### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d onBr ie fs O ct obe r 7, 200 3 QUIN CYHEN DER SON v. S TAT E OF TEN NES SEE
Appeal f rom the Cr im inal Cou rt for Shelby Coun ty No. P -23965 W. Otis Higgs, Jud ge

No. W2002-02541-C CA-R 3-P C - F iled March 15, 2004

Th e pe tit ion e r, Qu inc y

He nd e rs on , a

pp e a ls the She lby

County Cr imi na l Co ur

t’ s d ism iss a l of

his post-conviction petition, i n which he c laimed that his second de g ree murder c onviction was constitutionally

infirm becaus e o f i n eff

ective a ssistance of tr ial counsel. Upon our revie w of the
rec ord, the pa

rties’ brie fs, and the a

pplicable law , we a ffirm the de nial of post-convic tion relief.

Te nn. R . A pp. P . 3 ; J udgm e ntof t he Cr im ina l C our t i s A ffirm e d.

J A M ES C UR WO OD W I TT , J R ., J ., delivere d the opinion of the cour t, in which J OHN E VE R E TT W I L L I AMS and N OR MA M C G EE O G LE , J J ., joined.

L arr y Copeland, J r. , M emphis, Tennesse e; and Paul K. Guiba o, Memphis, Tennesse e, for the Appellant, Quincy

Hende rson.

Pa ul G . Summe rs , A tto rn e y Ge ne ra l & Re po rt e r; Jenn if e r L

. B le ds oe , A ssi sta

nt A tto rn e y

Ge ne ra l; Willi am L . G ibb on s, Di str ic t A tto rn e y Ge ne ra l; a

nd Re g ina ld H e nd e rs on

and Mic he lle Ki mbr ill , Assistant District Attorney s Gene ral, for the Appellee , State of Tenne ssee.
OP IN ION A jury co n v i ct ed t he petitioner of the 1995 first deg ree preme ditated murder of Demetr ius Moten. On appea l, this court modified t h e co n v i ction to second de g ree murder a nd
rema nded the c ase f

or re sentenc ing. See State v . Quincy L. He nderson , No. 02C01-9706-CR-00227 (Tenn. Crim. A p p

. , J ac k son, May 12, 1998) ( Quincy H

enderson I

) . On re mand, the trial c ourt sentenc ed the pe titioner to an incar cer ative ter m of 20 y ear s, and on appea l, this court affir med the sentenc e. See State v . Quincy H enderson , No. 02C 01-9901-CR-00003 (Tenn. Crim. App., J ackson, Nov. 29, 1999) ( Quincy H enderson I

I ) .

Th e pe tit ion e r f

ile d a pe tit ion fo r p os t- con vi ctio n r e lie f, c la imi ngc on sti tut ion a lly defic ient repr esentation by trial counsel. F ollowing a n evidentiar

y hear ing, th e p o st-conviction cour t denied r elief, a

nd the petitioner now a

ppeals that de termination.-2- A s umm ary of

the c on vic tin g e vid e nc e is e xtra c te d f ro m th is c ourt ’s op ini on

in Quincy H enderson I:
On

July 7, 19 95, Dem etr ius Mo te n .

. . wa s o bs e rv e d at a neig hborhood bar

and g rill, known by

the lo ca l re sidents as “Sam’s Clu b. ” Whil e in the c lub , Juliu s Mo te n, De me tr ius ’ father, saw his daug hter drinkinga bee r at the c lub with some of her c o u s i n s and friends. H e re called that he instructed his daug hter to g o home to her children.

Be tween 8:30 a n d 9:00 p.m., W illiam Bake r and Y olanda Cribbs eac h saw De metrius an d the appe llant leavingSam’s Club toge ther. T he two we re w alking toward the Dunnava nt Manor Apar tments. Demetrius wa s car rying a brown pa

per ba g in her lef

t h an d

. “[ T h e ap p el l an t ] p u t h i s armar o u n d h er

. . . l i k e .

. . h u ggi n g, but no . . . she wa sn’t hug g ing ba ck.” F rom ac ross the stree t, Baker overhe ard the two discuss i n g a t en dollar bill and obser ved that the appellant a

ppear ed to be attempting to take the br own pape r bagawa y from De metrius. Ms. Cribbs stated that “they wer e not fig hting or strug g ling in any

way .” She ex p l ai n ed that it appea red a s if the appellant a

nd Demetr ius w ere hug g ing, and, beca use she knewthey
wer e fr iends, she did not think a ny thing about it. B aker

also noticed that th e a pp e lla nt w a s w e ari ngwh ite , b la c k, and g re e n Nike te nn is shoes. B oth Baker a

nd Cribbs wa t ch ed the two walk toward the Dunnava nt Manor Apa

rtments, but neither notice d whether they ever e nte re d a n a pa rtme nt.

. . . . The ne x t morning, be tween 7:30 and 8:30 a.m., J err y Her ron and Or ang e Willi ams . . . sear ch[ ed ] fo r Demetrius when they
rea liz ed that she ha d never returne d from Sam’s Club. The two men found the lifele ss body of Demetr ius Moten in the woods behind the Dunnava nt Manor A

p a r tm e nts

. T h e M e mp h is Po lic e De partment wa s then notified.

. . . Although there wer e no ey ewitnesses to the ap p are nt homicide, the information provided by the witnesses plac ed the appellant as the l ast person seen wit h Demetr ius Moten the previous evening . Ba sed upon this information, Memp h i s police off icer s proce eded to the a

ppellant’s re sidence

.-3- Upon obtaining a consent to searc h by the appe llant’s mother, Addi e H e n d e r s o n , p o li c e o f f ic e r s f o u n d a p a ir o f w h it e , g r e e nand black Nike tennis shoes s oakingin a bucke t of bleac h and dishwashing liquid in t he sink. They also discover ed a bloody sock in a g arba g e can. The appellant was then transporte d to the homicide bure a u o f t he Me mph is Po lic e De pa rtme nt.
After waivinghis constituti onal rig hts, the appellant provide d a stateme nt to the poli ce i n which he c onfesse d to the murder of Demetr ius Moten. I n his confession, the appellant explained that he had aske d Demetr ius if she wante d to have se x and sh e responded that she did. The two then went into the woods behind the Dunna vant Manor Apa

rt m en t s . After

eng ag ing in se x ual interc ourse, the appellant a sked De metrius fo r a doll ar, to whic h she re sponded,

“ Ai n’ t f ixingto g ive y ou

shit .” Th e a

pp e lla nt a sk e d a g a in, and

thi s time, Demetrius g ave the appellant what she thoug ht was a one dollar bill, but was actually

a ten dollar

bill. W hen she realized her mistake, Demetr ius asked the a

ppellant to retur n t h e t en dollar bill. A fig ht ensued be tween the two.

T h a t’ s w h e n I to o k th e s ti c k

– th e f ir s t ti me I hit her with the stick. And afte r I hit he r with the stick, I g ot
scar ed, and I

didn’t know what to do. That wa s about all by then. I

g ot scare d, continuously

hitting her . So, when I hear d this dude – Ihear d so me g uy holler “Peac hes,” a

nd Iran home

. He e xpla ine d th a t, at th e tim e of the en counte r w ith De me tr ius , h e wa s und e r t he influen ce o f “ [a] lo t of a lc oh ol, jus t a l i t t l e w ee d

. ” T h e ap p el l an t , at s o m e p o i n tl at er i n t h e e v en i n g, p u r c h a s e d

“ s o m e w e e d ” w i t ht h e m o n e y h e t o o k f r o m t h e v i c t i m

. In his statement, the appe llant also informed the det ectives of the location of the “ stick” used in the murde r. Subsequent police investigation confirmed the loc ation of the “ stick.”
An autopsy was performe d on the victim’s body [and revea led that she had] suffe red “blunt trauma to her head a nd neck,” resulting in her de ath.
Quincy H enderson I

, slip op. at 2-6 (footnotes omitted). At the post-conviction hea ring , Addie He nderson, the pe titioner’s mother, testified for the pe titioner that she hired trial counsel to de fend her son on the murder char g e. She testifiedT h e “ cu t ” wa s a ppar en t l y t h e t er m u s ed f or t h e ar ea be h i n d t h e apa r t men t bu i l di n g w h er e t h e v i ct i m’ s body 1

w a s fo u n d

. -4- that counsel be latedly

filed unspec ified pre trial motions and neg lected to c all witn e s s e s whose names Ms. Hender son provided. She testified that she made a videotape of the murde r sce ne that showe d an abse nce of blood at t he scene and that trial counsel ne g lected to introduc e it at trial. She cla imed that trial counsel ne g lected to inspec t the phy sical evide nce, inc luding a sock found at the petitioner’s hom e, and that trial c ounsel failed to e x ploit a letter written by the victim’s fathe r in which he alleg edly opined that he disbelieve d the petitioner wa s g uilty

. Ms. H ender son testified that counse l f a i l e d t o p u r s u e M s

. H e n d e r s o n ’ s c l a i mt h a ta b a i l i f f h a d p r e j u d i c i a l c o n v e r s a t i o n s w i t h t h e t r i a l j u r y. Ms. Hender son testified that she met with counse l “[a]bout a hundre d times.”

On cr oss-examination, Ms. Henderson a dmitted that at trial the stat e ca l l ed the witnesses whose na

mes she had g iven to counsel. Ms. He nderson admitted she had te stified at trial
as an a libi witness that the petitioner was at home w ith her at the time of the murder.

The pe titioner testified at the e videntiary hear ing that he had a ninth-g rade education; he had tr ouble re adingand droppe d out of school at his mother ’s reque st to c are for a 100-y ear -old, be dr idd e n g ra

ndmot he r. Hi s tr ia l atto rn e y

did no t inqu ir e int o h is s c ho ol h ist or y and did no t di sc us s with him the possibility of obtaining a psy chiatric evaluation. He testified that counse l was unaw are that he ha d att e mpt e d suic ide

. He te sti fi e d that pri or to tr ia l he me t w ithc ouns e l si x or s e ve n ti me s.

On cr o s s -e x am i n at i o n , t h e p et i t i o n er t es t i fi ed t h at h e c o mp l et edh i ghs ch o o l t h ro u gh
a cor responde nce c ourse while in pr ison; however, the petitioner admitted that his brother w as “the one who took the school for [hi m] . . . . He did the wor k for me.” The pe titioner admitted that, at trial, he testified that he had completed the corr espondenc e cour se. The pe titioner further denied that he had c onfesse d to the murder, a nd when shown the signe d confe ssion, he denied that the sig nature was his.

On re direc t examination, t he petitioner te s tified that, at trial, he inf ormed c ounsel that
a state witness, Wil liam B aker , had ac costed the pe titioner shortly befor e the victim’s murde r about the petitioner dating B a

k e r ’ s g irlfriend. H e testified that c ounsel failed to c ross-examine B aker about the issue. Also, he testified that counsel failed to c all an alibi witness, “O.W.,” who, the petitioner testified, saw the petitioner g oing home on the nig ht of the murder

.

Ne xt, John

B illin gs testif

ie d f or the pe tit ion e r t

hat he wa s a

lic e ns e d p ri vate investigator who wor k ed for the def ense on the petitioner’s murde r ca se. He testified that he
re po rted to de fe ns e c ouns e l th a t th e vic timha d a re putatio n f

or us ingdr ug s and se rv inga s a prostitute. He also re ported to counse l that the man who found the victim’s body had said that, prior to finding the victim, he had dre amed that “ she wa s out there a mong the cut.” Mr. B illings testified 1 that he was not direc ted t o investigate the def endant’ s backg round, school history , or psy cholog ical status.-5- The pe t i t i o n er ’s trial counse l testified that, prior to the petitioner’ s case , she had handled no f

irst deg ree murder c ases, a lthough she had “a lot of experience in felony work,” including
a six teen- month tria l in fede ral court. Although she did not want to take the pe titioner’s ca se, one of her pa rtners a sked her

to do so. She te stified that, when she took the case , the petitioner was firm that he d i d not commit the crime and that his confession was c oerc ed. She testified that this position dictated he r def

ense strateg y

. She revie wed the state’s “disc overy packe t.” She admitted that she did not g et the photogr aphs until the first day of trial, despite f

iling a mot i o n for discove ry materia ls including photogr aphs. Prior to trial, she wa s told that there we re n o p h o t og raphs, but she w as g iven photogr aphs on the fir st day of trial. She testifie d t h at the prosec utor argued that he ha d not been obligated to furnish the photog raphs be cause the film had not been ear lier developed. She testified that the belate d emer g ence of the picture s prompted her to f ile an “immediate and very leng thy motion to suppress.”

She testified that she wa s awa re that the petitioner’s aca demic perf ormanc e wa s poor and that she e x plored the possibility of psy cholog ical mi tigation via conversations with the petitioner, his mother, and his brother . Following these c onversations, she rejec ted the notion of pursuing psy cholog ical evide nce.

Counsel testified that she did not pursue a negotiated plea

settlement bec ause the pe tit ion e r a

nd his mot he r w e re a damant t

hat th e pe tit ion e r w a s n ot guil ty , a lth ou g h b y the tim e of

tr ia l, the petitioner a dmitted that he had sig ned the c onfession.

She testified that she visited the sce ne of the crime thre e times and sent the inve stigator to investigate the sce ne. She went “throug h

. . . an apartment complex looking f or witnesses.” She revie wed the tape subm itted by Ms. Hende rson. Counsel reje cted the idea that the de fense could have g ained a ny advanta g e by

her t ak i ng pictures of

the cr ime scene . She testified that she visited the
me dic a l e xami ne r’ s o ff

ic e to i nq uir e a bo ut t he po ssi bil ity

of va g ina l se c re tio ns and

oth e r f or e ns ic evidenc e that mig ht have be en obtained f rom the victim’s body , but she discover ed none. Counsel te sti fi e d th a t whe n she pr op os e d obta ini ng a ha nd wr iti ng e xpe rt to dis pute the pe tit ion e r’ s a uth or sh ip of the c onfession, the pe titioner admitted writing a nd signingthe conf

ession.

Couns el t es t i fi ed that “A ddie Hende rson wante d [her] t o do a lot of thing s bey ond what [counsel] t h o u gh t wa s ap propriate . And [counsel] t ried to kee p in mind that [ her] client was Qunicy Hende rson.” She testified that the strateg y that the petitioner did not k i l l t h e v i ct im was mandated by

the petitioner a

nd his mother. Ultimately , the dec ision to p roceed to trial wa s the petitioner’s, but counse l believed that “ he wa s very much under

the control of his mother[, wh o] totally believed in his innoce nce.” Counsel expl ained that she did not ex ploit claims that the victim was a prostitute and a druguser be cause she had no evidence that the vi ctim was “trading drug s for se x that night.” She-6-

explained that the investigator’s information about the victim was mere ly t hat of the vic tim’s reputation.

Counsel t es t ified that she be lieved that she “ did ever y thing [she] could do.” She opined that she ha

ndled the ca se we ll.

I n its order de nying post-c o nviction relief, the lower c ourt made the following fi nd ing s:
1. The c laim that counsel wa s ineffe ctive in fa iling to pur sue

psy cholog ical evide nce was not established; counsel inquired about the pe tit ion e r’ s p os sib le l earn ingdis a bil ity and c on c lud e d th a t a psy cholog ical examination was not war rante d.

2. No ineff

ective a ssistance of c oun s el was shown based upon the claim that she fa iled to fi l e pretrial motions. On direct appe al, the
a pp e llate c ourt

fo un d th a t c ouns e l f

ile d p re tr ia l mo tio ns

. 3. Th e pe tit ion e r f

a ile d to sh ow

tha t c ouns e l ne g le c te d to ob ta in dis c ov e ry fr om t he state ; c ouns e l’ s te sti mony be lie d th is c la im.

4. Counsel ext ensiv el y i n v est iga ted the ca se and pr operly utiliz ed the information g arne red. The failure to pursue certa in impeachment str a te g ie s w a s g ro un de d in pr of e ssi on a l ju dg me nt. 5. The pe titioner’s claim that coun s el did not inform him of the results of discove ry

and pre trial investigation was belied by the evidenc e of e x tensive mee tings with the pe titioner and/or his mother.

6. The pe titioner’s claim that counse l failed to take steps to advanc e an a lib i de fe ns e fa ils be c a us e the e vid e nc e sh ow e d th a t th e de fe ns e interviewe d all available witnesses. I n any event, the pe titioner failed to call any

n egl ecte d witnesses to testify in the evidentiar

y hear ing and, ac cording ly , failed to de monstrate any preju d ic e fr om the alleg ed failure to present witnesses at t rial. Additionally , the petitioner’s mother and br other we re a llowed to prese nt alibi evidence at trial. 7. The pe titioner failed t o establish a cla im that counsel was ineffe ctive for

failing to adequately

cross- examine witnesses. He fa ile d to sh owho w h e wa s p re judi ced by any ina de qu a te c ro ssexamination.-7-

Ba sed upon these f

indings, the lower court denied post-conviction relief . We hold that the rec ord
su pp or ts that c ourt ’s fi nd ing s and a ff ir m th e jud g me nt.

T h e l aw i s s et t l edt h at t h e po s t -c o n v i ct i o np et i t i o n er b ea rs t h e b u rd en o f e s t ab l i s h i n g, at t h e evide ntiary

hear ing, his a lleg ations by clea r and c onvincing evidenc e. Te nn. Code. Ann. § 40-30-210( f) ( 2003). Evidenc e is clea r and c onvincing when there is no serious or substantial doubt about the cor

rec tness of the c onclusions drawn f rom the evide nce. Hodges v. S.C. Toof & Co. , 833 S.W .2d 896, 901 n.3 (Tenn. 1992). An appellate court is bound by the t rial cour t’s finding s of fa ct unless we c onclude that the e vidence in the rec ord pre ponderates ag ainst those find i n gs. Black v

. Sta te , 794 S.W .2d 752, 755 (Tenn. Crim. App. 1990)

.

Whe n a po st- c on vic tio n p e tit ion e r r a ise s t h e i s s u e o f i n e f f e c t i v e a s sis tanc e of

c ouns e l, t h i s co u rt m u s td et erm i n e i f t h e e v i d en ce p re p o n d er at es aga i n s t t h e p o s t -c o n v i ct i o nco u rt ’s fi n d i n gs (1 ) t hat c ouns e l’ s p e rf

or manc e wa s w ithinthe ra ng e of c omp e te nc e de mand e d o f atto rn e y s in cri m i n al ca ses, Baxter v . Rose, 523 S.W .2d 930, 936 (Tenn. 1975) , and/or (2) that any defic ient perf ormanc e did not prejudice the petitioner, Strickland v. W ashington , 466 U.S. 668, 687-89, 104 S. Ct

. 2 0 5 2 , 2 0 6 4

- 6 9 (1984). Se e als o P owe rs v . S tate , 942 S.W .2d 551, 557 (Tenn. Crim. App. 1996). Courts need not a ddress these components in a ny particula

r order or eve n addre ss both if the petitioner fails to meet his burden w ith respec t to one. He nle yv . S tate , 960 S.W .2d 572, 580 (Tenn. 1997).

I n s um, a

de fe nd ant i s n ot e nti tle d to pe rf e c t r e pr e se ntatio n, on ly

c on sti tutio nall y adequate re prese ntation. De nto n v . S tate , 945 S.W .2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in c onsideringclaims of ineffe ctive assistance of counse l, ‘we a ddress not what is prudent or appropriate, but only

what is constitutionally

compelled.’ ” Burger v. Kem p , 483 U.S. 776, 794, 107 S. Ct . 3114, 3126 (1987).

We a g re e wi th t

he po st- c on vic tio n c ourt ’s c on c lus ion th a t th e pe tit ion e r f a ile d to establish his claims of ineff ective a ssistance of c ounsel. An over riding fac tor in assessing many of the lower court’s f indings is that the lower court accr edited counsel’s testimony . Although w e do not revisit cre dibilit y

issues, we rec all that the petitioner’s merit as a witness wa s cer tainly impugne d by his admission t hat he f

abric ated c ourse wor

k to obtain an equivale ncy diploma. By

compar ison,
c ouns e l’ s te sti mony

wa s c and id, art ic ulate , a

nd c og e nt.
The c laim of inadequate trial prepa ration, comprised of the alleg ations that counsel failed to discove r the state’ s evidenc e, fa iled to interview or utiliz e witnesses, a nd failed to pursue a psy cholog ical defense, was supported by neither pr oof of de ficient pe rfor mance nor of pr ejudice. Counsel’s testimony

established that she thoroughly prepa re d for tria l by

examining the state’ s discovery materia ls, interviewingwitnesses, viewing the crime sc ene, e x ploring fore nsic issues, and confe rringwith the petitioner and his mother

. Additionally , with r espec t to the claim that witnesses
wer e not utilize d, including w itnesses who mig ht have of fer ed psy cholog ical evide nce, the petitioner fa i l edt o d em o n s t ra t e p re

j u d i ce ; h e d i d

n o tp re s en tan y

s u ch wi t n es s es at t h e p o s t -c o n v i ct i o nh ea ri n g.-8- When a peti t i o n er contends that trial c ounsel failed to discove r, int e rv ie w, or

pr e se nt w itn e sse s in

su pp or t of his de fe ns e , th e se witnesses should be p re s en ted by the petitioner at the evidentiar y hear i n g. As a g ener al rule, this is the only way the petitioner c an e sta bli shthat ( a ) a

mat eri al w itn e ss e xiste d a nd the wi tne ss c ou ld have be en discove red but for counsel’s ne g lect in his investigation of the c a se , ( b) a

kn ow n w itn e ss w a s n ot i nte rv ie we d, (c ) t he fa ilure to discover or

interview a

witness inured to h i s prejudice , or (d) the failure to have a

known witness pre sent or ca ll the witness to the stand resulted in the denial of critica l e vidence which inu re d t o the p re j u d i ce o f t h e pe t i t i o n er

. I ti s el em en t ary t h at n ei t h er

a t ri al j u d ge nor an a ppellate c ourt ca

n speculate or guess on the question of wh e the r f ur the r i nv e sti g a tio n w ou ld h ave re ve a le d a mate ri a l w itn e ss or what a witness’s testi mony might have been if

introduced by de fe ns e c ouns e l. T he same is t ru e re g ard ingthe fa ilure to c a ll a known witness. In short, if a pe titioner is ab l e t o establish that defe nse counse l was de fi cient in t he investig ation of the fa cts or callinga known witness, the pe titioner is not enti t l ed t o relief from his conviction on this ground unle ss he ca n produce a mater ial witness who (a ) could have been found by a re asonable investigation
and (b ) w ou ld h ave te sti fi e d f avo rabl y in s up po rt

of his de fe ns e if called. O therwise, t h e p etitioner fa ils to establish t he pre judice
r e qu i r e m e n tm an d a t e d

b y Strickland v. W

ashington

. Black, 794 S.W .2d at 757.

We are unpersua ded, as was the lower court, by the petitioner’s c laims that counsel fa ile d to tim e ly

or a de qu ate ly fi le pretria l mo tio ns , f a ile d to a dv anc e an a lib i de fe ns e , f a ile d to eff ectively cross-e x amine state witnesses, and failed to exploi t evidence of the victim’s cha rac ter. An alibi defe nse wa s prese nted at trial throug h the testimony of the pe titioner’s mother and br other. Not only do all of the other

alleg ed short co m i n gs dwell within counsel’s ambit of professional judgme nt, but also the petitioner established no pr ejudice f rom the cla imed defic iencies.

Finall y , t h e rec ord supports a f inding that c ounsel ade quately confe rre d with and informed the pe titioner. The petitioner’ s m o ther, who w ith his apparent c onsent advoc ated the development of

his defense , admi t t ed that she me t with counsel about 100 times. Fur thermore , c ouns e l pu

rs ue d a nd e xplor e d th e e vid e nti ary le a ds that de ve lop e d in

the c a se , in c lud ingtho se provided by

the petitioner a

nd his mother.

We conclude that the rec ord supports the post -c o nviction court’s finding s and conclusions, and a ccor dingly , we a ffirm that c ourt’s denia l of post-conviction re lief.-9- ___________________________________ J AMES CURW OOD WI TT, J R., J UDGE