### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d onBr ie fs F eb ru ar y 3, 200 4

STA TE OF TEN NES SEE v. CH ARLES R AYAL LEN

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 98-C- 1969 J. Randall Wyatt, Judge

No. M2002- 03144-CCA -R3-P C - F iled Fe bruary 4, 2004

The De fenda

nt, Charles Ray

Allen, was c onvicted by a jury of first deg ree preme ditated murder and attempted voluntary

manslaug hter. The Def endant subseque ntly

filed for pos t -c onviction relief al l egi n g, am o n g o t h er

t h i n gs , i n ef

fe ct i v e a s s i s t an ce o f c o un s el at t ri al

. Af t er an ev i d en t i ary

h ea ri n g, the trial cour

t denied re lief, and the Def endant now a

ppeals. We af

firm the judgm en t of the trial
c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., delivere d the opi nion of the c ourt, in which J ER R Y L. S MI TH and T H O M A S T. W O O D A LL , J J ., joined.

Michae l Colavecc hio, Nashville, Tenne ssee, f or the a ppellant, Charles Ray

Allen.

Pa ul G . Summe rs , A tto rn e y Ge ne ra l; J enn ife r L . B le ds oe , A ssi sta nt A tto rn e y

Ge ne ra l; V ic tor

S. J ohnson, District Attorney Gene ral; and K imberly

Cooper, Assistant District Attorney Gene ral, for the appe llee, State of Te nnessee

. OP IN ION

On April 15, 1998, the Def endant, Char les Ray

Allen, shot and killed one pe rson and shot and injured a

nother person. The shootings occur red at lunchtime in a re staurant in Na shville. He
was c harg ed with first deg ree preme ditated murder and attempted first deg ree preme ditated murder

. Followinga jury

trial, he wa s convicted of first deg ree preme ditated m urder and attempted voluntar y manslaug hter. His convic tions were a ffirme d on appea l. See State v. C harle s Ray Allen, No. M1999-00818-CCA-R3-CD, 2000 WL1649507 (Tenn. Crim. App., Nashville, Nov. 3, 2000). The defe ndant subsequently

filed a petition f

or post-conviction relief

, which the trial court denied a fter an evide ntiary

hear ing. T his appea l followed.

I n this appeal, the D efe ndant allege s that the t rial cour t erre d in failing to find that his trial lawy er w as ineff

ective in the following respe cts: (a) his lawy er a llowed him to testify that he wa s-2-

incar cer ated a

t the time of trial; (b) his lawyer did not see k a mental e valuation of him; (c) his lawy er did not attempt to suppre ss his statement to the police; (d) his lawyer a llowed one of his witnesses to te stify while wea

ring jail c lothes; a

nd (e) his la

wy er failed to c all two defe nse witnesses. We turn
n o w t o t h e p ro o f a d d

u ce d at t h e p o s t -c o n v i ct i o nh ea ri n g.

Mr. L arr y Hoover , who re prese nted the Def endant at his jury

trial, testified that he ma de a strateg ic dec ision to not ify the jury that the Def

endant was, at that time, serving time in prison. Mr. Hoover stated,
My re a so nin g fo r doi ng that, an d it wa s one that I ha d g ive n s ome tho ug ht t o p ri or to tr ia l. We w e r e lo o k in g to n o t h av e h im f o un d g u il ty o f F ir s t D e g r e e M ur d e r

. We
rea lly wanted the J ury or were asking the J ury -- spent a lot of time talking to the J ury a bo ut l e sse r i nc lud e d offen ses

. My thi nk ingwa s I

did n’ t w ant t he Jury thi nk ingif the y did c on vic t hi m of

so me thi ngle ss t

ha n F ir st D e g re e Murd e r t

hat he wa s ju st g oin g to g e t awa

y wi th i t, s c ot fr e e

. I wa

nte d the m to k

no w t hat he ha d s pe n[t] so me time in jai l fo r t h i s particula r off ense, a nd that he wa s not just going to ge t up and walk out of the c ourtroom if they found h i m n o t g uilty

or they found him g uilty

of something le ss than First De g ree Murder

. Wit h respe ct to havingthe Def endant e x amined by

a mental hea lth professional, Mr. Hoove r stated that he did not see the need f or one a s there w as no indication th at t h e Defendant ha d any mental problems. As to the De fenda nt’s statement to the police, Mr. Hoover explained that he did not think there wer e grounds to have it suppressed. Fur thermore , there was infor

mation in the statement that
wa s h e lpf ul t o th e de fe ns e c a se . A s to on e of the de fe ns e wi tne sse s te sti fy ing wh ile in ja il c lot

he s, he stated “ if Idid it all over ag ain, I would have ha d her dr essed in re g ular stre et clothes, but, at the tim e , w e did

no t.” Mr . H oo ve r e xpla ine d th a t he did no t c a ll p otent ial de fe ns e wi tne ss T re ne ll Copeland bec ause, a lthough he was pre sent at the trial, he “wa sn’t nece ssarily in the rig ht frame of mind to testi fy .” Mr. Hoove r explained that he did not know if Mr. Copela nd “wa s intox icated or high or both, but . . . it j ust looked like a re al bad idea for me to ha ve him testify .” As to potential defe nse witness Ke nneth P at t o n , Mr. Hoover explained that Mr. Patton failed to appe ar at the courthouse when expected, a nd the def

ense t eam’ s eff

orts to locate him wer e unsucc essful. Mr. Hoover also explained that, althoug h he was hopeful of putting Mr. Patton on the stand, he “ knew it was g oing to be a close call as far as admissibili ty was conce rned.” Mr. Hoover also stated that Mr. Patton “was a

littl e bit of an iff

y witness.”

Th e De fe nd ant a lso te sti fi e d a t the he ari ng

. He state d that Mr

. Ho ov e r ha d n e ve r s po ke n w ith him a bo ut a me nta l e va luatio n. He a lso state d that he did no t hav e any me nta l he a lthiss ue s th a t hi s lawy er ne eded to know a

bout. No other witnesse s testified on the De fenda nt’s behalf

. The trial c ourt found that most of Mr. Hoove r’s a ctions about whi ch the Def endant complained we re strateg ic choice s. The cour t also found t hat M r. Hoover “acted in a compe tent and thoroug h manner , and th e [ Def endant’ s] factual alleg ations do not support a claim for ineffe ctive assistance of counse l.”-3-

Both the Six th A mendment to the United States Constit ution a nd Article I , Section 9 of the Tenne ssee Constitution guar antee a cr iminal defenda nt the rig ht to repre sentation by counsel. See State v. Bur

ns, 6 S.W .3d 453, 461 (Tenn. 1999); Bax ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975)

. Both the U nited States Supreme Court a nd the Tenne ssee Supreme Court have rec og nized that the rig ht to such repr esentation includes the right to “re asonably eff ective” assistance , that is, within t he rang e of competenc e demande d of attorney s in criminal case s. See Strickland v. Washing ton, 466 U.S. 668, 687 (1984); B urns, 6 S.W.3d at 461; Baxt er, 523 S.W.2d at 936.

A l awye r’ s a ssi sta

nc e to h is o r h e r c lie nt i s in e ff e c tiv e if th e law y er’s co nd

uc t “ so undermined the proper

func tioning of the adver sarial pr ocess that the tr ial cannot be relied on a s havingproduce d a just result.” Strickland, 466 U.S. at 686. This over all standard is c omprised of two components: defic ient perf ormanc e by

th e def endant’ s lawy er, a

nd actua l prejudice to the defe nse ca

used by the def

icient per formanc e. See id. at 687; Burns, 6 S.W.3d at 461. The def endant bear s the burden of

establishing both of these components by clea r and convincing evidenc e. See Tenn. Code Ann. § 40- 30-110(f ); Bur ns, 6 S.W .3d at 461. The defe ndant’s fa ilure to prove e ither defic iency

or pre judice is a suff

icient basis upon which to deny relief on an ineffec tive assistance of counsel c laim. See B urns, 6 S.W.3d at 461; Goad v. State, 938 S.W .2d 363, 370 (Tenn. 1996)

.
I n evaluating a

lawy er’ s perf

ormanc e, the r eviewingcourt u s es an objec tive standard of “re asonable ness.” See Strickland, 466 U.S. at 688; Bur ns, 6 S.W .3 dat 462; Hellar d v. State, 629 S.W .2d 4, 8 (Tenn. 1982) . The re viewingcourt must be hig hly defe rential to c ounsel’s choic es “a nd sh ou ld i nd

ulg e a str on g pr e sumpt ion

that c ouns e l’ s c on du c t f

a lls wi thi n th e wi de ra

ng e of re a so na ble profe ssional assistance .” Bur ns, 6 S.W .3d at 462; see also Strickland, 466 U.S. at 689. The c ourt sh ou ld n ot us e the be ne fi t of hin ds ig ht t o s e c on d- g ue ss t ri a l st rate g y or to c ri tic ize c ouns e l’ s ta c tic s, se e He lla rd , 6 29 S.W. 2d a t 9, and c ouns e l’ s all e g e d er ro rs sh ou ld be jud g e d in lig ht o f a ll the fa c ts and cir cumstance s as of the time they wer e made . See Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

. A trial cour

t’s deter mination of an ineff

ective a ssistance of counsel claim presents a mixed qu e sti on of law a nd fa c t on a pp e a l. S ee Fiel ds v. State , 4 0 S. W.3 d 4 50 , 4 58 (T e nn . 2 00 1) . T his Court review s the trial cour t’s finding s of fa ct with reg ard to the e ffe ctiveness of counsel unde r a de novo standard, a ccompa nied with a pre sumption t hat thos e fi n d i ng s are corr ect unless the preponde ranc e of the evidenc e is otherwise. See id. “ Howeve r, a tria l court’s c onclusions of law-- such as whether

counsel’s pe rfor

mance was de ficient or whether that defic iency

was pre judicial--a

re revie wed un d er a p u re l y

de novo standa

rd, with no presumption of cor rec tness g iven to the trial court’s c onclusions.” I d.

We ag r e e w it

hth e tr ia l c o u rt t

h a t t h e D e f e n d an t h a s f

a il e d to me e t h is b ur d e no f

proving either prong of his claim of inef fec tive assistance of counse l. The proof established that Mr. Ho ov e r’ s p e rf

or manc e did

no t f a ll b e low the re qu ir e d s tand ard

. Furth e rm or e , th e pr oo f f a ile d to de mon str a te that th e De fe nd ant s uf fe re d a ny pr e jud ic e re su lti ng fr om any

of the a lle g e d d e fi c ie nc ie s. Th e De fe nd ant’ s a lle g a tio ns be ingwi tho ut m e ri t, w e a ff ir m th e jud g me nt o f t

he tr ia l c ourt

.-4- ___________________________________ DAVI D H. WEL L ES, J UDGE