IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

July 23, 2014 Session

JAMES ALFRED REED, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Monroe County

No. 12378 Amy A. Reedy, Judge

No. E2014-00227-CCA-R3-PC - Filed September 4, 2014

A Monroe County jury convicted the Petitioner, James Alfred Reed, Jr., of one count of the

sale of one-half gram or more of cocaine within 1000 feet of a school and one count of the

sale of less than one-half gram of cocaine within 1000 feet of a school. The trial court

sentenced him as a Range II, multiple offender and ordered the Petitioner to serve an

effective sentence of forty years. The Petitioner appealed, and this Court affirmed the

judgments of the trial court. State v. James Alfred Reed, Jr., No. E2010-01138-CCA-R3-CD,

2011 WL 2766766, at *5 (Tenn. Crim. App., at Knoxville, July 18, 2011), perm. app. denied

(Tenn. Dec. 13, 2011). The Petitioner subsequently filed a petition for post-conviction relief

in which he alleged that his trial counsel was ineffective for failing to file a motion to compel

the State to disclose its confidential informant at trial and that his Momon hearing was

improperly conducted. The post-conviction court dismissed the petition after a hearing.

After a thorough review of the record and applicable law, we affirm the post-conviction

court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JAMES CURWOOD

WITT, JR., J., and TIMOTHY L. EASTER, SP. J., joined.

W. Tyler Weiss, Madisonville, Tennessee, for the Appellant, James Alfred Reed, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Steven Bebb, District Attorney General; Heather Higginbotham, Assistant District

Attorney General, for the Appellee, State of Tennessee.

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OPINION

I. Facts

A. Trial

This case arises from the Defendant’s sale of cocaine near Vonore Elementary School

in Vonore, Tennessee. On direct appeal, this Court summarized the underlying facts of the

case as follows:

At the trial, Vonore Police Lieutenant Robby Lovingood testified that

he investigated narcotics cases. He said that on June 20, 2008, a confidential

informant called him and said, “I’ve got a guy that sells crack cocaine.” He

said the alleged dealer lived in Blount County. He said that he called the

Blount County Police to see if they were interested in investigating but that

they declined because they were too understaffed. He said that he asked the

informant if the transaction could be in Vonore and that the informant agreed.

He said they agreed on a location they previously used because it was on the

highway with a good surveillance spot.

Lieutenant Lovingood testified that he and the confidential informant

met at the WilSav Drug Store in Vonore off Highway 411 near Vonore

Elementary School at about 8:00 p.m. He said that he was in contact with the

informant before arriving at the scene but that he did not see the [Petitioner]

until he arrived. He said he wore a body wire and took currency that he

photocopied for identification purposes. He said he paid the [Petitioner] $220

for the crack cocaine.

Lieutenant Lovingood testified that he thought the confidential

informant and the [Petitioner] arrived in a van. He said he and the informant

arrived at about the same time, got out of their vehicles, and greeted each

other. He said he asked the informant if the man in the van was the one selling

crack. He said that he entered the driver’s seat of the van and that the

[Petitioner] was the only person in the van. He said he did not see where the

informant went during that time.

Lieutenant Lovingood testified that he did not give his real name or tell

the [Petitioner] he was a police officer. He said he pointed out Vonore

Elementary School and told the [Petitioner] he was a teacher there. He said

that he asked if the [Petitioner] had what he needed and that the [Petitioner]

looked at and pointed his finger at the floorboard. He said the [Petitioner]

would not speak. He said he looked at where the [Petitioner] pointed and saw

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a plastic bag containing crack cocaine.

Lieutenant Lovingood testified that he and the [Petitioner] left the

parking lot at about the same time. He said he put the crack cocaine in a

cellophane bag, sealed it, took it to the Vonore Police Department, placed the

cellophane bag inside an evidence bag, put it in the evidence locker, and had

it transported to the Tennessee Bureau of Investigation (TBI). He said that

Vonore Police Officer Shane Carr transported items to the TBI laboratory for

the department and that to his knowledge, Officer Carr transported the

evidence bag. He identified the examination request he completed for the TBI

laboratory and the TBI laboratory’s report and said that both were dated June

20, 2008.

Lieutenant Lovingood testified that on June 26, 2008, the confidential

informant contacted him and arranged a second meeting. He said he met the

informant and the [Petitioner] between 9:00 and 9:30 p.m. at the Wil-Save

Drug Store in Vonore. He said the informant drove the [Petitioner] to the

meeting in the same van as on June 20. He said he photocopied the currency

for identification and wore a body wire. He said that the informant left before

the transaction and that he was alone in the van with the [Petitioner]. He said

that he left $80 in the van and that he left the van with a plastic bag containing

crack cocaine. After he left the van, other police officers took the [Petitioner]

into custody.

Lieutenant Lovingood testified that he took the cocaine to the Vonore

Police Department, placed it in an evidence bag, and put it in the evidence

locker. He identified the evidence bag and said Officer Carr transported the

evidence bag to the TBI laboratory. He identified the June 26, 2008

examination request and the laboratory report he received on the sample.

Lieutenant Lovingood testified that during one of the two transactions,

the [Petitioner] told him that if he set the money on the floor, it would not be

a “sell and delivery.” He said he was not sure if this conversation took place

during the first or second transaction but that the tape would provide that

information. He said he put the money on the floorboard and took the crack

cocaine. He said that when he left the van, the [Petitioner] was the only person

inside.

Lieutenant Lovingood testified that students attended Vonore

Elementary School daily and that it was within 1000 feet of the Wil-Save Drug

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Store. He said that he had measured the distance but that he did not remember

the exact measurement. He said the store property connected to the school

property.

On cross-examination, Lieutenant Lovingood testified that he was not

with Officer Carr when Officer Carr took the evidence to the TBI laboratory.

He said that he was trained to conduct undercover drug operations but that no

training existed for working with confidential informants. He agreed he

investigated informants before working with them. He agreed that some

informants tried to help themselves after being charged with crimes and that

other informants were paid money by law enforcement. He said the informant

in this case was paid for both transactions. He did not remember how much

the informant was paid but said the department typically paid $100 for an

“indictment bust.”

Lieutenant Lovingood testified that the confidential informant also

worked with the Bureau of Alcohol, Tobacco, Firearms, and Explosives(ATF)

and the Drug Enforcement Administration (DEA). He said that the informant

called him a couple of times a week when the informant found a

methamphetamine laboratory or someone selling drugs. He said that he

worked with the informant for slightly less than a year and that the informant

set up other drug “busts,” although he did not remember if those were before

the [Petitioner’s] arrest. He said that he did not investigate the informant’s

employment but that the informant told him he worked in construction. He

said he did not administer a drug test on the informant. He said that he met

with the informant in person many times but that he only talked to him about

the [Petitioner] on the telephone.

Lieutenant Lovingood testified that he recorded transactions using

either a body wire or a digital recorder. He said that the body wire was a little

box with an antenna and wire running from it, that he could hide it in his

clothes or hand, and that it picked up the conversation of the person wearing

the wire and those around him. He said that the transmission from the body

wire could be heard in “real time” from about a quarter-mile away but that

weather and background noise could affect clarity. He said that he also had

digital recorders but that he did not have enough for all cases. He said that he

had a camcorder but that he could only use it to record a transaction if he could

hide the camera.

Lieutenant Lovingood testified that both transactions with the

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[Petitioner] occurred in the evening but that it was not “pitch dark.” He agreed

the only information he knew about the [Petitioner] before the first transaction

was what the confidential informant told him. He said he knew the [Petitioner]

did not have a driver’s license and would not drive to the meeting. He said

that he did not investigate the [Petitioner’s] background until after the arrest

and that then he only investigated the [Petitioner’s] criminal history.

Lieutenant Lovingood testified that he did not monitor any

conversations between the confidential informant and the [Petitioner]. He said

he did not have an opportunity to search the informant’s van before either

transaction. He said he set the ground rules with the informant, including the

requirement that the informant leave before each transaction. He agreed it was

ideal to search an informant and his vehicle before a transaction to ensure that

any drugs found did not belong to the informant. He said he could not search

the informant before the transactions in this case because he did not have

jurisdiction to search people and arrange deals in Blount County.

Lieutenant Lovingood testified that June 20, 2008, was a Friday and

that June 26 was a Thursday. He agreed the elementary school was not in

session for the summer. He said that he had used the Wil-Save Drug Store

parking lot for other drug transactions, that he had measured the distance from

the store to the school at under 1000 feet, and that no fence separated the store

and the school.

Lieutenant Lovingood testified that the confidential informant, the

[Petitioner], and he did not discuss either transaction when all three were

together. He said that he did not remember exactly what he and the informant

said when they greeted each other but that he remembered pointing toward the

[Petitioner], who was still in the van, and asking if the informant had him

“hooked up.” He said he told the [Petitioner] he was the informant’s cousin.

He said that during the first transaction, he told the [Petitioner] the crack

cocaine was for his wife or girlfriend in order to keep the [Petitioner] from

asking him to smoke some.

Lieutenant Lovingood testified that he searched the confidential

informant and the informant’s van after the second transaction but that he did

not search after the first transaction. He said the police ordered the informant

and the [Petitioner] to take off their shoes in order to search them thoroughly.

He said that when the [Petitioner] was arrested, the [Petitioner] had only his

clothes, a marijuana pipe, and a cast on his arm. He said that the [Petitioner]

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had no money in his possession at the time of the arrest and that the police

found no additional drug paraphernalia. He said that the cocaine in the first

transaction weighed 1.3 grams and that the crack cocaine in the second

transaction weighed 0.3 grams.

Lieutenant Lovingood testified that he did not recover the money after

the first transaction but that he recovered the money from the van floorboard

near the passenger seat after the second transaction. He said that after the first

transaction, he paid the confidential informant by sending an officer to him

with the money. He said that after the second transaction, he “took down” the

informant as well as the [Petitioner] to make it look like the informant did not

set up the [Petitioner]. He agreed the informant had a cell phone and had met

him in Vonore before. He said that all he knew about where the drugs

originated was that they came from Alcoa in Blount County.

On redirect examination, Lieutenant Lovingood testified that a “buy

bust” referred to when the police arranged a controlled purchase, in which the

officer buying the drugs gave a take-down signal to other officers, who then

took the suspect into custody. He said the [Petitioner’s] arrest on June 26,

2008, was the result of a buy bust. He said he decided to arrange the buy bust

for the second transaction because he wanted to show that the [Petitioner] sold

the drugs more than once but also because he did not want to waste drug fund

money by arranging additional transactions. He said he also needed to arrange

the drug bust to obtain complete identification of the [Petitioner] that he could

not obtain from the confidential informant. He said that he was the designated

buyer for the buy bust and that the informant was not involved in the

transaction. He agreed he arranged each transaction to be between the

[Petitioner] and him only.

On recross-examination, Lieutenant Lovingood testified that he often

had confidential informants purchase drugs for him because many suspects in

his area recognized him. He said he searched informants before they

purchased drugs in those situations. He said that in this case, the [Petitioner]

did not know him, which allowed him to speak with the [Petitioner] about the

drugs and purchase the drugs. He agreed he did not record what happened

with the confidential informant before the transactions.

. . . .

Michael Bleakley, an expert in the field of forensic drug chemistry,

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testified that he worked with the TBI Crime Laboratory in Knoxville and that

he tested the substance from the first transaction. He said the substance

weighed 1.3 grams. He said he tested the substance using UV

spectrophotometry and infrared spectrometry, which revealed that the

substance was cocaine base. He said that he tested the substance from the

second transaction, that the substance weighed 0.3 grams, and that tests

revealed it was cocaine base.

Reed, 2011 WL 2766766, at *1-5. The jury convicted the Petitioner of the sale of one-half

gram or more of cocaine within 1000 feet of a school and the sale of less than one-half gram

of cocaine within 1000 feet of a school. The trial court imposed an effective sentence of

forty years of confinement. Reed, 2011 WL 2766766, at *5.

B. Post-Conviction Hearing

The Petitioner filed a petition for post-conviction relief, claiming that he received the

ineffective assistance of counsel because histrial counsel, (“Counsel”), failed to file a motion

to compel the State to disclose the identity of the confidential informant present during the

commission of the crime. The Petitioner further claimed that the Momon hearing conducted

during his guilty plea hearing was improper and that Counsel was ineffective for failing to

object to the way the hearing was conducted. The post-conviction court held an evidentiary

1

hearing, where the parties presented the following evidence:

The Petitioner testified that he was convicted for drug sales that occurred on June 20,

2008, and June 26, 2008, in Monroe County. He stated that he was living in Blount County

with his mother at the time of the offenses. The Petitioner testified that on June 20, 2008,

the informant picked him up from his mother’s house and drove him to meet Officer

Lovingood at a store in Monroe County. He agreed that he and the informant “smoked

crack” on their drive to meet Officer Lovingood and stated that the informant kept the drugs

in his shirt pocket during the drive. The Petitioner stated that the informant told him that he

was taking a “package” to his daughter’s boyfriend. The Petitioner stated that, upon arrival

at the store, the informant got out of the car and placed the drugs on the floorboard of the

vehicle. The Petitioner stated that the informant told him to give the drugs to Officer

Lovingood when he approached the car, to which the Petitioner responded, “I’m not passing

nothing or receiving nothing from nobody.”

The Petitioner testified that Officer Lovingood got into the informant’s vehicle and

asked the Petitioner “where the dope was at[.]” Officer Lovingood then picked the drugs up

This issue is not being raised in this appeal.

1

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from the floorboard and placed cash in its place. The informant got back in the van, counted

the money, and then he drove the Petitioner home.

The Petitioner stated that on June 26, 2008, the informant picked up the Petitioner

from his mother’s house to take “something” to the informant’s daughter’s boyfriend. The

informant took the Petitioner to Vonore, Tennessee and stopped outside the “Quicksave or

Quickway Market” until Office Lovingood walked up to the vehicle. The Petitioned stated

that again the informant left drugs on the floorboard of the vehicle and exited the car.

Officer Lovingood got in the car and asked the Petitioner if he had brought “anything.”

Officer Lovingood took the drugs that were on the floorboard and left money in its place.

The Petitioner stated that police officers then took him into custody. The Petitioner told the

officers he had nothing to do with the drugs. The Petitioned testified that he had not spoken

with the informant since that day.

The Petitioner testified that Counsel was appointed to represent him in General

Sessions Court. He stated that he told Counsel about the informant and asked Counsel to

subpoena him. He stated that, during Counsel’s representation of him, Counsel did not “try

to build a case.” The Petitioner told Counsel that he had been “brought into a situation that

was controlled out of [his] means and that [he] didn’t bring no dope into no county and

especially into no school zone.” The Petitioner testified that he told Counsel to file a motion

to compel the State to disclose the identity of the informant but that Counsel did not believe

the State would reveal his identity. He stated that Counsel “made some kind of mention . .

. during trial and it go[t] rejected . . . .”

On cross-examination, the Petitioner agreed that, when he rode with the informant to

deliver the “package” to the informant’s daughter’s boyfriend, the Petitioner was “aware”

that the package contained drugs. He stated that he wanted a “free high,” so he agreed to ride

with the informant for that reason. The Petitioner said that Counsel told him how the trial

would go and answered all of his questions, but she did not object when the State asked

contradictory questions and “let the case go on.” The Petitioner recalled that Counsel told

him it was in his best interest not to testify and that Counsel said the Petitioner’s prior

convictions for sale and delivery of drugs would be used against him. He stated that he was

“agreeable” to not taking the stand to testify.

On redirect-examination, the Petitioner stated that he wrote a letter to Counsel’s

supervisor saying that Counsel had a lack of interest in his case and that a false case against

him was being built.

Counsel testified that she was employed by the Public Defender’s Office and was

appointed to represent the Petitioner. She stated that she represented him during a

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preliminary hearing. Counsel testified that she spoke with the Petitioner and his family more

than once about the facts of his case and that they identified issues for further investigation.

One of the issues that the Petitioner and his family raised was that the confidential informant

“was selling drugs in their community.” Counsel stated that she had discussed the issue of

“entrapment” with the Petitioner and also the Petitioner’s defense that the drugs belonged to

the informant. The Petitioner maintained that he was “stuck in the middle” of the drug

purchase. Counsel said that she explained to the Petitioner that she was unable to find

evidence to support that defense because there was

an audio recording where [the Petitioner] was the one conversing with

the officer and [the Petitioner] made some statements about [the officer]

needed to pick [the drugs] up so it’s not a sell and delivery. So even though

[the Petitioner] asserted he was trapped into the transaction it didn’t exonerate

him from a delivery [charge]. Technically under the statute that set of facts did

not exonerate [the Petitioner] under a delivery theory.

Counsel testified that the fact that there were two drug transactions on separate days

hurt the Petitioner’s theory of defense that he was “accidentally” there for the drug

transaction. As far as calling the informant as a witness at trial, Counsel stated that she based

her decision on several theories of defense. One theory was that Counsel was able to illicit

“whatever we wanted about the confidential informant through the cross-examination” of

Officer Lovingood, who admitted in front of the jury that he did not know the informant and

had not drug tested him. Counsel stated that she also wanted to “attempt to reduce [the

Petitioner’s] exposure” with the hope of getting a conviction for a lesser-included offense

such as facilitation. Counsel stated that her third theory of defense was that she felt she could

prove to the jury that the State did not prove their case and was not forthcoming in their

prosecution by failing to produce the confidential informant as a witness. Counsel thus

“dwelled on” the confidential informant “a lot” in front of the jury. She also requested a

missing witness instruction. She agreed that it was a “strategy call” to not use the

confidential informant as a witness as the Petitioner requested.

On cross-examination, Counsel testified thatshe learned “early on” that a confidential

informant was involved in the case, and she had information that he was a “professional”

confidential informant. Counsel agreed that she did not file a motion at trial requesting that

the State disclose the confidential informant. Counsel stated it was “a strategy” to not call

the confidential informant as a witness at trial. Counsel further stated that she did not seek

the identity of the informant because “typically in [plea] negotiations with the District

Attorney’s Office” a plea deal will not be offered if the identity of the informant is revealed.

She agreed that a plea offer to a twelve-year sentence was offered to the Petitioner, but the

trial court rejected the plea agreement.

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Counsel testified that she requested a “facilitation instruction” but that the trial court

judge denied her request, ruling that the “proof wasn’t sufficiently raised.” Counsel agreed

she did not raise a claim about the Drug Free School Zone Act violating the 8 Amendment,

th

but she raised issues on appeal regarding sentencing and specifically the school zone

enhancement of the Petitioner’s sentence.

Based upon this testimony, the post-conviction court denied post-conviction relief.

In its order, the post-conviction court found that the Petitioner was not a credible witness,

noting the Petitioner’s testimony that he was “high” during the drug transaction and also a

“crack addict.” The post-conviction court noted that the Petitioner testified inconsistently

about the history of his case. The trial court further found that Counsel was a credible

witness and noted the various strategies she utilized at the Petitioner’s trial. It is from this

judgment that the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that Counsel’s failure to file a motion to compel

the identity of the confidential informant was deficient representation because the Petitioner

had a “right to the disclosure” of the informant’s identity at trial. The Petitioner further

contends that Counsel’s decision not to file the motion was not an informed decision based

on adequate preparation. The State responds that the evidence supports the post-conviction

court’s finding that Counsel made an “informed and strategic decision” to not seek the

confidential informant’s identity because Counsel’s testimony made it clear that her decision

not to file the motion was part of a strategy to highlight the informant’s absence in front of

the jury. The State also responds that the burden was on the Petitioner to present the

confidential informant as a witness at the post-conviction hearing, and his failure to do so

prevented the post-conviction court, had it found Counsel’s performance deficient, from

determining what the confidential informant’s testimony would have been. We agree with

the State.

In order to obtain post-conviction relief, a petitioner must show that his or her

conviction orsentence is void or voidable because of the abridgment of a constitutional right.

T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations

in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-

110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and

weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless

we conclude that the evidence contained in the record preponderates against the judgment

entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,

this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the

credibility of witnesses, the weight and value to be given their testimony and the factual

10
issues raised by the evidence are to be resolved by the trial court judge, not the appellate

courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,

578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to

a purely de novo review by this Court, with no presumption of correctness. Fields v. State,

40 S.W.3d 450, 457 (Tenn. 2001).

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the [petitioner] by the

Sixth Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419

(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44

S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking into

account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the

questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be

highly deferential and “should indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.

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Finally, we note that a defendant in a criminal case is not entitled to perfect

representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d

793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective

assistance of counsel, ‘we address not what is prudent or appropriate, but only what is

constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United

States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have

been ineffective merely because a different procedure or strategy might have produced a

different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The

fact that a particular strategy or tactic failed or hurt the defense does not, standing alone,

establish unreasonable representation. However, deference to matters of strategy and tactical

choices applies only if the choices are informed ones based upon adequate preparation.”

House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,

665 (Tenn. 1994).

In its order denying the Petitioner relief on this issue, the post-conviction court found

that Counsel was a credible witness, noting that she made strategic and tactical choices

throughout her preparation for the Petitioner’s trial, and further noting that her testimony at

the post-conviction hearing was corroborated by the testimony at trial. The post-conviction

court found that Counsel “had a strategy, [was] a very experienced criminal defense attorney

and her performance was not proven to be deficient or below objective standards of

reasonableness.” The post-conviction court found that the Petitioner’s testimony was not

credible.

The Petitioner cites House v. State, 44 S.W.3d 508 (Tenn. 2001), in support of his

argument that the Petitioner had a “right to disclosure” of the informant’s identity. The Court

in House held that, while a defendant “may [have] a right to pretrial disclosure of the

informant’s identity,” 44 S.W.3d at 515 (emphasis added), counsel in that case was

ineffective because his decision not to seek disclosure of the informant was not a matter of

strategy or part of a tactical decision. Id. at 516 (emphasis added). The Court also gave

weight to the fact that counsel was uncertain about whether disclosure of the informant’s

identity was required. Thus, the Court held that counsel’s performance was deficient. Id.

We conclude that the evidence does not preponderate against the post-conviction

12
court’s findings. Counsel was not deficient in her representation of the Petitioner when she

did not file a motion to compel the identity of the confidential informant. Counsel testified

that such motions generally ended plea bargain negotiations and that the State had made a

plea offer which she thought the Petitioner might accept. Counsel stated that her strategy

was to focus on the absence of the confidential informant through her cross-examination of

the police officer. Counsel recalled that she had several theories of defense that informed

her decision not to file the motion, including her theory that the State would not be able to

prove its case without presenting the informant’s testimony, which would have led to an

acquittal. We conclude that her decision was not indicative of deficient performance but of

a multi-pronged defense strategy for the Petitioner’s trial.

Counsel further testified about her trial strategies, saying that she attempted to shield

the Petitioner from negative exposure in front of the jury and focused on the confidential

informant’s absence as a witness when cross-examining the police officer. Counsel

requested, unsuccessfully, a missing witness instruction to further highlight the informant’s

absence. The Petitioner did not present the confidential informant as a witness at the postconviction hearing. This is required for him to show Counsel’s representation prejudiced

him, as “this is the only way the [P]etitioner can establish that . . . the failure to have a known

witness present or call the witness to the stand resulted in the denial of critical evidence

which inured to the prejudice of the [P]etitioner.” Black v. State, 794 S.W.2d 752, 757

(Tenn. Crim. App. 1990).

The Petitioner has not shown by clear and convincing evidence that Counsel’s

decision not to file a motion to compel the informant’sidentity constituted representation that

falls below the standard of reasonableness. Accordingly, we do not conclude that Counsel’s

representation fell below an objective standard of reasonableness. Thus, the Petitioner is not

entitled to relief.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the

post-conviction court properly denied relief. Accordingly, we affirm the judgment of the

post-conviction court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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