### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Marc h 7, 200 6

JOSEP H JAC KSON v. S TAT E OF TEN NES SEE

Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. P -27485 Chris Craft, Judge

No. W2005-01181-C CA-R 3-P C - F iled March 28, 2006

The pe titioner, J oseph Jackson, appea ls the Shelby County Criminal Court’s dismiss al of his petition for post-c onviction relief from his convictions for two counts of attempted first deg ree murder a nd resulting twenty -y ear

concur rent sente nces. O n appea l, the defe ndant claims that his convictions violate t h e Do uble J eopar dy provision of the fe dera l constituti on, that his indictments were constitutionallydefe ctive, and that he re ceive d the ineff ective a ssistance of c ounsel. We aff irm the judgme nt of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt Aff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of t he court, in which G AR Y R. W ADE , P.J ., and N OR MA M C G EE O G LE , J ., joined.

Kamilah E. Tur ner, Me mphis, Tennessee , for the a ppellant, J oseph Jackson.

Pa ul G

. S u m m e r s , A t t o r n e y G e n e r a l a n d R e p o r t e r ; B l i n d A kr a w i
, A s s i s t a n tA t t o r n e y G e n e ra l; Wil liam L . Gibbons, Distr i ct Att orney Gene ral; and A landa Horne Dwy er, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

T h i s c a s e r e l a t e s t o t h e p e t i t i o n e r ’ s s h o o t i n g a to n e v i c t i m , m i s s i n g , a n d s t r i k i n g a p a s s e r b y. Th is c ou rt

pr ov ide d th e fo llo wi ng a c c ou nt o f the e ve nts on dir e c t app e a l:

On Fe bruary

3, 2000, there was a larg e alterca tion betwee n a number of g a ng me mbe rs a nd oth e r stu de nts in the pa rking lot of the MA PCO Expr e ss c on ve nie nc e store (M APC O) on Ra ine s Ro a d in so uth e a st Me mph is. Th e a lte rc a tio n took pla c e in the a ft e rn oo n, abo ut the tim e

near by schools wer e dis m i s s i n g. The de fenda nt had a “ run in” the
pr e vio us da y

wi th s ome ri va l g a ng mem bers and , a c c or din g to h is statements to police, had been threa tened by them. Due to that “run-2- in,” it was fa irly

common knowledg e in the community that there

wo uld be a fi g ht at the MA PCO on F e br ua ry 3, thu s th e re wa s q uit e

a larg e c ro wdin the pa

rking lot

.

There is evidence that ear lier on F ebrua ry 3, the def

endant told his friend, Ly dell Yar broug h, there would be an a ltercation later that day

. Yar

broug h broug ht a rifle to sc hool a nd let the d ef endant kn ow he ha d it. I t is un c le ar i f Y arb ro ug h b ro ug ht the ri fl e be c a us e of the po te nti a l a lte rc a tio n. Th e de fe nd a nt th en p ut i t in to h is backpa ck and c arried it throug hou t t h e s chool day . I n order for the rif le to b e c arr ie d in th e b a c kp a c k w ith o u t d e te c ti o n , it h ad to be disassembled.

After school, as the crow d started a ssembling a t the MAPCO, a number of fig hts broke out, includi n g one betwe en the de fenda nt and JohnnyMaxwell. According to at least two witnesses, a police office r an d J ohnny

Maxwell, Max well “be at up” the de fenda nt in a fig ht tha t la sted about a minute. At this time, the defe ndant was not

car ry ing the rifle. The crow d at t he MAP CO had grow n quite larg e by this ti me.

I mmediately after the fig ht betwee n the def endant a nd Ma xwe ll, the defe nd a nt w a lke d to a ne arb y truc k w he re tw o o f h is friends, inc luding Ya

rbroug h, wer e sitting. The police off icer stated that Maxwell and his friends were taunting the de fenda nt. The cr owd had still not di minished. The de fenda nt then g rabbe d or wa s handed the ri fl e , a nd wa lke d ba c k wi th the a sse mbl e d r if le tow ardMa xwe ll. The r e ar e d if

f e r in g v e r s io n s a s to w h o a s s e mb le d th e r if le and whether Maxwell and his friends wa lked towar ds the defe ndant as the defe ndant walke d to the truck or w ere simplystill hang ing a round the MAPCO lot. Calmly
, the defendant walked t owar ds Maxwell, li fted the rifle, a nd fired one s hot in an attempt to ki ll Max well. He missed Maxwell, but t he bullet struck twe lve-y ear -old Brittney Tay lor, who

wa s w a lki ng be hin d th e c ro wd
, in the sid e . Sh e ha d to be a ir lif te d to the hospital. The defe ndant then put the g un into the truck and w as almost immediately appre hended by the off- duty

police off

icer who had w it n e s s e d th e s c e n e

. T h e d e f e n d a n t’ s tw o f

r ie n d s d r o v e a w ay from the sc ene in the tr

uck but wer e pulled over a short distance f

rom the MAPCO.-3- . . . . The poli ce office r t estified that on Fe bruary 3, 2000, he wa s of f d uty ne ar the fi g ht sc e ne , altho ug h he wa s still in uni fo rm . He sa id he no tic e d a la

rg e c ro wd a t th e MA PCO , w ith se ve ra l di ff e re nt f ig hts

occur ri n g. He we nt to the scene and broke up one of the fig hts. He said he saw the def

endant a rg uing with two shirtless boy s who wer e jumping up and dow n and “thr owing ” g ang signs at him. The office r t estified it appea

red a s though the defe ndant had be en “g otten the better of.” He then witnessed the de fenda nt walk to a g ree n truck a nd the n w a lk b a c k to the bo y s wh o ha d be e n ta un tin g him , g e tti ng “ pr e tty close” t o t h em

. The de fenda nt then fired one shot at Maxwell and “ca sually ” wa lked bac k to the truck and put the rifle in it. The off icer stated the other

two boy s at the truck wer e laug hing. A fter the defe ndant put the g un back in the tr uck, the officer

testified that he immed i ately

appre hended the defe ndant. He sa id the defe ndant looked “whippe d,” ac ted depr essed, a nd said he did not mean to shoot the vic tim

.

. . . .

L y dell Yar

broug h, who had pe nding c harg es for attempted first deg ree murder f

or ac tions related to this case , testified to the fo llo wi ng : He sa id the de fe nd a nt t oldhim on the da y

in q ue sti on that, on the pre vious day , the def endant had an alter cation with some other boy s and wa s letting Yar

broug h know that something mig ht happen that day

. Yar

broug h testified he (Ya

rbroug h) broug ht a rifle to sc hool that day , a disassembled one that he wa s able to keep in his bac kpack. He told t he defenda nt about t he rifle, and the de fenda nt then obtained it a ndke pt i t in the de fe nd a nt’ s bac kp a c k. Af te r sc ho ol, the y we nt t o the MA PCO wh e re a

c ro wdwa s f

or min g in a nti c ipatio n o f the fi g hts they knew we re c oming. Ya

rbroug h testified that a f

ight br oke out be tw e e n th e de fe nd a nt a ndMa xwe ll. At that ti me , th e de fe nd a nt d id not have the g un; it wa s in a truck that Ya rbroug h and anothe r friend

wer e sitting in at the MAPCO parking lot. After the f ight be tween the de fe nd a nt a ndMa xwe ll e nd e d, a fi g ht Y arb ro ug h s a id l a ste d a bo ut a minute, the defe ndant walke d over to the truck and g ot the g un. He stated he be lieved the de fenda nt had to rea ssemble th e gu n

. The defe ndant then wa lked bac k to Max well and Ma x well’s friends, and Ya rb ro ug h s a id h e the n he ard a g un sh ot. Ya rb ro ug h c omm e nte d th a t,

a ft e r the fi st f

ig ht, the de fe nd a nt’ s d e me a no r w a s cal m. He a lso testified that the State had not given him any deals to testify and that he wa s only

try ing to tell the truth.-4- . . . .

The fina l witness important for our a naly sis w as J ohnny Maxwell. Max well testified that he indeed had be en in a f ist fight

w ith th e d e f

e n d a n t, o n e

- o n

- o n e , th a t l a s te d a “ f e w mi n u te s

. ” He stated there wer e other fig hts g oing on at the same time, but his fig ht wi th the de fe nd a nt w a s ju st b e tw e e n th e tw o of th em. M a xwe ll admitted that he had beaten the defe ndant in the fig ht. He stated tha t about a minute af

ter the f ist fight, he turned to walk away , but saw the de fe nd a n t w a l k t o t h e t ru c k
, w h e r e h e w a s h a n d e d t h e g u n b yhis “partner.” He state d he had not wa lked towar ds the defe ndant as the defe ndant we n t t o the truck. A ccor ding to Ma x well, the def endant walked t o w ith in “ te n to f if te e n ” f e e t o f h im a n d f ir e d th e s h o t th at ultimately

hit and injured B rittney

Tay lor.

State v. J oseph Jackson, J r., No. W2001-02779-CCA-R3-CD, Shelby County , slip op. a t 1-4 (Te nn. Crim. App. Dec

. 17, 2002), as corr ecte d (Jan. 10, 2003). This c ourt aff irmed the p etitioner’s convictions and sente nces.

On J uly 8, 2003, the petitioner filed a p etition for post-conviction re lief alleg ing tha t he

rec eived the ine ffe ctive assistance of counsel, that the indictments we re c onstitut ionally defe ctive,

a ndthat hi s d ua l c on vic tio ns vio la te Do ub le Jeop ard y . A t th e pe tit ion e r’ s h e ari ng fo r p os tconviction re lief, he te stified that his attorney never discussed with him his rang e for pu rposes of
sentenc ing. H e said his attorne y only told him t hat his sentence for e ach c ount of the i n d i ctm ent would be betwe en fifte en and sixtyy ear s. He said that his par ents had hired a priva te investig ator who had located and inter viewed va rious witnesses and tha t his attorney fai l ed to i nvestig ate the witnesses. The pe titioner expl ained, f or example, that one of the witnesses would ha ve said that the victim with whom he had bee n fig hting wa s heading in the petition er ’s direc tion in a threate ning

manner

. The pe titioner said his attorney failed to ne g ate the pr osecution’ s ca s e o n the eleme nt of
preme ditation, ex plaining tha t no evidenc e of preme ditation e x isted in his c ase. H e said his attorne y

coer ced him into not testify ing on his own be half. The petitioner said he w ante d to testify and expl a in to th e ju r y th a t h e w a s a c ti n g in s e lf

- d e f e n s e

. T h e p e ti ti o n e r s a id
, h o w e v e r , th a t it was ultimately

his decision. He said his attorney never explained to him t he ele ments of the crime that the state wo uldha ve to p ro ve in o rd e r f or the jury to f indhim g uil ty be y on d a re a so na ble do ub t.

On c ro ss- e xami na tio n, the pe tit ion e r s a id h is atto rn e y ne ve r e xpla ine d t o hi m th a t hi s sentenc ing r ang e as a Rang e I
, standard offe nder was fiftee n to twenty -five y ear s for e ach of fense

. The pe titioner said that one of the witnesses who was not inter viewed would have te stified to issues
reg arding his lack of pr emeditation. Specific ally , he said the witness would have testified that the
pe tit ion e r h a d n ot r e a sse mbl e d th e g un be fo re sh oo tin g . T he pet it ion e r a lso sa id a no the r w itn e ss, the victim who was shot, would have testified, if asked, that the other victim ha d taken his shirt off-5-

afte r the initial fig ht and was r unning a round a n d as k i n g, “W h ere the dude at that hit me? ” The petitioner said this testimonyalso would have ne g ated the pr osecution’s c ase a s to premeditation. The petitioner acknow ledg ed that at the trial, the trial court a sked him questions conce rning his right to testify . He a dmitted telling the trial c ourt that he made the dec ision not t o testify

.

Sa nd ra Mc Cla ri e n te sti fi e d th a t sh e wa s th e pe tit ion e r’ s mo the r. She sa id sh e hir e d a pr ivate investigator on the advic e of the petitioner’s fir st attorney , who had to w ithdraw fr om the petitioner’s

case befor e trial be cause he was campa igning for judg e. She said that the private investig ator interviewe d various witnesses and that the t ape rec ording s of t he int ervie ws had been in possession of the fir st attorney

. The pe titioner’s trial attorne y testified that he ha d i n fo rm ed the pe titioner of the potential
sentenc es he c ould rec eive if c onvicted. The attorney said he had revie wed tra nscripts of intervie ws fr om the wi tne sse s lo c a te d b y the pr ivate inv e sti g a tor . H e sa id tha t th e pe tit ion e r’ s si ste r t a lke d to him about a potential witness but that h e wa s u n ab l e to l ocate the witness. The attorney said he discussed with the petition er t he potential proble ms with him taking the stand bec ause he felt the
pe tit ion e r c ou ld n ot e ff

e c tiv e ly c omm un ic a te

. He sa id, ho we ve r, that be c a us e pa ssi on wa s th e ir be st defe nse at trial, he felt the pe titioner neede d to te stify

. The attorney said that afte r the state pr esente d its case- in-chief

, he aske d the petitioner, “ Do y ou want to t estify ? ” and that the petitioner re sponded, “No, I don’t want to testify .” The attorney maintained he never told the petitioner not to testify , but he sa id he didte ll the pe tit ion e r h is t e sti fying wo uldbe da ng e ro us un le ss h e c ou ld e ff e c tiv e ly communicate a nd express himself.

On cr oss-examination, the petitioner’s attorne y said he did n o t p u r s u e th e w it ness’s stateme nt that J ohnny Maxwell was coming toward the defe ndant bec ause he said Mr. Maxwell did not have
a g un at the time. The attorney said he told the defe ndant that the defe ndant had a rig ht to appeal the decision of the T ennesse e Court of Criminal Appea ls to the Tennessee Supreme Court.

I n its or d er d en y ing the petitioner post-convic tion relief, the tr ial court found tha t the petitioner’s a ttorney ’s per formanc e wa s not deficient, that the issue r eg arding the def ective ind ic tme nts wa s me ri tle ss b e c a us e the pe tit ion e r h a d c ite d a statut e ha vin g no thi ng to d o w ith his

case , and that this court had pr eviously determined the Double Jeopardy issue.

On appe al, the petitioner contends that he re ceive d the ineff ective a ssistance of c ounsel, that his indictments are constitutionallydefe ctive, and tha t his convictions violate Double J eopar dy . The
state contends that the petitioner’s attorney ’s per formanc e wa s not constituti onally defic ient and that this c o u r t p r e v io u s ly d e te r mi n e d th e D o u b le Je o p ar d y is s u e

. T h e s tate d o e s n o t r e s p o n d to the petitioner’s de fec tive indictments issue.

The burden in a post-convic tion procee ding is on the pe titioner to prove his g rounds for r elief by clea r and c onvincing evidenc e. T

. C

. A. § 40-30-110( f). On a ppeal, we are bound by

the trial

c ou rt ’s fi nd ing s o f f

act un les s we c on c lud e that th e e vid e nc e in the re c or d p re po nd e rate s a g a ins t those findi n gs. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). B eca use they rela te to mix ed-6-

questions of law a nd fac t, we re view t h e t ri al court’s c onclusions as to whether counsel’s perf ormanc e wa s deficie nt a n d w h e the r that def

iciency was pre judicial under a

de no vo sta nd ardwi th no presumption of cor

rec tness. I d. at 457.

I nitially , we note tha t the Post-Convi ction Procedur e Ac t may not be used to re -litiga te issues that this court has “pr eviously deter mined.” S ee T.C. A. § 40-30-106( f), (h); see a lso Mill er v. State, 54 S.W .3d 743, 747-48 (Te nn. 2001) (holding that an issue pre viouslydetermined by this court “ca nnot be revisited in this post-conviction proceeding ”). This c ourt has pre viouslydetermined that no Double Jeopardy

problem existed for the petitioner’ s convictions. J ackson, slip op. a t 6-8. The petitioner is not entitled to relief.

I. CONSTIT UTIONALLY DEFECTIVE INDICTMENT

Th e pe tit ion e r c on te nd s h is i nd ic tme nts are c on sti tut ion a lly de fe c tiv e and th e re fo re vo id becaus e they

“fa il to allege the re quisite mental state ‘knowing ly ’ re quired by T.C.A. § 39-17- 417(c) .” The state does not re spond to this i ssue.
We note the petitioner ha s failed to include a copy of his indictments in the appellate rec ord. Ho we ve r, we ma y

take jud ic ia l no tic e of the pe tit ion e r’ s dir e c t app e a l r e c or d in thi s c a se . Se e Sta te ex rel. Wi lkerson v. Boma r, 213 Tenn. 499, 505, 376 S .W.2d 451, 453 (Tenn. 1964). The Shelby Cou nty Gr a ndJury

re turne d tw o n e arl y

ide nti c a l in dic tme nts a g a ins t the pe tit ion e r, the on ly dif fe re nc e be ing the na me d v ic tim . T he ind ic tme nt f or the c ri me a g a ins t th e vic tim John ny Ma xwe ll
state s:

THE GRAND J UR OR S of the State of Te nnessee , duly selec ted,

e mpa ne le d, sw or n a ndc ha rg e d to inq uir e fo r the bo dy of the c ou nty of She lby , T e nn e sse e , u po n th e ir oa th, pr e se nt tha t:

L YDEL L RAMON YARB ROUGH JO S E P H JA C K S O N
, JR

on Fe bruary

3, 2000 in Shelby

County , Tenn es s ee , and bef ore the finding of this indictment, did unlawfull y at t empt to commit the of fe nse of F ir st D e g re e Mu rd e r a s d e fi ne d in T. C.A . 3 9- 13 -2 02 , in that they did unla wfully
, intentionally
, and with premeditation attempt to k i l l J ohnny

Maxwell in vi olation of T.C.A. 39-12-101,
ag ainst the pea ce a nd dignity of the State of T ennesse e.

I nitially , we note tha t section 39-17-417( c) pr ovides for pe nalties for the manufa cture , delivery
, sale, or possession w ith the intent to manufa cture , deliver, or sell ce rt ai n co ntrolled substances. It is, however, de void of a de finition of “knowing .” We also note that the state is not require d to prove the me ntal state of “ knowing ” in a pr osecution for attempted first de g ree murder.-7-

See T.C.A. §§ 39-12- 101; 39-13-202. I n any event, we discern no constitutional infirmit ies in the petitioner’s indictments, and the pe titioner is not entitl ed to re lief on this issue.

II. IN EF F EC TIV E A SSIST AN CE OF CO UN SEL

Th e pe tit ion e r c on te nd s tha t he re c e ive d the ine ff e c tiv e a ssi stanc e of

c ou ns e l. H e c la ims his
tr ia l a tto rn e y

fa ile d to inv e sti g a te his c a se pr op e rl y , f a ile d to int e rv ie w w itn e sse s a ndde ve lop the ir testimony for trial, and failed to discuss with him the potential rang e of se ntence he would re ceive

. Th e state c on te nd s th e pe tit ion e r’ s a tto rn e y ’s pe rf or ma nc e wa s n ot c on sti tut ion a lly de fi c ie nt.

Under the S ix th Amendment, when a claim of i neff ective assistance of counsel is made, the burden is on the pe titioner to show (1) that counse l’s perf ormanc e wa s deficie nt and (2) that the defic iency

was pre judicial. Strickland v. Washingto n , 4 6 6 U. S

. 668, 687, 104 S. Ct . 2052, 2064 (1984); see L ockhart v. Fre twell, 506 U.S. 36 4
, 3 6 8 -7 2
, 1 1 3 S. Ct . 838, 842-44 (1993) . I n other words, a show ing tha t counsel’s pe rformance falls below a re asonable standard is not enoug h; rather
, the petitioner must also show that but for the substanda rd per formanc e, “the result of the pr ocee ding would have be en diffe rent.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The St rickland standa rd ha s b e e n a pp lie d to the ri g ht to c ou ns e l un de r a rt ic le I , s e c tio n 9 of

the Te nn e sse e Con sti tut ion . St a te v. Melson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989)

. A petitioner will only

preva il on a claim of inef fec tive assistance of counse l after satisfy ing both prong s of the Strickland t est . See He nley v. State, 960 S.W .2d 572, 580 (Tenn. 1997) . The perf ormanc e prong require s a petit ioner raising a claim of ineffe ctiveness to show that the counse l’s
repr esenta tion fell below an obje ctive standa rd of r easona

bleness or “ outside the wide ra ng e of profe ssionally

competent a ssistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The pre judice
prong require s a petit i o n er t o demonstrate that “there is a rea sonable proba bilitythat, but for counsel’s pr ofessional e rror s, the result of the pr ocee ding w ou l d h ave been diff ere nt.” I d. at 694, 104 S. Ct at 2068. “A rea sonable probability means a probability sufficie nt to undermine conf idence in the ou tc ome .” I d. F a ilu re to sa tis fy e ith e r p ro ng re su lts in the de nia l of re lie f. I d. a t 69 7, 10 4 S. Ct. at 2069.

I n Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme c ourt dec ided that attorney s should be held to t he g ener al standar d of whe ther the se rvice s rende red w ere within the

ra n ge o f c o m p et en ce d em an d ed o f at t o rn ey s i n cr i m i n al ca s es

. Fu rt h er , t h e c o u rt s t at ed t h at t h e r an ge of c omp e te nc e wa s to be me a su re d b y the du tie s a ndc ri te ri a

se t f orth i n B e a sle y

v. Un ite d St a te s, 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 revie wing counsel’s conduct, a “fa ir assessment of attorney perf ormanc e re quires that every

eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s c halleng ed conduc t, and to evaluate the conduc t from counsel’s
pe rs pe c tiv e a t the ti me. ” S tr ickla nd , 4 66 U. S. at 68 9, 10 4 S. Ct. a t 20 65 . T hu s, the fa c t th a t a p ar t icular strateg y

or tac tic failed or

even hurt the defe nse does not, alone , support a cla im of ineffe ctive assistanc e. De fer ence is made to trial strateg y or tac tical choices if they are informed ones base d upon adequate pre paration. See DeCoster, 487 F .2d at 1201.-8-

Con c e rn ing the pe tit ion e r’ s c la im that hi s atto rn e y ’s pe rf or ma nc e wa s c on sti tut ion a lly defic ient, we note tha t a petitioner’s f ailure to pre sent the testimony of any witness that he cla imed should have be en at his trial is fata l to his complaints reg arding h i s at t o rney ’s investig ation and failure to call wit nesses. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The

rec ord re flec ts that the petitioner failed to call at the pos t-conviction hearing any of the witnesse s he claims a proper investigation by his attorney would have reve aled. Reg arding the petitioner’s othe r

arg ume nts of ine ff

e c tiv e a ssi sta nc e of c ou ns e l, we c on c lud e the re c or d do e s n ot p re po nd e rate a g a ins t the tr ia l c ou r

t ’ s f i n d i n g th at

th e p e t i t i o n e r ’ s a tto rn e y ’s pe rf or ma nc e wa s n ot c on sti tut ion a lly de fi c ie nt. The pe titioner is not entitl ed to re lief on this issue.

B a se d u po n th e fo re g oin g a ndthe re c or d a s a w ho le , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE