### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec em be r 7, 200 4
ERIC PH ILLIPS v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. P -25920 Jam es C. Beasley, Jr ., Judge

No. W2004-00150-C CA-R 3-P C - F iled Fe bruary 7, 2005

Petitioner , Eric Phillips, filed a petition for post-conviction re lief, which w as subseque ntly amende d. F oll ow ing a n e vid e nti ary

he ari ng , the pe tit ion fo r po st- c on vic tio n r e lie f w a s d ism iss e d. On app e a l, Petitioner arg ues t hat he rec eived inef fec tive assistance of counse l both at trial and on appe al. Afte r a thoroug h revie w of the r ecor d, we f ind no error

and af firm the judg ment of the post-c onvi ct i on c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Trial Court Affirm ed

T H O M A S T. W O O D A LL , J ., delivere d the opi n i o n o f t h e court, in which D AVI D H. W ELLES and R OB E R T W. W EDEMEYER , J J ., joined.

John H. Park e r, I I , M e mph is, Te nn e sse e , f or the app e lla nt, Eric Phi lli ps
. Paul G. S um mers, Attorne y Ge ne ra l a ndRe po rt e r; J. Ros s D y e r, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Micha el McCusker, Assistant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.
OP IN ION

I. Bac kgr ound Following a jury

trial, Petitioner was convicted of first deg ree preme ditated murder and wa s sentenc ed to life imprisonment. The c harg ed off enses i n v o l v ed a shooting in the early morning ho ur s of Ap ri l 7, 19 98

. Th e te sti mon y of the State ’s prima ry wi tne sse s wa s su mm ari z ed b ythi s Court in Petitioner’s direc t appea l in State v. Phillips, N o
. W1 9 9 9

- 0 1 8 0 0

- CC A

- R3

- CD , 2 0 0 1 WL 720656 (Tenn. Crim. App., at J ackson, June 26, 2001) , perm. to appeal de nied (Tenn. Oct. 22, 2001)
a s f oll ow s:
At tr ia l, O ff ic e r Rob e rt Ea

rl Ga lis on te sti fi e d that in the e arl y mornin g ho ur s o f A pril 7, 1998, he re ceive d a dispatch to the Oakview Apartment Compl ex to i nvestig ate a-2-

re p o r t e d s h o o t i n g
. A s h e arr i v e d , h e n o t i c e d a p u r p l i s h C a d i l l a c , w h i c h w a s s t i l l in g ear and running , up ag ainst a dumpster. Of fice r Ga lison noti ced bullet hole s in the driver' s side d oor of the c ar and that the victim was dec ease d. He notified the dispatcher

and sec ured the crime scene
. He was unable to loc ate any witnesses to the
s h o o t i n g.
The State' s next witness was Ve ronica Ward, a re sident of Oakview Apartments. She tes t ified that she wa s awa kened in the e arly

morning hours of April 7, 1998 by
sever al g unshots. She imm ediately g ot out of bed, went to her window, and opened the curtains. When she looked out of her window she saw the def

endant, whom she later ide ntified in a police photo li n eup, running towa rd a g ray Astro minivan. She
rec og nized that the minivan was being driven by Der rick " Chicken" Cole. She te sti fi e d tha t whe n she sa w the de fe nd a nt, he wa s w e ari ng a wh ite ta nk -t op T- sh irt, blue Air Jordan pants, and blac k and white Air J ordan shoe s. She also testified that he wa s car

ry ing w hat she de scribed to be an AK47 as s ault rifle. She then sa w the de fe nd ant di ve int o th e min ivan. Ms. War d th e n g ot dre sse d a ndran d ow ns ta ir s to the sce ne of the shooting. She looked in the ca r an d s aw the vic tim sl umped over with his brains exposed through the back of his head.

Christ e ne [sic ] Phil lip s, wh o r e sid e d at Ke nn e l Ca ba na Ap art me nts , wh ic h are a c ro ss the str e e t f

ro m O akv ie w A pa

rt me nts , w a s th e ne xt w itn e ss fo r the State . In th e e arl y morning of April 7, 1998 , h er l i ve-in boy friend, D errick " Chicken" Cole, returne d with her g ray

minivan and told h er there had bee n a murde r at the O akview Apartments. She t es tified that six or seve n other pe ople ar rived be tween 2:00 a nd 4:0 0 a .m. , in c lud ing " Mis sis sip pi, " " Ow e n, " " L itt le D. ," " B ow dy ," a nd the de fe nd a nt, known to her a s "E." Whil e the e ntourag e wa s there, she overhe ard the defe ndant state that he " g ot that bo y " a nde xpla ine d th at he didso be c aus e he wante d s ome pa rt s from the victim' s car . Ms. Phil lips ex plained to the jury that the defe ndant owned a blu e Ca dil la c sim ila

r t o th e on e drive n b y

the vic tim

. Of fi ce r A l v i n P ep p er s n ex tt es t i fi ed fo r t h e S t at e. He co l l ec t ed s i x s p en ts h el l ca s i n gs from the c ri m e s ce n e and me tal fra g ments from the victim' s car . He a lso made diag rams of the bullet holes in the car

. Virg inia West, the victim's sister, t es t i fi ed that she wa s notified by telephone soon afte r the shooting and immediately went to the scene
. When she arrived she identified her br other for

the police. She also testified that she r eca lled seeing the def endant at the crime scene wea

ring a blac k hooded swe atshirt, not a white tank top.

The State' s final witness was me dical examiner, O.C. Smit h. Dr. Smit h testified that t he victim died as a

result of two g unshot wounds to his head. The victim also had
a g razing g unshot w ound to his left shoulder, a fra g ment wound to the back of his left up pe r a rm , a nda n e xten siv e g un sh ot w ou nd e nte ri ng his le ft

thi g h a ndex it ing his-3-

ri g h t th ig h

. D r
. Sm ith c o n f irme d th a t th e b u ll e t f

r a g me n ts h e r e c o v e r e d f

r om the victim were consistent with the type that would be fire d from an A K47 assault rifle

. Also, the victim's wounds w ere consistent with the type of injury inflicted by

the type of bullet fire d from an A K47.

T h e d e f e n d a n to f f e r e d n o p r o o f

a n d c h o s e n o tt o t e s t i f

y. Phillips , 2001 WL

720656, at *1. Petitioner arg ued the suff

iciency of the c onvicting e vidence on appea l. A panel of this Court upheld Petitioner’s convic tion, and the Supreme Court de nied Petitioner’s a p p li c ati o nf

o r p e rmi s sion to a pp e a l.

I n g ener al, Petitioner’s claims of i neff ective assistance of his trial counsel foc us on counsel’s prepa ration for trial and her cross-examination of t he S tate’s witnesse s, particularly Ms. Ward and Ms. Phil lips. P etitioner also cla ims that his appellate counsel was inef fec tive for f

ailing to r aise a s an issue on appea l the admissibili ty of certain statements by Ms. War d about Peti t i o n er ’s g ang aff iliation.

II. The P os t- Co nvi c ti on H e ar ing

Pe tit ion e r te sti fi e d a t the po st- c on vic tio n h e ari ng that hi s tria l c ou ns e l f a ile d to a de qu a te ly investigate the sce ne of the crime. Petitioner said that Ms. Ward’s view of the scene that night wa s impaired by

a line of tree s that g rew betwee n the sidewalk and her apartment. Petiti oner sa id that his trial counsel photog raphe d the location of a tree in relation to Ms. Ward’s bedr oom window but failed to introduce the photog raphs at trial.

Pe tit ion e r a lso te sti fi e d th a t hi s tria l c ou ns e l f a ile d to su ff

iciently a tta c k M s. Phi lli ps ’
c re dib ili ty a t tria l. Pe tit ion e r sa id that Ms . Ph ill ips ha d b e e n in te re ste d ina se xua l r e la tio ns hip wi th him before the offe nse, but Petitioner told her he was not interested in her. I n addition, Petiti oner ma int a ine d th a t Ms . Phill ips wa s c omp e lle d to te sti fy a g a ins t hi m be c aus e the po lic e thr e a te ne d to take a way

he r c hil dr e n if

sh e didno t c oo pe rate . Pe tit ioner de nie d th a t he a tte mpt e d to g e t Ms

. Phill ips to chang e her testimony prior to the hearing on his motion for new tri al

. He conceded, howeve r, that he r elea sed Ms. Phillips fr om her subpoena to testify at the hea

ring on the advice of h i s c o u n s e l w h e n M s
. P h i l l i p s r e f u s e d t o a l t e r

h e r t e s t i m o n y.
Petitioner said that his trial counsel fa iled to interview a number of witnesses who c ould have
e ith e r v e ri fi e d th a t he wa s n ot at th e sc e ne wh e n th e sh oo tin g oc c ur re d o r te sti fi e d tha t some on e e lse killed the victim. These witnesses inc luded Tra vis J ackson, L aShondra Cox, and a gi rl known as “Nika.” Petitioner said that Mr. J ackson w as with him on the night of the shooting, a nd that Ms. Cox and “Nika” could testify that Rico and L eon P rog e admitt ed that they killed the victim during a ca r ja c kin g . Pe tit ion e r c on c e de d th a t hi s tria l c ou ns e l ha d in te rv ie we d s e ve ra l pe op le . H e sa id that hi s-4-

trial counsel a sked if he w anted to re quest a c ontinuance w hen his witnesses could not be located, bu t Pe tit ion e r d e c ide d n ot t o d o s o b e c aus e he ha d a lr e a dy be e n inja il f

or e ig hte e n mo nth s.
Petitioner acknow ledg ed that Mr. Jackson was subpoe naed to testify at the post-convic tion hearing but ha d failed to show up. Petitioner, howe ver, sa id that he did not want the post-c onviction court to issue an attachment pro corpus because he was afr aid M r. J ackson w ould not be a friend any more if h e d i d s o , and Petitioner wa s not sure what Mr. J ackson w ould say under oath, if he wa s loc ke d u p p ur su a nt t o a n atta c hme nt p ro c or pu s.
Pe tit ion e r s a id that no on e e xpla ine d th e e le me nts of fi rs t de g re e pr e me dit a te d mu rd e r t o h im or that he c ould rec eive a

life sentence if he wer e found g uilty . Petitioner believed his trial c ounsel
s h o u l d h av e challeng ed his arr est bec ause the police did not have pr obable c ause w hen Petitioner was fir st arre sted.

Pe tit ion e r c on c e de d o n cr os s- e xami natio n that portio ns of De rric k Co le ’s te sti mon y wo uld not have be en bene ficial to his de fense if Mr. Cole had been called to te stify

. Petitioner ag ree d that his trial counsel di d pursue the inconsistencies in Ms. Ward’s testimony , but insist ed that she w as ineffe ctive whe n she did not ge t Ms. W ard to a dmit that she was ly ing. Petitioner a cknowledg ed that he tol d h is t

ri a l c ou ns e l onthe day

be fo re the tr ia l be g a n th a t he ha d kill e d th e vic tim . Peti tio ne r s a id he thoug ht his trial counsel would work ha rder if she knew he had c ommitt ed the of fense

. Gar land Erg uden, P etitioner’s a ppellate c ounsel, testified that she did not ra ise on appe al the trial court’ s admis s i o n of Ms. Ward’s testimony about g ang activities bec ause it wa s her understanding that the trial court g ave a curative i nstruction to the jury . Ms. Erg uden believe d that the s tr o n g e s t i s s u e o n ap p e a l w a s th e s u f f ic ie n c y o f th e c o n v ic ti n g e v id e n c e b e c au s e o f th e many i n c o n s i s t e n c i e s i n M s
. W ar d ’ s t e s t i m o n y. Christine Phillips testified that she told Petitioner’s trial counsel that the police had told her sh e c ou ld be c ha

rg e d a s a n a c c e sso ry if sh e did no t c oo pe rate

. Ms. Phi lli ps sa id that sh e wa s in iti a lly afr aid to g ive a state ment beca use Petitioner was a

g ang member. Ms. Phill ips sa id, how ever , that her te stimonywould not ha ve been any differ ent if she had not bee n afr aid. Ms. Phill ips said that Pe tit ion e r t

ri e d to g e t he r to c ha ng e he r t e sti mon y be fo re the he ari ng on his mot ionfo r n e w t ri a l to say that Petitioner did not admit t hat he killed the victim, but she re fused to do so.

Melvin J enkins lived in Ms. Phi llips’ apartment at t he ti me of the offense . He testified that Pe tit ion e r d id n ot a dmi t th a t he ha d kill e d th e vic tim a ft e r e ve ry on e ha d g a the re d inMs. Phi lli ps ’ apartment after

the shooting. Mr . J enkins said that he a g ree d to testify at the post-convic tion proce eding in order to he lp Petitioner out. Mr. J enkins denied knowing anything a bout Petiti oner’ s trial althoug h he ac knowledg ed that he kne w Petitioner was in jail af ter his arre st for the off

ense. Mr . Jen kin s sa id that he be lie ve d a ma n n a me d “ Mis sis sip pi” ha d kill e d th e vic tim , b ut “ Mis sis sip pi” disappea red a fter the incident. Mr. Jenkins admitt ed on cross-e x amination that he wa s incarc erated in S he lby Cou nty wh e n Pe tit ion e r’ s p os t- c on vic tio n c ou ns e l c on ta c te d h im.-5-

L atony a Bur

row, Petitioner’s trial counsel, testified that Petiti oner w as coope rative during the pre -trial investig ation. Ms. Burr ow thoug ht that Petiti oner w as intellige nt and fullycapa ble of understanding the charg es against him. Ms. Bur row met with Petitioner at least ten times during the
mon ths pr e c e din g his tr ia l.

Ms. Burr ow said that she visi ted t he crime scene and went inside Ms. Ward’s apa rtment. She said that there was only one tree outside of Ms. War d’s bedroom window, and that the tree did not obstruct the view of

the par king lot whe re Ms. Ward sa id that she saw Petitioner.

Ms. Burro w s ai d that Petitioner admitted to her that he c ommitt ed the of fense about two
wee ks befor e his trial beg an. Althoug h the def ense ha d been origina lly based on a t h eo ry of
m i sidentification, Ms. Bur row said that she focuse d her c ross-examination on the inconsistencies in the testimonyof the State’s w itnesses afte r P etitioner’s admissi on. She believed that she cove red all of the inconsistenc ies in Ms. W ard’ s testimonyduring her c ross-examination.

Ms. Burr ow said that she kne w Ms. Phill ips had some kind of re lationship wi t h Petitioner prior to the inc ide nt, bu t Ms . Ph ill ips sa id s he and P eti tio ne r h a d p art e d o n f ri e nd ly te rm s. Ms. Burrow said that she did not want to question Ms. P hillips about her relationship wit h Petitioner beca use that line of que stioning m ight bolst er her credibility

. Ms. Burr ow admitted that she a nd her investigator, Eug ene Cole, ha d trouble finding the people on Petitioner’s witness list. The potential witnesses for

t h e m ost part wer e known only by nicknames. Ms. B urrow a cknowledg ed that she could not find Mr. Jenkins before the trial b ega n. Ms. Burr ow interview ed De rrick Cole a nd
c on c lud e d th a t hi s te sti mon y wo uldno t be be ne fi c ia l to P e tit ion e r’ s d e fe ns e . M r. Col e ini tia lly tol d the police after the shooting that Petitioner told him to move the victim’s car a way from the apartments, and Ms. Bur

row be lieved that this statement would outweig h any benef it that might have b e e n d e r i v e d f

r o mM r
. C o l e ’ s t e s t i m o n y.
Ms. Burr ow was awar e that the pol ice had told Ms. Phil lips that they might ar rest her if she did not cooperate. Reg ardle ss of Ms. Phill ips’ motivation behind her c ooperation with the police, Ms. B ur ro w s a id that Ms . Ph ill ips ’ t e sti mon y wa s c on sis te nt t

hr ou g ho ut the tr ia l pr oc e ss.
Ms. B urrow said that she filed numerous pre- trial motions but did not consider fi l i n g a mot i o n t o s u p p r e s s
. M s
. B u rr o w s a i d t h a ts h e b e l i e v e d t h e p o l i c e h a d p r o b ab l e c au s e t o a rr e st Pe tit ion e r b a se d o n th e ide nti fi c a tio n o f P e tit ion e r a s th e sh oo te r b y va ri ou s w itn e sse s.
On cr oss-exam i n ation, Ms. Burr ow ag ree d that she wa s awa re that Ms. W ard’ s medical
re c or ds ind ic a te d tha t she ha d a mor e se ri ou s e y e c on dit ionthan M s. War d d e sc ri be d at tria l. M s. Bur row a lso ag ree d that she di d not question Ms. Ward about t he fact t hat s he dis liked Petitioner or that she was known in the neig hborhood as “the police.” Ms. B urrow a lso said that she was a war e of a potential witness whom she believed was known as “Mika,” rathe r than “ Nika,” and that “Mika” and L aShondra Cox had told other people that the P rog e brothers killed the vi ctim. She subpoenae d

“ M ik a , ” b u t th e w o man d idn o t a p p e ar inc o u r t. M s
. B u rr o w s a idth a t s h e a ls o ta lk e d to M s
. Co x.-6-

When Ms. Cox told Ms. Burrow that she would not lie to help Petitioner, Ms. Burr ow dec ided not to c a ll h e r a s a

wi tne ss.
Ms. Burr ow conc eded that she viewe d the crime scene under the assumption that Ms. W ard saw Petitioner running fr om the parking lot through the space that separ ated Ms. Ward’s a partment from the ne x t building. At trial, Ms. Ward, howeve r, said that she saw Petitioner running away from the vic tim ’s c ar w ith ou t me nti on ing the a lle y be tw e e n th e apa

rt me nt b uil din g s. No neth e le ss, Ms. Bur row said that she did not believe that the direc tion Petitioner fled afte r the shooting w ould impact her a ssessment of Ms. Ward’s view of the par king lot.

At the c on c lus ionof

the he ari ng , th e tr ia l c ou rt fo un d th a t Ms . B urr ow ha d th or ou g hly pr e pa re d Pe tit ion e r’ s d e fe ns e , a nd that sh e did e ve rythi ng sh e c ou ld t o lo c a te the po te nti a l w itn e sse s. The trial court found that Ms. B urrow ably cross-e x amined Ms. War d and eff ective l yh i gh lighted the inc on sis te nc ie s in he r t e sti mon y . T he tr ia l c ou rt c on c lud e d th a t e ve n if

it h a d b e e n e rr or

no t to ask M s . Ward about her fee lings towa

rd Petitioner, this omiss ion would not have af fec ted the
ou tc ome of

the tr ia l. T he tr ia l c ou rt

sp e c if ic a lly a c c re dit e d the t est imony of Ms. Phi lli ps a ndMs. Bur row a nd discredited the testimonyof Mr. Jenkins. The trial court a lso found that Petitioner was fu lly c apa ble of un de rs ta nd ing the e le me nts of the c ha rg e d o ff e ns e s a ndthe po te nti a l pu nis hme nt. Ba sed on the for eg oing, the trial court dismissed Petitioner’s petition for post-convic tion relief.
III. Stand ard of Review A petitioner see king post-c onviction relief must establish his al l ega t ions by clea r and
c on vin c ing e vid e nc e . T e nn . Co de An n. § 40- 30 -2 10 (f ) (1 99 7) . T he tr ia l c ou rt ’s fi nd ing s o f f a c t in
a post-conviction hea

ring are aff

orded the weig ht of a jury verdic t. Bl ac k

v . S tate , 794 S.W .2d 752, 7 5 5 (T en n
. C ri m
. Ap p
. 1 9 9 0 ). T h er ef o re , t h i s C o u rt m ayn o t re -w ei gh o r re -e v al u at e t h es e f i n d i n gs or substitute its i nfer ence s for that of the trial judg e unless the evidence in the rec ord pre ponderates ag ainst those finding s. Sta te v . H on ey c utt , 5 4 S. W.3 d 7 62 , 7 63 (Ten n. 2001 ); State v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999). I n addition, questions concerning the cre dibilit y of witnesses a nd the we ig ht andva lue g ive n th e ir te sti mon y

is r e so lve d b y

the po st -conv ic tio n c ou rt , a ndno t th is Court. Id . Howeve r, the trial c ourt’s application of the law to the fac ts is reviewe d de novo , without a pre sumption of corre ctness. Fi e lds v . S tate , 40 S.W .3d 450, 458 (Tenn. 2001) . A claim that counse l rende red ine ffe ctive assistanc e is a mix ed question of f act a nd law and theref

ore also subject to de novo revie w. Id. ; Burns , 6 S.W .3d at 461. When a petitioner see ks post-conviction relief on the basi s o f ineff

ective a ssistance of counsel, he must establis h that counsel’s pe rformancefell below “ the rang e of c ompetence demande d of attorney s in criminal case s.” Ba x te r v . R os e , 5 2 3 S

. W

. 2 d 9 3 0 , 9 3 6 ( T e n n
. 1 9 7 5 )

. In
a dd iti on , h e mu st sh ow th a t c ou ns e l’ s in e ff e c tiv e pe rf

orma nc e a c tua lly

a dv e rs e ly

imp a c te d h is defe nse. Strickland v. W ashington , 466 U.S. 668, 693, 104 S. C t. 205 2, 2067, 80 L . Ed. 2d 674 (1 98 4) . In r e vie wi ng c ou ns e l’ s p e rf orma nc e , th e dis tortio ns of hin ds ig ht mus t be a vo ide d, a ndthi s C o u rt will not second-g uess counse l’s decisions re g arding trial strateg ies and tac tics. H e ll ard v. State, 62 9 S .W .2 d 4, 9 (Te nn . 1 98 2) . T he re vie wi ng c ou rt , th e re fo re , s ho uldno t c on c lud e that a-7-

pa rt ic ula r a c t or omi ssi on by

c ou ns e l is un re a so na

ble me re ly

be c aus e the str a te g y

wa s u ns uc c e ssf

ul. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, c ounsel’s alleg ed er rors should be judg ed from counse l’s perspe ctive at the point of time they wer e ma d e i n light of a ll the fac ts and circ umstances at that time. Strickland , 466 U.S. at 690, 104 S. Ct . at 2066.

A petitioner must satisfy

both prong s of the Strickland test befor e he or she may preva il on a cla im of ineffe ctive assistanc e of c ounsel. See H enley v. State, 960 S.W .2d 572, 580 (Tenn. 1997)

. Th a t is, a pe tit ion e r mus t no t on ly sh ow that his c ou ns e l’ s pe rf orma nc e fe ll bel ow a ccepta ble standards, but that such pe rformance was pre judicial to the petitioner. Id. Fa ilure to satisfy eit her prong will result in the denial of re lief. Id. Acc ordin gl y , t h i s C ourt nee d not addre ss one of the components if the pe titioner fails to establish the other. Strickland , 466 U.S. at 697, 104 S. Ct . at 2069.
IV. Ef fectiveness of App ellate C ouns el Petitioner arg ues that his appellate counsel was ineffe ctive for failing to r aise as an issue on appea l the admissibili ty

of Ms. Ward’s comments a bout gang -re lated ac tiviti es in the neig hborhood. I t is no t e nti re ly

c le ar f ro m th e re c or d wh e the r or no t tr ia l c ou ns e l ob je c te d to the state me nts , b ut M s. Erg uden believe d that an objec tion was made. Ms. Er g uden also conce ded that the transcript of the hearing on P et i t i o n er ’s m otion for new trial indicated only that the trial cour

t “believe d” it had instructed the jury

to disreg ard Ms. W ard’ s comments. Ms. Erg uden did not revie w a copy of any of the trial c ourt’s instructions to the jury

. No ne the le ss, Ms. Er g ud e n te sti fi e d that a lth ou g h sh e c on sid e re d r a isi ng thi s is su e on app e a l, she conc luded that P etitioner’s stronge st arg ument rested upon a challeng e to t he suff iciency of the convicting evidenc e bec ause of the many inconsistencies in Ms. Ward’s testimony . Ms. Erg uden
sa id that no ne of the g a ng -r e la te d ac tiv iti e s Ms. War d de sc ri be d in her te sti mon y we re a ttribu te d to Petitioner, and the activities occur red some time after

the crime. I n addition, Ms. Erg uden said that it was Ms. Phil lips’ testimony , not Ms. W ard’ s, that was the most damag ing to Petitioner’s de fense

. Th e po st- c on vic tio n co urt fou nd that eve n if M s. Er g ud e n s ho uldha ve raise d th e a dmi ssi bil ity of Ms. Ward’s statements on a

ppeal, Petit ioner ha d failed to show that he was pre judiced by

this omi ssion.

There is no constituti onal re quirement that a ppellate c ounsel arg ue every conce ivable issue on appea l. Carpenter v. State , 1 26 S.W. 3d87 9, 88 7 ( Te nn . 2 00 4) ; Cam pb e ll v . S tate , 904 S.W .2d 59 4, 59 7 ( Te nn . 199 5)

. Th e de te rm inatio n of wh ic h issu e to ra ise on app e a l is a ta c tic a l or

str a te g ic choice , and “is a

matter whic h addre sses itself to the profe ssional judg ment and sound discretion of appellate counsel.” Id. (c itatio ns omi tte d) ; Coo pe r v . S tate , 849 S.W

. 2 d 7 4 4 , 747 (Tenn. 1993)

. Some fac tors which ar e helpf ul in e valuating the eff

ectivene ss of appellate counsel include whether the omitted issue was “sig nificant and obvious,” whethe r the omitted issue was c lear ly strong er tha n the issue pre sented, a nd whether “the de cision to omit the issue an unrea sonable one which only an incompetent attorne y

would adopt.” Carpenter , 126 S.W .3d at 888.-8-

B a se d u po n our re vie w, we fi ndthat th e e vid e nc e in the re c or d d oe s n ot p re po nd e rate a g a ins t the tr ia l c ou rt ’s fi nd ing that Pe tit ion e r fai led to sh ow tha t he wa s p re jud ic e d a s a

re su lt o f h is ap p el l at e c o u n s el ’s fa i l u re t o ra i s e o n ap p ea l t h e a d m i s s i b i l i t y o f M s
. W ar d ’s co m m en t s ab o u tgan grelated ac tiviti es in the neig hborhood. Petitioner is not entitled to relief on this issue.
V. Eff ectiveness of T rial Counsel

Petitioner conce des t hat M s. Bur row cross-examined Ms. Ward about her prior inconsistent statements, her

inabilityto a ccur ately place the shooting within a specific time f rame , and her

poor ey esig ht. Petiti oner a

rg ues, howe ver, that Ms. Burr ow’s a s s is ta n c ew a s ineffe ctive bec ause she made
c e rt a in a ssu mpt ion s a

bo ut the dir e c tio n Pe tit ion e r fl ed a ft e r the inc ide nt that w e re no t r e fl e c te d in Ms. Ward’s testimony . Petitioner arg ues that if Ms. Ward saw Petitioner running down the stree t instead of throug h the alley betwee n the apartment buildings as Ms. Burr ow assumed, then the tree in front of Ms. Ward’s bedroom window would have blocked her view of Petit ioner. Ms. B urrow testified that she examined the parking lot whe re the shooting took plac e, and vie wed the sc ene f rom Ms. Ward’s bedroom window. Ms. B urrow d et ermined that Ms. W ard’ s view of the pa rking lot wher e Ms. Philli ps’ minivan was parke d was not obstruc ted by the tree . Ms. Burr ow said that she decide d not to question Ms. Ward about the tree outside her window be cause that line of questioning
m i g h tb o l s t e r

M s
. W ar d ’ s t e s t i m o n y.
Th e tr ia l c ou rt

fo un d th a t Ms . B ur

ro w e ff e c tiv ely a tta c ke d M s. War d’ s c re dib ili ty fr om a nu mbe r o f d ir e c tio ns , a ndthat he r d e c isi on no t to pu rsu e qu e sti on s a bo ut the tr e e in f

ro nt o f M s. Ward’s bedr oom window was a tactica l decision based upon her own persona l obse rvations. The evidenc e does not pre ponderate ag ainst the trial court’s finding that Pet i t i oner’ s trial counsel rende rede f

f e c ti v e a s s is tan c e o f

c o u n s e l d u r in g M s
. Wa

r d ’ s c r o s s
- e xa mi n a ti o n
. Pe ti ti o n e r is n ot entitled to relief on this issue.

Pe tit ion er argues that Ms . B ur ro w w a s in e ff

e c tiv e wh e n s he faile d to c ro ss- e xami ne Ms. Phill ips a b o u t th e p o li c e o f

f ic e r s ’ th r e a ts th a t s h e w o u ldb e c h ar g e d a s a n a c c e s s o r y if s h e d idn ot cooper ate. Ms. Phillips testified at the post-c onviction heari n g t h at s h e was a fra id to give a state me nt t o th e po lic e be c aus e of Pe tit ion e r’ s g a ng a ff

ili a tio n. Th e tr ia l c ou rt fou nd that Ms

. Bur row’s ta ctical de cision not to probe into Ms. Phi llips’ reluctanc e to come f orwa rd wa s within the rang e of c ompetence expected of defe nse counse l. The evide nce doe s not preponder ate a g ainst the tr ia l c ou rt ’s fi nd ing that Ms . B ur ro w p ro vid e d e ff

e c tiv e a ssi stanc e of

c ou ns e l du ri ng Ms. Phi lli ps ’
cross-e x amination. Petitioner is not entitl ed to re lief on this issue.

Pe tit ion e r a

rg ue s th a t Ms. Burr ow ’s inv e sti g a tio ns we re ine ff e c tiv e be c aus e sh e faile d to loc a te s e v e r a l w it n e s s e s w h o s e te s ti mo n y w o u ld h a v e b e e n b e n e f ic ia l to Pe ti ti o n e r. When a petitioner conte nds that trial counsel failed to discover, inter view, or pr esent a witness in support of the de fe ns e , h e sh ou ld p re se nt that w itn e ss at th e e vid e nti ary he ari ng on the po st- c on vic tio n c la im. Black , 7 94 S.W. 2da t 75 7. Pe ti ti one r t oldhis po st- c on vic tio n c ou ns e l no t to re qu e st the po stc on vic tio n c o u r t t o i s s u e a n a t t a c h m e n t p r o c o r p u s w h e n T r a v i s Ja c k s o n d i d n o t r e s p o n d to h is
su bp oe na to te sti fy a t the po st- c on vic tio n he ari ng
. Pe tit ion e r did c a ll Mr. Jenkins a s a wi tne ss at hi s-9-

post-conviction hea

ring , but the t ri al court specifica lly discredited Mr . J enkins’ testimony that Petitioner did not admit that he shot the victim. The trial court a ccr edited Ms. B urrow’ s testimony that she m ade every eff

ort possible to locate the people on Petitioner’s list of wit nesses. The trial court observe d that Petitioner ref used to allow Ms. Burr ow to take the le g al steps nec essary to bring Mr. J ackson into court to testify , and rele ased other witnesses afte r they wer e subpoenae d. The trial court stated, “ I

don’t t h i n k we can lay

at the fe et of Ms. B urrow ine ffe ctive re prese ntation, when she’s be ing hampere d no t o n l y b y t h e ru les of the stre et but by her c lient’s wanting to play by the rules of the street instea d of doing what’s in his best interest at the advic e of his lawy er.” The evidenc e does not preponde rate ag ainst the trial court’s finding that Ms. Burr ow provided e ffe ctive assistance of counsel during the investigation of Petitioner’s case
. Petitioner is not entitled to relief on this iss ue.
CO NC LU SION

Af te r a tho ro ug h r e vie w of th e re c or d, we fi ndthat th e e vid e nc e do e s n ot p re po nd e rate ag ainst the trial court’s fi nding that Petiti oner’ s appellate and trial c ounsel rende red e ffe ctive assistance of counse l, and that Petitioner failed to show that he wa s prejudice d by any defic iencies that mi g ht be a ttribu te d to his c ou ns e l’ s r e pr e se nta tio n. We a ff

ir m th e jud g me nt o f the po stc on vic tio n c ou rt

.

___________________________________ THOMAS T. WOODAL

L , J UDGE