### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE O ct obe r 25, 200 5 S es sio n

MA RTY DA LE WILLIA MS v. ST ATE OF TEN NES SEE

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

No. 98-A- 627 Cheryl Blackbu rn, Judge

No. M2005- 00169-CCA -R3-P C - F iled Fe bruary 21, 2006

Following a jury

trial, Petitioner, Marty

Dale Williams a n d h i s co -defendant, Da ry l L ee Ma dden,

wer e convic ted of fel o ny

murder, e specia lly

ag g ravated robbe ry , and sec ond deg ree murder. T he trial court merg ed the sec ond deg ree murder c onviction with the felony murder c onviction. Madden

rec eived an eff

ective sentenc e of life plus 25 y ear s; Petit ioner re ceive d an ef fec tive sentenc e of life

. On direc t appea l, a pane l of this court aff irmed the judg ments of the trial c ourt. See State v . Madden
, 99 S.W .3d 127 (Tenn. Crim. App. 2002). Petitioner filed a timely petition for post-conviction re lief which the tria l court s ubsequently denied a fter a

hearing. Petitioner now appea ls from the trial

c ou rt ' s d e nia l of po st- c on vic tio n re lie f. I n thi s app e a l, Pe tit ion e r arg ue s th a t th e tr ia l c ou rt e rr e d in finding that Petitioner failed to esta blish that his t rial counse l was per se ineff ective an d t hat trial counsel was ineffe ctive under the totality of the circ umstances. The judgme nt of the post-convic tion court is af firmed.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

T H O M A S T. W O O D A LL , J ., delivere d the opi nion of t he court, in which J A M ES C UR WO OD W I TT , J R

. and R OB E R T W. W EDEMEYER , J J ., joined.

Erne st W. Willi a ms andJohn D. Sc hw a lb, F rank lin , T e nn e sse e , f or the app e lla nt, Ma

rty Da le Willi a ms.
Paul G. Summers, Attorney G e n e r al a n d Rep o r ter ; Pr eston Shipp, Assist ant Attorney Gene ral; Victor S. ( To rry ) Joh ns on I I I , D ist ri c t A tto rn e y

Ge ne ra l; Rog e r M oo re , A ssi stant D ist ri c t A tto rn e y

Ge ne ra l; Carran Daug htery , Assistant District Attorney Gene ral; and B ret Gunn, A ssistant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.

OP IN ION

I. Bac kgr ound

Th e op ini on of

thi s c ou rt

in the dir e c t app e a l se t f

orth the fa c ts i n th is c a se a s f oll ow s:-2- Metro Police Of

fice r Ga ry Shoats test i fi ed t hat during the late e vening of November

11, 1997, he wa s “moonlighting ” a t a conve nience store located nea r

“ Jer ry ' s B ar. ” A “ sma ll- fr a me d” ma n w itha blo od y fa c e e nte re d the sto re a ndsa id “[s] ome g uy

jumped me and r olled me.” Shoats testifi ed the man had bee n beate n worse tha n any

body he had e ver se en.

Doris Peterson, a first-time patron of J erry ' s Ba r, t estified that on the eve ning of Nove mber 11th, she sa w an a rg ument at the bar

“betwe en a little g uy

sitti ng at the bar and a big g er g uy , blond-hea ded, and the barte nder.” Peterson stated she hear d a portion of the ar g ument which indicate d the “little g uy ” drank too much on the previous night and called the barte nder a “bi* *h.” She testified she saw the blond man slap the s m al l er m an who then said, “ just let me drink my

beer , I ' ll leave.” Pe te rs on sai d th e vic tim of fe re d mo ne y

to b e le ft

a lon e , a pp e are d “ c omp le te ly pa ssi ve ,” a ndne ve r s a id “ a nythi ng ba d. ” She test if ied that thr e e me n f

or c ibl y
remove d him from the bar , drag g ing him fr om his bar stool and shovi ng him outsi de. She stated there wer e thre e men involved in the beating , two dark- haire d men and a blo nd e -h a ir e d man we ari ng c ow bo y bo ots , th e la tte r o f w ho m in fl ic te d th e mos t blows. She identified W illiams as t he blonde-haired man but was unable to identify Madden.

Peterson further stated the bar pat rons gather ed ar ound the windows and watche d the beating. She sa id, at one point, the men had the victim between two c ars kicking him, while the victim was in a fe tal position asking not to be kicke d

a nymor e

. She fu rthe r sa id the vic tim wa s fa c ing Willi a ms, wh o kic ke d t he vic tim with the “ po int

of his c ow bo y

bo ot, ” wh ile “ the ma n b e hin d h im w a s p ro ba bly g etting in his lower

back.” Peterson said the bar ' s occupants were just watching the fig ht; the victim wa s being hit a ll ove r his body ; she g ot sic k, left the ba r, and told the men that “[the victim was] li ttle [ and] he [was] going to die [because] [y ]ou all are awf ully big.” She s ai d Wil liams then turned to her and inquired if she “wa nt[ ed]

so me .” Pe te rs on sa id s he fe lt i nti mid a te d a ndle ft

.
Michae l R. Hay nor, a r eg ular at J erry ' s Ba r, t estified he knew Madden as an

ac q u a in tan c e b u t d idn o t kn o w Wi ll iams

. H e s ta te d th a t w h il e a t Je rr y ' s B ar on November

11th, he saw Madden g et into a disag ree ment with someone, and Ma dden started to esc ort the per son outside. Haynor further testified h e quit watching and could not attest whether

they actua lly went outside. Althoug h Haynor desc ribed the victim as b eing ag g ressive and intox icated, he explained, however , the victim was not being phy sically

ag g ressive.

Ken Kinna

rd, also a reg ular at J erry ' s Ba r, testified he was ther e on Nove mber 11th, hear d an ar g ument, and saw Madden e scorting a man f rom the bar . Kinn ard further testified he sa w nothing oc cur outside, a nd Madden w as bac k on stag e sing ing-3-

kara oke w ith intw o mi n u te s

. K in n ar d e xp lain e d h e a ls o s a w Wi ll iams , w h o w as
wea ring cowboy

boots, return fr om outside walking with a limp.

J err y ' s Ba r reg ular Bobby J enkins testified the victim was involved in a ve rbal confr ontation with an off- duty barte nder. He stated the vi ctim never raised his voice; th e ba rt e nd e r l e ft ; Ma dd e n c on fr on te d th e vic tim ; Ma dd e n o rd e re d th e vic tim to leave ; Madden then g rabbe d the victim by the back of his ne ck; and Ma dden for ced the victim outside. J enkins testified he sa w Madde n hit the victim i n the fa ce, and Wil liams kick the vi ctim “in the g ut” with his cowboy boots while the victim was on the g ro un d. Jenkins fu rthe r state d he ne ve r sa w the vic tim strike a t th e de fe nd a nts

.

J err y ' s Ba r employ ee Cindy

Hanka mmer testified b o t h d efe ndants wer e
re g ula rs in the ba

r. She state d tha t sev e ra l nig hts prior to N ov e mbe r 1 1th , th e vic tim pa id h e r f or thr e e be e rs wi th a

$1 00 bil l, sh e re turne d the c or re c t c ha ng e , a ndhe le ft

. Hanka mmer stat ed that on November 11th the victim approa ched he r, g rabbe d her
arm, a nd called he r a thief. She said the victim wa s bellige rent, and Madden inquire d what wa s wrong . She informed Ma dden of the victim's co n duct, went to the restroom, a nd saw Madde n singing kara oke a f ew minutes later

.

L isa Reeve s testified she play ed in a dart leag ue at J erry ' s Ba r. Reeve s stated that on November

11th, the victim wa s “r anting ” about a $100 bill, and the defe ndants picked the v i ct i m u p and carrie d him outsi de, splitting the table s and spilli ng beer . Reeve s stated t hat when she went outside, Will iams was holding the victim upside do wn b y the bac k of his pants, pulling items from his pocke ts. She

s t a t e d t h e v i c t i m ' s f

a c e w a s b l o o d y, a n d s h e o n l y l o o k e d o u t “ l o n g e n o u g h f

o r D ar yl [Madden] t o tell [ her] to ··· not disrespec t him and g et back in the bar.” She testified she told Madden that “ disrespec t had nothi ng to do with it,” and she requeste d he let
t h e m an go

. R ee v es s t at ed W i l l i am s n ev ers p o k e, an d h e c o n t i n u e d p u l l i n g t h i n gs from the victim' s p o ck et s

. Reeve s said she we nt back inside a nd resumed play ing da rt s.

Reeve s stated she late r looked out the window and saw t h e v ictim being kicked by both defe ndants while t he victim was li mp on the g round. Reeve s further
te sti fi e d w he n s he we nt o uts ide fo r a se c on d ti me , th e vic tim wa s trying to f le e wh ile the defendants were “ still pulling stuff a way from him.” She stated w hen Madde n saw he r, he sa id, “Ge t back in···· For the s econd time, do not disrespec t me.” Ree ves testified she a g ain re quested they let the victim g o. Reeve s further explained Madden

ree ntere d, sat at the ba

r, and smoked a cig are tte befor e re joining Willi ams outside. She stated the de fendants reente red, and Wil liams had the victim's pa g er and a lock of hair. She said Wi lliams put “a bi g wa d o f m o n ey ” on the c ounter, but she wa s
unawa re o f what happene d to the money . She stated these items c ame f rom the vic tim ' s po c ke t. Me tr o Ho mic ide De te c tiv e E. J. B e rn ard te sti fi e d he re c e ive d a pa ir of bloody cowboy boots, a comb, and the victim's pag er from Madden. Ag ent Chad-4-

D. J ohnson testified he c ompleted DNA analy sis on the boots and conc luded it was the victim's blood.

Dr. B ruce L evy

testified he pe rformed the autopsy on the victim and conclude d the vict i m d i ed o f bl unt-forc e injuries to his head and torso. Dr. L evy opined t h e v ic ti m' s h e a d w a s s tr u c k a mi n iu m o f

f o u r b lo w s a n d h is to r s o in

ju r ies

we re co n s i s t en t wi t h b ei n g k i ck ed wi t h a bo o t

. C h ar l es M ad d en , S r. , Da ry l M ad d en 's fathe r, testified he saw Willi ams wea ring his son's c owboy boots on November 11

. th

De b raW h o rl ey , M ad d en 's fr i en d o f t we n t y y ea rs , t es t i fi ed s h e wa s atJ erry 's Ba r on Nove mber 11th ce lebrating Ma dden' s birthday . She stated Madde n led the victim outsi d e following a conf rontation. She furthe r stated upon their arrival

ou tdo or s, the vic tim

sw un g a t Ma dd e n a ndpu lle d s omet hin g fr om h is p oc ke t. Who rl e y e xplai n e d M a dd e n th e n s truc k th e vic tim on c e in s e lf

-d e fe ns e , a ndWilli a ms kicked the vic tim. S he stated that after Madden at t em p t ed to s top Wi lliams from hurting the victim, Madden re enter ed the ba r and le ft Wil liams and a “ blond-haire d g uy ” with the victim. Whorley stated Wil liams and the unknown m an continued kic kin g the vic tim

.

J ack Conner, a J erry ' s Ba

r reg ular, testified that when he ar rived at J erry ' s Ba

r at appr ox imately 12:15 a.m., Madden ha d alre ady g one. He explained that he g ave Willi a ms a

ri de ho me

. Con ne r t e sti fi e d Wil lia ms s a id h e kic ke d th e vic tim ; Will ia ms ha d a sw itc h- bla de ha ir

br us h a nd a pa g e r he ha d ta

ke n f ro m th e vic tim ; a ndWilli a ms
wore boots w ith silver toe tips. Conner stated they enter ed Wil liams' r es i d ence ; Madden c alled; he dr ove Willi ams to Ma dden' s residenc e; and Wil liams placed the pag er and brush on Madde n' s coff ee ta ble.

De fe n d an t M ad d en t es t i fi ed W i l l i am s ca m e byh i s h o u s e e ar l y t h atev en i n g, showere d, and borr owed a pair of boots. M ad d en stated the y left his residenc e and

we nt t o Jer

ry ' s B ar. He state d that a ft e r h e sa ng a c ou ple of so ng s, the ba

rt e nd e r t old him “ [t]hat je rk

c la ims I ri pp e d h im o ff

,” a ndhe sa w the vic tim

“ sli ng in g his arm s
aro un d. ” Ma dd e n sa id that si nc e he wa s th e pe rs on wh o h a nd le d p ro ble ms at Jer ry ' s, h e re q u es t ed t h at t h e vi ct i m l ea v e. M ad d en s t at ed h e pl ac ed h i s h an d o n t h e v i ct i m 's shoulder and “e s co rt ed ” him to the door. He said the victim was drunk and “mouthing” while being escorted outside.

Madden f

urther t es t ified that af

ter he took the victim outsi de, Madde n inquired what the problem wa s, and t h e victim slapped at him. Madden e x plained the victim then rea ched for his ba ck pocke t; he punched the victim between two and fo ur times in the fa c e ; w hil e the vic tim fe ll, he he ld the vic tim ' s c oll ar t o e a se him do wn to the c on c re te ; he he arda n ob je c t sli din g , wh ic h “ turne d ou t to be a br us h;” and W illiams kicked the victim in the fa ce c ausing the victim to go ba ckwa rds down the ste ps

.-5- Madden state d Wil liams and another man then struck the victim, and whe n h e wa s ab l e to get b ac k t o t h e vi ct i m , t h e v i ct i mwa s l ay i n g o n t h e c o n cr et e b l ee d i n g. Madden te stified he re entered t he bar , had a c iga rette and a drink, a nd instructed
someone to ca ll for an a mbulance. Ma dden stated Williams ree ntere d the bar with an object in his hand, and Ma dden we nt back outside and saw the vic tim who appear ed ba dly be a te n. Ma dd e n s a id the vic tim re fu se d his of fe r t o c arry

him to the ho sp ita l.

Ma dd e n s ta te d he we nt h ome , r e c e ive d a ph on e c a ll, re turne d to the ba r, tol d Detec tive E.J . Be rnar d what happened, and returne d home. Madde n stated he c alled De t ec t i v e B er n ar d t h e f

o l l o wi n g d ayt o i n fo rm h i mt h atW i l l i am s l e f t t h e v i ct i m 's brush, pag er, and pocket c hang e at his house, an d Madden took the items to the p o l i ce s t at i o n

. M ad d en ex p l ai n ed h e c al l ed W i l l i am s p u rs u an tt o t h e d et ec t i v e's

r e q u e s t , p i c k e d u p t h e b o o t s , a n d t o o k t h e mt o t h e p o l i c e s t a t i o n t h e f o l l o w i n g d a y.

O n c r o s s

- e xa mi n a ti o n , M a d d e n d e n ie d te ll in g Re e v e s to s to p d is r e s p ecting him and claimed he pushed W illiams and another person away from the victim af ter seeing Wil liams kick the victim twice. Madde n explained Wi lliams took chang e out of the vic tim ' s p oc ke t a ndke pt i t.

Sandra H ensley , Wi l l i am s' mother, testified she pic ked up Willi ams at Madden' s home on November 12th. Hensley further testified that af

ter they returne d home, Will iams went in his bedroom, re trieved a pair of boots, plac ed them in the kitc h en s i n k
, and turned on the wate r. He nsley said she instructed him to stop; Willi a ms c omp lie d a nd le ft the bo ots in the liv ing ro om; a ndMa dd e n s ub se qu e ntl y pic ke d u p th e bo ots

.
Def endant Williams t est i fied he had known Ma dden for approximately

ten y ear s. Wi lliams stated th at he, Madden, and D ebra Worley arrived at Jerry ' s Ba

r at

app ro xima te ly

8:3 0 p. m. Willi a ms sa id ba rt e nd e r Hank a mme r be g a n a rg uin g wi th the victim; Madden g rabbe d the victim by t h e neck and e scorted him outside; and Madden struc k t h e victim approximately five times. Will iams said the victim then

rea ched f or his back poc ket, and Willia m s kicked the vic tim in t he upper leg or kidney are a. He further

testified Madde n g rabbe d the victim by the hair c ausing the victim to im pact the g round fa ce- first; Madden hit t h e v i cti m approxim ately four times on the head; Madde n pushed the victim down a set of steps; and Madde n took

“ so me thi ng fr om the ma n' s p oc ke t,” g a ve it t o Wil lia ms, a ndtol d h im to g ive it t o Hanka mmer.

Willi a ms s ta te d he re e nte re d th e ba r, le a vin g Ma dd e n a lon e wi th the vic tim
, and hande d Hanka mmer the victim' s money . Wil liams ex plained that when he exit ed, Madde n was kicking the victim. Wil liams te stified he and Ma dden re enter ed the ba r, le a vin g the vic tim

sittin g on the g ro un d. Willi a ms s ta te d M a dd e n tw ic e tol d Re e ve s to no t di sre sp ect “him.” Willi a ms s a id h e a ndMa dd e n le ft the ba r s o-6-

Madden c ould chang e his boots and clothing ; Madden g ave him the b oots and

re qu e ste d h e c le a n th e m; Wil lia ms r e turne d to the ba r; and Conno r s ub se qu e ntl y drove him to Madden' s residenc e. Willi ams testified he later went home a nd upon le arn ing the vic tim

die d, de c ide d to c le a n th e bo ots a nd de str oy e vid e nc e pu rs ua nt t o Ma dd e n' s r e qu e st; ho we ve r, his mothe r w ou ld n ot a llo w i t.

State v. Madde n , 99 S.W .3d 127, 130-134 (Te nn. Crim. App. 2002).

II. P os t- Co nvi c ti on H e ar ing

At the post-conviction hea ring , Petitioner was the only testify ing witness. As evident fr om the re cord, the tes t i m ony of Petitioner’s trial c ounsel was not available bec ause tria l counsel wa s dece ased at the time of t he post -convic tion hearing. Prior to retaining trial counsel, Petitioner wa s repr esente d by

L ionel Ba

rre tt for a pe riod of two y ear s. Petitioner reta ined trial counse l after filing a complaint ag ainst Mr. Ba rre tt with the Boar d of Profe ssional Responsibil ity

.
Petitioner testified t hat he met with trial counsel only two times prior to trial. The jail re cords

re fl e c t th a t th e fi rs t me e tin g oc c ur re d on Se pte mbe r 22
, 19 99
, fo r abo ut an h ou r andtw e nty min ute s. T h e s e c o n d o c c a s i o n w a s o n N o v e m b e r 1 6
, 1 9 9 9
, f

o r ab o u tt h i r t y

- f

i v e m i n u t e s

. T h i s w a s t h e l a st meeting befor e trial be tween Petitioner and his trial counsel. Petitioner testified that his trial counsel

never discussed strate g y

with him, and they

never discussed the c h arg es ag ainst Petiti oner or the

e le me nts of

the of fe ns e s c ha

rg e d. Pe tit ion e r s a id t

hat tria l cou ns e l did not ta lk to him a bo ut p os sib le de fe ns e s o r p re pa

re him to g ive his tes ti mo ny at tria l, n or didhe dis c us s a

ple a ba rg a in w ith Petitioner. Trial counse l also did not visi t Petiti oner in the holding cell whe re he stay ed during the

course of the trial.

Pe ti ti o n e r te s ti f ie d r e g ar d in g h is la c k

o f e d u c a ti o n

. H e e xp lain e d th a t h e a tt e n d e d school throug h the seve nth gr ade, and he quit school in the eig hth gr ade w hen h e wa s re moved from

resour ce clas s e s

. Pe ti ti o n e r s a idth a t at l e a s t f

if te e n ti me s d u r in g th e tria l, tria l c o u n s e l a s k ed Petitioner to tel l h i m wh at the witnesses w ere say ing. A ccor ding to Petitioner, trial c ounsel sp e c if ic a lly a sk e d h im w hat th e fo re ns ic e xpe rt wa s te sti fying abo ut. Pe tit ion e r sa id h e re a lly c ou ld not help trial counsel be cause “[b] y the time I

was tryin g to expl ain to him what was a sked, the witness had alr eady

answe red and I

couldn’t kee p up with him.”

Pe tit ion e r t e sti fi e d th a t he ne ve r h a d a dis c us sio n w ithtr ia l co unse l a bo ut a pa ir of bo ots which we re introduced at trial. Trial testi mony established that the boots were e ssentially a we apon used in the homicide, a nd that Pe t itioner was we aring the boots during commission of the crime. The boots wer e introduce d into evidenc e during the trial throug h a for ensic e x pert who te stified that the victim’s blood was on the boots. P et i t i o ner te stified both at trial and at the post-conviction hearing that the b o o t s we re a siz e seve n-and- a-ha lf and Petitioner wor e a size ten-and-a- half. He complained that he never had an opportunityto try on the boots in the prese nce of the jury . He likewise complained that trial counsel ne ver discusse d hiring a for ensic e x pert to re but the State’s evidenc e that Petitioner had w orn the boots.-7-

Petitioner testified that trial counse l failed to c ross-examine the State’s witnesses. The trial
transcript reflec ted t hat there wer e a total of fourtee n prosec ution witnesses, and trial counse l did not

cross-e x amine seven of t hem. Trial counsel did not discuss the dec ision not t o cross-e x amine the wi tne sse s w ithPe tit ion e r. Pe tit ion e r a c kn ow le dg e d th a t hi s c o- de fe nd a nt’ s tria l cou ns e l ha d th e fi rs t opportunity

to cross-e x amine ea ch witness.

On c ro ss- e xami natio n, Pe tit ion e r a dmi tte d th a t he ne ve r e xpre sse d to th e tr ia l c ou rt his d i s s at i s fa ct i o n wi t h tri al co u n s el

. He ad m i t t ed t h ath e wa s fa m i l i ar wi t h t h e p ro ce d u re fo r f i l i n g a
c omp la int be c aus e he ha d pr e vio us ly fi le d a c omp la int a g a ins t his fi rs t a tto rney , M r. Bar re tt. Petitioner stated that he testified at his trial, and he told the jury his version of what h appened the night of the murder . Petitioner testified for the sole purpose of informing the jury

of his version of the eve nts which took place . Petitioner stated that he and trial counsel de cided that he would testify in order to r ehabilitate himself a fter the testimony of his co-de fendant. Petiti oner ma intained that the re wa s n oth ing h e woul d c ha ng e abo ut h is t ri a l te sti mon y

de sp ite the fa c t th a t th e de c isi on to tes t i fy wa s m ade the same day the testimony

was g iven, and Petitioner wa s not prepar ed by trial counsel. He told the jury that he wa s not wearing the boots and that they wer e not his siz e.
The post-c onviction court filed a written orde r denying post-c onviction relief. See T.C.A. § 40-30-118 ( 1990). Afte r individually addre ssing the i s s u es raised by Petitioner, the trial court fo un d th a t Pe tit ion e r f

a ile d to me e t t he st and ardjus tif y ing po st- c on vic tio n r e lie f. I n d e nying his claim, the trial c ourt stated:

With in the larg e r g ro un d o f i ne ff e c tiv e a ssi stanc e of

c ou ns e l, P e tit ion e r h a s mu lti ple issues relate d to that alleg ed inef fec tiveness an d has also alleg ed he r ece ived an unfair trial; however , he ha s fa i l ed t o do so sufficiently to meet the cle ar and convincing evidentiary test require d under Section 40-30-210( f) o f t h e T ennesse e Code. I n addition, Petiti oner has not demonstrated that he suffe red any prejudice as
a re sult of the alleg ed inef fec tive assistance

. On appe al, Petitioner arg ues that the trial c ourt err ed in find ing that trial counsel’s a ctions

wer e not defic ient. Specifica lly
, Petitioner arg ues t hat t rial counsel’s perf ormanc e wa s ineffe ctive be c aus e he faile d to me e t w ithPe tit ion e r d uring the eight y -e ig ht d a y s im me dia te ly prior to t ri a l; failed to pre pare Pet i t i o n er p ri o r to or during trial for his trial testimony ; failed to re quest that Petitioner try on the boot s identified as the murde r we apon; fa iled to cross-e x amine seve n out of the State’s fourte en witnesses; failed t o discuss trial strateg y and the elements of the crime c harg ed; and failed to discuss a potential plea or the pos sibili ty of a ple a bar g ain. He a lso asserts that trial counse l had difficulty hearing during the course of the trial which inhibited trial counse l’s ability to provide competent r epre sentation. Petitioner arg ues that these failures ar e pe r se ine ff e c tiv e a nda mou nt t o a “g ross deviation fr om the standards r equire d for c ounsel repr esenting someone facing a fe lony

mur de r c ha

rg e .” Pe tit ion e r fu rthe r ar g ue s tha t “un de r the tot a lit y of the c ir c ums ta nc e s, ” the re is a “r ea s o n able probability ” that if c ounsel had provide d adequate re prese ntation, the outcome of the
tr ia l w ou ld h a ve be e n d if

fe re nt.-8-

III . A nal ys is

To be successful in his claim for post-c onviction relief, the petitioner must prove a ll factua l alleg ations contained in his post-conviction petition by clea r and c onvincing evidenc e. See T.C.A. § 40-30-110( f) ( 2003). “Clear and convincing evidenc e means evidenc e in which ther e is no serious or substantial doubt about the cor rec tness of the c onclusions drawn f rom the evide nce.” State v. Holder
, 1 5 S .W.3d 905, 911 (Tenn. Crim. App. 1999) ( quoting Hodges v. S.C. Toof & Co. , 833 S.W .2d 896, 901 n. 2 (Tenn. 1992) ). I ssues reg arding the cr edibilityof witnesses, the w eig ht and value to be a ccor ded their te stimony , and the f actua l questions raised by the evidence adduced at trial

are to be resolved by the post-conviction court a s the trier of fac t. Se e He nle

y v . S tate , 960 S.W .2d 572, 579 (Tenn. 1997) . There fore , we a ffor d the pos t-conviction court's findings of fac t the weig ht of a jury verdic t, w ith suc h finding s being conclusive on appea l a bsent a showing that the evidenc e in the rec ord pre ponderates ag ainst those finding s. Id . at 578.

A claim of ine ffe ctive assistanc e of counsel is a mix ed question of law and fa ct. Se e Sta te v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999). We will review the post-c onviction court' s findings of fac t de novo with a presumption that those finding s are corr ect. Se e Fi e lds v . S tate , 40 S.W .3d 450, 458 (Tenn. 2001) ( citing Te nn . R. App . P. 13 (d ); He nle y v . S tate , 960 S.W .2d at 578). How ever , we will r eview the post-conviction court' s conclusions of law pure ly de novo. Fields , 40 S.W .3d at 458. T o p re v ai l o n a cl ai m o f i n ef fe ct i v e as s i s t an ce o f co u n s el
, t h e p et i t i o n erm u s tes t ab l i s h t h atco u n s el 's perf ormanc e fell below “the r ang e of c ompetence demande d of attorne y s in criminal case s.” Baxter v. Rose, 523 S.W .2d 930, 936 (T en n

. 1 9 7 5 ). I n addition, he must show that counsel' s ineffe ctive perf ormanc e pre

judiced his defe nse. Strickland v. W ashington
, 466 U.S. 668, 693, 104 S. Ct. 2052, 20 67 , 8 0 L . E d. 2d67 4 ( 19 84 ). I n ord e r to sho w pr e jud ic e , the pe tit ion e r mus t show that the re is a

rea sonable p robability

that, but for counse l’s defic ient perf ormanc e, the r esult of the proc eeding would have be en diffe rent. Strickland , 4 66 U. S. at 694 , 104 S. Ct. at 206 8. A r e a so na ble pr ob abil ity is “a proba

bilitysufficie nt to undermine conf idence in the outcome.” Id

.

I n r e vie wing c ou ns e l' s p e rf orma nc e , th e dis tortio ns of hin ds ig ht mus t be a vo ide d, a ndthi s Court will not second- g uess counsel's decisions reg arding trial strateg ies and tac tics. Se e He lla rd

v . S tate , 6 29 S.W. 2d4, 9 (T e nn . 1 98 2) . T he re vie wi ng c ou rt , th e re fo re , s ho uldno t c on c lud e that a pa rt ic ula r a c t or omi ssi on by

c ou ns e l is un re a so na

ble me re ly

be c aus e the str a te g y wa s u ns uc c e ssf ul. Strickland
, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, c ounsel' s alleg ed er rors should be judg ed from counse l's pe rspec tive at the poin t o f t ime they wer e made in light of a ll the fac ts and circ umstances at that time. Strickland , 466 U.S. at 690, 104 S. Ct . at 2066.

A petit ioner must satisfy both prong s of the Strickland test befor e he or she may preva il on a cla im of ineffe ctive assistanc e of c ounsel. Se e He nle y v . S tate , 960 S.W

. 2 d at 5 8 0

. That is, a petitioner must not onlyshow that his counsel' s perf ormanc e fe ll be lo w a c c e p table standa rds, but that such perf ormanc e was prejudicia l to the petitioner. Id

. F a ilu re to sa tis fy e ith e r pr on g wi ll r e su lt i n t h e d en i al of relief. Id. Acc ording ly , this Court need not addre ss one of the c omponents if the petitioner fa ils to establish t he other

. Strickland , 466 U.S. at 697, 104 S. Ct . at 2069.-9-

Pe tit ion e r a

rg ue s th a t tria l c ou ns e l’ s pur po rt e d he ari ng dif

fi c ult ie s c omb ine d w ithhis ov e ra ll defic ient perf

ormanc e amounted to a

total failure to sub

j ec t the prosec ution’s case to meaning ful adver sarial testing . He a rg ues t h at t h i s failure rises to the leve l of pe r se ineffe ctiveness unde r Un ite d S tate s v . Cr

on ic , 466 U.S. 648, 658-62, 104 S. Ct. 2039, 2046-49, 80 L

. Ed.2d 657 (1984), there by raising a pre sumption of prejudice and prec luding P et i t i o n er from the nee d to prove the Strickland elements of ine ffe ctive assistanc e of c ounsel. Al t er natively , Petitioner arg ues that considering the totality

of the c ircumstance s, under the r ule of Strickland , th e re is a “ re a so na ble probability ” that the r esult of the trial would have been differe nt but for trial counsel’s inef fec tive perf ormanc e.

The Cronic court identified three scena rios involving the right to counse l where the situation

wa s “ so lik e ly to pr e

jud ic e the a c c us e d that the c os t of lit ig a tin g the ir e ff e c t in a pa

rt ic ula r case is unjustified.” Cro nic , 466 U.S. at 658-660, 104 S. Ct. 2046-2048. In those particula r instance s, there is an irrebuttable presumption of pre judice, and the defe ndant nee d not meet the Stickland a na ly sis to prove inef

fec tive assistance of counse l. Cro nic , 4 66 U. S. at 662, 10 4 S

. Ct. a t 20 48 . T ho se situations include: (1) the “c omplete denial of counsel,” wher e the a ccuse d is denied the prese nce of

c ou ns e l a t “ a

c ri tic a l st a g e ;” (2 ) w he re “ c ou ns e l e nti re ly fails to s ub

je c t th e pr osecut io n’s c a se to meaning ful adve rsarial testing;” and (3) situations “where counsel is available t o assist the acc used during trial, [but ] the l ikelihood that any lawy er, even a fully competent one, could provide e ffe ctive assistance is so small t hat a presumption of prejudice is appropriate without inquiry into the actual conduct of

the trial.” Cro nic , 466 U.S. at 659-660, 104 S. Ct. at 2047.

Petitioner arg ues that trial counse l’s perf ormanc e constitutes prejudice pe r se under the second pr ong of Cro nic

. He cites sever al reasons in support of hi s assertion, arg uing that the failure
to cr os s- e xami ne e ig ht w itn e sse s, failu re to m e e t w ithPe tit ion e r m or e than tw o ti me s, wi th the la st

me e tin g be ing e ig hty -e ig ht d a y s p ri or to t ri a l, f a ilu re to p re pa

re Pe tit ion e r to te sti fy
, a nd failu re to have Petitioner try on the boot s in the prese nce of the jury , amount to a total lack of repr esentation. He a rg ues that there is no disti nction betwee n his trial counsel’s purported hea ring difficulties and a situation where counsel is abse nt from trial, or asle ep during portions of the proc eeding s. He further arg ues that this purported inability to he ar is the r eason tria l counsel did not cross-e x amine

e ig ht w itn e sse s. Pe tit ion e r a sse rt s th a t th e se de fi c ie nc ie s, in a dd iti on to t ri a l c ou ns e l’ s f

a ilu re to dis c us s “ imp orta nt d e c isi on s” wi th P e tit ion e r r e g ard ing tr ia l st rate g y a ndpo te nti a l pl e a s o r d e fe ns e s, fall short of the minimal st andar ds require d by counsel re prese nting a

defe ndant on fe lony

murder

c ha rg e s. Ac c or din g to P e tition e r, thi s f a ilu re is e qu iva lent to a com ple te de nia l of his Sixth Amendment rig ht to counsel. We disag ree with Petiti oner.

I n Bell v. Cone , 535 U.S. 685, 122 S. C t. 1843, 152 L . Ed. 2d 914 (2002), the Supre me Court addre ssed the issue of w hen to apply the rule of Strickland and when to a pply the rule of Cro nic wi th respe ct to a claim of inef

fec tive assistance of counse l. I n finding that petitioner’s c laim was subject
to a Strickland analy sis, the Court ex plained:

“When we spoke in Cro nicof the possibilityof pre s u m i ng prejudice based on an attorney ’s fa ilure to test the prosec utor’s ca se, we indicated that the attorne y ’s fa ilure-10-

mus t be c omp le te . We sa id “ if c ou ns e l e nti re ly fails to sub je c t the pr os e c uti on ’s c a se to meaning ful adve rsarial testing.” Cro nic
, su pr a , at 659 , 104 S. Ct . 2 03 9 ( e mph a sis added) . Her e, re spondent’s ar g ument is not that h i s co unsel failed to oppose the prosec ution throughout the se ntencing proce eding as a w hole, but that his counsel failed to do so at spe cific points. For purposes of distinguishing be tween the rule of Strickland and that of Cro nic , this differe nce is not of de g ree but of kind.”

Be ll , 535 U.S. at 697, 122 S. Ct . at 1851.

I n acc ordanc e with the Court’s ana ly sis in Be ll , we c onclude that the e rror s alleg ed by Petitioner are subject to the ru l e of Strickland . The e vidence in the rec ord does not support Petitioner’s assertion that trial counsel’s alleg ed hea ring difficulties and other problems amounted to a total lack of

repr esentation. Nor can we presume that trial counsel’s c hoice not to cr oss-examine

so me of the wi tne sse s wa s du e to a he ari ng de fi c ie nc y rathe r than simple tr ia l str a tegy or b ecause
cross-e x amination was not nec essary . I n the i nstance s wher e trial c ounsel chose to c ross-examine the witnesses, his questions wer e re levant and de monstrated that he ade quately hear d and under stood the witnesses’ dir ect testimony . Trial counse l al s o made va lid and rele vant objections during the
te sti mon y of se ve ra l w itn e sse s, thu s in dic a tin g his abil ity to h e ar t e st imony

a ndhis int e nt t o challeng e the pr osecution’s case. Additionally
, there is no evidenc e in the record indicating that tria l

c ou ns e l a c tua lly

su ff e re d f ro m a he ari ng imp a ir me nt.

Al tho ug h Pe tit ion e r as se rt s se ve ra l g ro un ds in s up po rt of his pe r se ine ff

e c tiv e ne ss c la im, we f ind no evidenceto support the contention that Petitioner was entirely without repre sentation as contemplated by

the Court’s dec ision in Cro nic

. Se e Cro nic
, 466 U.S. at 659, 104 S. C t. at 2039. Petitioner wi t n es s ed t ri al counse l’s perf ormanc e at trial and he wa s fre e at that time to question counsel’s ta ctics or c omplain about his r epre sentation. His failure to do so, particularly in light of his having filed a c omplaint ag ainst his first attorney , indicated satisfac tion with his repr esentation. L ikewise, if Petitioner wanted to try on the boots in the prese nce of the jury , he could ha ve made that reque st to his t rial counse l. There is no e vidence that Petitioner made such a reque st. W ith respec t to trial counsel’s f

ailure to pre pare Petitioner to testify , we cannot find counse l deficie nt give n Petitioner’s admission at the post-conviction hea ring that there was nothi ng he would chang e about his te sti mon y a t tria l. F or the se re a so ns , we c a nn ot c on c lud e that Pe tit ion e r w a s pe r se prejudice d by trial counsel’ s perf

ormanc e. Therefore, we proce ed with our a naly sis under the standa rds of Strickland

.

As stated above, Petitioner makes seve ral c laims of ineffe ctive assistanc e of c ounsel, but he fails to demonstrate tha t h e s u ff ered prejudice as a r esult of counse l’s purported de ficient perf ormanc e. F or instance , Petitioner claims that trial couns el wa s ineffe ctive for failing to meet with him more than t wo t i m es, the last mee ting be ing e ighty -eig ht day s prior to trial. Howe ver, Petitioner failed to pre sent evidenc e i n d i ca t i n g that had he me t with trial counsel with more fre quency , additional favor able evidenc e would have be en deve loped that would have chang ed the outcome of the trial. The post-c onviction court’s finding s ref lect that Petitioner’s orig inal attorney

me t w ithPe tition e r mult ipl e tim e s, a ndthat he pr ov ide d Pe tit ion e r’ s se c on d tria l c ou ns e l w ithhis-11-

case notes. After a thoroug h revie w of the rec ord, we are unable to f ind e vidence to support the trial court’s f inding that notes wer e provided to trial counsel. Neve rtheless, the evidenc e in the re cord does not preponde rate ag ainst the post-conviction court’s finding that Petitioner was not prejudice d by the infre quency

with which he met with his second trial counsel.

L ikewise, Petitioner ar g u es t h at t ri al counse l did not properly prepa re him to g ive his trial testimony , and did not discuss trial strateg y or possible defe n s es wi t h him. However , Petitioner offe red no proof as to how di scussion of any of t hese issues would have chang ed the outcome of the

case . Petitioner, in fact, a dmitted that there is nothing a bout his trial testimony that he would alter
or ot herw ise chang e. Petitioner also failed to submit evidence of a diff ere nt trial strateg y

or asse rtion of other de fense s that would have be en fe asible or p o s s ibly succe ssful. Petiti oner makes similar

arg ume nts that tria l c ou ns e l f a ile d to dis c us s p le a

ba rg a ins or po te ntia l pl e a

ba rg a ins wi th h im. Howeve r, Petitioner fa iled to present e vidence that plea ne g otiations had taken plac e or that trial counsel ha d denied him the opportunity to a cce pt a plea by failing to inf orm him of

any neg otiated plea of fer by the State. I n fac t, the record contains no indication that the State eve r off ere d Petitioner a plea ag ree ment.

Petitioner also claims that trial counsel was ineffe ctive for failure to cross-e x amine seve ral of the State’s witnesses. Petitioner claims that trial counsel’s failure to cross-e x amine the witnesse s
was a direc t result of his inability t o h ea r t h e witnesses’ testimony . Petitioner relied on va rious excerpts from the trial transcript which indicate tria l counsel had diff iculty hearingp arts of te stimony fr om s ome of

the wi tne sse s. Ho we ve r, Pe tit ion e r p re sent e d n o e vid e nc e fr om f e llo w atto rn e y s, family , staff, or others, that trial counsel had difficulty hearing at the time of the trial, or the extent to w hic h h e su ff

e re d a ny he ari ng imp a ir me nt. No r d id P e tit ion e r p re se nt evi den ce of wha t c ro sse x a m i n a t i o n s h o u l d h a v e b e e n d o n e b y tr i a l c o u n s e l h a d h e b e e n ab l e t o h e ar a l l o f t h e t e s t i m o n y. Additionally , as t he post-convic tion court pointed out, the trial transc ript and the testimony from the post-conviction hea

ring both establish that Petiti oner a lway s went second to his co-def endant whe n questioning w itnesses. The r ecor d shows that his co-def endant’ s counsel cr oss-examined all but thr e e of the State ’s fo urte e n w itn e sse s. P eti tio ne r’ s c ou ns e l a lso qu e sti on e d s e ve n o f tho se witnesses. The post-c onviction court posited that in those ca s es wh er e h e did not cross-e x amine, the re ma y no t ha ve be e n a

ne e d f or Pe tit ion e r’ s c ou ns e l to a sk a ny fu rthe r qu e sti on s. I n a ny e ve nt, Pe tit ion e r did no t e sta

bli sh that he wa s p re

jud ic e d e ith e r b y

a ny he ari ng imp a ir me nt o f t

ri a l c ou ns e l, or his choice not to c ross-examine some of the witnesses beca use Petitioner did not offe r proof of any additional and nec essary cross-e x amination not conducted by trial counsel.

Pe tit ion e r a lso c la ims that he wa s pr e jud ic e d by the fa c t that tr ia l c ou ns e l di d n ot r e qu e st that Pe tit ion e r t

ry on the bo ots in f

ro nt o f the jury . Pe tit ion e r a rg ue s th a t ha d it b e e n c on c lus ive ly shown that the boots did not fit, and theref ore it wa s his c o-def

endant who both hit and kicked the victim, the n th e ju r y

c o u lde a s il y

h a v e c o n c lu d e d th a t P e ti ti o n e r w a s n o t g u il ty

o f f e lo n y mu r der. Pe ti ti o n e r ’ s c o

- d e f

e n d a n t, w h o imp li c a te d Pe ti ti o n e r , te stified a t t r ia l th a t th e b o o ts w e r e a s iz e
seven- and-a -half D, and that the boot s belong ed to the co- defe ndant who wor e a se ven-and-a- half, even thoug h his co-defen d an t asserted that Petitioner was we aring the boots. Both Petitioner and his mother testified at trial that Petitioner wor e a t en-and-a- half. Petitioner also de nied that he-12-

bo rr ow e d th e bo ots fr om h is c o- de fe nd a nt a nd de nie d that he wa s we ari ng the m du ri ng the inc ide nt. Petitioner’s fathe r testified that he saw Petitioner’s c o-def endant we aring the boots the day of the

mu rd e r. As su c h, the jury wa s a wa re of the dis pu te re g ard ing wh o a c tua lly wo re the bo ots

. Howeve r, as noted b ythe post-conviction court, it was irrele vant who wor e the boots bec ause the State prese nted a theory

of criminal responsibilit y and fe lony

murder, and t he jury

chose to c onvict both Petiti oner and his co-def endant.

“A pe rson is criminally

responsible a s a party

to an offe nse if the offe nse is committ ed by the person’ s own conduc t, by the conduc t of another

for whic h the per son is criminally responsible, or by both.” T.C.A. § 39-11-401( a) ( 2003). “Aperson is criminallyresponsible for the conduc t of another if [a] cting with intent to promote or assist the commission of the offense , or to bene fit in the proce eds or results of the of fense , the per son solicits, di rec ts, aids, or attempts to aid another person to c omm it the of

fe ns e .” T. C.A . § 39 -1 1- 40 2( 2) (2 00 3)

. Un de r the the ory of c ri min a l r e sp on sib ili ty a def endant’ s prese nce and companionship with the perpe trator of the crime b ef

o re an d afte r the crime a re c ircumstance s from which one may infer the defe ndant’s dire ct participation. Se e Sta te

v . B all , 973 S.W .2d 288, 293 (Tenn. Crim. App. 1998) (c itations omi tted). The de fendant need not have taken phy sical part in the crime; mere encour ag ement of the principal will suffice

. Id
., Sta te v. McBee , 6 44 S.W. 2d 42 5, 42 8 (T e nn

. Cr im. Ap p. 19 82 ). To be c ri min a lly re sp on sib le fo r the a c ts of anothe r, “[i] t is necessa ry that the defendant ‘in some way associate himself with the venture , act with know ledg e that an offe nse is to be committed, and share in the criminal intent of the principal in the first deg ree .’” State v. Max ey , 898 S.W .2d 756, 757 (Tenn. C ri m

. Ap p

. 1 9 9 4) ( quoting He mb re e v . S tate , 546 S.W .2d 235, 239 (Tenn. Crim. App. 1976) ).

Pe tit io ner wa s c on vic te d o f e sp e c ia lly a g g ra vate d r ob be ry

a ndfe lon y

mur de r. I n o rd e r t o show prejudice , Petitioner would have to show that ther e wa s a re asonable probability t h at t he outcome of the trial would have been differ ent had trial counsel reque sted that Petitioner try on the boots for the jury

. Se e Hi c k s v . S tate , 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998) . Petitioner failed to make this showing. Indeed, Petitioner a dmitted at trial that he wa s involved in the

a lte rc a tio n w iththe vic tim , tha t he kic ke d the vic tim , th a t he wa s w e ari ng bo ots “ a lmo st i de nti c a l” to the boots introduced into evidenc e, and that he then tried t o d es t ro y ev i dence of the c rime by washing the victim’s blood off of a pair of boots, a lbeit boots that he claimed wer e worn byhis cod e f e n d a n t

. P e t i t i o n e r

a l s o a d m i t t e d t h a th e a s s i s t e d h i s c o

- d e f e n d a n ti n t ak i n g t h e v i c t i m ’ s m o n e y. At the post-conviction hearing, Petitioner further testified that he would not chang e anything a bout the testimony

he g ave at trial. This e v i d en ce wa s s u ff i cient for a rational trier of f

act to find that Petitioner was g uiltyof espe cially ag g ravated robbe ry

and fe lony

murder pur suant to a theory of criminal re sponsibili ty . We conclud e t h at Petitioner has failed to show that he wa s prejudice d by trial counsel’ s failure to reque st that Petit ioner try on the boots.-13- CO NC LU SION

For the fore g oing r easons, we conclude that Petitioner failed to estab lish that he was prejudice d by

trial counsel’ s acti o n s d u ri ng the cour se of his trial. Ac cording ly , Petitioner is not entitled to post-conviction relief on the g rounds of inef

fec tive assistance of counse l. The judg ment of the post-c onviction court is aff irmed.

___________________________________

THOMAS T. WOODAL

L , J UDGE