IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 10, 2012

PATRICK TRAWICK v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Shelby County

No. 02-08616 J. Robert Carter, Jr., Judge

No. W2011-02670-CCA-R3-PC - Filed August 31, 2012

The petitioner, Patrick Trawick, appeals the denial of his petition for post-conviction relief,

arguing that his trial counsel provided ineffective assistance by advising him not to testify

at trial, which precluded him from presenting his only viable defense. Following our review,

we affirm the denial of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS

and CAMILLE R. MCMULLEN, JJ., joined.

Robert Brooks, Memphis, Tennessee, for the appellant, Patrick Trawick.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy

P. Weirich, District Attorney General; and Betsy Wiseman, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

In 2008, the petitioner was convicted by a Shelby County Criminal Court jury of first

degree premeditated murder and two counts of aggravated assault, for which he received an

effective sentence of life without parole plus six years. His convictions were affirmed by this

court on direct appeal, and oursupreme court denied his application for permission to appeal.

State v. Patrick Trawick, No. W2008-02675-CCA-R3-CD, 2010 WL 2349188, at *1 (Tenn.

Crim. App. June 9, 2010), perm. app. denied (Tenn. Nov. 18, 2010).
Our direct appeal opinion reveals that the petitioner’s convictions were based on his

actions of September 30, 2002, in which he fired a gun at his estranged girlfriend, Tujauna

Smith, and her companion, Darryl Turner, during a vehicle chase through the streets of

Memphis, followed Smith on foot into a Mapco service station, pistol whipped her, and then

fired multiple gunshots at her, killing her. Id. at *1-2. Several eyewitnesses to the chase and

the shooting testified at trial, including two store employees and two customers. Id. at *2-3.

One of these, the store’s manager, testified that the petitioner shot the victim six or seven

times, holding the victim for the first two or three shots and then letting her fall to the ground

before continuing to shoot at her until he emptied his gun. Id. at *2. The store manager also

identified the store’s surveillance tape, which recorded the entire incident. The surveillance

tape was admitted as an exhibit and shown to the jury. Id. at *3. One of the store’s

customers testified that when the petitioner and the victim first pulled up to the store, he

heard the angry petitioner asking the victim why she was with another man and questioning

her as to whether his baby was in the car with the victim. That same witness, along with

another, described how the petitioner checked the backseat of the victim’s car after he shot

her. Id.

On May 26, 2011, with the assistance of post-conviction counsel, the petitioner filed

a petition for post-conviction relief in which he raised a claim of ineffective assistance of

trial counsel. Specifically, he alleged that his trial counsel were deficient for advising him

not to testify. The petitioner asserted that, without his testimony, he was “deprived of a

substantial defense and the jury was left with no other choice but to convict as charged.”

At the evidentiary hearing, the petitioner testified that he wanted to testify at trial but

decided not to based on the advice of his counsel, who told him that it would not be in his

best interest given that the trial court had ruled that the State could introduce his prior

convictions for rape and burglary. Had he testified at trial, he would have offered the

following testimony: His ex-girlfriend, Smith, called him on the day of the incident to ask

him to meet her at his mother’s house so that she could bring their nine-month-old daughter

to him. He called her back, and a man who answered the phone hung up on him. He called

again, and when Smith answered, he said that he hoped she was not prostituting herself for

drugs again and that she did not have their daughter around such “stuff.” According to the

petitioner, Smith replied that both she and their nine-month-old baby were “sucking [the]

man’s penis,” and then hung up on him. The petitioner said that when he heard Smith’s

words about their daughter, it felt as if “a bomb . . . exploded inside of [him].”

About twenty minutes later, Smith called the petitioner back and told him to meet her

at his mother’s house. En route, the petitioner spotted Smith’s car with Smith and what

appeared to be two men inside. He also saw his baby’s car seat in the vehicle. He pulled up,

and Smith, who was in the driver’s seat, raised her head up, appearing to the petitioner as if

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she had been in the act of performing oral sex on Darryl Turner, who was in the front

passenger seat. The petitioner said that Turner fired a gun at him and that he then fled in his

vehicle, chased by Smith and Turner in their vehicle. During the ensuing chase, a gun fell

out of the visor in the petitioner’s vehicle and the petitioner grabbed it. The petitioner said

that Turner fired a couple more shots at him during the chase. He stated that he returned the

gunfire in an effort to make Smith and Turner back off, but that he aimed only at Smith’s

tires because he believed his baby was in Smith’s car.

The petitioner testified that at some point during the car chase, Smith slowed her

vehicle and Turner jumped out. Soon thereafter, a laughing Smith called him on his cell

phone and told him to follow her to the Mapco station. The petitioner said he accused Smith

of having “blow[n] [her] private parts out” by having sex with the men he had seen in her car

and that she replied, “Yeah, your daughter’s pussy wore out, too” before jumping out of her

vehicle and running into the Mapco store. Although he could not remember everything that

happened after that, he recalled having followed Smith into the store, hearing some shots

during a time that he felt “outside of [himself],” and then running outside to Smith’s car to

check on his baby, who, as it turned out, was not in the vehicle after all. The petitioner also

recalled that he was crying because he was so upset. He said it was never his intention to

hurt Smith or anyone else.

The petitioner further testified that he knew that Smith had, in the past, prostituted

girls as young as eleven in order to get money to support her drug habit. According to the

petitioner, his sister had also warned him to watch his baby when she was around Smith.

On cross-examination, the petitioner acknowledged that it had been his decision not

to testify. He reiterated, however, that he had wanted to testify and that he had based his

decision not to testify on the advice of counsel.

The petitioner’s sister, Takesha Trawick Smith, testified that the victim, Tujauna

Smith, called her once to ask if she knew of any young girls that she (Tujauna Smith) could

“pimp out.” The witness said that she informed the petitioner of that conversation, as well

as the fact that she had heard from numerous people that Tujauna was being paid to let men

fondle the petitioner’s baby. She also told the petitioner that Turner was a pedophile and that

he had been having sexual intercourse with her eleven-year-old daughter. She did not,

however, inform the petitioner’s trial counsel of what she knew about Turner.

The petitioner’s senior trial counsel, whom post-conviction counsel stipulated was

“one of the finest criminal defense lawyers in Shelby County,” testified that he argued at the

Morgan hearing that the State should not be allowed to use the petitioner’s prior rape

conviction as impeachment because both it and the crime for which the petitioner was on trial

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involved violence against women. The trial court, however, disagreed. After its ruling, the

court granted counsel a break to talk with the petitioner and his family about the petitioner’s

decision about testifying. Trial counselsaid that both he and the petitioner’s family members

advised the petitioner not to take the stand in light of the court’s ruling. Counsel explained

that he informed the petitioner of his opinion that the rape conviction would be “very, very

harmful” to the petitioner’s case and would outweigh any potential benefit that could be

gained by the petitioner’s testimony. He said that, had the trial court excluded the rape

conviction, his advice to the petitioner would have been different.

Trial counsel further testified that his argument to the jury, which was the only one

available to him given the State’s strong evidence against the petitioner, wasthat the shooting

had occurred while the petitioner was in a state of passion and intense excitement.

On November 14, 2011, the post-conviction court entered an order denying the

petition for post-conviction relief. This appeal followed.

ANALYSIS

The post-conviction petitioner bears the burden of proving his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary

hearing is held in the post-conviction setting, the findings of fact made by the court are

conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State,

922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,

the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960

S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to

the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

S.W.2d 95, 96 (Tenn. 1998). The issues of ineffective assistance of counsel, which presents

mixed questions of fact and law, is reviewed de novo, with a presumption of correctness

given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

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functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

Moreover, the reviewing court must indulge a strong presumption that the conduct of counsel

falls within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,

and may not second-guess the tactical and strategic choices made by trial counsel unless

those choices were uninformed because of inadequate preparation. See Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a

reasonable probability, i.e., a “probability sufficient to undermine confidence in the

outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.

at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or

prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

In denying the petition, the post-conviction court found that trial counsel’s advice to

the petitioner about testifying was part of a sound defense strategy based on counsel’s

experience, and that the decision not to testify was the petitioner’s. The court, therefore,

concluded that the petitioner had failed to meet the deficient performance prong of the

Strickland test for ineffective assistance of counsel.

The record fully supports the findings and conclusions of the post-conviction court.

The petitioner acknowledged that it had been his decision not to testify, but blamed the

decision on the allegedly defective advice of trial counsel. Trial counsel, however, explained

that the basis of his decision was the trial court’s ruling that the State could impeach the

petitioner’s testimony with his prior conviction for rape, which counsel believed would be

very harmful to the petitioner’s case and would outweigh any possible benefit that could be

gained by the petitioner’s testimony. There was no evidence that trial counsel was in any

way unprepared for the case, and post-conviction counsel stipulated to trial counsel’s

extensive experience and excellent reputation as a criminal defense attorney in Shelby

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County. As the post-conviction court noted in its order, this court has previously affirmed

the denial of post-conviction relief based on a claim of counsel’s allegedly defective advice

about testifying when the evidence showed that the petitioner knowingly waived the right to

testify after heeding the informed advice of counsel. See Almeer K. Nance v. State, No.

E2008-00857-CCA-R3-PC, 2009 WL 160919, at *5 (Tenn. Crim. App.Jan. 23, 2009), perm.

app. denied (Tenn. Apr. 27, 2009); Mindy Sue Dodd v. State, No. M2006-02384-CCA-R3-

PC, 2007 WL 2949020, at *9 (Tenn. Crim. App. Oct. 10, 2007). We, therefore, agree with

the post-conviction court that the petitioner failed to show that counsel was deficient in the

advice he gave the petitioner.

CONCLUSION

Based on our review, we conclude that the petitioner has not met his burden of

establishing that he was denied the effective assistance of trial counsel. Accordingly, we

affirm the denial of the petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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