IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Jackson June 3, 2008

MICHAEL LEE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Williamson County

No. CR11767 Timothy L. Easter, Judge

No. M2007-01665-CCA-R3-PC - Filed September 29, 2008

The petitioner, Michael Lee, appeals the denial of his petition for post-conviction relief by the

Circuit Court for Williamson County from his convictions for aggravated burglary and theft of

property valued over $1000 for which he was sentenced to fifteen years and twelve years,

respectively, to be served consecutively for a total of twenty-seven years. The petitioner claims the

trial court erred in concluding he was provided the effective assistance of counsel. We affirm the

judgment of the trial court. 

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

JOSEPH M.TIPTON, P.J., delivered the opinion of the court, in which ALAN E. GLENN and D.KELLY

THOMAS, JR., JJ., joined.

Mark M. Mizell, Franklin, Tennessee, for the appellant, Michael Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

Ronald L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The petitioner was convicted in a bench trial. In the opinion affirming the convictions, this

court stated the following facts:

Deputy Michael J. Terns of the Williamson County Sheriff’s

Department testified that on August 14, 2002, he was an officer with

the Spring Hill Police Department, and at about 12:00 p.m. that day,

he stopped a blue Cadillac for expired license tags and improper

registration. The defendant, who was driving, told Deputy Terns that
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he did not have a driver’s license and gave Terns a false name. Upon

conducting a search, Deputy Terns found a wallet under the driver’s

seat containing what appeared to be a Department of Safety receipt

with the defendant’s name on it. The defendant then admitted that his

name was Michael Lee. Deputy Terns found a ladies’ silver-colored

watch and a men’s watch on the defendant’s person, a sock full of

rings underneath the dashboard, a pipe used for smoking cocaine

under the driver’s seat, and a black purse containing a sock filled with

silver coins inside the vehicle. A search of the trunk revealed a

television, a TV/VCR combination, and a microwave. The defendant

said that the ladies’ watch found in his pocket belonged to his

girlfriend. Cotton said that the vehicle belonged to him, but there was

no title or registration in the vehicle, and a check of the vehicle

identification number did not reflect Cotton or the defendant as the

owner.

Detective David Beard of the Williamson County Sheriff’s

Department testified that he interviewed the defendant who admitted

that he was with Cotton on the day of the burglary. The defendant

said that he thought the victims’ home was the home of Cotton’s

mother. The defendant also told Beard that the ladies’ watch found in

his pocket belonged to his girlfriend. However, [the owners]

identified the property recovered from the defendant and Cotton as

theirs, including the ladies’ watch.

Elvis Cotton, the defendant’s cousin and a codefendant,

testified that he and the defendant were riding together on August 14,

2002, after “getting high on crack” cocaine. They stopped at the

[owners’] residence to ask for some gas for their vehicle, but, after

determining that no one was home and that the back door was open,

they went inside and took various items of property which they

intended to sell or trade for drugs. Cotton said he never told the

defendant that he was going to his mother’s house and that the

defendant knew where his mother lived. However, when he and the

defendant were stopped, the defendant overheard him tell the officer

that the television and jewelry belonged to his mother. Cotton said he

pled guilty to aggravated burglary and theft over $1000 on November

12, 2002.

State v. Michael Renee Lee, No. M2003-01077-CCA-R3-CD, Williamson County, slip. op. at 2

(Tenn. Crim. App. Jan. 9, 2004), app. denied (Tenn. May 10, 2004). 
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The trial court held a hearing, and both the petitioner and his former counsel testified. The

petitioner argued his trial counsel was ineffective in three areas: (1) the petitioner was coerced into

signing a written waiver of his right to jury trial; (2) trial counsel failed to investigate and interview

a potentially exculpatory witness before trial; and (3) trial counsel failed to present evidence showing

the petitioner did not have the requisite mens rea to commit the crimes for which he was convicted.

At the hearing, the petitioner claimed the entire case against him could have been avoided,

had his attorney interviewed the petitioner’s girlfriend, Gwen Santiago. He testified she was the

owner of the woman’s watch that the petitioner had in his pocket when he was arrested. The

petitioner said he thought that the house he was convicted of burglarizing was the house of the codefendant’s mother, that the co-defendant had her permission to enter the house, and that she had

given her son the items to take. The petitioner claimed that he received bad advice and that because

of this bad advice, he signed a waiver of jury trial. He said he was assured he would receive a

maximum sentence of fifteen years.

On cross-examination, the petitioner admitted he had a man’s and a woman’s watch when

he was arrested, both having been reported as stolen and later identified by the owners. The

petitioner refused to admit his criminal record, but he acknowledged his record meant he was a

career offender. The petitioner stated he met and corresponded by letter with his attorney several

times before trial. The petitioner admitted that in one of these letters, his attorney explained to him

why his co-defendant was sentenced as a Range I offender. He admitted that he did not mention to

his attorney in his letters either the possibility that Ms. Santiago was a potential exculpatory witness

or that the woman’s watch belonged to Ms. Santiago. He stated his main request in these letters was

that his attorney get him into drug court. 

The petitioner’s trial counsel testified that the petitioner was interested in the drug court

program. Counsel stated that although she had met with the petitioner at his arraignment and twice

thereafter to share discovery and prepare for trial, the petitioner told her about the girlfriend for the

first time on February 17, 2003–two days before the petitioner’s trial. Counsel testified that the

petitioner told her the girlfriend’s name, but that he did not know how to contact her. Counsel said

that the petitioner then told her to contact his sister to get Ms. Santiago’s telephone number and that

he gave counsel the sister’s telephone number. Counsel testified that she called and that the

telephone number was out of service. Counsel said she looked online for the girlfriend’s address on

the day before trial. She testified she found a possible address, but no telephone number. 

Counsel testified that she and the petitioner discussed the contradictory statements the

petitioner’s co-defendant had given to the police. Counsel stated she and the petitioner talked about

the petitioner’s criminal history and how he would be impeached if he testified. She said they also

discussed the disadvantages of a jury trial, given his extensive record. She stated she brought a

waiver of jury form for the petitioner to sign after they had discussed the right to a jury trial. She

said that the petitioner was not coerced to sign the waiver and that the petitioner neither protested

nor indicated any feeling of coercion at the time he signed it. 
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Counsel testified that she and the petitioner discussed a plea deal offered by the state

involving twelve- and fifteen-year concurrent sentences as a Range III offender instead of a career

offender. Counsel said she had created a document listing the elements of each offense and the

potential sentences in each range for the petitioner. She stated she and the petitioner had discussed

consecutive and concurrent sentencing. Counsel testified she never indicated the maximum sentence

possible was fifteen years.

Counsel testified that she and the petitioner discussed the difficulties of bringing in the

petitioner’s theories of the case. First, the petitioner wanted to present proof that the watch was his

girlfriend’s, but he did not provide any contact information for her. Second, the petitioner wanted

to show what he understood from his co-defendant about the house belonging to his mother and he

and the petitioner having permission both to go there and to remove items that his mother had given

the co-defendant. However, the petitioner opted not to testify at trial. Counsel testified that, in spite

of these difficulties, she was able to present the petitioner’s defense claims. 

The trial court found the petitioner did not prove facts to support his claims by clear and

convincing evidence. See T.C.A. § 40-30-110(f). The court found the attorney’s testimony to be

more credible than that of the petitioner. 

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). 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. 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.

Under the Sixth Amendment to the United States Constitution, 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, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (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, 104 S. Ct. at 2066. 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, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id., 104 S. Ct. at 2068. Failure to satisfy either prong results in the

denial of relief. Id. at 697, 104 S. Ct. at 2069.
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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). 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, 104 S. Ct. at 2065. “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 informed ones based upon adequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

First, the petitioner claims he was coerced into signing a written waiver of his right to jury

trial. The trial court found that the evidence did not support the petitioner’s waiver claim and that

he had knowingly and voluntarily waived his right to trial by jury. The evidence shows that the

petitioner signed a written waiver of his right to trial by jury after consulting with his attorney on the

risks of a jury hearing about his extensive criminal record. There is no evidence of coercion. There

is no evidence of deficient performance. The record reflects that the petitioner’s attorney was

prepared and had a waiver form with her during the consultation. We conclude the evidence does

not preponderate against the trial court’s finding of a voluntary waiver.

Second, the petitioner claims trial counsel failed to investigate and interview a potentially

exculpatory witness before trial. The trial court found counsel’s actions were within the range of

competent assistance, in both trying to contact a witness disclosed to her two days before trial using

the paltry information her client gave her and moving for a continuance to obtain time in which to

try to contact and investigate this witness. On direct appeal, this court held that the trial court acted

within its discretion in denying the motion for a continuance. The trial court also found that counsel

advocated the petitioner’s claims about Ms. Santiago at trial, despite not having her testimony. The

petitioner admitted that any potential testimony he sought from Ms. Santiago was brought into

evidence during his attorney’s cross-examination of the state’s witnesses. Regarding not having Ms.

Santiago’s live testimony at trial, the petitioner testified that he was not prejudiced. 

Additionally, to substantiate a claim regarding failure to call a witness, a petitioner must

present the witness’s testimony at the post-conviction hearing. Only if a petitioner can “produce a

material witness who (a) could have been found by a reasonable investigation and (b) would have

testified favorably in support of [petitioner’s] defense if called” can counsel’s failure to investigate

and interview a potentially exculpatory witness before trial be shown. Black v. State, 794 S.W.2d

752, 758 (Tenn. Crim. App. 1990). Here, the petitioner did not meet his burden because Ms.

Santiago did not testify at this hearing. The evidence does not preponderate against the trial court’s

finding of no deficient representation.
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Third, the petitioner claims trial counsel failed to present evidence showing the petitioner did

not have the requisite mens rea to commit the crimes for which he was convicted. Petitioner claimed

his counsel did not present evidence that the petitioner and the co-defendant had permission to

remove the items from the house and that the watch he had when he was arrested belonged to his

girlfriend. The trial court found that the petitioner’s attorney raised these theories at trial, even

without the testimony of the petitioner or Ms. Santiago. The petitioner admitted that all of his

theories were presented on cross-examination. Trial counsel’s testimony corroborated this. The

evidence does not preponderate against the trial court’s finding.

The post-conviction relief petition alleging ineffective assistance of counsel was properly

dismissed. Based upon the foregoing and the record as a whole, we affirm the judgment of the trial

court. 

___________________________________ 

JOSEPH M. TIPTON, PRESIDING JUDGE