### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec embe r 2, 200 8

JEROM E BON D v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 03-06593 Chris Cr aft, Judge

No. W2008-00319-C CA-R 3-PC - Filed Marc h 9, 2009

The pe titioner, J erome Bond, a ppeals the Shelby

County Criminal Court’s denial of his petition for
po st- c on vic tio n r e lie f. F oll ow inghis c on vic tio ns fo r f ir st d e g re e fe lony

mur de r a

nd e sp e c ia lly
ag g ravated robbe ry , the petitioner wa s sentenc ed to c onsecutive sentenc es of life imprisonment and twenty -five year s. On appe al, the petitioner a rgues that he w as denie d his Six th Amendment rig ht to the eff ective a ssistance of c ounsel, specif ically arguing that tria l c ounsel was inef fec tive for f

ailing to call an a libi witness at trial. Following revie w of the rec ord, the de nial of post-convic tion relief is affirme d.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J. , de liv e re d the op ini onof the c ou rt , in wh ic h J .C. M C L IN and C AM I LLE R. M C M ULLEN , JJ., joined.

Patrick E. Stegall, Memphis, Tenne ssee, f or the a ppellant, Jerome Bond.

Rob e rt E. Coo pe r, Jr
., At torne y G e ne ra l a ndRe po rt e r; Sop hia S. L e e , A ssi stant A tto rn e y G e ne ra l; William L. Gibbons, District Attorney Ge nera l; and Colin C ampbell, Assistant District At t orney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F ac tu al B ac kgr ound

Th e re le va

nt u nd e rl yingfa c ts o f t

he c a se , a s e sta

bli sh e d o n d ir e c t a

pp e a l, a re a s f oll ow s:
At approximately

8:30 a .m. on Marc h 19, 2003, the victim, De nnis B ell, left his re sid e nc e wi th t

he int e nti on of dr ivi ng to h is gra ndmot he r’ s h ou se to v isi t f

ri e nd s. L ater , Patrol Offic ers Jeremy Wells and Sean Sanders of the Memphis Police Depa rtment responde d to an “a rmed- party

call” a t the L aPaloma Apa

rtments. The caller repor ted that there wer e three armed m en at the s cene

. When they arr ived, the office rs s aw the [ petitioner] and J err y Mason flee from the pa

rking lot. The offic ers-2-

ult imate ly

fo un d th e tw o men hid ingun de rn e a th a ve hic le and

too k th e m in to custody

. At that point, the office rs turned the ir attention to a par ked ca r occ upied by the victim and J ohn Davis Streete r. Streete r, who wa s on th e g round nea r the
passeng er side of

the vehicle , had bee n shot in the shoulder. T h e v i cti m, who was found slumped in the open window of the driver’ s side of the car , had suff ere d a fatal
g un sh ot w ound

to t he le ft sid e of his fa c e . Af

te r c a lli ngfo r a ssi sta

nc e , O ff ic e r We lls found a .22 c aliber longrifle whe re he had first seen the [petit ioner]. O ffice r Sander s fo un d a .3 80 c a lib e r p ist ol a

nd a ba g of c oc a ine where th e men we re hid ingjus t b e f o r e th e ir ar r e s t. O th e r

o f f ic e r s f o un d a b a g o f c o c a in e in

th e v ic ti m’ s car and a .380 caliber shell casingat the sce ne. At trial, Stree ter testified that the victim, who had bee n a fr iend since c hildhood, picked him up at appr o x i m at ely 10 p.m. on the night of the shooting a

nd then drove into the L aPaloma parking lot. He r eca lled that the [ petitioner] approa ched their vehicle and i nformed the victim that someone was loo kin g for hi m. Str e e te r t e sti fi e d th a t he the n h e ard tw o gun sh ots . Sh or

tly there afte r, he sa

w a police car , which was trave ling towards t heir vehicle, m ake autur n. He sta te d th a t the vic tim
, wh o ha d blo od “ sh oo tin g out” of his he a d, dr ov e in the di r e c ti o no f

th e p o li c e c ar

b e f o r e th e v e h ic le w a s b r o u g h t t o a h a lt

. Str e eter insisted that he was not intox icated at the time of the off ense a nd that he had ne ver known the victim to deal in drug s.

. . . .

J err y Mason, who had been char g ed with a g g ravated robber y and fa cilitation of a f elon y as a result of this incident, testified for the state. He claimed that he purcha sed marijuana

from the [petit ioner] on a regular basis and on the nig ht of the offe nse ag ree d to “watc h [hi s] back” while he made a n illega l drugpurcha se. Acc ording to Mason, a third individual, who he knew only as “Pee wee ,” drove the
two me n to th e L a Pa lo ma Ap artm e n ts

. H e te s ti f ie d th a t th e [p e ti ti o n er], who possessed a sma ll, black automatic pistol, provided him with a rifle. Ma son stated that he hid behind a buildingas the [petitioner] approac hed the ve hicle drive n by the victim. He contende d that afte r about twe nty seconds, he hear d a gu nshot and, thinking that the [petit ioner] ha d been shot, r esponded by firinga shot at the victim’s

ve hic le

. Ma so n te sti fi e d th a t it wa s o nly wh e n h e saw t

he [pe tit ion e r] r

unnin g in h is direc tion that he rea liz ed the [petit ioner] had shot the victim. He cla imed that he dropped his rifle and fle d but was quickly appre hended by

the police.

De te c tiv e Marc us B e rr

y man o f t he Me mph is Pol ic e De pa rtme nt C ri me Response Unit, questioned t he [ petitioner]. At trial, he pre sented a written statement from the [p e ti ti o n e r ] w h e r e in th e [p e ti ti o n e r ] a c kn o w le d g e d h is p la n s to r o b the victim. I n the statement, the [petitione r] ad m i t ted shooting both the vic tim and Streeter but insist ed that it was a ccide ntal. Acc ording to the statement, Mason had provided the [petitioner] with a loaded pistol and the t hird individual involved in the-3-

incident went by t h e n am e “ToJo”. The [petitioner] confirmed that he ha d taken seventy -five dollar s from the victim, all of which w as re cover ed by the police.

. . . . Steve Scott, a fore nsic scientist with the Tenne ssee Bur eau of Investig ation, examined the .380 caliber pistol and the .22 caliber rifle that we re f

ound at the sce ne. He state d that the pistol, which was in ope rating condition, inc luded a safe ty feature and dete rmined that a “trig g er- pull test” did not indicate any likelihood of a misfire. Ag ent Scott confirme d that the .380 caliber shell casing found at the scene w as fire d from the pistol.

State v. Je rome Bond, No. W2004-02557-CCA-R3- C D (T enn. Crim. App., at Jackson, Dec . 8, 2005). F ollowin g a jury trial, the petitioner wa s found guilty of first degree felony

murder a nd
espec ially ag g ravated robbe ry . He wa s subsequently sentenc ed to con s ecutive te rms of life imprisonment and twenty -five y ear s for the r espec tive convictions. The c onvictions and sentenc es

wer e later aff irmed by a pane l of this court on direc t appea l. Id

.

T h e p e t i t i o n e r f

i l e d a t i m e l y pr o s e petition f

or post-conviction, asser

ting that he was de nied his Si x th Amendment righ t t o the ef fec tive assistance of counse l. Following the appointment of counsel, a n amende d petition was filed. An evidentiary hear ing w as held at which the petitioner a nd the two attorne y s who had re prese nted him at trial testified. The petiti oner’ s lead trial c ounsel was the fi rs t to te sti fy

and stated th at he ha d b e e n a pp ointe d to re pr e se nt t

he pe tit ion e r i n th is c a se following the prelimi nary hear ing sta g e. Tria l counsel stated that he filed discover y motions i n the

c a se and rec e ive d o pe n f

ile dis c ov e ry

fr om t he State . H e fu

rt he r t e sti fi e d th a t he ha d a pr ivate investigator appointed in the c ase a nd that the investig ator intervie wed th e surviving vic tim and availabl e wi tnesses. Tria l counsel also stated that he filed a motion to s uppress the pe titioner’s statement to police, as well as the phot og raph of the petit ioner holding the bloodstained money , but the motion was denied. B eca use the pe ti t ioner c onfesse d to being the shooter a nd was a rre sted at the sce ne of t h e crime, counsel pr ocee ded to trial on a the ory that the cr ime was not first degree murder, c laiming ther e wa s no intent to rob but r ather it wa s a drug deal g one wr ong . Trial counse l
state d h e ha d no reco ll ect ion of the pe tit ion e r e ve r i nf

or min g him of the po ssi bil ity

of An g e la H an k in s ’ te s ti f

yin g th a t i t w a s M a s o nw h o h a d s u p p li e d th e w e a p o n s r a th e r

th anth e p e ti tione r. Howeve r, trial counse l testified that, i n l i gh t of the fa cts of the c ase, pa rticularly the petitioner’s acknow ledg ment that he wa s the shooter, in hi s opinion, who s upplied the wea pons would not have aff ecte d the outcome of

the ca se.
Next, the petitioner testified and stated that after he re viewed disc overy

in the ca s e, he informed tria l couns el that Ang ela Ha nkins, his li ve-in g irlfriend, c ould testify that Mason had

su pp lie d the g un s r a the r t

ha n th e pe tit ion e r. Ac c or din g to t he pe tit ion e r, tr ia l c ouns e l in fo rm e d h im that he did

no t se e tha

t the state me nt wo uld a ff

e c t the outc ome of

the c a se and

ma de no a tte mpt s to

c on ta c t he r. Th e pe titio ne r a c kn ow le dg e d th a t H ank ins wa s th e on ly po ssi ble wi tne ss h e ha d in support of his defe nse.-4-

Finally , a sec ond attorney who also assisted in the petitioner’s defe nse was called to testify at the hea ring by the State. Acc ording to this attorney , both he and tria l counsel, af ter re viewingthe fa c ts o f t he c a se and

the dis c ov e ry

mate ri a ls w iththe pe tit ion e r, c ame up wi th t he be st p os sib le de fe ns e . A c c or din g to h im, the y ha d a g oo d w or

kin g relatio ns hip wi th t

he pe tit ion e r. He a lso testified that he did not re call the petitioner ever mentioning Ang ela Ha

nkins to either himself or trial counsel. He testified that if her testimony

was that Mason has supplied the weapons, while it might have be en used to impea ch Mason, it did not go to the ultimate issue of g uilt in t he ca se.

After hear ing the proof prese nted, the post-conviction court, by written order
, d en i ed t he
pe tit ion e r’ s r e qu e st f

or po st- c on vic tio n r e lie f. Th is t ime ly a pp e a l f oll ow s.

Ana lys is

On appe al, the petitioner ha s raised the single issue of ineffe ctive assistance of counsel. To

su cc ee d o n a cha lleng e of ine ffe ctive assistanc e of c ounsel, the petitioner be ars the bur den of establishing the alleg ations set forth in his petition by clea r and convincingevidenc e. T.C.A. § 40- 3 0 -1 1 0 (f ) ( 2 0 0 6 ). T h e p et i t i o n er

m u s td em o n s tra t e t h at co un s el ’s re p re s en t at i o nfe l l b el o w t h e r an ge of compe tence demande d of at t o rn ey s i n criminal ca ses. Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975) . Under Strickland v. W ashington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the petitioner must establish (1) de ficien t p er fo rm ance and (2) prejudice resulting from the de fi c ie nc y . T he pe tit ion e r i s n ot e nti tle d to th e be ne fi t of hin ds ig ht, may

no t se c on d- g ue ss a

rea sonably

based tria l strateg y , and ca nnot criticize a sound, but unsucce ssful, tactica l decision made during the cour se of the pr ocee dings. Ad k ins v . S tate , 911 S.W .2d 334, 347 (Te nn. Crim. App. 1994). This defe renc e to the tac tical dec isions of trial counsel is depende nt upon a showing that the decisions wer e made afte r ade quate pr epar ation. Coo pe r v . S tate , 8 47 S.W. 2d

52 1, 52 8 ( Te nn . Cr im. App. 1992).

I t is unnecessa

ry for a court to addr ess def

iciency and pre judice in any

particula r orde r, or even to a ddress both if the pe titioner makes an insufficient showingon either. Strickland , 4 66 U. S.

a t 69 7, 10 4 S. Ct. a t 20 69

. I n or de r to e sta bli sh pr e jud ic e , the pe tit ion e r mus t e sta bli sha “ re a so na ble probability

that, but for counse l’s unprofe ssional error s, the result of the pr ocee ding w ould hav e b e en differ ent. A re asonable probability is a probability

sufficie nt t o u ndermine c onfidenc e in the outcome.” State v. Burns
, 6 S

. W

. 3 d 4 5 3
, 4 6 3 (T en n

. 1 9 9 9 ) ( qu o t i n g Strickland , 466 U.S. at 694, 104 S. Ct . at 2068).

The issues of de f

ic ie n t p e r f

o r ma n c e b y c o un s e l an d p o s s ible prejudice to the defe nse ar e mix ed questions of lawand fa ct. Id . at 46 1. “ [A] tr ia l c ourt ’s fi nd ing s o f f a c t un de rlyinga

c la im of ineff ective a ssistance of counsel a re r eviewe d on appea l under a de novo standard, a ccompa nied wi th a pr e sumpt ion

tha t th os e fi nd ing s are c orr ect un le ss t he pr e po nd e ra

nc e of the e vid e nc e is otherwise.” Fi e lds v . S

tate , 4 0 S. W.3 d 4 50 , 4 58 (T e nn . 2 00 1) (c iti ngTe nn . R. App . P. 13 (d ); Henley

v . Stat e , 9 6 0 S.W .2d 572, 578 (Tenn. 1997)). Howeve r, conclusions of law are revie wed under a
p u r e l y de novo sta

nd ard wi th n o p re sumpt ion

that th e po st- c on vic tio n c ourt ’s fi nd ing s a re c or re c t. Id

.-5-

Thoug h multipl e instance s of i neff ective assistance of counsel were alleg ed in t he petition,

on a pp e a l, t he pe tit ion e r c on te nd s o nly that th e po st- c on vic tio n co ur t er re d in den yingre lie f b e c a

us e of trial counse l’s failure to call an a libi wi t n es s , s p ec i fica lly Ang ela Ha

nkins. Accor ding to the petitioner, Ha

nkins “would have serve d as a c rucia l alibi witness at trial” and w ould have testified that the co- defe ndant Mason broug ht the g uns to the home she shar ed with the petiti oner on the night of the sh oo tin g . T he pe tit ion e r c on te nd s th a t thi s wo uld have sh ow n that it wa s th e c o- de fe nd ant,

n o t t h e p e t i t i o n e r , w h o w a s p r i m ar i l y r e s p o n s i b l e an d w o u l d h av e l i m i t e d th e p e t i t i o n e r ’ s c u l p a

b i l i ty, resulting in a diffe rent outcome

.

I n d e nyingre lie f w ithre g ard to t his iss ue , th e po st- c on vic tio n c ourt fo un d a s f

oll ow s:
The pe titioner testified that his live- in gir lfriend sa w the co- defe ndant, J err

y Mason, deliver

the guns to him that were to be used in the robbe ry . He state d that her testimony woul d h ave c ontradicte d Mason’s testimony at trial that the pe tition[ er]

wa s th e on e wh o p ro vid e d th e g un s, and may have re su lte d in

a le sse r se nte nc e . T his

a lle g a tio n f

a ils fo r t hr e e re a so ns

. First[] , Ms. Hankins was not produc ed at the h ear ing on this petition. To establish prejudice
, a petitioner must (1) pr oduce the witness at his post-conviction hear ing; ( 2) show that throug h re asonable investigation, trial counsel could have located the witness ; an d (3 ) elicit both favor able a nd materia l testimony

from the witness. State v. Black

, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990). Assuming arguendo that the attorne y s would have loc ated he r (the pe titioner testifie d that he mentioned her

name in conve rsation to his attorney s only once – he r name was not mentioned in any

pre- trial discover

y or in his statement to the police), the re w as no offe r of p ro of by

her at the hear ing a s to what her te stimony would have be en, or wh e the r o r n ot i t w ou ld h ave be e n mate ri a l.

Secondly , the def

ense in this case was t h at t h e petitioner’s gun went off by

acc ident, that there was no intent to rob, but only to buy drug s, and that Mason wa s the re on ly

to “ ba c k u

p” the pe tit io ner as he b ou g ht d ru g s f ro m th e vic tim . T his
, essentially , was what Mason testified to as a State w itness at trial. The State’ s theory

a tt r i a l w a s t h a tt h e p e t i t i o n e r c o m m i t t e d

th e r o b b e r

y t o g e t m o n e y t o b uy

dr u g s

. If the jury had b el i ev ed this aspect of Ma son’s testimony , that the petitioner did not int e n d to r o b
, th e y

mi g h t n o t h av e f

o un d th e p e ti ti o n e r

g u il ty o f mu r d e r d ur ing
perpe tration of a r obbery

or of espec ially

ag g ravated robbe ry . I f Ang el Hankins ha d been ca l l ed as a witness and he r testimony about the orig in of the guns had bee n believed by

the jury , this may

hav e er oded Mason’ s cre dibilit y about helpful testimony of an a lleg ed “dr

ug deal g one bad.”

Thirdly , the fa ct of whe ther or not Ma son or the petitioner br oug ht the g uns to the petitioner’s house pr ior to the murder is i m m at eria l. Both guns were introduced a s exhi bits at the trial, and the gun found under the car with the petitioner,-6-

whi c hh e a dmi tt e d

f ir in g , w a s s h o w nthr o u g hb a ll is ti c e v id e n c e to b e th e o ne matchingspent shell casing s found at the sc ene. T hi s al l egation fa ils for lack of
p r o o f a s to d e f ic ie n t p e r f

o r ma n c e o r p r e ju d ic e to th e [p e ti ti o n e r ].

Review of the rec ord re veals n o t h i n g t o preponde rate ag ainst these finding s made by the court. As noted by

the p o st-conviction cour t, the petitioner’s c laim must fail because of his own fa ilure to p ro du c e Ms. Ha nk ins a t th e po st- c on vic tio n h e ari ng . B e c a us e of thi s f a ilure , n oth ingin the re c or d, e xce pt the pe tit ion e r’ s ow n te sti mony , e sta bli sh e s wh a t, if

any thi ng , M s. Ha

nk ins wo uld h av e t es t i fi edt o

. I nt h es e c as es , i ti s t h e p et i t i o n er ’s b urd en t o p ro d u ce th e w i tn es s at th e h ea ri n g, without which prejudice cannot be established. Black, 794 S.W .2d at 757. Moreove r, despite the fac t that the petit ioner arg ues ot herw ise, Ms. Hankins was not an alibi witness, even assuming that she testified a s the petitioner stated she would. Her testimony would have in no w ay provided the
pe tit ion e r w ithan a lib i f

or the ti me of th e cri me, e sp e c ia lly in l ig ht o f t

he fa c t th a t he a dmi tte d to

c omm itt ingthe sh oo tin g s and wa s arr e ste d at the c ri me sc e ne wi th the vic tim ’s mon e y in h is p oc ke t. As testified to at the he aring , Ms. Hankins, assuming arguendo that she te st ified as the pe titioner claimed she would, would have at m o st been a n impeachme nt witness. Both of the pe titioner’s attorney s specific ally

testified that her te stimony would not have be en helpf ul to the defe nse. He r te sti mony , a s f

ound by the po st- c on vic tio n c ourt , wa s no t mate ri a l to the iss ue of g uil t and c ou ld, in fac t, have hamper ed the asser ted defe nse. As such, the petitioner has failed to establish that he was denied his rig ht to the effe ctive assistanc e of c ounsel.

CO NC LU SION

Ba sed upon the for eg oing, the Shelby County Criminal Court’s denial of post-convic tion relief is affirme d.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE