiate his claim that the testimony would have been helpful. It held that the investig ation and preparation on the part of trial counsel were adequate. Finally , the trial court ruled that th e re co rd of th e t ri al co nt ra di ct ed th e p et it io ne r' s c la im th at he wi sh ed to te st if y.-3- I As his first issue on appeal, the petitioner complains generally about his trial counsel's lack of investigation. More specifically , he contends that the failure to subpoena Renaldo and David Gatewood

adverse ly a ffecte d his d efense , particularly with regard to the attempted first degr ee murder charge. He hints that his trial counsel pre vented him from testifying

. When a petitioner seek s post-co nviction r elief on the basi s of i neffective assistance of counsel, he must

first establish that the services rendered or the advic e given were below "the range of competence demanded of atto rneys in c riminal c ases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Se cond, he must show th at the defic i encies "actually had an adverse ef fect on the defense." Strickland v. Washington , 466 U.S. 668, 693 ( 1984). Should the p etitioner fail to establish either fac tor, he is no t entitled to relief. Our supreme court described the standa rd of review a s follows:
Because a petitioner must es tablish bo th prongs o f the test , a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court ne ed not add

ress the componen

ts in any particular order or even addres s both if the defendant makes an insufficient showing of one component.
Goadv. State , 938 S.W.2 d 363, 370 ( Tenn. 199 6). On cl aims of ine ffectiv e assista

nce of c ounsel, the petitioner is not entitled t o the benefit of hindsight, may not second-guess a reasonably based trial strategy, and

cannot c riticize a sound, but unsucc essful, tactica l decision made dur ing the co urse of the proceedings. Adkins v. St ate , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies o nly if the c hoices a re made after a dequate preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Under our statutory law, the petitioner bears the burden of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f ). On appeal, the findings of fact made by the trial

court ar e conclu sive and will not be di sturbed u nless the evide

nce con tained in the record preponderates against them. Brooks v. St ate , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderated aga inst those findings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

In our view, the evidence does not prepondera te ag ainst the t

r ial court's finding that the petitioner received the effective

assistanc e of coun sel at tri al. I nitially , when a p etitioner claims that trial counsel failed to discover, interview, or present a witness in support of his defense, heshould present that witne ss at the evidentiary hearing. Black v . State , 794 S.W.2d 7 52, 757 (Tenn. Crim. App. 1990). Because Renaldo Gatewood did not testify at the evide ntiary hea

ring, it would be speculative to conclude that his testimony would have made a difference

in the result. Moreover, the record establishes that the testimony of David Gatewood would not have sup ported the defen se theory that eithe r or both o f the vic tims were not in the tr

ailer at the time the shots we

re fire d. Thus, any failure on the part of trial counsel to ensure his presence a t trial would not have affected the-4-

results. The evidence does not preponderate a gainst the trial court's conclusion that trial counsel had conducted

an adeq uate inve stigatio n and pro perly prepar ed for tr ial. Certainly, no prejudice resulted from any perc eived deficiency . Finally, the equivoc al claim by the petitioner that he was denied the opportunity to testify

at his trial is simply not supported by the record.
II The petitioner also contends that the trial court erred by a llowing t rial cou nsel to re main in the courtroom during the cours e of the evi dentiary hea ring. Rule 615 of the Tennessee Rules of Evidence allows either party to exclude witnesses. An exception exists, however, for those witnesses "essential to the presentation of the party' s cause." Tenn. R. Evid. 615. The party seeking to avoid sequestration bears the burden of proving that a

Rule 615 exemption applies. United Sta tes v. Ort iz , 10 F. Supp. 2d 1058, 1060 (N.D. Iowa 1998). I n this instance, the trial court ru l ed that the petitioner's trial counsel was essential to the state's c ase.
On appeal, the standard of review is one of abuse of discretion. State v. H arris , 839 S.W.2d 54, 68 ( Tenn. 199 2); State v. Zagorski , 701 S.W.2d 808, 815 (Tenn. 1985). In State v. J erom e Brown , No. 03C01-9107-CR-00201, slip op . at 15-16 (Tenn. Crim. App., at Knoxville, Oct. 6, 1992), this court ruled as follows on an identical issue: [Rule 615] specifically allows the presence of "a per son whose presence is shown by
a party to be esse

ntial to the presentation of the party' s cause." In this post-conviction case, the central issue dealt with a claim of ineffective assis tance of counsel, and the trial c ourt denied the trial attorney 's exclusion during the testimony of other witnesses because the attor ney would need to hear

what test imony was ag ainst

him in order

that he could answer. . . . Given the special circumstance s wh ich arise in a postconviction procee din g in which a petitioner claims that his trial attorney was ineffective, it is entirely reasona ble to conclude that the trial attorn ey' s presence would be essen tial f or t he presentation of the state's case. The trial court did not abuse its discretion in excluding the trial attorney from the operation of The Rule.
Even if it quali fied as a

n abuse o f disc re tion, it is difficult to ascertain how that may have affected the resu lts of the evidentiary

hearing. I

t is apparent from our review of this record that the petitioner did not es tablish

any prejudic e throug

h his own te stimony

or that of his singl e witness , even if t he testimo ny o f trial c ounsel ha d not been

consider ed at all. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE