IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 5, 2014

LACEY JONES v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 03-02148 W. Otis Higgs, Jr., Judge

No. W2013-00483-CCA-R3-PC - Filed April 15, 2014

A Shelby County jury convicted the Petitioner, Lacey Jones, of four counts of especially

aggravated kidnapping, one count of aggravated burglary, and two counts of aggravated

robbery. The trial court merged the aggravated robbery convictions into the convictions for

especially aggravated kidnapping and ordered the Petitioner to serve an effective sentence

of forty-two years. The Petitioner appealed, and this Court affirmed the judgments of the

trial court. State v. Lacey Jones, No. W2004-01628-CCA-R3-CD, 2005 WL 1848476, at *6

(Tenn. Crim. App., at Jackson, Aug. 4, 2005), perm. app. denied (Tenn. Dec. 19, 2005). The

Petitioner filed a petition for post-conviction relief, in which he alleged that his trial counsel

was ineffective. 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 THOMAS T.

WOODALL and JAMES CURWOOD WITT, JR., JJ., joined.

Paul K. Guibao, Memphis, Tennessee, for the appellant, Lacey Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;

Amy P. Weirich, District Attorney General; David Zak, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

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I. Facts

A. Trial

This case arises from a home invasion robbery at the residence of the victims,

Anthony and Trina Boyce. A Shelby County grand jury indicted the Petitioner for multiple

offensesrelated to thisrobbery. On direct appeal, this Courtsummarized the underlying facts

of the case as follows:

At approximately 3:30 a.m. on October 16, 2002, while Anthony Boyce

was away on business, four masked men, who were armed with guns and

wearing dark clothing, used a crowbar to break in the front door of the

residence and announced that they were the police. Although Ms. Boyce had

locked herself in her bedroom with two of her young children, ages three and

five, the intruders kicked in the bedroom door. When one of them shouted,

“[B]* *ch, where’s your husband . . . [w]e going to kill your . . . f* *king

husband,” Ms. Boyce recognized the voice as that of a co-defendant, Bobby

Harris, who had grown up with her husband. After handcuffing Ms. Boyce

and ordering her to lie on her bed, the men ransacked the house. One of the

assailants, who remained in the bedroom, placed his hands inside Ms. Boyce’s

underwear and penetrated her vagina with his fingers. While downstairs, the

intruders located and handcuffed two of Ms. Boyce’s teenage sons and her

adult brother. The third son, upon hearing the forced entry, had fled to a

neighbor’s residence and telephoned the police. When the police arrived, they

found the [Petitioner], who was dressed in black and had an injured ankle,

lying in a neighbor's yard. He told the officers that he had been considering

a purchase of the house next door when he was overtaken by the men running

from the Boyce residence. The [Petitioner] was soaking wet. There were

footprints leading from the lake behind the residence to where he was found

by the police. Ms. Boyce’s checkbook, driver’s license, and billfold contents

were on the ground some two feet away.

Jones, 2005 WL 1848476, at *1. The jury convicted the Petitioner of four counts of

especially aggravated kidnapping, one count of aggravated burglary, and two counts of

aggravated robbery. The trial court merged the aggravated robbery convictions into the

convictions for especially aggravated kidnapping and ordered a concurrent sentence of

thirty-five years for each of the four counts. The trial court ordered the aggravated burglary

sentence of seven years to be served consecutively, for an effective sentence of forty-two

years. Jones, 2005 WL 1848476, at *1.

B. Post-Conviction Hearing

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

ineffective assistance of counsel on multiple grounds. The post-conviction court held an

evidentiary hearing, where the parties presented the following evidence: Officer Jeffrey

Jordan testified that he worked for the Memphis Police Department and that he investigated

the home invasion in this matter. He was one of the first officers at the scene of the crime,

and he conducted the “preliminary” investigation. He testified that, when he and his partner

arrived at the scene, they saw a Chevy van parked in the driveway of the home with its motor

running. Officer Jordan recalled that they turned off the vehicle and began checking the

sides and backyard of the home. He testified that there was a covered pool in the back yard

upon which two handguns were found. Officer Jordan testified that there was a lake in the

back yard with a dock. When Officer Jordan checked the dock, he found wet footprints on

it. Officer Jordan then saw “one of the suspects laying on the ground,” whom he later

identified as the Petitioner. A “couple of feet” from where the Petitioner was lying, Officer

Jordan found a checkbook and a photo identification for one of the victims.

On cross-examination, Officer Jordan testified that the Petitioner told him repeatedly

that he was in the home’s backyard because he was interested in buying the house next door.

The Petitioner also told him that when he saw a group of masked men run out of the victims’

home, he got “all scared” and took off and jumped over the fence and hurt his leg.

The Petitioner testified that he was represented in this matter by Leslie Ballin in

General Sessions Court during preliminary proceedings. The Petitioner testified that he later

retained his trial counsel (“Counsel”) to represent him at trial. The Petitioner recalled that

he hired Counsel in the summer of 2003 and went to trial on this matter in March 2004. The

Petitioner stated that he met with Counsel several times before October 2003 when the judge

set a trial date. The Petitioner first met with Counsel in “lockup” where they discussed the

case. The Petitioner informed Counsel that he understood the biggest challenge relative to

his case would be the testimony of the police officers who responded to the scene.

The Petitioner testified that, after his trial date was set in October 2003, he did not see

Counsel again until three days before his trial. The Petitioner testified he sent letters to

Counsel because he “couldn’t get in touch with him.” The Petitioner stated:

I was calling but I couldn’t get through. And I could never – every time I’d

call no one would answer the phone or they would say [Counsel] was out of

the office. And so I was trying to figure out what was going on. But I

couldn’t get a response, so I sent a letter to the Board of Professional

Responsibility. And I requested at that time where he can respond back to me,

trying to get the preliminary hearing transcripts and other things I was looking

for.

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The Petitioner said that he got a response back from the Board of Professional Responsibility

but that there was no communication between he and Counsel. The Petitioner testified that

he then received three letters from Counsel, dated November 25, December 5, and December

31, 2003. The letters were entered into the record as exhibits. The Petitioner testified that

he then met with Counsel three days before trial, in March 2004.

The Petitioner testified that, when he met with Counsel before trial, the Petitioner

wanted to know why Counsel had not communicated with him by telephone, particularly

because the Petitioner had already paid him. The Petitioner reiterated that, in the six months

between when his trial date was set and the actual trial, he and Counsel only “really had a

chance to sit back and talk” three days before trial, as far as discussing where witnesses were

located and how to get them to court. The Petitioner stated that, on the day of trial, he asked

the trial court to appoint a new attorney to his case. The Petitioner recalled that he made “a

statement on the record” about the lack of communication between Counsel and himself.

The Petitioner stated that he had wanted to call two witnesses at trial, Mr. Boyce and

the Petitioner’s girlfriend, Ms. Brown. The Petitioner stated that he asked Counsel to file a

motion to suppress the police officers’ statements, but Counsel did not do so. The Petitioner

also requested that an investigator be employed to work on the case, but Counsel did not do

so until the week prior to the trial.

The Petitioner stated that, at trial, Counsel did not throughly cross-examine the police

officers about the discrepancies in their statements and testimony. The Petitioner said that

his lack of communication with Counsel hampered the Petitioner’s ability to prepare for his

trial.

On cross-examination, the Petitioner agreed that he told the trial court that he did not

want to testify and that he was satisfied with Counsel’s representation.

Counsel testified that he had been an attorney since 1983 and had practiced criminal

and civil law, including personal injury and divorce cases. He testified that he had tried

approximately twelve to fifteen criminal cases since 1989. Counsel stated that he met with

the Petitioner, who told him that he had been at the scene of the crime looking at real estate

next door when a group of men ran out of the victims’ house and injured the Petitioner.

Counsel testified that the Petitioner told him that Ms. Brown would corroborate his story.

Counsel testified that he paid an investigator two different times to try and locate Ms. Brown,

and, when she could not be found, Counsel requested a continuance and a new trial date until

she could be located. Counsel stated that the trial court told him that “he would make sure

we got [Ms. Brown] in there if we needed her[,]” meaning the trial court would subpoena

her, so Counsel stopped looking for her.

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Counsel testified that he did visit the Petitioner during the period of time when it was

alleged they had no communication. He stated that the Petitioner called him about seeking

a continuance in order to find the witness. Counsel stated he was “pretty sure” that he went

and saw the Petitioner in jail, but he could not remember for certain because it had all

happened nine years prior. Counsel testified that the letters he sent to the Petitioner saying

that all communication needed to be in writing “didn’t mean” that Counsel was not going to

visit the Petitioner but simply meant that Counsel wanted a record of what he communicated

to the Petitioner because of the Petitioner’s complaint to the Board of Professional

Responsibility about Counsel’s representation. Counsel stated that he was not sure whether

there was a long period of time when he did not see the Petitioner. Counsel also stated he

did not remember the Petitioner’s asking him to subpoena Mr. Boyce to testify. Counsel

testified that he went to the house where the crime occurred and took pictures.

Counsel testified that the Petitioner only gave him Ms. Brown’s name and no other

information about how to find her. He recalled that, when the trial judge indicated he could

find Ms. Brown himself, the Petitioner communicated to Counsel not to continue looking for

her because she was married.

On cross-examination, Counsel testified that the Petitioner maintained he had not

committed the crime, but he also stated that he would take a “twelve year offer” from the

State. Counsel testified that he made contact with the Petitioner at least eight to twelve times

and that he “thought they met enough.” Counsel testified that, during that time, the Petitioner

told him his own theory of defense, which was that Ms. Brown had taken him to look at the

house next door to the crime scene “for some reason[.]” Counsel recalled that he was able

to elicit the Petitioner’s defense theory through the police officers’ testimony. Counsel also

stated that one police officer had made a statement that he did not recognize the Petitioner.

Counsel testified that, for those reasons, he did not file a motion to suppress the officers’

statements.

Counsel testified that he discussed the Petitioner’s decision to testify with him, and

he told the Petitioner that a hearing would be held about the admissibility of his prior history

of similar crimes. He said the Petitioner decided not to testify. He also stated that everything

the Petitioner would have testified to was brought up in police officers’ testimony and that,

as a result, he did not think the Petitioner should testify. Counsel testified that, in terms of

investigation, he did “everything [he] could.” He stated that the State had a very strong case

because the Petitioner was found at the scene.

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

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It is from this judgment that the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred when it

dismissed his petition because Counsel’s representation fell outside the standard proscribed

in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). He contends that Counsel did not conduct

a “reasonable investigation” into the facts of his case and failed to communicate with the

Petitioner about a trial strategy. The Petitioner contends that Counsel’s failure to investigate

the case lead to insufficient cross-examination of the police officers about the inconsistencies

in their testimony. The State responds that the Petitioner has not shown in what ways

Counsel’s investigation was unreasonable and that the Petitioner has failed to demonstrate

how such deficiency prejudiced him at trial. 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

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:

The post-convictions court’s order addressed multiple arguments laid out by the Petitioner in his

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petition; on appeal, the Petitioner assigns error only to Counsel’s alleged failure to investigate the case and

alleged lack of communication with the Petitioner. Thus, we will only address those portions of the order.

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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.

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)).

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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’s investigation was not unreasonable, noting that Counsel had made “serious”

efforts to find the potential witness, Ms. Brown, and that, with no more information than her

name, “little more could be expected of [Counsel] in locating a witness.” Further, the postconviction court found that Counsel sufficiently communicated with the Petitioner

throughout the period before his trial and that Counsel’s reasons for not communicating by

telephone were legitimate, given that the Petitioner had filed an ethics claim against him.

The evidence in this case does not preponderate against the post-conviction court’s

findings on this matter. We agree that Counsel was not deficient in his attempt to locate Ms.

Brown. Counsel tried to find the witness Ms. Brown on two different occasions, even hiring

a private investigator to try and locate her. The Petitioner, however, had only provided her

name, and, thus, she could not be located. Further, the Petitioner did not present Ms. Brown

as a witness at the post-conviction 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).

We conclude that Counsel adequately investigated the Petitioner’s case. Counsel did

“everything” he could, in light of the weight of the evidence against the Petitioner. A police

officer who responded to the scene testified that he found the Petitioner lying on the ground

outside the victim’s house, with the victim’s belongings on the ground a few feet away. The

Petitioner’s explanation to police officers that he was looking at nearby real estate was not

plausible. Counsel further investigated this case by going to the victims’ house and taking

pictures of the surrounding area.

We further agree with the post-conviction court that Counsel adequately

communicated with the Petitioner. While Counsel had trouble recalling the events nine years

prior, he was “pretty sure” that he visited the Petitioner in jail. Counsel communicated with

the Petitioner via written letter, which he found necessary based upon the Petitioner’s

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complaints, but the two also met in person.

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

to look for the witness, that Counsel’s investigation was insufficient, or that his

communication with Petitioner was inadequate to constitute 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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