IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 6, 2012 Session

TAMAINE WORKS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 04-02321 Chris Craft, Judge

No. W2011-00209-CCA-R3-PC - Filed July 20, 2012

The Petitioner, Tamaine Works, appeals from the Shelby County Criminal Court’s denial of

post-conviction relief from his conviction for first degree premeditated murder and resulting

life sentence. On appeal, the Petitioner contends that he did not receive the effective

assistance of counsel and that the assistant district attorney general committed prosecutorial

misconduct at his trial. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., and ALAN E. GLENN, JJ., joined.

Joseph S. Ozment (on appeal), and Larry Copeland (at post-conviction hearing), Memphis,

Tennessee, for the appellant, Tamaine Works.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Amy Weirich, District Attorney General; and Chris West, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The facts related to the Petitioner’s conviction were stated by this court in the appeal

of his conviction:

The conviction in this case stems from the October 9,

2003 murder of Mr. Keon McChristian (the “victim”) in an

2

The indictment recites the victim’s last name as “McChristain.”

2
apartment complex in Memphis. The Defendant, Tamaine

Works, confronted the victim in a second floor hallway at the

Peppertree Apartments about 10:30 at night and fired four shots

from an assault-type weapon, hitting the victim twice. The

victim died from his wounds. The Defendant fled the scene but

was arrested by police at the same apartment complex several

months later. In March of 2004, the Defendant was indicted by

a Shelby County grand jury on one count of first degree,

premeditated murder. The Defendant received a jury trial,

which was conducted over the course of several days in

February and March, 2005.

Before the jury was seated, the trial court took up several

preliminary matters. The State presented a motion to exclude

the Defendant from introducing testimony concerning the

victim’s alleged involvement in the death of a friend of the

Defendant a few hours prior to the murder at issue in this case.

The State argued that any evidence of this prior killing was not

relevant. The Defendant presented a motion to exclude the prior

testimony of a State witness who was unavailable to testify at

trial, alleging that the statement, although made under oath at a

preliminary hearing, was unreliable. The trial court granted the

State’s motion and excluded testimony concerning the prior

homicide but denied the Defendant’s motion and allowed the

prior testimony of the unavailable witness.

At trial, the State’s lead witness, Ms. Kimberly Pruitt,

testified that on the night of the murder, she was staying with

her cousin at the Peppertree Apartments. As she exited her

cousin’s apartment with her six-year-old son sometime after

10:00 in the evening on October 9, 2003, she passed the

Defendant in the hallway on the second floor of the apartment

complex building. She recognized the Defendant as someone

she had seen around the complex for several years and who was

a friend of “Brian,” the man her cousin was dating at the time.

As the Defendant passed her in the hallway, Ms. Pruitt’s cousin,

who was immediately behind her, asked: “Tam[a]ine, what you

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fixin’ to do?” Ms. Pruitt stated the Defendant replied, “Shhh,”

3

indicating the two women should remain quiet.

Ms. Pruitt stated that at the time, the Defendant was not

wearing a shirt, had on black or dark-colored jeans, and was

carrying a large gun only partially concealed in a garbage bag.

She further stated that the Defendant was only three or four feet

from her when they passed in the hallway, and she saw his face.

The Defendant walked toward the apartment next door, the

residence of a man known as “V.” Ms. Pruitt walked the

opposite direction toward the stairs, and her cousin went back

inside her apartment and closed the door. Ms. Pruitt testified

that she then saw the Defendant shoot the victim, which she

described as follows: the victim came out of “V”’s apartment;

the Defendant shot the victim two times; the victim fell to the

floor; the Defendant shot the victim two more times; the

Defendant then fled.

Ms. Pruitt testified that after the Defendant fled, she ran

to the victim, who said: “He shot me.” Ms. Pruitt stated that she

called 911 from her cellular phone and reported the incident.

She also stated that approximately five or ten minutes after the

shooting, “V” came and asked her who shot the victim, but she

declined to answer. She further stated that when “V” heard the

police arrive, he took off. Ms. Pruitt also testified that the

victim did not have a gun. When the police arrived, she was

forced to place her hands in the air, but when they learned she

was not a threat, she was allowed to leave and did not give a

statement to the police the night of the murder.

Ms. Pruitt also testified that she began to receive threats

over her cellular phone from the Defendant’s friend, who would

call and tell her that she did not “need to be testifying against his

friend and that something’s going to happen to [her] and [her]

children if [she] do[es] come forward.” Because of these

The record reveals that Ms. Pruitt’s cousin could not be located at 3

the time of the trial.

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threats, Ms. Pruitt did not make a statement to the police until

several weeks later when she was in the hospital.

On cross-examination, Ms. Pruitt admitted she had a

felony record. She stated that she did not tell “V” who shot the

victim because she was “paranoid.” She also stated that “V” did

not take anything from the victim, but that “V” was carrying a

hand gun. Ms. Pruitt also clarified that while she did not make

a statement to the police the night of the murder, she did leave

an anonymous tip on the 528-CASH tip-line the following day.

However, she then began to receive threats over the phone and

therefore did not talk to the police until several weeks later

when she was in the hospital suffering from anxiety attacks and

no longer wanted to “hold it in.” The police came to her

hospital room and she gave them a statement. She also admitted

that during this meeting she was shown a photographic line-up

but could not identify the Defendant’s photo because she was on

medication that caused blurred vision . However, she did

4

identify the Defendant’s photo at trial. She also identified the

Defendant in court as the man she witnessed shoot the victim.

Ms. Memorie Noel, the victim’s aunt, also testified at

trial, stating that she lived in the same apartment complex and

heard four gunshots on the evening of the incident at

approximately 10:30. Shortly thereafter, a neighbor came to her

door and informed her that her relative had been shot. She

rushed to the victim, who was lying on the ground, and noted

that also at the scene was “a girl” and “V,” whom she identified

as Vincent Sulton, who also went by the moniker “Big V” and

“V Dog.”

Sergeant Gene Hulley, an Investigator with the Memphis

Police Department Felony Response Squad, testified that he

Sergeant Barry Hanks of the Memphis Police Department also 4

testified at trial that he showed Ms. Pruitt the photographic line-up while

she was in the hospital, but she stated she could not see well due to

medication.

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assisted the crime scene investigators on this case. Although the

victim had been removed by the time he arrived, he stated that

he observed at the crime scene bullet holes on the building

walls, spent shell casings, and a blood stain on the floor. He

described the shell casings as consistent with a “large caliber,

automatic weapon.”

Officer Ellason Flagg of the Memphis Police Department

testified that on January 24, 2004, she received a report that the

Defendant was at the Peppertree Apartments. There was a

warrant for the Defendant’s arrest. Officer Flagg stated that

when the Defendant saw the uniformed officers, he fled. The

officers pursued, eventually captured the Defendant, and placed

him under arrest.

An audio tape of Memphis Police Officer Sergeant Sims’

testimony at the Defendant’s March 4, 2004 preliminary hearing

was played for the jury at trial and entered into evidence . Sgt.

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Sims testified that he attempted to take a statement from the

Defendant after his arrest, but the Defendant, after he was

advised of his rights, elected to not make a formal statement.

However, the Defendant did remark to Sgt. Sims that “wasn’t

nobody going to make it to testify against him in the

courtroom.” Sergeant Sims also stated that the Defendant

refused to sign the advice of rights form.

Dr. Karen Chancellor, the Chief Medical Examiner for

Shelby County, was certified as an expert in the field of forensic

pathology, and testified that the victim suffered from a gunshot

wound to the lower abdomen that did “extensive damage,” and

one gunshot wound to the leg. Dr. Chancellor opined that the

gunshot wound to the abdomen was the cause of death because

it severed two large blood vessels and caused massive bleeding.

The record reveals that Sergeant Sims of the Memphis Police

5

Department was deceased at the time of trial.

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Mr. Anton Armour, an acquaintance of the Defendant,

was subpoenaed by the State and testified at trial, admittedly

against his will, that at some point after the murder he was with

the Defendant. They were talking about the past, and the

Defendant made the following statement: “Man, you know I’m

a real nigger, I’m a killer, you can ask them niggers in the

Peppertree about me.” On cross-examination, Mr. Armour

admitted he was a convicted felon.

The Defendant, properly advised of hisrights, elected not

to testify on his own behalf. The defense [called] Sergeant

Timothy Cooper of the Memphis Police Department, who

testified that when he arrived at the crime scene shortly after

midnight, there was no one there who witnessed the crime and

was willing to talk to him. Officer William Merritt of the

Memphis Police Department testified that he interviewed the

Defendant along with Sgt. Sims, and stated that the Defendant

did sign the advice of rights form . Officer Merritt also stated

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that the Defendant never made any incriminating or threatening

statements while in his presence, but admitted on

cross-examination that there were times when the Defendant

was alone with Sgt. Sims.

The defense also called Mr. Vincent Sulton, a.k.a. “V.”

Mr. Sulton testified that in his initial statement to the police,

made about four days after the crime, he stated that he had no

personal knowledge of the events on the evening of the murder

but knew the Defendant shot the victim because the Defendant

had communicated threats, warning him not to talk. However,

Mr. Sulton later made a second statement to police in which he

recounted that he and the victim were away from the apartments

the day of the murder when the victim informed Mr. Sulton he

was going to go to his apartment at Peppertree. Mr. Sulton

informed police that the victim arrived first, he followed, and he

was just coming up the stairs when he heard shots and saw the

Defendant with a gun. The Defendant pointed the gun at him

and then ran off. Mr. Sulton then informed the police that he

A copy of the advice of rights form, bearing the signatures of the 6

Defendant, Sgt. Sims and Officer Merritt, was entered into evidence.

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was unarmed, went to the victim, took a handgun from the

victim, threw it onto the roof, and ran when he heard the police.

On cross-examination, Mr. Sulton gave a third version of

the events of the evening, testifying that he in fact did not come

up the stairs, but rather was in his apartment when he heard the

shots fired, and then came out. He maintained that he did not

have a gun until he took one off of the victim, and he then

chased after the Defendant. Mr. Sulton further stated that the

Defendant called him “not even an hour afterwards” and

threatened to kill him. Mr. Sulton also denied having ever told

Ms. Turner, Mr. Nelms or Ms. Noel that the gun he had was his

and that he retrieved it from off the television set in his

apartment.

The State called three rebuttal witnesses: Ms. Roshunda

Turner, the victim’s aunt; Mr. Damen Nelms, the victim’s uncle;

and Ms. Memorie Noel, another aunt of the victim and a

previous witness. All three testified that they saw Vince Sulton

a day after the murder, and he told them that after the shooting

he went into his apartment and got a gun which was located on

his television set.

State v. Tamaine Works, No. W2005-01048-CCA-R3-CD, Shelby County, slip op. at 2-5

(Tenn. Crim. App. May 26, 2006), perm. app. denied (Tenn. Nov. 6, 2006).

At the post-conviction hearing, trial counsel testified that he represented the Petitioner

in the conviction proceedings. He estimated that he was retained or appointed ten to twelve

months before the trial. He said the Petitioner was one of his favorite clients. He said he was

never informed of a potential alibi defense. He said the Petitioner never denied shooting the

victim. He recalled that he realized the Petitioner was the shooter when the Petitioner

became very upset with Kimberly Pruitt, who testified at the preliminary hearing as an

eyewitness, because the Petitioner said she was not the person who opened a door and saw

him outside an apartment with a big gun.

Trial counsel testified that there were two alternative strategies available. First, the

defense might pursue a voluntary manslaughter theory based upon the Petitioner’s killing the

victim after learning that the Petitioner’s best friend had been killed hours earlier. He said

the prosecutor seemed to agree with this theory because the prosecutor made a second degree

murder plea offer. The second theory was that Ms. Pruitt was lying and that she did not

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identify the Petitioner when the police showed her photographs while she was hospitalized,

even though she had known him for a long time. He said the Petitioner identified another

woman as the person who saw him outside the apartment, but the Petitioner could not recall

the woman’s name. He said that at every meeting before the trial, he and the Petitioner

discussed the Petitioner’s contention that Ms. Pruitt was lying. He said he talked to Ms.

Pruitt at the preliminary hearing and at the trial but did not think he talked to her between

them.

Trial counsel testified that he wanted to talk to a man who had been inside the

apartment and who had given conflicting statements, but he was not able to do so because

the man was represented by counsel. He agreed that he did not do any further investigation

of the information disclosed by the State. He said that he did not go to the crime scene to

take photographs but that photographs were provided to him. He said he saw no reason to

“waste the State’s money to send somebody out there to verify what [he] believed to be true.”

He said that misidentification due to lighting or other conditions was not an issue because

Ms. Pruitt claimed to have seen the Petitioner at the door from two to three feet away.

Counsel acknowledged that he never looked on the roof at the scene, even though there was

evidence that the gun and a liquor bottle were on the roof. He said he did not know about

the gun on the roof at the preliminary hearing stage because there was nothing in the affidavit

of complaint about it. He said he did not obtain a mental evaluation of a client if he did not

appear to need one. He said there were no alternative theories of how the shooting occurred.

Trial counsel testified that it was apparent to him early in his representation that either

the Petitioner was present when the Petitioner’s best friend was killed or the Petitioner

received the information about the killing from someone. He said the Petitioner was adamant

that he was not present. Counsel said he wanted to interview any witness who told the

Petitioner about the killing and asked the Petitioner if there were any witnesses he should

investigate. He said they discussed this “very paramount issue” before the trial. He said the

Petitioner did not want him to call any witnesses relative to a heat of passion defense. He

said that the prosecutor seemed to understand that the crime occurred in the heat of passion

and that they attempted to negotiate a plea agreement, but the Petitioner was not interested.

He said he intended to present a heat of passion defense, but the trial judge ruled that the

defense could not present this theory unless the Petitioner or another witness provided

relevant testimony. He said he argued that the ruling infringed upon the Petitioner’s Fifth

Amendment right not to give evidence against himself. Counsel said that his conversations

with the prosecutors involved the heat of passion defense and that he did not anticipate they

would ask the court to exclude evidence of a heat of passion defense unless the Petitioner

testified. He said that until the day of the trial, he assumed that the heat of passion defense

could be developed through his cross-examination of witnesses and that he would not need

other witnesses on this point. It never occurred to him that the State would object to

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evidence of a heat of passion defense. He thought the question of relevance occurred to one

of the prosecutors on the Friday before the trial began on Monday when he said that the

Petitioner might not testify.

Trial counsel testified that after the court ruled that the defense must establish the

relevance of a heat of passion defense, he talked to the Petitioner. He advised the Petitioner

to consider the plea offer or to tell him where to find the woman who told the Petitioner

about the earlier shooting. He said that he wanted to call the woman as a witness but that the

Petitioner “absolutely did not want to do that.” He thought that at the time, the Petitioner did

not want to disclose that he was the shooter. He said, however, that the Petitioner never

affirmatively said he was the shooter. Counsel said the only eyewitnesses were the woman

in the apartment and Mr. Sulton, who did not see the shooting but removed the victim’s gun.

Trial counsel testified that the State decided not to call Vincent Sulton to testify in

7

order to avoid evidence about the prior shooting. He said that although he could not use Mr.

Sulton to establish the prior shooting, he called Mr. Sulton as a defense witness to show that

Mr. Sulton took a gun from the victim. He agreed that self-defense could have been a

defense theory but said it was not considered because it was clear that the Petitioner shot the

victim to avenge his best friend’s killing.

Trial counsel testified that he presented the testimony of a police officer who

canvassed the area near the scene to show that no one had any information about the

shooting. He presented this evidence to rebut the testimony of the State’s witnesses who said

they had been at the scene ready to talk to the police. He said he also called Detective Merritt

to rebut a police officer’s prior testimony that was unfavorable to the Petitioner. He said that

he unsuccessfully opposed admission of the prior testimony as unreliable but that the court

admitted it because the officer died before the trial.

On cross-examination, trial counsel testified that before representing the Petitioner,

he had represented about thirty defendants in murder cases. He said he had more jury trial

experience in first degree murder cases than other cases. He was a former law clerk for a

court of criminal appeals judge, and he did criminal trial and appellate work once he entered

private practice.

Vincent Sulton’s surname is spelled “Sultan” and “Sutton” 7

in the post-conviction hearing transcript. We have used “Sulton,” the

spelling that appears in this court’s opinion in the Petitioner’s direct

appeal.

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Trial counsel testified that self-defense was not a viable option. He said the viable

options were a voluntary manslaughter defense and establishing reasonable doubt by showing

that the State’s main witness lied. He acknowledged that he was somewhat thwarted by the

State’s late tactical move. He reiterated that the Petitioner did not provide any information

about an alibi. He said the Petitioner told him repeatedly about crying as the Petitioner’s best

friend was taken away in an ambulance, to die later.

Trial counsel testified that he hired investigators in murder cases when there was a

need for an investigation or if there were things a client told him that were not covered by

the discovery materials. He said there was not a need for an investigator in this case and

noted that the Petitioner’s account was consistent with the State’s facts. He said that a

substantial amount of time elapsed before he received Mr. Sulton’s statement about the gun

and that he did not think an investigator would have found the gun after he learned of the

statement. He also said he did not know how he would be able to establish after one and onehalf years that the gun was the victim’s. He said that for the first six months of his

representation, the Petitioner maintained that Ms. Pruitt’s account could not be correct, but

that the Petitioner did not admit he was at the scene. He said the Petitioner eventually

admitted the type of gun he had, the garbage bag over the gun, and what he was trying to do.

Counsel acknowledged that his cross-examination of Ms. Pruitt was unsuccessful but

asserted that he made his best effort. He said that his trial strategy included emphasis on Ms.

Pruitt’s previous failure to identify the Petitioner and that a motion to suppress evidence of

the identification procedure would have been counterproductive.

Trial counsel testified that the State’s first settlement offer was for twenty years. He

said he reviewed the offer, the sentence, and the required percentage of service with the

Petitioner. He discussed the State’s second offer for fifteen years with the Petitioner. He

said the State made an offer for thirteen and one-half years during the trial, which the

Petitioner refused. He said that he and the Petitioner felt good about the trial when the

Petitioner turned down the third offer. He said he was used to clients refusing good offers

and denied getting angry at the Petitioner or treating him differently.

Trial counsel testified that the Petitioner was one of his favorite clients because the

Petitioner was communicative about what he did and did not want. He said the Petitioner

agreed with the direction of the case. He said he had good rapport with the Petitioner’s

mother, as well.

With respect to the appeal, trial counsel testified that he reviewed his notes and the

transcript to determine the appellate issues. He said his appellate strategy was not to raise

every possible issue because doing so detracted from the issues which offered the best

possibility for relief. He said he maintained communication with the Petitioner throughout

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the appellate process, although there were not many occasions for updates. He said the

appeal was unsuccessful, which was not unusual in criminal cases.

Trial counsel acknowledged that he may have prompted one of the prosecutors to

realize that the State could challenge the defense’s ability to cross-examine witnesses about

heat of passion evidence. He said he “joked” with one of the prosecutors before the trial by

indicating the Petitioner might not testify. He said it was not unusual to be equivocal with

a prosecutor about whether a defendant would testify. He said that had he known the State

would challenge the admissibility of cross-examination evidence of the prior shooting, he

would not have relied on the State to call Mr. Sulton as a witness or expected to be able to

cross-examine Mr. Sulton about the prior shooting. He said he met with the Petitioner after

the trial court’s ruling and advised him that the fifteen-year offer was “not such a bad offer

any more.” He said the Petitioner was adamant that he would not accept the plea offer and

that he wanted counsel to challenge Ms. Pruitt’s testimony that she was at the scene. He

advised the Petitioner that they could make the prior homicide relevant if the Petitioner had

a witness who would testify that he or she saw it and told the Petitioner about it. He said the

Petitioner, however, did not want to get “her” involved. He stated that after the court ruled

against the defense, he was concerned about the defense and determined that the options

were for him to convince the Petitioner to plead guilty, for the Petitioner to testify, or for him

to convince the jury that the State failed to sustain its burden of proof.

On redirect examination, trial counsel acknowledged that he pursued the voluntary

manslaughter theory even though he knew the Petitioner did not want to testify. He thought

the reason and state of mind for the killing would be clear to the jury even if the Petitioner

did not testify. He said one of the prosecutors acknowledged to him that the verdict might

be voluntary manslaughter. He identified his billing records, which he said were created

when he prepared his billing statement about one year after the case concluded. He identified

an entry which showed he delivered the fifteen-year offer two months and two days before

the trial and said it probably was the same day he received the offer. He said there had been

a previous twenty-year offer when he received the discovery information.

Sherrill Royston, the Petitioner’s mother, testified that she was present at the

Petitioner’s trial. She said that after Mr. Sulton was questioned about the location of the

victim’s gun, she overheard one of the prosecutors tell other State’s witnesses that they must

testify that the gun was on a television set, not thrown on the roof, in accord with Mr.

Sulton’s testimony. She said that afterwards, one of the victim’s family members testified

to that effect. She thought the witnesses involved were family members of the victim, but

she could not identify them by name.

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On cross-examination, Ms. Royston testified that the prosecutorsaid, “[Y]ou’re going

to have to say exactly word for word what the first witness has said. . . . [Y]ou’re going to

have to say that.” She said that four or five of the people testified. She said she had stepped

out of the courtroom to pray when she heard the prosecutor instruct the witnesses about their

testimony. She said she was holding her Bible but was not reading it. She acknowledged her

prior statement to a defense investigator in which she said she was reading her Bible when

she overheard the prosecutor’s instructions. She said she mentioned the prosecutor’s actions

to trial counsel but did not recall when she told him about it.

On redirect examination, Ms. Royston testified that she had not had the opportunity

to review the statementshe gave the defense investigator or to correct any misinterpretations.

She said she had her Bible open and was praying when she overheard the prosecutor’s

instructions to the witnesses.

Summer Hampton testified that she married the Petitioner after he was in prison. She

recalled the date of the crime because it was the same day that Derrick Robertson, the

Petitioner’s friend, was killed. She said that she learned of Robertson’s killing about 7:30

p.m. that day but that she did not tell the Petitioner. She did not know if the Petitioner knew

of the incident. She said the Petitioner came home to the Petitioner’s aunt’s apartment about

8:30 p.m. and did not leave the apartment that night. She claimed the Petitioner was with her

when the victim in the Petitioner’s case was killed. She said her three children were with

them at the apartment. She said that the Petitioner’s aunt, Mary Barnes, came home about

9:00 p.m. and that Ms. Barnes was now deceased. She said she and the Petitioner went to

bed before 10:00 p.m. and awakened the next morning around 6:30. She said that no one

ever asked her about the evening of the victim’s homicide.

On cross-examination, Ms. Hampton testified that neither she nor the Petitioner was

working at the time of the crime. She was about twenty-five and the Petitioner about twentytwo at the time. She said they awakened at 6:30 a.m. in order to get her son ready for school.

She maintained that they went to bed around the same time every night. She said they

discussed Mr. Robertson’s homicide that night. She was not present when Mr. Robertson

was killed and did not know where the Petitioner was before he came home. She said

Kimberly Longmeyer told her about Mr. Robertson’s death.

The Petitioner testified that trial counsel failed to communicate with his alibi

witnesses. He said he tried to talk to counsel about the witnesses and denied that he told

counsel not to talk to them. He said the alibi witnesses were Summer Hampton, Mary Cole

Shelby, Latoya Banks, and Mary Barnes. He said Mr. Robertson took him to see Ms. Shelby,

his parole officer, around 4:00 or 5:00 p.m. He said Ms. Banks was a resident of the

apartment complex where Mr. Robertson was killed and could have testified about what

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happened there. He claimed counsel told him that the State made a settlement offer of twenty

years at eighty-five percent and that they would have to go to trial if he did not accept the

offer because the State would not budge. He said counsel never communicated a fifteen- or

thirteen-year offer to him. He claimed he asked counsel to see if the State would accept a

fifteen-year offer. He said that after the trial, he asked counsel about the fifteen-year offer

and that counsel said he thought he told the Petitioner about it and apologized if he did not.

The Petitioner testified that trial counsel advised him not to testify and said the State

would question him about his “charges.” He claimed he wanted to testify but said he

deferred to counsel’s wisdom from experience. He denied that trial counsel reviewed the

evidence with him. He stated that he asked counsel to hire an investigator but that counsel

said he was going to rely on the State’s information. He said he wanted an investigator to

make photographs from different angles than the State’s photographs and to look on the roof

for the gun. He also wanted an investigator to search for a woman named Ranita, whom he

said may have provided information to Ms. Pruitt. He stated that counsel assumed he was

present when the victim was killed but that he was not. He said he tried to tell counsel that

counsel could show that Ms. Pruitt was not truthful about being present when the victim was

killed.

The Petitioner testified that had he testified at his trial, he would have said he had

nothing to do with the crime. He said he would have testified that he was at Graceland Farms

with Ms. Hampton, Ms. Barnes, and the children.

On cross-examination, the Petitioner testified that he complained to trial counsel in

person about counsel’s performance. He acknowledged a letter he sent counsel on January

26, 2006, which was after the Petitioner’s March 2005 trial, in which he said that counsel

was doing his job. He said he was appreciative of the “little things” counsel did at the time.

He also acknowledged a September 2005 letter in which he asked if he could take the fifteenyear offer, even though this was after his trial.

The Petitioner testified that trial counsel gave him the discovery materials. He said

he did not receive some of the materials,such as the preliminary hearing transcript, until after

his trial. He denied that he and counsel reviewed the discovery materials together or that

counsel discussed them with him. He said it was counsel’s decision, not his, that he not

testify, but he acknowledged that he heeded the advice of counsel in this regard.

On redirect examination, the Petitioner testified that he wanted to testify about his

alibi defense at his trial. He said Ms. Hampton could have corroborated his alibi. On

recross-examination, the Petitioner testified that Ms. Hampton was present outside the

courtroom during his trial. He thought he came home around 8:00 or 8:30 on the night of the

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crime. He said he bathed, ate, and went to bed. He did not recall what time he went to bed.

He said that they watched a movie and that they did not talk about anything.

Assistant District Attorney General Dean DeCandia testified that he participated in

the Petitioner’s trial. He said he spoke with witnesses before the trial and denied that he

advised them how to testify. He specifically denied that he told the witnesses how to testify

during the rebuttal proof. He said that he might leave the courtroom to get something from

his office or to use the restroom but that he would not leave to talk to a witness who had not

yet testified.

On cross-examination, General DeCandia testified that at some point, some of the

witnesses made the prosecutors aware that Mr. Sulton’sstatements made after the crime were

inconsistent with his trial testimony. He did not recall whether he advised defense counsel.

He said Mr. Sulton gave conflicting statements to the police, first claiming he was not

present for the shooting and only heard about it, but later saying he came to the scene after

he heard shots and took a gun from the victim. He said that during cross-examination, Mr.

Sulton first claimed he had not been at the scene but later said he was in his apartment when

the shooting happened and took a gun from his television stand and went toward the

Petitioner.

General DeCandia testified that the fifteen-year offer was made during the trial. He

saw trial counsel lean over and speak to the Petitioner. He stated that almost immediately

thereafter, counsel advised him that the Petitioner rejected the offer.

The trial court denied relief in a detailed order. The court discredited the testimony

of the Petitioner and accredited that of trial counsel. The court found that the Petitioner was

not denied the effective assistance of counsel. The court did not, however, address the

allegation that the Petitioner was entitled to a new trial due to prosecutorial misconduct. This

appeal followed.

I

The Petitioner contends that trial counsel provided ineffective assistance in the trial

proceedings. The State contends that the trial court correctly determined that the Petitioner

failed to prove this claim. We agree with the State.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we

are bound by the trial court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

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2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

Petitioner must also show that but for the substandard performance, “the result of the

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

standard has been applied to the right to counsel under article I, section 9 of the Tennessee

Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

show that the counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id.

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were

“within the range of competence demanded of attorneysin criminal cases.” Further, the court

stated that the range of competence was to be measured by the duties and criteria set forth

in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974), and United States v. DeCoster,

487 F.2d 1197, 1202–04 (D.C. Cir. 1973). Baxter, 523 S.W.2d at 936. Also, in reviewing

counsel’s conduct, a “fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not,

alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they are

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informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201; Hellard,

629 S.W.2d at 9.

The Petitioner argues that trial counsel provided ineffective assistance by failing to

investigate the case and prepare adequately for the trial. The trial court accredited trial

counsel’s testimony over that of the Petitioner and his wife. Counsel testified that the

Petitioner never mentioned an alibi defense, that the Petitioner eventually admitted his

involvement, that he and the Petitioner had a good working relationship, that they reviewed

the evidence together, that he communicated the plea offers to the Petitioner, that he met with

the prosecutors to discuss the case, and that he was prepared for the trial. Although counsel

acknowledged that he did not conduct an independent investigation, he said that the facts

were not in dispute and that the Petitioner did not identify any witnesses he should

investigate. He stated that he urged the Petitioner to identify the person who told him the

Petitioner’s friend had been shot but that the Petitioner insisted he did not want to involve

her. The court found that counsel did not reveal any confidential or privileged information

by suggesting that the Petitioner might not testify and that the experienced attorneysinvolved

in the case were familiar with a defendant’s Fifth Amendment privilege not to testify. The

court rejected the claim that counsel’s performance was deficient. The court likewise found

that the defense strategy was sound, given the facts of the case. The evidence does not

preponderate against the trial court’s findings. Those findings support the trial court’s

determination that the Petitioner failed to establish that counsel’s performance was deficient

or that the Petitioner was prejudiced by the performance. The Petitioner is not entitled to

relief.

II

The Petitioner contends that he should receive a new trial due to prosecutorial

misconduct because one of the prosecutors improperly advised a witness of the substance of

another witness’s testimony and instructed the witness to testify consistently. The State

acknowledges that the trial court did not make credibility findings with respect to the

conflicting evidence regarding this issue but contends that the Petitioner waived

consideration of the issue by failing to raise it on direct appeal.

We agree with the State’s contention that the issue is waived because it was not raised

on direct appeal. See T.C.A. § 40-30-106(g) (2006) (“A ground for relief is waived if the

petitioner personally or through an attorney failed to present it for determination in any

proceeding before a court of competent jurisdiction in which the ground could have been

presented” subject to certain exceptions.); e.g., Brimmer v. State, 29 S.W.3d 497, 530 (Tenn.

Crim. App. 1998) (holding that prosecutorial misconduct claim was waived in postconviction action because it was not raised on direct appeal). We note that Ms. Royston did

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not recall when she told trial counsel about the alleged prosecutorial misconduct. Because

the record does not establish that counsel was unaware of the alleged misconduct at the time

of the direct appeal, the issue is waived.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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