### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Ja nuary 27, 200 9
MIC HAE L S. MORAN I v. ST ATE OF TEN NES SEE
Appeal from t he Criminal Court for Cumberland Coun ty No. 6395 Leon C. Burns, Jr., Jud ge

No. E2008-00565-CC A-R3- PC - Filed Mar ch 3, 2009

The pe titioner, Michael S. Morani, appeals the denial of his petition for post-conviction relief. I n this appeal he asserts that he was denied the eff ective assistance of counsel at trial. Discerning no
e rr or , w e a ff

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

. Tenn. R. App . P. 3; Judgment of the C riminal Court Aff irme d

J A M ES C UR W OOD W I TT , J R ., J., delivere d the opinion of the court, in which N OR MA M C G EE O GLE and D. K EL LY T HOMAS , J R ., JJ., joined.

G. Ea rl Pa tto n, Cr os sv ill e , T e nn e sse e , f or the app e llant, Mic ha e l S. Mo rani.

Rob e rt E. Coo pe r, Jr ., Attorne y G e ne ra l a ndRe po rt e r; Sop hia S. L e e , A ssi stant A tto rn e y G e ne ra l; Ra nd a ll A . Y or

k, Di stric t A tto rney Gen e ra l; andMa rk Go re , A ssi stant D ist

ri c t A tto rn e y G e ne ra l, for the a ppellee, State of

Tenne ssee.


### OPIN ION

On Februa

ry 1, 2002, a Cumber land County Crimi nal Court jury convicte d the petitioner of one count of attempted preme ditated first degr ee mur der, see T.C.A. §§ 39-12-101; 39- 13-202 (2000), and one count of theft of property value d at $10,000 or more
, see id. § 39-14-105( 4). Th e tr ia l c ou rt

imp os e d a fi ve -y e ar se nte nc e fo r the the ft c on vic tio n to b e se rv e d c on c ur re ntl y w ith
a 23 -yea r sen tenc e fo r the a tte mpt e d mu rd e r c on vic tio n. Th e tria l c ou rt a lso imp os e d $ 60 ,0 00 in fi ne s.

We g l ea n t h e f ac t s s u rr o u n d i n g t h e p et i t i o n er ’s co n v i ct i o n fr o mt h e p et i t i o n er’ s direct
app e a l of his c on vic tio ns

. The [pe titioner] first met the victim , Alan Logan, in August of 1999 wh e n h e app lie d f

or be ne fi ts a t the De pa

rt me nt o f H uman Se rv ic e s in Roane County, wher e the victim worke d. As the victim testified at the trial court, he allowed the [petit i o n er ] to share his CumberlandB eca use t r i al coun s el f ai l ed t o f i l e a t i m el y m ot i on f or new t r i al , t he pet i t i on er w as unab l e t o pu r s ue al l i s s ues 1

o n d ire c t ap p e a l. M o ran i II , s l i p op. a t 2.
-2-

Count y re sid e nc e fo r a

pp ro xim a te ly t wo mon ths , p ro vid ing bo th “emotional and financia l support.” Two years later, the [ petitioner]
arrived unexpe ctedly at the r esidenc e of the vi ct i m, appar ently “on foot” a nd attempting to rekindle their friendship. Appr oximately one hour into the conver sation, Jennifer Reynolds, the [petitioner] ’s girlf ri e nd , a rrive d ina ve hic le

. Th e [p e tit ion e r] sp ok e to h e r p ri vate ly and sh e le ft . A bo ut t we nty min ute s late r, sh e re turne d, ta lke d w ith t h e [petitioner] and lef

t again. Af

ter re turning to the residenc e, the [petitioner] rema

rked, “I’ve killed a man . . . be cause he had something I wanted and he wouldn’t give it to me.” He then displa y ed a h andgun. As the victim reache d for his drink, the [petitioner] order ed him to “free ze.” In re sponse, the victim threw a table at the [ petitioner] a nd fl ed towar d the door. The [petitioner] shot the victim once in the arm befor e his gun jammed, allowing the victim to run to a nea

rby re sidence , wher e the ne ighbor telephone d 911. The victim hid in the woods as the [pe titioner] took the victim’s 1999 Buick Regal and dr ove aw ay.
State v. Mic hael Salvator Morani ( Mo ra ni I ), No. E2002-02394-CCA-R3-CD, sli p op. at 1-2 (T enn. Crim. App., Knoxville, Aug. 14, 2003), perm. app. de nied (Tenn. D ec. 15, 2003)

.

The pe titioner challenge d only the length of his sentenc es and the amount of his fines
on app e a l, an d this c ou rt

a ff ir me d th e jud gme nts of

the tria l c ou rt

. Id. , slip op. at 1. The pe titioner 1 then filed a

petiti o n for post-conviction relief r equesting a de layed a ppeal a lleging “ineff

ective assistance of counse l for failing to file a tim ely motion for new trial.” Michae l Salvator Morani v. State ( Morani II

), No. E2005-01897-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App., Knoxville, June 30, 2006). On July 25, 2005, the post-convic tion court enter ed an agre ed order granting a delayed appea l and holding all other p o s t -convic tion issues “in abeya nce or dismiss ed without prejudice pending a ruling on appeal,” and the pe titioner filed a timely notice of appea l. Id. , slip op . at 3. T his court re viewed the petitioner’s c laims on delaye d appea l, and we aff irmed the judgments of the tria l court. Id. , slip op. at 1.

The petitioner, through counsel, amende d his pe tition for post-conviction reli ef on Ma y 31 , 20 07

. Hi s a me nd e d pe tit ion a lle ge d that tria l c ou ns e l w a s in e ff e c tiv e in f a ili ng “ to t ime ly confe r with the client a nd evaluate his defe nses on their merits,” failing to “fully discuss potential strategies and tacti ca l ch o i ce s during plea ne gotiations and prior to trial,” f ailing to “timely and eff ectively test the State’ s case through defe nsive proce dures,” failing to “conduc t a ppropriate and timely investigation , b o t h fac tual and lega l, to assist [p]etitioner in determining his defe nsive choice s,” and ma

king “independe nt tactical de cis io n s th at w e r en o t in the [p]etitioner’ s best interest.” The original pe tition for post-conviction relief further alleged that counsel wa s ineffe ctive in fa iling to evaluate the petitioner’s me ntal history in presenting an a dequate defe nse.-3- At the Februa

ry 26, 2008 evidentiary hearing on his petition, the petitioner testified that he met with trial counsel “[t]hr ee

. . . [m]aybe four” times. D uring these mee tings, the petitioner inf orme d c ou ns e l of

his “ int imate re la tio ns hip ” wi th the vic tim

. Th e pe tit ion e r state d th a t, at tria l, the victim “flatfoot lied” by denying the re lationship. The petitioner expla ined, “[ The victim] wa s saying . . . some ki nd of NAACP Marc h, or whatever, or Milli on Man Mar ch . . . wa s the rea son why he wa s helping me out and doing all of the things that he wa s doing for me at that time, and . . . he don’t know why things happene d the way the y happene d .

. . all of that wa s false.” He sa id, “I ga ve [counse l] a c ouple of witnesse s who . .

. pretty much knew [about the relationship] a nd could have te sti fi e d intria l to the fa c t th a t a lot of thi ng s th a t [ the vic tim ] w a s sayin g w a s n ot t ru e .” On e wi tne ss worke d with the victim and th e o t h er witness, his godmot her, ha d housed the pe titioner. The petitioner testified that he provided the names and telephone numbers of these witnesses to counsel

“ [m ]ayb e a

c ou pleof mon ths ” be fo re tria l a nd that he as ke d tri a l cou ns e l to su bp oe na the wi tne sse s. He ma int a ine d th a t hewa s una ble to spe ak with c ou ns e l a bo ut w hy sh e didno t c a ll the wi tne sse s, a ndthat he wa s u na wa

re that th e wi tne sse s w ou ld n ot t e sti fy on his be ha lf un til the day o f h is t

ri a l. He state d th a t c ou ns e l to ld h im that th e wi tne sse s “di dn ’t ha ve a ny thi ng re le va nt t o s a y th a t c ou ld have be nefited [ sic] [thepetitioner] in any kind of way, in trial or whateve r,” and counse l said that the witnesses’s te stimony would harm the petit ioner’s case more t han helping him. The petitioner testified, howe v e r , th at counse l never explained w hy the testimony would have da maged his def ense. The p et i t i o n er stated that counse l never informed him that she disce rned his def ense the ories as unavailing.

On cross-e xamination, the petitioner acknow ledged that none of the afor ementioned witnesses we re pr esent at the hearing to t es t i fy as t o what they would ha ve off ere d at trial. He
e xp la ine d, “ I d idn ’t ha ve a n ide a that the he ari ng wo uld be tod a y. ” He fu rthe r a dmi tte d th a t he did not issue subpoenas for

any of the witnesses whe n he filed his petition for post-c onviction relief.
The pe titioner testified that he provide d trial counsel with “e vidence to go . . . investigate as f

ar a s my psychiatric history.” H e claimed he was “bipolar” and had “mood swings with anger

bursts,” which he believed “could have played a major role

. . . into a proper defe nse.” He state d he had be en “in a couple of psychiatric f

acilities as a juvenile, and one for stre ss about two or three year s.” He explained that he suffe red f rom a “ chemica l imbalance or whateve r”; howe ver, he did not produce medical r ecor ds at the hea ring. On cross-e xamination, he admitted that he wa s not prescribed any medic ations at the time of trial. He admitted that counsel ex p lained, and he
un de rs too d, the e le me nts of a tte mpt e d p re me dit a te d f ir st de gr e e mur de r a ndthe ft a ndthat hi s c a se would be tried be fore a jury.

The pe titioner testified that the S tate offere d him two separ ate plea deals during the pretria l stages. The petiti oner rejec ted t he first offe r of eight year s’ i ncar cer ation, and the State late r offe red 10 ye ars’ incar cer ation upon a plea of guilty. He said, “[Counsel] e xplained to me that . . . you get found guilty, this is how much ti me you can get, and if you take this offer , this is how much time you can ge t.” He a dmitted that c ounsel explained that he could r ece ive a longer sentenc e if the
case went to trial; howeve r, the pe titioner maintained that he and counsel “didn’t have a discussion about . . . the fac t that [ he] would not have a defe nse in trial.” He explained, “ I wa s innocent . . . . I wa s not guilt y of pre meditated first de gree murder, and I fe lt like I had a d efe nse . . . which w as the truth, to be ab l e t o p ro v e m y i n nocenc e, so I de cided not to take the offe r.” A t one point, he-4-

“snappe d” at c ounsel bec ause she wanted him to acc ept a plea offer , but “[he ] di dn’t fee l like an offe r was the w ay [he ] wa nted to go.”

Th e p e ti ti o n e r

te s ti f ie d th a t h e f

il e d a mo ti o n to s u p p r e s s e v id e n c e o f a n a ll e g ed confe ssion made to Investigator W iley Potter. He maintaine d that he withdre w the motion upon the advice of counse l. He said, “[Counsel] . . . e xplained . . . the suppre ssion hearing would [ta ke] pla ce without . . . the jury . .

. and that the judge would deny that; and whe n he denie d it . . . she would not be able to bring it up when the investigator t ook the s tand and question him

. . . about the stateme nt in f ro nt o f .

. . thejury. ” He de te rm ine d tha t with dr a wi ng the mot ion wa s the be st o pti on be c aus e he thought that, if the judge de nied his motion, the jury “would not be able to hea r anything about [his] denying . . . t h e s t at em en t.” He c omplained that, at trial, c ounsel failed to que stion the investigator on whethe r the pe titioner made the c onfession, “which was the whole rea son why [he] told [counsel] not to suppress the statement in the first plac e.” T he petitioner te stified that counsel led him to believe that she w ould attempt to make Inve stigator P o t ter “ trip himself up” on the witness stand.

La stl y, the pe tit ion e r te sti fi e d that c ou ns e l did no t su ff ic ie ntl y dis c us s h is o pti on to testify in his own defense and that his decision not to testify was “f orce d upon [him].” Heclaimed that, at the time of trial, he did not understa nd that “[his] te stimony was the only way that the jury
wo u l d h ear

[his] side of the events.” He e xpecte d that counsel’s que stioning of witnesses and opening and c losing statements would relay his v er s ion of eve nts. On cross-e xamination, he admi t t ed t h at h e signed a waiver of rights form de claring he did not wish to testify. He said, ho we ve r, “ [C ou ns e l] didno t pr e se nt any e vidence wh e n th e [S ]t a te c los e d to thefa c t of my innocenc e, so if I took the stand, I felt like that wouldn’t have d[one] anythi n g b u t h u rt m e. ” He further testified that he was unaware that, by signing the waiver, he eff ectively e nded the tria l. The petitioner stresse d that he did not know that counse l was not prese nting defe nse wit nesses until the tim e of tr ia l, andhe ma int a ine d th a t he wa s in no c e nt.

Counsel testified that she had been a publ ic defender for nine year s. She could not
re c a ll h ow ma ny tim e s sh e me t wi th the pe tit ion e r prior to tr ia l, bu t sh e state d th a t sh e c ou ns e le d h im “[s] ever al” times. Counsel stated that she and the petitioner discussed trial strategy at every meeting. She explained, “ [The pe titioner] neve r told me that he did n ’t fi re t h at gun, he never said it here today.” Contrary to the pet i t i o n er ’s t estimony, counsel stated that she and the petitioner “ wer e focusing on large ly

. . . whether or not the [S]tate could prove preme ditation.” Counsel testified that the theft c harge was “superfluous” beca use “it was a much lesser offe nse” tha n attempted murde r. Counsel testified,

[The pe titioner] wants to talk about whe t h er he wa s innocent, but when you ha ve a c lient that’s not telling you that he d i d n’t fire the gu n, yo u d on ’t

ha ve a c lie nt that’ s te lli ng yo u th a t he’s co mpl e te ly inn oc e nt. Yo u h a ve a

c lie nt that’ s tryin g to te ll y ou that yo u n e e d to find a way to get him a lesser c harge or to find a way to not let the [S ]t a te pr ov e its c a se in s ome re sp e c t.-5-

Counsel testified th at s h e explained to the petitioner the e lements of the c harge s against him and Tenne ssee’ s law on pre meditation.

Regarding the w itnesses that the petitioner wishe d to pr esent at trial, counsel testified that she thought the witnesses desc ribed to her “we re chara cter

witnesses.” She state d that she “trie d to explain to him that those witnesses would be much more appropriate for a sente ncing hea ring.” Coun sel gleane d from mee ting with the petitioner that these witnesses w ould testify to the petitioner’s diff

icult childhood and the natur e of his re lationship with t he vic t i m

. S h e s aid, “[ I]t didn’t seem to me that they ha d any knowledge rele vant t o t h e fa cts of the c ase.” Counsel
ma int a ine d th a t sh e inf

orme d the pe tit ion e r that the wi tne sse s we re ir re le va nt o n s e ve ra l oc c a sio ns

. On cr oss-exa mi n at i o n , s he ac knowledged that she did not contact the w itnesses, despite the petitioner providing her

telephone numbe rs. She re called informing the petit ioner, prior to trial, that no witnesses wo u ld testify on his behalf at tria l. She acknowle dged that the pe titioner seemed surprised to learn that she had subpoe naed no w itnesses, but “[the pe titioner] was a lways surprise d when things didn’t go his way.”

Cou ns e l st a te d th a t sh e “ tr ie d to tou c h” on the a lle ged ho mos e xu a l r e la tio ns hip betwee n the petitioner a nd the victim at trial; h o we v er , she stated, “ [W] ith that subject, there w as also the danger of alienat[ ing] the jury, and I tried to e xplain that conce pt to him too, that we we re sort of wa lking a fine line ther e.” She “ didn’t hammer on” the issue bec ause she op i n ed that the testimony would harm his case mor e than it would help. On cross-e xamination, she stated that the petitioner, at times, thought his relationship with the vi ctim was im portant t o his defense ; however , a t othe r t ime s in tr ia l pr e pa ratio n, he didno t th ink

the re la tio ns hip imp orta nt. She e xp la ine d th a t, in her opinion, “if [ the jury] be lieved that [the petitione r] s h o t at [the victim], and they wer e homosexuals, . . . how does that make that better? ” Counsel ac knowledged that in her ca se notes she had written that one possible witness “[w ]arned the [ petitioner] that the victim was gay/pre datory.” She also had written a note that anothe r witness work ed at t he Te nnessee Depa rtment of Human Service s and suggested a “[f]ather-son” relationship between the pe titioner and the victim. Counsel testified that the petitioner ne ver discusse d self-de fense as a de fense theory.

Counsel testified that she wa s not awar e o f an y m en t al hea lth issues unti l after the trial. S h e t estified that the pe titioner never mentioned any menta l health problems and that she be lie ve d th a t th e pe tit ion e r w a s c apa ble of un de rs ta nd ing a ndapp re c ia tin g th e c ha rg e s a ga ins t hi m. Although she “observed . . . some bad be havior fr om him,” she neve r obser ved any be havior that led her to re quest “a fore nsic evaluation to determine competenc e or insanity at the time of the offe nse” or to ask for

a jury instruction on insanity or diminished capa city. When as k ed whether the witnesses provided by the petitioner could have provided m ental health history, counsel responde d, “It wa s also possible that [the petitioner] could have done that, but he didn’t.” Counsel noted that the pe tit ion e r m e nti oned he was “ bip ola r, ” a ndsh e e xp la ine d th a t, u po n le arn ing abo ut this condition, it would have be en “e xterme[ ly] difficult” or “impossible” to get an e xpert to testify for the petitioner.

Re ga

rd ing themot ionto s up pr e ss e vid e nc e of the peti tio ne r’ s st a te me nts to Investigator Potter, co u n s el t es t i fi ed t h atd u ri n g o ra l ar g u m en to f t h e m o t i o n , t h e p et i t i o n erex p re s s ed his de s i re to withdraw the motion. She explaine d, “Thelikelihood of succe ss, honestly, was-6-

probabl y n o t g o o d

. But itwas one of those motions that probably nee ded to be a rgued.” She testified that the supposed c onfession wa s neither r ecor ded nor w ritten and that t h e petitioner claimed “ the investigator [w as] putting words into his mouth.” Counsel testified that she abided by the petitioner’s de cision to withdraw t h e motion because“[she ] could still cross-examine Investigator Potter at trial.”

Counsel testified that she pre sented both of the State’s plea of fer s to the petitioner. Upon pre senting the petitioner with the eight-ye ar of fer , he responded that “he wasn’t going t o take anything that didn’t give him tim e se rv ed

. He wanted out of jail, period.” She te stified that the pe tit ion e r t oldhe r h e be lie ve d th a t a s th e tr ia l date app ro a c he d, themor e le nie nt the ple a of fe r w ou ld become . She explained to him that his strat eg y wa s i n corr ect and that he would likely re ceive a harshe r sentenc e. Fu rt h er, she explained that she believe d that the petitioner did not have a le git imate c ha nc e of

be ing a c qu itt e d a ndthat he sh ou ld c on sid e r the ple a of fe rs

. Cou ns e l disc us se d the imp lic a tio ns of the pe tit ion e r’ s tes tif yin g in his ownde fe ns e at trial, and she told him t hat “he was the only one who could dec ide that.”

At the c los e of

pr oo f, the po st- c on vic tio n c ou rt op ine d o n c ou ns e l’ s d e c isi on no t to

“ ha mme r” on thepe tit ion e r’ s a lle ge d r omanti c re la tio ns hip wi th the vic tim ,

There ’s . . . just some allusion here tod ay about ther e wa s [a ho mos e xu a l] re la tio ns hip . Bu t ho w d oe s th a t impa c t the de c isi on in this case? How does the decision not to prese nt that in a forcef ul way by c ou ns e l a t th e tr ia l, .

. . ho w w a s th a t li ke ly t o c ha ng e there su lts ? I don’t think it would have any be aring o n it. . . . With the fac ts as they were presented at trial, it would be awf ully hard to suggest [the shooting] didn’t hap p en , t hat he’ s lying about it. I guess [the pe tit ion e r] is s a yin g .

. . , “ I d on ’t de ny sh oo tin g h im, bu t I do n’ t - - i t didn’t happen like he said it ha ppened.” I don’t think there ’s enough proof he re to suggest that that would ha ve made any diffe renc e.
As for the petitioner’ s argume nt that counsel should have f urther inve stigated the witnesses provided by the petitioner, the post-c onviction court ac knowledged th at “i t would have been be tter” f

or counse l “to have talked to those witnesses to find out exac tly what they wer e going to say”; however, the post-conviction court cre dited counsel’s de termination that the witnesses we re “cha rac ter witnesse s” and her tactica l de cision not to call them at tria l. The post-convic tion court fu rthe r n ote d th a t th e pe tit ion e r d id n ot p re se nt the se wi tne sse s f or the he ari ng, so the c ou rt

c ou ld not determine any prejudice. It stated, “[W ]e don’ t know. We ha ven’t he ard f rom them. We don’t ha ve a ny a ff

ida vit , we do n’ t ha ve a ny kn ow le dg e of wh a t the y’ re go ing to say a nd ho w that w ou ld have ma de any dif

fer ence .”
The post-c onviction court noted that “[t]he re wasn’t anything prese nted [at any time] that suggest[ed] that [the pe titioner] wasn’ t competent to stand trial.” T he post-con v i ct i o n court fu rthe r fo un d tha t no evi de nc e su gg e ste d insanity or dim ini sh e d ca pa c ity

. Th e c ou rt state d, “ Al l in all, it seems . . . that counsel wa s eff ective,” and the c ourt denied post-c onviction relief. On Marc h-7-

6, 2008, the post-conviction court fi l ed a w ritten order summarizing its findings and denying the petition for post-conviction re lief.

The pe titioner appea ls the denial of post-conviction re lief, and he posits that counsel failed to a dequate ly investigate the ca se and inform t h e p et i t i o n er of her theories of

the ca se. He
c on te nd s th a t th is f

a ilu re c aus e d h im t o mi su nd e rs ta ndthec ir c ums ta nc e s a ndwe akn ess e s o f h is defe nse, and, ba sed on that misunderstanding, he r ejec ted that State’s plea offe rs. He states that he “we nt into his trial believing t hat he would have witnesses to testify on his behalf, and that he had at least one [m]otion filed that his at t o rn ey wo u l d argue in an ef fort to suppress c erta in evidence
a ga ins t him. ” He arg ue s tha t “he [w a s not] a dv ise d pri or to t ri a l th a t hi s o wn te sti mon y w a s th e on ly te sti mon y th a t c ou ld p os sib ly p ro vid e pr oo f o f the inn oc e nc e he c la ims to h a ve c on tin ua lly maintained.” T he State, obviously, argue s that t h e p o s t -conviction court properly denied the petitioner re lief.

The post- c o n v ic ti o n p e ti ti o n e r b e ar s th e b u r d e n o f

p r o v in g h is a ll e g a ti o n s b y c le ar a ndc on vin c ing e vid e nc e

. T. C.A

. § 40 -3 0- 11 0( f) (2 00 6) . O n a pp e a l, the app e llate c ou rt

a c c or ds to the post-conviction court’s fi n d i n g s o f fact the weight of a jury verdic t, and these f indings are conclusive on a

ppeal unless the e vidence preponde rate s against them. He nle y v . S tat e , 960 S.W.2d 57 2, 57 8- 79 (T e nn . 1 99 7) ; Ba te s v . Stat e , 9 73 S.W .2 d 6 15 , 6 31 (T e nn . Crim. Ap p. 19 97 ). By contra st, the post-conviction court’ s conclusions of law r ec ei ve no def ere nce or presumption of
corr ectne ss on appea l. Fi e lds v . S tat e , 40 S.W.3d 450, 453 (Tenn. 2001)

.

When a petitioner seeks post-conviction relief on t he basis of ine ffe ctive assistanc e of counse l, he must fi rs t establish that the servic es re ndere d or the a dvice given w ere below “the range of comp etenc e demanded of attorneys in criminal ca ses.” Ba x te r v . R os e , 523 S.W.2d 930, 936 (Tenn. 1975)

. Second, he must show that the defic iencies “ac tually ha d an adver se ef fec t on the defe nse.” Strickland v. Washington , 466 U.S. 668, 693, 104 S

. C t

. 2 052, 2067 (1984). The err or must be so serious as to re nder an u n re l i ab l e re sult. Id. at 687, 104 S. Ct. at 2064. It is not
nece ssary, howe ver, that absent the defic iency, the trial would have resulted in an a cquittal. Id. at 69 5, 10 4 S. Ct. a t 20 68 . Sh ou ld the peti ti one r f a il t o e sta bli sh e ith e r f

a c tor , h e is n ot e nti tle d to
re lie f. Ou r s up re me c ou rt de sc ri be d th e stand ardof re vie w a s f

oll ow s:

Because a petitioner m ust establish both prongs of the te st, a failure to p ro ve e ith e r d e fi c ie nc y o r p re jud ic e pr ov ide s a su ff ic ie nt b a sis to d e ny rel ie f o n th e ine ff e c tiv e a ssi stanc e c la im. Indeed, a c ourt nee d not addre ss the components in any pa rticular order or eve n addre ss both if the defe ndant makes an i n sufficie nt sh ow ing of

on e c omp on e nt.

Go ad v . S tat e , 938 S.W.2d 363, 370 (Tenn. 1996)

. On claims of inef

fec tive assistance of counse l, the petitio n er i s not entitled to the benef it of hindsight, m ay not sec ond-guess a rea sonably based trial strategy, and cannot criticize a s o u n d , but unsucce ssful, tactica l decision made during the course of the proc eedings. A d k in s v. Sta te , 911 S.W.2d 3 3 4 , 347 (Tenn. Crim. App. 1994) . Such defe renc e to the tac tical dec isions of-8-

counsel, howe ver, a

pplies only if the choice s are made a fter ad eq u ate pr epar ation for the c ase. Coo pe r v . S tat e , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992)

.

Cl a im s o f in e f f e c ti v e a s s is tan c e o f

c o u n s e l a

r e r e g ar d e d a s mi x e d q u e s ti o n s o f la w and fa ct. Sta te v . H

on ey c utt , 5 4 S. W .3 d 7 62 , 7 66 -6 7 ( Te nn . 2 00 1) ; State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999) . When r eviewing the a pplication of law to the p o s t -c o n viction court’s fa ctual findings, our revie w is de novo, and the post-conviction court’s conclusions of law are given no presumption of correc tness. Fields , 40 S.W .3 d at 45 7- 58 ; see also State v. E ngland , 19 S.W.3d 762, 766 (Tenn. 2000)

.

The e vidence adduce d at t he hearing supports the post-convic tion court’s denia l of relief to the petitioner. Counsel tes t i fi ed that she discussed with the pe titioner the theory of challenging the element of preme ditation for the attempted premeditated first degree murder c harge

. She discussed trial strate gy at ev ery me eting. Although she could not specif y the number of meetings she held with the petitioner, she st ated that she met with him “[s]eve ral” times. Counsel had bee n a public defende r for nine years, and she used he r judgment in determining the strate gy and ta c tic s u se d at tria l.

We a gree with the post-conviction court that co u n s el ’s decision not t o call the witnesses put forth by the pe titioner was a ta ctical c hoice not to be r eeva luat ed i n h i n d sight. The po st- c onvi cti on cou rt“cred it ed co un sel ’s d ete rm in ati on th at t he w it nes ses were ch aract er wi tnes se s” and noted that the pe titioner had not produce d these witnesse s to pro v e otherwise. “ When a [po s t -c o n v i ction] petitioner c ontends that trial counse l failed to discover , interview, or prese nt witnesses in support of his defe nse, these w itnesses should be pre sented by the pe titioner at the evidentiary hearing.” Bl ac k v . S tat e , 79 4 S.W .2 d 7 52 , 7 57 (T e nn . Crim. Ap p. 19 90 ). If he fails to do so, he gene rally fails to establish ineffe ctive assist ance of counse l. Id. The post-c onviction court may not speculate “on the question of .

. . what a witness’s t estimony might have been if introduced” at trial. Id. ; se e als o W

ad e v . S tat e , 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995) . The pe titioner has fa iled to show any pre judice, and we will not disturb the post-conviction court’s determination.
Further, we do not disturb the post-conviction court’s f inding that counsel’s dec ision not to “hammer on” the alleged homosexual relationship betwe en the victim and the pe titioner was a sound tac tical dec ision. We will not dis turb counsel’ s determination that conc entrating on the nature of the men’ s relationship could possibly alienate the jury. We further note that nothing in the trial or hea

ring evidenc e suggests that this evidence would have aided the petitioner’ s defe nse and may have , in fac t, helped the State’ s proof of preme ditation. We also ca nnot determine any resulting prejudice beca

use we note t hat our opinion rega rding the petit ioner’s 2003 direc t appea l suggested the natur e of

the re la tio ns hip , est abli sh ing that the natur e of the re la tio ns hip wa s pre se nte d to so me degre e at tria l. See Mo ra ni I , slip op. at 2.

T h ep e ti ti o n e r a

rg ue s th a t be c aus e of

ina de qu a te c ommun ic a tio n f ro m c ou ns e l, h e did not have the pr oper know ledge to eva luate whether to acce pt plea off ers f rom the State and w hether to testify at t rial. Counsel testified that, prior to trial, she informed the pe titioner that no witnesses would testify at trial and that she and the pe titioner discussed a s t ra tegy foc used on cha llenging preme ditation. Counsel testi fied that the pe titioner was unwilling to acce pt the plea of fer s and that-9-

she advised a gainst his strategy that the State would bec ome more le nient as t rial appr oache d. The petitione r ad m i t t ed t h at counse l explained the se verity of the se ntence he could r ece ive at trial a s compar ed with the plea offe rs. Counsel also stated that she be lieved the pe titioner understood her explanations during their meetings and t h at she observe d no mental hea lth defec ts that would prevent him fr om c omp re he nd ing . S he com mun ic a te d to the pe tit ion e r that sh e be lie ve d h e ha d li ttl e po ssi bil ity of

be ing a c qu itt e d b y th e jury. Th e po st- c on vic tio n c ou rt , inde ny ing re lie f, c le arl y c re dit e d th e c ou ns e l’ s te sti mon y o ve r that of the peti ti on er, a ndwe dis c e rnno e rr or in i ts determination that counsel ade quately informe d the petitioner.

Alth ough the post-conviction court did not explicitly rule upon whether the wi t hdraw ing of the petitioner’ s motion t o suppress provide d sufficie nt grounds for inef fec tive assistan c e o f

c o u n s e l, w e n o teth a t i t r o u n d ly r e je c te d th e p e ti ti o n e r ’ s te s ti mo n y a n d c redited counsel ’s t estimony. Counsel testified that, during argument on the motion to suppress, the pe tit ion e r a sk e d h e r t o w ith dr a w the mot ion . Fu rthe r, sh e op ine d th a t the motio n w a s u nli ke ly t o succe ed and that she cha llenged the a lleged conf ession through cross- examination of I nvestigator Potter. The petitioner f

ails to show by clea

r and convincing evide nce that counsel’s de cision, as per the petitioner’s r equest, not to pursue the motion to s uppress violated his right to effe ctive assistanc e of c ou ns e l.
On appe al, the petitioner a bandons his grounds t hat counsel was ineffec tive in failing to investigate the petitioner’ s mental hea lth. We cr edit the post-conviction court’s findings that such argume nts are una vailing and fa il to establish grounds for post-conviction re lief.

Because the petitioner has failed to show by clea r and convincing evi d en ce t hat counsel’s pe rformancefell below the range of compe tence demande d of attorneys in criminal case s or that counse l’s defic ient perf ormanc e prejudice d his de fense , we aff irm the post-conviction court’s denial of r elief.

___________________________________ JAMES CURWOOD WI TT, JR., JUDGE