### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE D ec em be r 14, 200 4 S es sio n

HOR AC E D EMON PU LLIA M v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 98-D- 2554 Cheryl Blackbu rn, Judge

No. M2004- 00087-CCA -R3-P C - F iled March 31, 2005

The pe titioner, Hora ce De m o n Pulli am, appe als the dismissal of his petition for post-conviction relief alleg ing that the pos t-conviction court err ed in finding that he rece ived effec tive assistance of

c ou ns e l. A ft e r a

re vie w o f the re c or d, we a ff ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N O R MA M C G EE O G LE , J ., delivere d the opinion of the court, in which J ER R Y L. S MI TH and J OHN E VE R E TT W I L L I AMS , J J ., joined.

Cha rl e s E dw ardWal ke r, Na sh vil le , T e nn e sse e , f or the app e lla nt, Ho ra c e De mon Pul lia m.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a nd

R e p o r t e r ; E liza be th B . M arn e y , A ssi sta nt A tto rn e y Ge ne ra l; Victor S. J ohnson, I I I
, District Attorney Gene ral; and Roge r D. Moore, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. F ac tu al B ac kgr ound

The fa cts of the of

fense resulting in the appellant’ s conviction were s et o u t i n this court’s op ini on on dir e c t app e a l a s f oll ow s:

Serena Stark testified that on Jul y 5
, 1 9 98, she, Corey Manning , and Ant h ony

Middlebrooks, the dec ease d victim, were driving back to Stark’ s residenc e when Middlebrooks r equeste d they stop a t a n ap ar tm e n t o n Cl if to n A v e n u e

. T h e y s to p p e d, and Middlebrooks went inside while Stark a nd Manning rema ined in the

ve hic le . M idd le br oo ks re turn ed very sh ortly a ndstate d th e y

ha d to leav e q u ic k ly

b e c a u s e h e “ h a d a

b a d g o

- ar o u n d w ith s o me g u y that was insi d e , a n d th a t w e n e e d e d to g e t o u t o f th e r e

. ” A s th e y drove

a way , Sta rk sa w a n Af

ri c a n- Am e ri c a n ma le hu rrie dly g e t in an e arl y-2- 1990’s maroon Chevr olet Caprice Classic. Wi thin a p p r o xim ate ly

one minute, they stopped at a red traffic light. The Caprice pulled behind them, its door opened, a nd shots wer e fired. Stark and Middlebr ooks

wer e hit b y bullets, and the Capric e fle d the sce ne. The y drove towards the hospital but stopped to see k help from two police office rs pa rk e d a t a c ar w a sh . St ark

fu rther state d th a t no on e in the ve hic le had a w eapon.
Corey Manning corr oborate d Star k’s testimony and add it io nal lyst ate d M id dl ebro ok s, up on hi s re tu rn f rom th e ap a

rt me nt, stated “he ran into a g uy

that he robbed n ot too long ag o,” and he wished he ha d a g un.

Offic er Ry an Ga

rland testified he and Of

fice r Shannon B eck

wer e in their c ruis er s at a ca r wa sh parking lot on J uly 5th at approxi m ately

10:30 p.m. Garland sa w Stark’s c ar spe ed towar d the m, anda

maro on Che vy

Capric e Cla ssi c hu rrie dly turn o nto

an o ther stre et. Stark and Ma nning e x ited their ca r, informe d the office rs of the shooting, and described t he vehicle which the shooter drove. O ffice r B eck unsuc cessf ully attempted to cha se the mar oon Capr ic e wh ile Of

fi c e r G arl a ndte nded to Sta rk a ndMid dle br oo ks

. Although Middlebr o o k s i nitiallyhad a pulse , he died be fore arrival of the a mbulance.

Al fo ns o G re g ory

te sti fi e d th a t he wa s sm oking mari juana in the Clifton Avenue a

partment o n t h e evening of Jul y 5th. Middlebrooks enter ed, p u rcha sed coc aine a nd exit ed within two minutes. Although Middlebrooks and [t he petitioner] saw e ach othe r, they did not sp ea k. He testified his brothe r, Jerome, g ave [the petitioner] his .44 revolver a fter Middlebr ooks’ depa rt u re . [The petitioner] then left, and his vehicle “spit gra v el [ going] out of the driveway . . . .”

J e r o me Gr e g o r y w a s s mo kin g ma

rij u ana and ing esting Valium in the Clifton Avenue apa

rtment on the eve ning of

J uly 5th. He stated Middlebrooks enter ed the a partment, purc hased cocaine, and e x ited. H e e xp la in e d M id d le b r o o k s h a d p r e v io u s ly r o b b e d [t h e p e ti ti o n e r ],

a ndwh e n M idd le br oo ks le ft , [th e pe tit ion e r] r e qu e ste d th e wi tne ss’ .44 revolve r. Gre g ory

complied with the request and [the petitioner] “jumped in his car ” and le ft.

Antwan Ne sby

was a lso smoking m arijuana in the Clifton Avenue apartment. Nesby stated that Middlebrook s came into the-3- apa rt me nt, a ndwh e n Midd le br oo ks le ft , [the pe tit ion e r] r e qu e ste d to see Jerome Gr eg ory ’s .44 re volver. J erome Gre g ory g ave [the petitioner] the revolver , and [the petitioner] left.

Detec tive E.J . Be rnar d responde d to the shooting. B erna rd went to the Clifton Avenue a partment a nd rec overe d a partial box of .4 4 amm un iti on , whi c h w a s se nt t o th e c ri me la bo ratory fo r ana ly sis

. He interviewe d the persons in the apartment, and they pi ck ed [ the petitioner] from a photo l ineup. Off icer s had prior information

conce rning [t he petitioner], and t h ey sear ched f

or him at sever al locations. At one of the locations, they saw a 1991 maroon Caprice “bac ked into the back y ard be side the house.” The owne r conse nted
to a sea rch of the re sidence , but nothing re levant wa s rec over ed. Offic e r s th e n to w e d th e Ca p r ic e

. [T h e p e ti ti o n e r ] w a s lo c a te d and

arr ested on July7th. Office rs obtain ed a search w arr ant for the C ap r i c e , w h i c h [th e p e t i t i o n e r ] s a i d w a s “ h i s c ar , b u t i t w a s in his mother’s na me so it wouldn’ t be confiscated.” Nothing rele vant was discovere d in the vehicle se arc h.

Terrie Arnie , a fire arms identification ex pert, e x amined the bullet rec overe d from Middlebrooks a nd opined he wa s killed with a .44 revolve r. Arnie addit i o n ally stated that she teste d a box of .44

cartridg es she rec eived from Det. Be rnar d. She stated the c artridg es

wer e consistent with the bullet re cover ed fr om Middlebrooks.

Patricia Dr ew, [the petitioner]’s aunt, testified her residenc e is located approximately 20 minutes f rom the crime sc ene. She sta ted that on J uly

5th, [ the petitioner] came by and used her phone at 9:45 p. m. o r 1 0:4 5 p .m. She sa id he stay e d at he r hou se fo r a pp ro xima te ly 15 minutes.

[The petitio n er ] testified he wa s “in and out” of the Clifton Av e nu e apa

rt me nt s e ve ra l ti me s on J uly 5thbe c a us e he wa s try ing to sell a shot g un. He f

urther stated he of

ten sold Middlebrooks cocaine. Although h e said Middlebrooks r obbed him approximately four months prior
, he said he “wa sn’t even thinking about it” a ny more. He testified that when Midd l eb ro o ks left, he we nt back into the apartment and place d marijuana in his hollowed out c iga r. Then, he

s ai d h i s b ee p e r a c t i v at ed i n d i ca t i n g a c u s t o m erre q u i re d a m ee t i n g, and he le ft approximately three minutes after

Middlebrooks. [ T he petitioner] concede d he wa s driving the 1991 Caprice that ev e n in g but denied any

involvement in the shooting a s well as taking a g un from J e r o m e G r e g o r y.-4-

St at e v

. Ho rac e De mon Pull iam, No. M2001-00417-CCA-R3-CD, 2002 WL 122928, at ** 1-2 (T e nn

. Cr im. Ap p. a t Na sh vil le , Jan . 2 3, 20 02 ). Th e pe tit ion e r w a s c on vic te d o f p re me dit a te d f ir st de g re e mur de r a ndse nte nc e d to lif e imp ri so nme nt.

On Aug ust 5, 2002, the petitioner timely filed a pro se petition for post-conviction re lief,

asserting inef

fec tive assistance of counsel. Subsequently
, counsel was appointed and an amende d petition was filed. I n support of his claim for r elief, the petitioner allege d that (1) tria l counsel wa s ineffe ctive by

failing to reque st the dismis sal of a jur or or r equest a mistrial when counse l learne d of the prose cutor’s e x parte communications with the jury fore man; (2) tria l counsel wa s ineffe ctive by failing to asce rtain the extent of the juror’s ex parte communications with the prose cutor a nd a police off icer outside the courtr oom; (3) trial counse l was ineff ective by failing to investi gate or question whethe r the police of fice r involved in the ex parte c ommunication with the juror was associate d or connec ted with the prosec ution of the petitioner’s case ; (4) trial c ounsel was inef fec tive by failing to inform the court that t h e j u ry fore man attempted to communicate with the petitioner from the jury

box on numerous occ asions during the trial; (5) tria l counsel wa s ineffe ctive by failing
to s ub po e na , inve sti g a te , or int e rv ie w a mat e ri a l witn e ss, a nd inv e sti g a te or int e rv ie w the wi tne ss;

an d (6) tria l counsel wa s ineffe ctive by failing to call a r ebuttal expert witness to contradic t the
state ’s e xpe rt

wi tne ss r e g ard ing ba lli sti c ma tc he s.

At the e vid e nti ary he ari ng , th e pe tit ion e r t e sti fi e d th a t a jur or a tte mpt e d to c ommun ic a te wi th him du ri ng tr ia l. A c c or din g to the pe tit ion e r, he wr ote a no te to t ri a l co un sel adv is ing him that a jur or wa s ta lki ng to the pe tit ion e r f ro m th e jury

bo x. Th e pe tit ion e r s ta te d:

I mean, I ’m no lip reade r, but the gu y was talking to me. You had somebody

on the stand, the guy was sit ting there with his leg s crossed with his hands up talki n g t o m e. L ike y our name Roge r. Like I ’m sitti ng there
, he’s sit ting here ( indicating ), and he ’s saying some thing
to me.

Trial counse l advised the pe titioner that he would attempt to “c atch him doing it.”

The pe titio n e r s a id th a t ap p r o xim a te ly o n e to tw o h o u r s la te r , f o ll o w in g a r e c e s s , the prosec utor advised the trial court that he had communicated with a juror. The prose cutor e x plained that he thoug ht the juror wa s a bonding ag ent named E mmett J enki n s

. Al s o p resent during the

conver sation was Of

fice r Collins who was there to testify for the State. T he petitioner a sserted tha t trial counsel should have asked that the juror be dismiss ed. The petitioner stated that the pr osecutor

a sk e d th a t th e jur or

be re mov e d; h ow e ve r, tr ia l c ou ns e l a sk e d th e c ou rt to a llo w the jur or to r e ma in beca use “[trial counsel] was try ing to g et it over with. The g uy was trying to g et paid.”

The pe titioner alleg ed additional instances of ineffe ctive assistance
, asserting that he was not supplied copi e s o f

ta p es fr om his preliminary

hearing or

taped state ments of witnesses, c ounsel failed to object to the prosec utor’s desc ription of the petitioner a s a “dr ug deale r, ”c o u n s el allowed theT hrougho ut t he reco rd, C o nst ance C am p b el l i s al so ref erred t o as C o nst ance M cE wen. 1

-5- int ro du c tio n o f h e ars a y

te sti mon y , c ou ns e l f

a ile d to int e rv ie w thr e e wi tne sse s w ho we re a t th e ho us e wher e the dr

ug tran s ac tion occurr ed and c ounsel failed to subpoe na additional witnesses. The petitioner testified that one of the witnesse s, Constance Campbell, would have te stified reg arding 1 the we apo ns he ha d o n th e nig ht of the of fe ns e a nd wo uld ha ve c on fi rm e d tha t he ha d a “ ru n- in” wi th J erome and Alfonso Gr eg ory . Counsel also failed to introduce a photogra ph of the pe titioner’s ca

r. The pe titioner stated that his car did not have ti nted windows or hubcaps and therefor e did not match the de sc ri pti on pr ov ide d b y wi tne sse s a t tria l.

T h e p et i t i o n er fu rt h er as s er t ed t h at co u n s el s h o u l d h av e r eq u es t ed th at t h e p et i t i o n eru n d er go a psy cholog ical eva luation. Accor ding to the pe titioner, on the day of trial “I wa s n ’t m y s el f, y ou know what I ’m say ing. T hat should have b ee n , y ou know what I ’m say ing, w ent on re cord. Somebody

should have c ome and talke d to me that day . I mean, that day I didn’t even w ant to, y ou know what I ’m say ing, pr esent my self prope rly .”

The pe titioner contende d that counsel should have called an ex pert in the area of ballistics to rebut the testimony

of the State’s e x pert. Specifica lly
, the petitioner testified that trial counsel wa s not adequately

prepa red to c ross-examine the St at e’ s ex p ert. The petitioner stated that “ she [the Sta te ’s e xpe rt ] co uldha ve sa id tha t a bu lle t w a s ma de ou t of

bu bb le g um , and he proba bly wo uld ha ve be e n li ke , w ow .” Th e pe tit ion e r a sk e d th e c ou rt to t ake jud ic ia l no tic e of a n “ on lin e ” art ic le he had rea d conce rning ballistics a nd marking s on bullets. The petitioner maintaine d that if an e x pert ha d te sti fi e d o n h is b e ha lf, th e ou tc ome of his tr ia l w ou ld h a ve be e n d if fe re nt.

Br et Gunn, the assistant district attorney g ener al who prosec uted the petitioner’ s case , was called by the petitioner to test i fy

. General Gunn te stified that he could not spec ifically rec all the person to whom he spoke on the morning of the pe titioner’s trial. He e x plained:

I just remember

talking to the g uy , the j uror, out in the hall and the n

re a lizin g la te r i n th e mornin g that it - - th at it wa s a

jur or a ndthat I neede d to bring that to the Cou rt ’s attention. And I told the Court

e ve ry thi n g I c o u l d t e l l t h e m ab o u t i t

. A n d a t t h i s p o i n t

- - if Isa id something a

bout the office r being there at t hat t ime, then I ’m sure he was. B ut I

don’t reme mber it now.

On cr oss-examination, Genera l Gunn confirmed t h at h is comments were inadvertent and

wer e un rela ted to the petitioner. Af ter a dvising the c ourt of the c onversation, Gener al Gunn reque sted that the juror be remove d from the panel beca use of his c oncern that the juror might think he wa s incompetent or trying to in fl u en ce him. Gener al Gunn stated tha t he neve r saw the juror “make any

fac ial indications in any

way ” towar d the petitioner.

Offic er H enry

Colli ns w as al s o s u b poenae d to testify at the evide ntiary

hearing. O ffice r C o l l i n s t est ified that he r emember ed the pe titioner’s name a nd rec alled that he ha d g one to courtI n t hi s cour t ’ s di r ect opi ni on t he age nt ’ s l as t na me i s s pel l ed Arni e. 2

-6- reg arding the petitioner’s c ase. Howeve r, he had no r ecollec tion of any conver sation with a juror. He c ou ld n ot r e c a ll a ny

de ta ils abo ut the pe tit ion e r, his c a se , o r the da y of his tr ia l.

Ag ent Teri Ar n ey , a spec ial ag ent fore nsic scientist with the Tennesse e B urea u of 2 I nvestig ation, testified t hat she re viewed some of the e vidence in the petitioner’s c ase a nd testified

a t hi s tria l. A g e nt A rn e y su mma ri zedhe r t

ri a l te sti mon y , e x plaini ng that “ I wa s - - I a c tua lly examined some- - two bullet jac kets with a bullet that c ame from the victim, a nd I was a ble to match one of those bullets with the bullet fr om the victim as having been fired in the same firea rm.” Ag ent Arne y confirme d that a we apon wa s not submit ted for analy sis. Ag ent Arne y stated that she did not testify at trial that the bullets she e x amined came from a particular box of ammunition, onl y that they

wer e made by

Winchester and w ere the same type of a mmuniti on as the a mmuniti on in a box provided to her

by Detec tive E.J . Be rnar d.

Kenne th Neal testified that he became acqua inted with the petitioner on July5, 1998. They

me t th ro ug h a

mutua l fr ie nd a t We st N a sh vil le Pr oje c ts l oc a te d “ of f o f 4 0tha ndClif

ton .” Ne a l sa id that betwee n 10:00 and 11:00 p.m., he and DeShawn Campbell wer e standing on the sidewa lk when he saw the petitioner g etting into his ca r. The petitioner told Neal that “he would holler at us later
, and he le ft.” Nea l a cknowledg ed that he w as not awa re of the petitioner’s c ase until he e ncounter ed the petitioner a t Riverbend, whe re the y wer e both incar cer ated. When the petit ioner tol d Nea l about his case, N eal r eca lled that he had se en the pe titioner on the nig ht of the off ense.
The pe titioner’s trial counse l testified that he re prese nted the petitioner d u ri n g the proce eding s in circuit court but did not repre sent him at the preliminary hearing. Counsel r eviewe d a tape of t he preliminary hearing and concluded t hat it did not contain any thing of “strate g ic value” fo r t ri a l. T he pe tit ion e r d id n ot a sk fo r a c op y of the tape un til a ft e r the tr ia l. C ou ns e l e xpla ine d to the pe tit ion e r tha t th e ta

pe of the pr e lim ina

ry he ari ng ha d n ot b e e n tr a ns c ri be d a ndit d id n ot c on ta in anything of

value to him.

Counsel expl ained that the pe titioner told him that on the night of the offe nse, the pe titioner

rec eived a

pag e fr om a drug customer in Madison. Acc ording to the petit ioner, he could not have been at the location of the homicide beca use he was acr oss town selling cocaine. Counsel and the petitioner conc luded that eve n if they could find the customer, he would be unlikely to come to court and admit under

oath that he pur chase d cocaine from the pe titioner.

Counsel stated that the pe titioner consistently maintained that at the time of the offe nse he was in Madi s o n , ap p rox imately twenty -five to thirty

miles away , selling c ocaine . Counsel never hear d D e Sh a w n Ca mp b e ll ’ s n a me me n ti o n e d
, n o r w a s N e a l’ s te s ti mo n y

a t th e p o s t- c o n v ic ti on hearing c onsistent with the petitioner’s c laims at the time of trial. Counsel rec alled that he ha d copies of w itness statements befor e trial. He was not sur prised by J erome Gre g ory ’s testimony , and, in fac t, counsel attempted to show that Gr eg ory had re ceive d some type of spe cial tre atment from the State.-7-

Cou ns e l r e ite rate d th a t th e pe tit ion e r’ s d e fe ns e wa s that he wa s n ot p re se nt w he n th e of fe ns e

occur red. A ccor dingly , the ty pe of bullets used an d wh ether the bullets wereconsistent or inconsistent w ith those in the box of ammunition had no r eleva nce to the the ory of def ense. Counsel

e xpla ine d th a t

like I s a id
, w ith th e I w a s n ’ t th e r e d e f e n s e , it w a s my p o s it io n if we started trying to distance ourselves f rom that box of ammunition, the jurors ar e g oin g to think, well, why do y ou car e. I f y our man wa s

ac ross town, why

do y ou car e what was in that box and who did it.

Counsel stated that he ha d no rea son to believe that the petit ioner was “not hi mself” during trial or was not a war e of what was occur ring during trial. Counsel pointed out that during tria l, the petitioner wrote notes and at one point asked if the State’ s offer of a twenty y ear sentenc e to be

serve d at eig hty -five pe rce nt was still available. When he a dvised the petitioner that the State’s off er ha d b e e n in c re a se d to tw e nty -f ive y e ars , th e pe tit ion e r as ke d co un se l to c a lc ulate the dif fe re nc e in the time he would have to se rve. Counsel testified, “So that didn’t appea r to me to be someone who

wa sn ’t a wa re , c og niza nt o f w ha t w a s g oin g on .” Cou ns e l pr ov ide d s e ve ra l of the no te s w ri tte n to him by the pe tit ion e r d ur ing tr ia l.

Counsel recal l ed t h at Constance Campbe ll was first broug ht to his attention byGene ral Gunn. Gene ral Gunn a dvised counsel that Campbe ll’s testimonywas not benef icial to the State but that she could be of bene fit to the petitioner. He pr o v i d ed co u n s el with Campbell’s name a nd
te le ph on e nu mbe r. Therea ft e r, c ou ns e l le arn e d th a t Ca mpb e ll w a s in c arc e rate d a ndse nt h is investigator to speak with her . After revie wing a tape of the intervie w, counse l was conc erne d that Campbell might commit perjury , and he did n o t fe el comfortable ca lling her to testify . Counsel

re c a lle d:

I

don’t know whe ther it was she was just having an extremely bad day

or - - his opinion was may be y ear s of drug and alcohol abuse - - but she wa s not very

coher ent. And fr om the questions s h e was a sking [the inv e sti g a tor ] o ne wo uldg e t th e imp re ssi on it’ s, we ll, jus t te ll m e

w h a tI’ m s u p p o s e d t o b e s a yi n g , a n d t h a t ’ s w h a t I w a s g o i n g t o s a y.

Cou ns e l r e c a lle d th a t th e pe tit ion e r t e sti fi e d a t tria l, andhe wa s a n e ff e c tiv e wi tne ss,

re inf or c ing c ou ns e l’ s b e lie f tha t th e pe tit ion e r u nd e rs too d the natur e of the pr oc e e din g

. Af te r this

c ou rt ’s op ini on on dir e c t app e a l, cou ns e l no tif ie d th e pe tit ion e r that he ha d f ile d a mot ion to withdraw but a dvised the petitioner that if the State retrie d him on the tw o co n v i ct i o ns that were

re ve rs e d o n a

pp e a l, c ou ns e l w ou ld c on tin ue to r e pr e se nt h im.

On cr oss-examination, counsel rec alled that the pe titioner had written a no t e d u ri n g trial advising him that “there wa s a j u ro r t hat was mouthing at him.” Counsel did not see the juror attempt to speak with the petitioner. Counsel explained that he did not ask for the re moval of theA t t h e ti m e o f t h e p o st-co n v ic tio n he a rin g , C a m p b e ll w a s inc a rc e ra te d in M e m p h is b u t wa s tra n s p o rte d to 3

D avi d son C o unt y fo r t he heari ng.

-8- jur or inv olv e d in the c on ve rs a tio n w ith the pr os e c uto r b e c a us e he wa s “ mor e fe arf ul o f that a lte rn a te juror that [he] was of this one.”

C o u n s el h ad n ev erh ea rd o f N ea l p ri o r t o Ne al ’s t es t i m o n y at t h e p o s t -c o n v i ct i o n h ea ri n g. Reg ardle ss, counsel stated that Neal’s testimony was not c onsistent with the petitioner’s te stimony at trial, and, a s a matter of strateg y counsel would not have called him to testify for the pe titioner.

Following the pre sentation of the State’ s proof, the post-c onviction court continued the hearing to a llow the petitioner to obtain the t estimony of C onstance Campbell. Campbell testified 3 that she had know n the petitioner since 1996 or 1997 and that he had been her boy friend “ y ear s ag o.” Campbell testified t hat t he petiti oner usually car ried “a l ittle small gun.” The g un was silver, but she did not know the specific type or na me of the gu n

. C am p bell stated that she kne w J erome and Alfonso Gre g ory

and re called that they , along with the petitioner, had attended her brother’ s birthday party on J anuary

21, 1998. Campbell’s rec ollection of the event wa s limi ted; howeve r, she state d:

I can’ t rea lly

say what happe ned. The y

wer e in, the men we re in one lim ou sin e , th e wo me n w e re in ano the r. Al l I kn ow is a

bo ut thetim e we g ot to - - the Outbac k, there was a big ruckus going on. They had g ot into it in the car, so my mother, i n turn, took Hora ce and I home.

Ca mpb e ll s a w the pe tit ioner on July 5, 19 98 , at he r m oth e r’ s h ou se but could not remembe r if she saw him on J uly 6, 1998. She rec alled, “all I know is all the ac tiviti es took place betwee n the 4th of J uly and I ’d say the 7th. I don’t reme mber the day s.” On the day the petitioner was with her , he lef

t and told her he would be back in an hour. She attempted to pag e him sever al times, but he did not respond. She wa s eventua lly

contac ted bya dete ctive who told her wher e the pe titioner was in custody

.

After the conc lusion of the post-conviction hea ring
, t h e post-convic tion court enter ed a twenty -three pag e order setti ng forth its findings of fac t and conc lusions of law. The post-c onviction court found that the petitioner had f ailed to show by clea

r and convincing evidenc e that trial c ounsel was ineffec tive. Further, the court found that the petitioner had not de monstrated that he suf fer ed any prejudice as a r esult of counse l’s alleg ed inef fec tive assistance

.

II. Ana lys 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. Te nn. Code Ann. § 40-30-110(f) ( 2003). “‘ Clear a nd convincing evidenc e mea ns evidenc e in which ther e is no-9-

serious or substantial doubt about the c orre ctne s s o f t h e conclusions drawn fr om the evidenc e.’” State v. Holder, 15 S.W .3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodg es 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 acc orded their testimony
, and the fac tual questions r aised by the evidenc e adduc ed at tria l

are to be re solved by

the post-conviction court as the trier of fa ct. Henle y v. State, 960 S.W .2d 572, 579 (Tenn. 1997) . Theref o re , we a ffor d the post-conviction court’s finding s of fa ct the we ight of

a jury ve rd ic t, wi th su c h fi nd ing s be ing c on c lus ive on app e a l abs e nt a sh ow ing that th e e vid e nc 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 ou ns e l is a

mixe d q ue sti on of la w a nd fa c t. Se e Sta te v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a presumption that those finding s are corr ect. See Fields v. State, 40 S.W .3d 450, 45 8 ( Te nn . 2 00 1) . H ow e ve r, we wi ll re vie w the po st- c on vic tio n c ou rt ’s c on c lus ion s o f l a w p ur e ly de novo. I d.

“To e stablish ineffec tive assistance of counse l, the petitione r bears the burde n of proving both that counsel’s performance was de ficient a nd that the def iciency prejudice d the def

ense.” Goad v. State, 938 S.W .2d 363, 369 (Tenn. 1996) (citing Strickland v. Washin gt o n , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984))

. I n evaluating whether the petitioner has met this burden, this court must determine whe ther c ounsel’s per formanc e wa s within the rang e of c ompetence r eq u ired of attorney s in criminal case s. See B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975)

. On appe al, the petitioner a sserts that the post-convic tion court err ed in finding that trial counsel wa s not ine ff

ec t i v e. He asserts that counse l was ineff ective by failing to reque st the dis mis sa l of

the jur or wh o h a d en g a g e d in ex-p art e c ommun ic a tio n withthe pr os e c uto r d uring tr ia l; trial counsel wa s ineffe ctive by failing to asce rtain t he ex tent of t he conversation between the juror, the prosec utor, and Of

fice r Collins; trial counsel was ineffe ctive by failing to inform the court that the same juror

had a t t em pted to communicate w ith the petitioner; trial counsel wa s ineffe ctive by fa ili ng to c a ll Co ns ta nc e Ca mpb e ll t o te sti fy a t tr ia l; tri a l c ou ns e l w a s in e ff e c tiv e fo r f

a ili ng to c a ll

a ballistics e x pert to rebut the testimony of the State’s e x pert; and tria l counsel fa iled to object to the pr os e c uto r i mpr op e rl y

le a din g a wi tne ss on dir e c t exam ina tio n. Ad dit ion a lly , tri a l cou ns e l f a ile d to confe r and c o n s u l t wi th the petitioner, see k discovery , investigate criminal charg es, interview witnesses, and develop a working rela tionship with the petitioner. He also asserts tha t trial counsel should have ha d the petitioner unde rg o a mental e valuation.

First, we will address the petitioner’s contention that the ex parte communication wit h the juro r c r e a te d a b ia s a g a in s t th e p e ti ti o n e r a n d th a t h e s h o u ldh a v e b e e n g r a n te d a n e w tria l b y

the post-conviction court. The post-convic tion court noted that the prosec utor immediately advised the trial court that he had ina dverte ntly communicated w ith a juror and a police off icer reg arding another

case . The post-c onviction court re ad f ro m t h e t rial transc ript the following comments of the prosec utor:-10- “I think I may have ha d some contac t with M r. Bailey , the juror, out in the hallway

befor e we started, and the way that came up, and I ’m not completely

sure it was him, but the wa y t hat ar ose, I walked, I was he re e arly and I think may be Offic er Colli ns was seated out there a nd the man seate d beside Offic er Colli ns, and the man, at that point to m e l o o k ed like Mr. Emmet J enkins, the bonding ag ent from the tria l that I

did last week, so I

thought, and of course , he is up around here all the time, so I thought, that is Mr. Jenkins sit ting ther e by the police of

fice r, so I immediately tell w ho I think is Mr. J enkins that th e ma n g ot c on vic te d la st we e k on d ru g c ha rg e s, a ndthat he is g oing to g et a substantial amount of time, and I think Office r Collins said something like well, that is g ood, or something like that, and the pe rs on wh o I

tho ug ht w a s Mr . Jen kin s lo ok e d p uzzle d at th a t po int
, but I d id n ’ t th in k

a n y th in g e ls e ab o u t i t u n ti l I g o t i n h e r e a n d
, y ou know, started ha nding stuff to the jurors, and I

looked at him ag ain,

a ndI tho ug ht, we ll, that c ou ld e xplain a lot of thing s if

that w a s, in fac t, Mr. Ba iley , so I ’m afr aid that it might well have been.”

The post-c onviction court noted that trial c ounsel’s d ec i s i o n not to ask for re moval of the juror wa s based upon his conce rn reg arding the alternate juror. The post-c onviction court found that counsel’s de cision was a strateg ic one e ntitled to defe renc e. On a ppeal, this court will neither second g uess the tac tical and strateg ic dec isions of de fense counsel, nor measure the repr esenta tion by “20- 20 hindsight.” Cooper

v. State, 849 S.W .2d 744, 746 (Tenn. 1993). Moreove r, the post-conviction

c ou rt fo un d th a t th e pe tit ion e r ha d f a ile d to de mon str a te that he wa s p re jud ic e d b y

c ou ns e l’ s a c tio ns

. We a g re e wi th the po st- c on vic tio n c ou rt

. The pe titioner also alleg ed the post-c onviction court should have found that trial counse l was ineffe ctive by failing to c all Constance Campbell to te stify at trial. Acc ording t o t h e p et i t ioner, Ca mpb e ll’ s te sti mon y

wo uldha ve e sta

bli sh e d th a t th e pe tit ion e r c arrie d a sma ll sil ve r g un . B e c a us e the victim was shot with a .44 caliber g un, Campbell’s testimony would have r efute d the evidenc e establishing the petitioner as the shooter. Campbe ll would also have ve rified that Alf onso Greg ory and Jerome Gre g ory

wer e biase d ag ainst the petitioner. Th e p o s t -c o nviction court noted that the petitioner had failed to show that the witnesses’ te stimonywould be fa vorable or that the testimony provided c ritical evide nce in support of his defense . We ag ree

. The post-c onviction court dete rm i n ed t h at the petitioner’ s claim that trial counse l was ine ff e c tiv e in f a ili ng to p re se nt the te sti mon y of a ba lli sti c s e xpe rt wa s li ke wi se wi tho ut m e ri t. F ir st, we note that when a pe titioner contends that trial c ounsel fai led to discover, interview, or pr esent witnesses in support of his defe nse, the pe titioner should present these witnesses at the e videntiary hearing. See Bla ck v. State, 794 S.W.2d 752,757 (Tenn. Crim. App. 19 9 0 ). T h e post-convic tion court noted tha t the petitioner fa iled to present the te stimonyof an e x pert at the post-convic tion hearing. A lthough the pe titioner provided the c ourt with an article from an “online publication” on ba lli sti c s, the c ou rt

fo un d th a t th e art ic le wa s n ot re le va nt to the pe tit ion e r’ s c la im. F urthe r, the po st--11-

conviction court foun d t h at t h e p et itioner had failed to show that he suffe red a ny prejudice . The

re c or d s up po rt s th e fi nd ing of the po st- c on vic tio n c ou rt

. Reg arding the petitioner’s c laim that trial counsel fa iled to seek a mental evaluation of the pet it io ner, the po st- c on vic tio n c ou rt a c c re dit e d th e te sti mon y of c ou ns e l th a t ba se d u po n h is ob se rv a tio ns a ndint e ra c tio n w ith the pe tit ion e r, c ou ns e l sa w no ne e d f or a n e va luatio n. Th e po stconviction court found that the cla im was without merit. The record supports this findi ng by the post-conviction court.

As to the petitio n er ’s claim that counsel should have objec ted to the State asking leading questions of J erome Gre g ory , the post-conviction co urt stated that it had re viewed the rec ord and fo un d the c omp la int wi tho ut me ri t. I n his app e llate brie f, the pe tit ion e r fails to pr ov ide a ny sp e c if ic ins ta nc e s in su pp ort of

his c la im, a sse rt ing that Jer ome Gr e g ory ’s te sti mon y wa s p ri m a

rily a re sp on se to the prosec utor’s questions. The pe t i t i oner summarily conclude s that “[the petitioner] was pr e jud ic e d b y

the le a din g qu e sti on s. ” Th e pe tit ion e r do e s no t a lle g e a ny sp e c if ic pr e jud ic e a s a

re su lt of co u n s e l’ s f

a il u r e to o b

je c t. T h e e v id e n c e d o e s n o t p r e p o n d e r a te a g a in s t th e tria l c o urt’s determination.

Finally , the petitioner a lleg es that “[t] rial counse l failed to conf er a nd consult with the p et i t i o n e r , s e e k

d i s co v er y , i n v es t i gat e c ri m i n al ch ar ges , i n t er v i ew wi t n es s es an d n o td ev el o p i n g a working rela tionship wit h the petitioner.” The post-c onviction court ac cre dited counsel’s te stimony that trial counsel met with the petit ioner on numerous occa sions at the Criminal J ustice Center and at the cour thous e

. Co u n s e l r etained a private inve stigator, interviewe d witnesses, and r eviewe d tapes of interview s conducte d by the investig ator. He provided the p et i t i oner w ith summ arie s of the evidenc e and disc ussed with the petitioner the me rits of his case and possi ble defense strateg ies. The post-conviction court further conclude that the petitioner ha d not shown that he wa s prejudice d by the fa ilu re to c a ll a dd iti on a l w itn e sse s. We a g re e wi th the po st- c on vic tio n c ou rt

.

I n summary , we c onclude that the evidence does not preponde rate ag ainst the finding of the post-conviction court. Accor dingly , the petitioner ha s failed to prove by clea r and c onvincing

e vid e nc e that he re c e ive d th e ine ff e c tiv e a ssi sta nc e of

c ou ns e l.

III. Conclusi on

F ind ing no e rr or , w e a ff

ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE