IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 24, 2022 Session

MONTEZ DAVIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 291262 Barry A. Steelman, Judge

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No. E2021-00874-CCA-R3-PC

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Petitioner, Montez Davis, was convicted of second degree murder, reckless 

endangerment, and unlawful possession of a weapon by a Hamilton County jury. State v. 

Montez Davis, No. E2011-02066-CCA-R3CD, 2012 WL 6213520, at *1 (Tenn. Crim. 

App. Dec. 13, 2012), perm. app. denied (Tenn. Apr. 10, 2013). The post-conviction court

denied several of Petitioner’s claims but ultimately granted post-conviction relief and 

vacated Petitioner’s second degree murder conviction. The State appealed and Petitioner 

filed a cross-appeal. After a thorough review, we reverse the post-conviction court’s 

grant of post-conviction relief and reinstate Petitioner’s second degree murder conviction. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and JILL BARTEE AYERS, J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant 

Attorney General; Neal Pinkston, District Attorney General; and P. Andrew Coyle, 

Assistant District Attorney General, for the appellant, State of Tennessee.

Jonathan T. Turner (on appeal and at hearing), Chattanooga, Tennessee; and Ryan 

Wheeler (at hearing), Chattanooga, Tennessee, for the appellee, Montez Davis.

OPINION

The Hamilton County Grand Jury indicted Petitioner for first degree murder, 

reckless endangerment, and unlawful possession of a weapon after Petitioner fired at least 

three bullets into a crowd of people at a gas station, killing one individual. Id. at *11. 

07/20/2022
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On January 9, 2010, several individuals and cars were at a gas station after a high 

school basketball game ended. Id. at *3. One witness testified that she saw “a group of 

[10] to [15] males dressed in red and white clothing” at the gas station. Id. at *6. There 

was a shooting at the gas station. Id. at *3. Jonathan Lawrence, the victim, was shot and 

killed while pumping gas for a customer. Id. Shortly thereafter, another shooting 

occurred nearby at Petitioner’s father’s house. Id. at *4.

Detective Adam Emery of the Chattanooga Police Department arrived at the gas 

station. Id. He spoke with the store employees and viewed surveillance footage from the

gas station. Id. Detective Emery testified that the video showed a white SUV drive

across the parking lot. Id. Somebody moved toward the SUV and appeared to throw 

something at the vehicle. The SUV then drove “out of camera view, . . . and then, you 

know, 30 seconds or less, and then you see everybody scatter, so that’s basically the 

video that I saw.” Id. The shooting itself was off-camera. Id. 

Detective Emery interviewed witnesses at the gas station and “[t]hrough his 

investigation, Detective Emery learned that [Petitioner] . . . was a potential suspect in the 

shooting at [the gas station].” Id. Detective Emery located Petitioner and conducted an 

interview. Id. During the interview, Petitioner initially stated that he pulled into the gas 

station after seeing his sister’s car in the parking lot. Id. He said that “someone threw a 

bottle that broke a small window on the passenger side of [his] SUV[,]” and he drove off 

to his father’s house. Id. Petitioner said that the passenger in his vehicle then pointed a 

gun outside the car window but that the passenger did not fire the gun. Id. Petitioner said 

he “zoomed off” because he heard gunshots. Id. Eventually, Petitioner admitted that 

“after someone hit the SUV with a bottle, he drove to the end of the parking lot, got out 

of the vehicle, and began shooting with a Glock .40 that he fired three times into the air.” 

Id. Petitioner told Detective Emery he did not know who threw the bottle. Id. Detective 

Emery asked Petitioner where he aimed the gun, and Petitioner admitted that he fired the 

gun “[l]ike, towards the store. Like towards Russell and them. Whoever was standing 

out there.” Id. He explained that he was angry because the “Bloods” constantly picked 

on him and he fired into the crowd because the passenger in his vehicle said “Russell” 

threw the bottle. Id. Petitioner said he noticed his sister in the crowd. Id. Petitioner said

that when he shot into the crowd, he was firing at “Russell.” Id. Petitioner’s mother 

testified that Petitioner’s education suffered because he “did not attend school often 

because he was being [‘]harassed by these guys[’].” Id. at *6. Petitioner did not testify at 

his May 2011 trial. Id.

A jury convicted Petitioner of second degree murder, reckless endangerment, and 

unlawful possession of a weapon. Id. *1. Petitioner received an effective 21-year 

sentence. Id. Petitioner filed a direct appeal and raised three issues, one being that the 

evidence was insufficient to support his second degree murder conviction. Id. A panel of 
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this Court affirmed Petitioner’s conviction, reasoning that the jury, “as was their right,” 

convicted “[Petitioner] of second degree murder obviously rejecting [Petitioner]’s claim 

that he acted recklessly and not knowingly.” Id. at *11. The supreme court denied 

permission to appeal. 

On March 31, 2014, Petitioner filed a timely petition for post-conviction relief. In 

his petition, Petitioner raised eight claims of ineffective assistance of counsel. Through 

appointed counsel, Petitioner filed an amended petition for post-conviction relief. The

State filed a response, denying Petitioner’s allegations. Nearly six years later, the postconviction court held a hearing on the petition for post-conviction relief. 

Trial counsel recalled that he represented Petitioner sometime around 2010. 

Petitioner’s mother retained trial counsel to represent Petitioner. Trial counsel testified 

that he had adequate time to prepare for the trial. Trial counsel recalled that in preparing 

Petitioner’s defense, he and his paralegal visited the gas station where the shooting 

occurred and Petitioner’s father’s house nearby. Trial counsel reviewed the witnesses’

statements and talked to a few witnesses. Trial counsel admitted he was unable to talk to 

some of the witnesses because “they didn’t want to talk to [him.]” Trial counsel testified 

that he visited Petitioner in jail and frequently spoke with Petitioner’s mother. 

Trial counsel testified that he sought a ballistics expert but it was too expensive. 

Trial counsel researched the relevant legal arguments and motions and developed a 

theory for Petitioner’s case. Trial counsel testified that he did not hire a private 

investigator. Trial counsel explained that he did not hire a private investigator because 

Petitioner confessed to the shooting at the gas station, changed his story “a couple times 

within the confession,” and expressed remorse and regret. Based on Petitioner’s

confession, trial counsel did not believe an investigator or ballistics expert “would be 

necessary to address . . . what [Petitioner] was accused of having done.” Trial counsel 

testified that all of the witnesses’ statements placed Petitioner as the shooter at the scene. 

Trial counsel testified that he attempted to contact one witness, Shamyra Smith, 

who told the police that another individual had a gun at the gas station. Trial counsel 

testified he was unable to reach Ms. Smith. Trial counsel explained that there was a gas 

station surveillance video of the people at the gas station, and the video did not show 

anyone firing a gun. Trial counsel recalled that Petitioner said someone threw a bottle at 

his car, and a bottle was recovered near his car. 

Trial counsel said he elicited testimony during the trial from Detective Emery 

regarding Ms. Smith’s statement that at least one other individual had a gun in the gas 

station parking lot. However, the trial court ruled that Ms. Smith’s statement was

inadmissible hearsay evidence. 
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Post-conviction counsel again asked trial counsel about hiring a ballistics expert. 

Trial counsel explained that he asked Petitioner if he had the funds to hire a ballistics 

expert and Petitioner said no. Trial counsel admitted that at the time, he did not know of 

the indigent defense fund or that he could have requested funding for expert services

from the fund. Trial counsel confirmed that he identified two potential ballistics experts; 

however, their fees were too high. Trial counsel believed he contacted the 

Administrative Office of the Courts to ask for funds and looked up various ways to “raise 

the money or get the money,” but “came up empty.” 

Post-conviction counsel asked trial counsel why he did not cross-examine the 

agent from the Tennessee Bureau of Investigation (“TBI”) who prepared the ballistics 

report regarding bullets recovered at the scene of the gas station shooting. Trial counsel 

replied, “[Petitioner] gave a confession where he said he shot. [Petitioner] had a weapon 

with him. . . . What we were doing was addressing the ‘knowing’ component of what the 

law said[.]” He continued, “The ballistics [report] with respect to [the bullets] came back 

to his weapon, the Glock, .40 caliber[.] The problem with that was, all the witnesses said 

[Petitioner] was shooting. One witness who we couldn’t talk to said there was another 

shot, there was another shooter.” 

Post-conviction counsel reviewed the testimony of trial witnesses with trial 

counsel. Trial counsel admitted that the witnesses at trial did not actually say they saw 

Petitioner shoot his gun but maintained that in the police reports, the witnesses said 

Petitioner was the shooter. 

On cross-examination, trial counsel testified that he had practiced law for 16 years 

at the time of Petitioner’s trial. He described himself as a “generalist,” but confirmed that 

he had handled “criminal cases for awhile.” Trial counsel testified that based on 

Petitioner’s confession, there was “no reason to hire a ballistics expert.” Trial counsel 

believed it would confuse the jury and negate “some of the mental elements necessary to 

prove him innocent, or at least not guilty of [first degree] murder.” Trial counsel said that 

the strategy was to demonstrate that Petitioner’s “intentions were not premeditated.” 

Trial counsel explained that in light of Petitioner’s confession, a ballistics expert would 

not help a jury to determine whether Petitioner’s actions were premediated. Trial counsel 

agreed that his strategy was successful. Trial counsel agreed that Ms. Smith’s testimony 

would have been contrary to Petitioner’s confession because of his statement that he was 

the only shooter. 

Trial counsel testified regarding whether he should have presented proof of 

Petitioner having been bullied, stating, “We went through that believing that the temporal 
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relation between being bullied and the time of the shooting was too far apart to establish 

that he was still concerned about being bullied.” Trial counsel explained:

We also believed that the bullying set the predicate for premeditation, and 

that if he was motivated because he was bullied, the jury would definitely 

conclude he absolutely did this with premeditation and aforethought and it 

was planned out, regardless of how it looked and what his statement said. 

So those were the two primary concerns. 

Trial counsel said that he had “secondary concerns” regarding how to establish Petitioner 

was actually bullied and “didn’t want to paint a picture that [Petitioner] had some 

vendetta and was after someone.” 

On redirect examination, trial counsel acknowledged that Petitioner said in his 

statement he heard gunshots as he drove away from the gas station. However, trial 

counsel maintained that Petitioner also said he saw no one else shoot a gun. 

Shamyra Smith testified that she was at the gas station at the time of the shooting. 

Ms. Smith said that she had “never” talked with trial counsel and did not believe he 

reached out to her. Ms. Smith recalled seeing the deceased victim and “numerous” guys 

with handguns shooting at each other. She stated that Petitioner was not one of the men 

who was shooting. Ms. Smith said that a detective interviewed her at the gas station and 

took her contact information. She stated that she never heard from the police afterwards. 

On cross-examination, Ms. Smith testified that she was Petitioner’s family friend. Ms. 

Smith said she was at the gas station with a friend and saw “two guys [with guns].” She 

stated that she saw the men arguing and start shooting at each other. Ms. Smith claimed 

that the victim was pumping gas in the vicinity of the shooting. Ms. Smith recalled that 

the men wore red clothing. She said she heard “maybe six, seven shots.” She claimed

that she did not see Petitioner at the gas station. Ms. Smith admitted that she had 

multiple theft of property and forgery convictions. 

Petitioner presented Christopher Robinson as a ballistics expert. Mr. Robinson 

testified that multiple firearms could have fired the bullets found at the gas station, 

including the bullet that killed the victim. Mr. Robinson testified that the TBI agent who 

prepared the ballistics report was not able to determine whether the bullets found at the 

gas station were fired from the same gun. Mr. Robinson stated that the TBI agent’s 

ballistics report was overall lacking. On cross-examination, Mr. Robinson admitted to 

making various mistakes while working for the Georgia Bureau of Investigation (“GBI”), 

including shooting himself in the hand while testing a weapon and submitting muzzle-totarget findings prior to receiving an autopsy report. Mr. Robinson admitted that the GBI 

sent a letter to all elected district attorneys in Georgia regarding Mr. Robinson’s work
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because of the “result of identifiable discrepancies in the reported results of a case[.]” 

Mr. Robinson admitted that the Atlanta Police Department also fired him because of 

“grave concerns about [his] unethical decisions regarding illegal purchases and reckless 

disregard for following proper procedure and protocols.” 

The post-conviction court entered a written order denying post-conviction relief 

for several of Petitioner’s claims but granted post-conviction relief for trial counsel’s 

failure to “strongly dispute intent with respect to the lesser, included offense of second[ 

]degree murder for fear of emphasizing evidence suggestive of premeditation.” 

The post-conviction court found that Ms. Smith’s testimony was “consistent with 

her prior statement that there were at least two shooters and not necessarily inconsistent 

with inconclusive ballistics and the failure of other witnesses to see the shooter[s].” The 

post-conviction court found that while trial counsel failed to call a ballistics expert, he did 

attempt to procure a ballistics expert. Regarding Mr. Robinson’s testimony, the court 

found that it supported a conclusion that the TBI agent’s ballistics report did not support 

“a conclusion that the same gun” fired the bullets found at the gas station. The postconviction court found that despite this evidence questioning the shooter’s identity, 

Detective Emery’s testimony regarding the gas station surveillance footage settled “the 

question of the numbers of shooters.” The court stated that it was enough for trial 

counsel to briefly raise the issue of identity without “belaboring” it and concluded that 

trial counsel’s failure to call Ms. Smith or a ballistics expert did not prejudice Petitioner. 

The post-conviction court found strong evidence that Petitioner was severely 

bullied in school, that Petitioner “was still being bullied[,] and [that] the bullying had 

become, if it was not before, violent[.]” The court took judicial notice of Petitioner’s 

mother’s testimony regarding bullying evidence from Petitioner’s bond-reduction hearing 

in August of 2010.1 The court found that the evidence from Petitioner’s bond-reduction 

hearing was critical “because it show[ed] that even before throwing a bottle at 

[P]etitioner’s vehicle at the scene, [the] bullies had been violent and undeterred by school 

discipline.” The court stated that this additional context provided understanding as to 

Petitioner’s “pre-encounter awareness of a violent threat.” The court summarized the 

bullying evidence as:

(1) [Petitioner’s] own statement;

 

1 The post-conviction court took judicial notice of the “08/02/2010 bond-reduction hearing” and 

quoted a portion of that hearing in its order granting post-conviction relief. However, a transcript of the

hearing was not included in the record on appeal. See Tenn. R. App. P. 24(b). 
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(2) [Petitioner’s] mother’s account of trying to protect him from bullying at

school, resulting in his missing lessons and eventually withdrawing from 

high school;

(3) other evidence of the presence of gang members at the scene;

(4) [Detective] Emery’s account of the surveillance video and other 

evidence of a bottle shattering [Petitioner’s] window on his arrival at the 

gas station, which he did nothing to provoke; and

(5) the subsequent shooting at [Petitioner’s] father’s house involving 

multiple weapons other than his.

The court found strong evidence that Petitioner reacted “to immediate violent 

provocation” rather than “initiat[ed] a violent encounter[,]” noting:

(1) [Detective] Emery’s account of the surveillance video and other 

evidence of a bottle shattering his window on his arrival at the gas station, 

which he did nothing to provoke;

(2) the necessity for [P]etitioner to retrieve the gun from his passenger 

before he could use it;

(3) [P]etitioner’s statement to investigators.

The post-conviction court found Petitioner’s statements to Detective Emery, “I 

wasn’t thinking,” and, “because they always, like, picking at me[,]” to be “some of the 

most favorable evidence in support of a recklessness defense.” The post-conviction court 

noted Detective Emery’s statement that he told Petitioner he, Detective Emery, even 

knew Petitioner “did not mean to kill anyone.” The court found that trial counsel 

underutilized the statement during cross-examination of Detective Emery. The postconviction court stated that there was no evidence of Petitioner seeking out the bullies to 

“shoot or kill them.” 

The post-conviction court reasoned, “the [c]ourt cannot exclude a reasonable 

probability that, but for the strategic error in minimizing, for no valid reason, the issue of 

recklessness, on which issue the provocation by a person other than the victim is relevant, 

the outcome of trial would have been different.” The court concluded that trial counsel’s 

representation, in this respect only, was deficient and prejudiced Petitioner. The court 

entered an order vacating Petitioner’s second degree murder conviction. The State 

appealed and Petitioner responded and included a cross appeal. 
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Analysis

The State argues that the post-conviction court erred in concluding that Petitioner 

received ineffective assistance of counsel and granting post-conviction relief. Petitioner 

responds that the post-conviction court properly granted post-conviction relief. Petitioner 

also raises two issues on cross-appeal regarding the post-conviction court’s denial of 

post-conviction relief on his other ineffective assistance of counsel claims. The State 

responds that the post-conviction court properly denied relief as to those issues. 

Post-conviction relief is available for any conviction or sentence that is “void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to 

prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations 

by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 

152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or 

substantial doubt about the correctness of the conclusions drawn from the evidence.” 

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a postconviction court’s findings of fact are conclusive unless the evidence preponderates 

otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions 

concerning witness credibility, the weight and value to be given to testimony, and the 

factual issues raised by the evidence are to be resolved by the post-conviction court, and 

an appellate court may not substitute its own inferences for those drawn by the postconviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However, 

the post-conviction court’s conclusions of law and application of the law to the facts are 

reviewed under a purely de novo standard, with no presumption of correctness. Fields v. 

State, 40 S.W.3d 450, 458 (Tenn. 2001). 

Both the Sixth Amendment to the Constitution of the United States and article I, 

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective 

assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In 

order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate 

that counsel’s representation fell below the range of competence demanded of attorneys 

in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the twoprong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner 

must prove that counsel’s performance was deficient and that the deficiency prejudiced 

the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting 

that the same standard for determining ineffective assistance of counsel applied in federal 

cases also applies in Tennessee). Because a petitioner must establish both elements in 

order to prevail on a claim of ineffective assistance of counsel, “failure to prove either 

deficient performance or resulting prejudice provides a sufficient basis to deny relief on 
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the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need 

not address the components in any particular order or even address both if the [petitioner] 

makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 

(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

The test for deficient performance is whether counsel’s acts or omissions fell 

below an objective standard of reasonableness under prevailing professional norms. 

Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the 

questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629 

S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance,” State v. Burns, 

6 S.W.3d 453, 462 (Tenn. 1999). 

Even if a petitioner shows that counsel’s representation was deficient, the 

petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain 

relief. The question is “whether counsel’s deficient performance renders the result of the 

trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 

364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient 

to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting 

Strickland, 466 U.S. at 694). 

Evidence of Bullying

The State argues that the post-conviction court erred in granting post-conviction 

relief. Specifically, the State contends that the post-conviction court second-guessed trial 

counsel’s strategic decision not to utilize evidence of Petitioner’s being bullied. 

Petitioner responds that the post-conviction court properly granted post-conviction relief. 

Petitioner maintains that trial counsel’s strategic decision was made after less than 

complete investigation and therefore was unreasonable. 

In evaluating an attorney’s performance, we “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 (citing Strickland, 466 U.S. 

at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge 

the reasonableness of counsel’s challenged conduct on the facts of the particular case, 

viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. 689-90. Moreover, 

“[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account 

of the variety of circumstances faced by defense counsel or the range of legitimate 

decisions regarding how best to represent a criminal defendant.” Id. at 688-89. 

However, “‘deference to matters of strategy and tactical choices applies only if the 
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choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d 

508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). 

At the post-conviction hearing, trial counsel provided three reasons for not 

utilizing the bullying evidence. First, trial counsel stated that the “temporal relation”

between the bullying and the shooting seemed too far removed to establish Petitioner’s 

concern about the bullies. Second, trial counsel explained his apprehension that the 

bullying evidence might help the State establish the element of premeditation and that 

Petitioner planned out the shooting. Third, trial counsel had “secondary concerns” with 

proving that the bullying actually happened and “didn’t want to paint a picture that 

[Petitioner] had some vendetta and was after someone.” 

The post-conviction court did not make a finding that trial counsel was 

inadequately prepared for trial. Rather, the post-conviction court, with the benefit of 

hindsight, concluded that trial counsel’s representation was unreasonable and ineffective

because he did not utilize the bullying evidence to argue reckless homicide. 

At the time of trial, Petitioner was charged with first degree murder. It is clear 

from the record that trial counsel’s focus was on procuring a conviction for a lesser 

included offense, which proved successful. The post-conviction court provided an indepth review of Petitioner’s history of being bullied and how trial counsel might have 

used the bullying evidence to convince a jury that Petitioner was acting recklessly. The 

court specifically pointed out that there was no evidence that Petitioner sought out the 

bullies to “shoot or kill them.” As explained by trial counsel, however, he considered 

using the evidence of bullying and determined that the jury could find it to be evidence of 

premeditation. Trial counsel’s detailed responses to the bullying line of questioning 

during the post-conviction hearing indicate that his strategic decision to exclude the 

bullying evidence was based on more than adequate preparation. 

Based on our review, it is clear that the post-conviction court second-guessed trial 

counsel’s successful strategy. Therefore, we conclude that trial counsel provided 

effective assistance of counsel and reverse the judgment of the post-conviction court. We 

reinstate Petitioner’s conviction of second degree murder and accompanying sentence. 

Petitioner’s Cross-Appeal

Petitioner cross-appeals, arguing that trial counsel was ineffective for failing to 

call Ms. Smith as an eyewitness and for failing to hire a ballistics expert at trial. The 

State responds that the post-conviction court properly denied post-conviction relief on 

those grounds. 
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While Ms. Smith and Mr. Robinson’s testimonies provided evidence that 

questioned the identity of the shooter, Detective Emery’s testimony regarding the gas 

station surveillance video footage resolved “the question of the number of shooters.” 

Detective Emery testified that in the video, somebody threw a bottle at Petitioner’s white 

SUV, Petitioner drove away off-camera, and 30 seconds later everybody scattered at the 

gas station. The post-conviction court concluded that trial counsel’s failure to call Ms. 

Smith or to hire a ballistics expert did not prejudice Petitioner because the theory of the 

case involved Petitioner’s intent, not his identity. We agree with the post-conviction 

court that trial counsel’s representation did not prejudice Petitioner. 

Conclusion

Based on the foregoing, we reverse the post-conviction court’s grant of postconviction relief and reinstate Petitioner’s conviction of second degree murder. All other 

findings of the post-conviction court are affirmed. 

____________________________________

TIMOTHY L. EASTER, JUDGE