# FILED September 11, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JUNE SESSION, 1998 TYRONE G. MEADE, ) C.C.A. NO. 02C01-9708- CR-00316 ) Appe llant, ) ) ) SHELBY COUNTY VS. ) ) HON. JA MES C. BEA SLEY, J R. STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post Convict ion)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : RANDALL B. TOLLEY JOHN KNOX WALKUP 242 Poplar Avenue Attorney Generaland Reporter Memphis, TN 38103 DOUGLAS D. HIMES Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 WILLIAM GI BBONS Distri ct Attorney General JOHN CAMPB ELL Assistant Distri ct Attorney General Criminal Just ice Complex, Sui te 301 201 Poplar Street Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defen dant ap peals the trial court’s de nial of his pe tition for postconvicti on rel i ef. He was convi cted by a ju ry verdi ct of two counts of second degr ee murder. He sought post-convict ion reli ef asserti ng that he received ineffective assistan ce of c ounsel at t rial. Followingan evidenti ary heari ng, the tr ialcou rtdeni ed reli ef a nd weaff ir m.

The Defendantwas co nvicted of tw o coun ts of second degree murder for shooting and killi ng Charles Matthews and Lavester Jefferson in Memphis, Tenn essee. He ori gina ll y received an e ffe cti ve se nten ce of for ty years . He appealed his convi ctionsand his sentence and this cour t affi rmed his convi ctions but rem anded for resen tencing. State v. Meade , 942 S.W.2d 561 (Ten n. C ri m. App
. 1996). The record indicates t hat upon resentencing he rece ived tw o concu rrent twen ty-year sen tences
.
With the assis ta nce of c ounse l, the Defe ndant filed a petition for postconvicti on relief

on March 18, 1997. The pet ition al leged that trialcounsel was ineffective for failing to zea lously re prese nt the D efend ant, failin g t o file pretri al motions, failing to objec t to testim ony, failin g to in v estigate, fai ling to crossexamine witnesses, faili ng to properl y advise t he Defendant concerni ng his ri ght to testify , faili ng to request a mental evaluati on, faili ng to raise th e issue of dimin ished capa city and failing to adeq uately p repar e for trial.1 For a detai led summary of the facts dev

eloped at tr

ial, see State v. Meade , 942 S.W.2d 561, 563-56

4 (Tenn. Crim.App. 1996). -3- First, we will briefl y discuss t he underlyi ng facts. The Defendant gave th e police a statement, which was int roduced at hi s trial , in whic h he admitted thathe had shot and killed bo th victims. He said tha t the victims were “crazy” and “high”
on both a lcoho l and d rugs. T he m en we re insu lting bo th him and h is girlf riend and he felt threatened by the waythey were tal king. He tol d them to leave but theywould not, so he shotthe first victi m. He subsequently g ot into an argument with the second vi ctim and shot hi m also. The autop sy report indicated that both vi cti ms died of mult iple gunshot woun ds with at l east one wound to t he back of each victi m’s head at close r ange. Both vi ctims tested positi ve for cocai ne and alcoh ol. 1 At the post-co nvictio n hea ring, the Defe ndan t testified and a gain admitted that he had k illed bo th victim s. He s aid that he ki lled one of the vi cti ms in self defense because he was “thr eatened or prov

oked” and that the victi m had
a gun. H e said that the other v ictim a lso thre atene d him , but he di dn’ t know if thatvicti m had a gun or not. He f urther stated that he had “over-reacted” when he shot the s econd victim and that his ove rreacti on m ay have been due to t he fact that he had consumed alcohol t hat evening.

In this appeal , the Defendantargues that his trial cou nsel was ineffec tive because (1) he filed no pre trial mo tions to test the streng th of the State’s case, (2) he fail ed to fil e a motion to suppress t he statements Defenda nt had give n to police, (3) he fi led no mot ions for discove ry, (4) he filed n o motio n in limine to inquire as to whether a prior manslaughter conv ictioncould be used against t he Defendant if he testifi ed, (5) he per formed an inadequate investi gation of the facts, (6) he fa iled to in vestiga te or rais e the is sue o f dimin is he d capacity or-4-

request a pretrial mental eva luation, (7) he ma de unpro fessi onal e rrors in judgment, (8)he gave improp er advice conce rning the decision not to offer any defense proof, i ncluding pr oof of sel f de fense, (9)he misrepresented to the Defendant that

he would prevai l attrial , and (10) he exhi bited an over all l ack of effort an d zea l.

Trial couns el testified at g reat leng th concerning t he various al legations of i neffect ive assistance of counsel. He testifi ed that he f iled no pretrialmotions because he though t none were necessary in view of his theory of self defense. He said he saw no grounds on which to file a m otion to supp ress th e Def enda nt’s statem ent. He stated that he fil ed no discovery motions beca us e the district attorne y’s office gave him freeand o pen a cces s to the ir entire file . Trial co unse l’s testimony

was un clear con cerning his failure to file a motion to te st the admissibil ity of

the De fenda nt’s prior mansla ughter convi ction as contemplated by Rule 609(a)(3)of the Tennessee Rules of Evidence. I t is cl ear, however, that at trialthe judge ru led that t he Defe ndan t’s testim ony co uld not be impeached by reference to this p rior

convicti on and that t he Defendant nevert heless decided n ot to testify.

Trial counsel test ified t hat he adeq uately investig ated th is case and th at his invest igator

contacted el even of the ei ghteen witnes ses whose n ames were give n him by the Defendant . He obtained statements fr om these witnesses and statem ents from other wit nesses who testified for the State. Trial counselfurther testif ied that he saw no i ndicati ons that t he Defendant suffered from any mental defects or that

“diminis hed capacity” was a legit imate issue i n this case. Counsel testif ied that in his view, the only def ense to the second d egree murder charges-5-

was self defense or provocat ion, and he believed he raised t hese issues ful ly by
cross examination of witnesses and thr ough the statements which the Defendant had made to the police. Trialcounse l further testif ied that h e advised the Defendant fully

concerning t he decision whet her to testify at tri al. He stated that the Defenda nt decided he did not desire to testify. Trial counsel general ly denied the remai n ing fact ual all egations pres ented in t he post-convi ction pet ition as alleged by the Defendant during his

testimony at

the post-convicti on proceeding.

Otherthan the De fendant and his trial counsel, the pri mary ad ditional witness at the post-convict ion he aring was a clini cal psychol ogist who testifi ed gene rally that the Defendant’s hist ory of alcohol abu se could po ssibly have affectedhis mental capacity and decisi on-making proce ss at the ti me of the killi ngs.
Subsequent to the e videntia ry hea ring, the post-c onvictio n cour t fil ed a writt en order denyi ng post-convi ction rel ief. The cour t found that

man y o f
coun sel’s decisions andthe acti ons complained of by the Defendant fell clear ly in the category

of tri al strategy and tri al tacti cs, and the cour t found no shortcomings i n counsel’s ac tions. Concerning the l ack of pret rial moti ons and discovery, the post-convicti on court accredited counsel ’s decisi on not to purs ue said motions in v iew of the o pen acce ss cou nsel w as give n to the State’s file and his judgmen t that further motions were unnecessary. The court fur therfound that trialcounsel had thor

oughly investigated the case pri or to proceedi ng to tri al. The post-convi ction court concl ude d that defense c ounsel had provided effective representat ion to the Defendant and had represented the Defendant to the best of his abil ity. The court fur ther concl uded that defe nse counsel had th e-6-

experience and ab ility to evaluate andproperly prepare a cri minal case for trial and h ad do ne so in the case at bar . The court accor dingly determined that t he Defendant had not established his c laim of ineffective assistance of counsel and therefore was no t entitled to po st-convictio n relief.

In determini ng whether counselprovided effective assistance at tri al, the court must decide whether counsel’s per

formance was wit hin the rangeo f competence dema nded o f attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d 930, 93 6 (Ten n. 1 975). To succeed on a clai m that his counselwas ineffective at tri al, a petitioner bear s the burden of showing t hat his counselmade
errors so serious that he was not funct ioning as counsel as g uaran teed by the Sixth Amendment and that the def icient representat ion prejudiced the peti tioner resulting in a failure to produ ce a reliab le result. Strickland v. Washington , 466 U.S. 668, 687 (19 84); Cooper v. State , 849 S.W .2d 744 , 747 (T enn. 19 93); Butler
v. State , 789 S.W .2d 898 , 899 (T enn. 19 90). To sati sfy t he second prong, t he petiti oner must sh ow a rea sonab le proba bility that, but for coun sel’s
unrea sona ble error, the fact finder would hav e had reasonable doubt regarding petition er’s guilt. Strickl and , 466 U .S. at 69 5. This reasonable probabilit y must be “suffi cient to

undermine confi dence in t he outc ome.” Harris v. S tate , 875 S.W .2d 662, 665 (Tenn. 199 4).

When reviewing tr ial coun sel’s ac tions, th is cour t shou ld not u se the bene fit of hindsight

to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard
v. State , 629 S.W.2d 4, 9 (Ten n. 1 982). Counsel’ s alleged er rors should be judged at the ti me they were made in light of all facts and ci rcumstances. Strickl and , 466 U.S . at 690; see Cooper , 849 S.W.2d at 746.-7- In p ost-convi ction rel ief proceedi ngs, the pet itioner has the burden of proving the allegati ons of factin his or her petit ion by cle ar and convinci ng evidence. Tenn. Code Ann. § 40-30-210( f). The factual findings of the trial court
are conclusive on ap p eal unless the appellate court finds that the evidence preponderatesagainst the judgm ent. Butler , 789 S.W.2d at 899. I n the case at bar, the tri al court f

ound that defe nse coun sel had ad equately i nvestigated the
case against t he Defend a nt and had d iligently p repar ed for tr ial and zealo usly represented this Defendant. The post -co nvicti on court fur ther determined that otheractions of

trialcounsel proper ly fel l withi n the category of tri al strategy and tactics. The Judge further concluded thatthe De fenda nt had not es tablish ed his claim of ineffective assistance of counsel. We believe the recor d supports t he findings and conclusions

of the post-con viction ju dge. F rom o ur revie w of this record, even if

we det ermi ned t hat

tr ialcou nselwas ineff ect iv e in someway, we do not beli eve that t he D e fendant has established prejudice. He has not demonstrated a reasona ble probability, sufficient to unde rmine our co nfiden ce in the outcome, that

but for counse l’s error, the jury w ould h ave ha d a rea sona ble doubt re garding the Defe ndant’s g uilt.
According ly, the judgment of the tri al court denying post- convict ion re lief is affi rmed.

___________________________________ DAVID H. WELLES , JUD GE-8-

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ JOE G. RILE Y, J UDGE