### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A pr il 8, 200 8 S es sio n

C HA R LE S E. JO N ES v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. P -26528 Lee V . Coff ee, Judge

No. W2007-01086-C CA-R 3-PC - Filed October 6, 2008

The pe titioner, Charles E. Jones, was found guilty by a Shelby Coun t y C ri m i n al Court J ury of
p r e m e d i t a t e d

f i r s td e g r e e m u r d e r , an d h e r e c e i v e d a s e n t e n c e o f l i f e i mp r i s o n m e n t

. S u

b s e qu e n t l y, he fi le d a pe tit ion fo r p os t- c on vic tio n r e lie f, a lle g ingtha t hi s tr ia l c ouns e l w a s in e ff e c tiv e . T he po stconviction cour

t denied the pe tition, findi ng that the petitioner fa iled to prove his alleg ations by clea r and convinc ing ev i d ence . The pe titioner now appe als this ruling. Upon r eview of the re cord a

nd the par ties’ brief s, we a ffirm the judg ment of the post-c onviction court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

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

Autumn B. Chastain, Memphis, Tenne ssee, f or the a ppellant, Charles E. Jones.

Rob ertE. Co op er, J r., At to rney Gen eral andRe po rt er; Dav idH. Fi nd ley , As si st ant At to rne y Ge ne ra l; Wil liam L

. G ib b o n s , D istric t Attorney Gene ral; and Car

rie Shelton and Kirby

May , Assistant District Attorney s Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

On dir e c t a pp e a l, t his c ourt su mma ri zed the pr oo f a dd

uc e d at tr ia l a s f

oll ow s:

On May 29 , 1 99 8, Of

fi c e r J e ff De nn iso n o f t

he Me mph is Police Depa

rtment was on patrol when he was fla g g ed down by Huber t Sturdivant. S turdivant advised Of fice r De nnison that there

wa s a d ead body

in S tur div ant’ s h ou se a t 13 57 Ta y lor Str e e t in-2- Memphis. Office r Dennison immediately radioe d for a ssistance a nd was followe d to the scene by Offic er Stephe n Thag g ard. When the office rs ar

rived at the scene , they saw broke n g lass on the steps and porch of the house. As the of

fice rs stepped onto the f

ront porch, the d o o r o p e n e d an d t h e [ p e t i t i o n e r ] s t o o d

i nt h e d o o r

w ay.

Whe n th e [pe tit ion e r] o pe ne d th e do or , the of fi c e rs we re a

ble
to see a dead body

rolled up in ca

rpet lying on the living room floor

. Of fice r De nnison imm ediately order ed the [petitioner] to get down, th e nh an d c u f

f e d h im
, an d

p la c e d h im in th e b a c k

o f O f f ic er Th a g g ard ’s c ar. B oth of

fi c e rs ob se rv e d th a t th e [pe tit ion e r] w a s c a lm during the entire episode a nd n ev er appea

red to be upset. The [petit ioner] had scratches on his nec k, blood splatters on his left ea r,

a sc ratc h o n h is c he c k, blo od sp la tte rs in h is hair, a

nd a c ut o n h is fing er.

Offic e r T h a g g ar d p r o c e e d e d in to th e h o u s e

. H e te s ti f ie d at trial that the victim’s bloody head was sticking out of the car pet. He saw blood spl atters in the living room, on the shade s, on the floor, “eve ry wher e-it’s blood eve ry

wher e.” I n the di ning a

rea , he sawblood on the floor a

nd marks on the floor that indicated that somethinghad been dr ag g ed ac ross t he ar ea. N ext t o the victim’s body , Offic er Thag g ar d d iscovere d a bucke t of soapy water with a ra g in it. He noted that the water was red, as if discolored by blood. A g arba g e ca

n in the room containe d broken g lass and blood.

The [petitioner] was taken fr om the sce ne to the Reg ional Me dic a l Ce nte r ( Me d) fo r e xami natio n a nd tr eat me nt. Ca

pta in J oseph Eldridg e of the Memphis Police Depa rtment interviewe d the [petit ioner] at the Med. Captain Eldridg e recounted that he advised the [petit ioner] of his Miranda r ights a nd asked the [petit ioner] if he

wa nte d to g ive a

state me nt. Th e [pe tit ion e r] an sw e re d a ff ir ma tiv e ly and re sponded that he ha d killed the victim because she had “disrespe cted” him and knocked his c rac k pipe out of his hand. C ap t ai nE l dri d ge d i d

n o tre d u ce t h i s s t at em en tt o wr i t i n g.

The [petit ioner] w as taken from the Med to t h e C ri minal J ustice Center . After

ag ain beingadvis ed of his rig hts, the [petit ioner] ga

ve a written statement. The [ petitioner] related that he met the victim wh en h e “w ent to the dope house ” to buy cra ck

c oc a ine . Af

te r pur c ha sin g the c ra c k c oc a ine , th e [pe tit ion e r] w e nt t o

a sto re up the str e e t and

purc ha se d b e e r and cig are tte s. Th e vic tim
, who was standingin the parkinglot of the store, bega n following the-3- [pe tit ion e r]. Th e [ peti tio ne r] i nv ite d h e r t o a c c omp any him to h is house. When they

arr ived at h i s h o u s e, the two dra nk beer and smoked “$50 dollars worth of cra ck.” A fter smoking cra ck coc aine, the [pe tit ion e r] a sk e d th e vic timto have se x with him . T he vic tim
ag ree d and re moved her

clothes. L ater , the victim became ang ry when the [petitioner] refuse d to give her more cr ac k coca ine. Acc ording to the [petit ioner], the victim knocked a c rac k p ipe from the [petiti oner’ s] hand and they “g ot to wrestling.”

The [petitioner] allege d that the victi m had a box cutter, whi ch she beg an swing ing at him, and cut him on the fing er. The [petit ioner] insisted that he c ut the victim only three times in an eff

ort to d e fe nd him se lf . H e a dmi tte d th a t du

ri ngthe ir str

ug g le , the vic tim

was unc lothed. He c laimed that, af ter be ing cut, the victim attempted to jump through a

window. Howe ver, there wer e bars on the window and she w as unable to esca pe. He contended that the glass from the br ok e n w ind owc a

us e d mo st o f t

he vic tim ’s inj ur ie s.

[T h e p e ti ti o n e r

c la im e d th a t w h e nth e s tr

u g g le e n d e d
, ] he panicke d and did not know what to do with the victim. He taped the victim’s ankles and w rists toge ther and place d a g arba g e bagon the
upper por tion of her body . He then r olled the body inside a piec e of

car pet. Attempting to cle an up the blood, he pla ced the victim’s clothes, his clothes, a wig
, and the broken g lass in a g arba g e bag . He then walke d out onto his porch and smoked a cig are tte.

The [petition er ] ad m itted that he did not call for me dical assis ta n c e f o r th e v ic ti m o r

c a ll th e p o li c e

. H e d id

n o t k n o w the victim’s name and explained that he had never met her befor e the da y of the inc ide nt.

Dr. O’Br i an C lear

y Smit h, the Shelby

County medical examiner, testified that the a utopsy of the victim reve a le d

e ig h ty -three

se pa rate wo un ds on the vic tim ’s bo dy

. He de sc ri be d a pp ro xima te ly six ty -eig ht stab and incised wounds to the he ad, nec k, to rso, and extremiti es, opining that se ven of the wounds wer e fatal. The
pr ima ry c a us e s o f de a th we re : a stab wo un d thro ug h th e e so ph a g us ; a stab wound throug h the left jugular vein; a stab wound throug h the subclavicula

vein ; a stab wound to the r ight lung ; a stab wound involving tissues of the c enter of the c hest; a stab wound to the left lung; a nd a stab wound to the ba ck. He conclude d that the wounds

wer e consisten t wi th injuries from a box cutter, althoug h he acknow ledg ed that some of the wo unds could have been c aused by-4- broken g las s

. Ho we ver, no g lass was found in a ny of the victim’s

wo u n d s

. A d d i t i o n a l l y , D r

. S m i t h r e p o rt e d t h a tt h e [p e t i t i o n e r ’s ] blood was tested f

or the pre sence of coca ine. Dr. Smit h related that

a re sult of .1 or .2 microg rams of c ocaine per millilit er is conside red normal stree t level usag e. The [petit ioner’s] test resu l t s s h o wed a level of .13 micr og rams per milli liter.

State v. Charles E. Jones, No. W2000-02606-CCA-R3-CD, 200 1 W L 1381270, at **1-2 (T enn. Crim. App. at J ackson, Nov. 2, 2001). On appea l, this court aff irmed the petitione r’ s co n v i ct i o n. I d.

F oll ow ingthi s c ourt ’s a ff ir manc e of his c on vic tio n, the pe tit ion e r f ile d a pe tit ion fo r p os tconviction re lief, alleg ing that his trial counsel was inef fec tive. Namely
, the petitioner alleg ed that

c ouns e l f a ile d to inv e sti g a te va

ri ou s asp e c ts of his c a se , to int e rv ie w a ll p e rt ine nt w itn e sse s, to f ile all pertinent pre trial motions, and to properly rese arc h or pursue a voluntary intox ication def

ense.

At the po st- c on

v i c t i o n h e ari ng , th e pe tit ion e r’ s tr ia l c ouns e l te sti fi e d th a t th e pe tit ion e r’ s c a se was orig inally a capital case and wa s assig ned to the ca pital case attorney s in the Publi c De fende r’s Offic e. Howe ver, w hen the St ate e lected not to pursue the death penalty , the ca se wa s rea ssigne d to trial counsel, who a lso worked in the public de fende r’s off ice.

Trial counse l said that prior to trial, he had inquired i nto the vi ctim’s arr est rec ords “using the computer

sy stem.” He conce ded that he ha d failed to discove r that t h e v i ct i m had prior convictions for a g g ravated assault, prostitution, pedestrian solicitation, and drugpossession.

Tr ia l c ouns e l sa id that du

ri ngtr ia l pr e pa

ratio n, he and

the pe tit ion e r m e t f

re qu e ntl y to d isc us s the c a se . T ri a l c ouns e l te sti fi e d th a t th e pe tit ion e r c on sis te ntl y ma int a ine d t hat the v ic tim ’s de a th

occur red as a result of wounds she sustained while try ing to e scape throug h his windows and from the petitioner’s eff

orts to de fend himself. Trial counsel opined that the version of ev en t s the petitioner shar ed with him was consistent with the petitioner’s written statement to police and the discovery materia ls.

The pe titioner told trial counsel that on the day of the offe nse, he ha d worke d at a wa rehouse

. Th e pe tit ion e r s a id t

hat he us e d bo x c utt e rs to op e n b oxe s o n th e a sse mbl y lin e . T he pe tit ion e r t old trial counsel that whe n he got off w ork, he w ent to a cr ack house to purcha se cr ack c ocaine . After

makin g the purc ha se , he we nt to a ne arb y c on ve nie nc e sto re to b uy

be e r. Th e vic tima

pp ro a c he d h im

and a sk e d to share his c ra c k co c a ine in exc ha ng e fo r se x. Th e pe tit ion e r s a id t hat he and

the vic tim went to his house wher e they watche d a baske tball gam e o n t elevision while drinking beer and smoking c rac k. After

a couple of hours, the p et i tioner re quested sex. The victim removed he r clothes, and the y

had “br ief sexual intercour se.” A fterw ard, the victim remained unc lothed. The victim asked for

more c rac k coca ine, but the petit ioner refused, saying he wanted to save the la st of his crac k rocks f

or himself.-5-

The pe titioner told trial counsel that an alter cation ensue d afte r the victim knocke d a cr ack pip e fr om h is hand on to the fl oo r. Th e pe tit ion e r sa id that he p us he d th e vic timou t of the c ha ir in which she wa s sitti ng . The victim then appr oache d the petitioner with a box cutter, but the petitioner

was a ble to g et the we apon aw ay from her . They

wre stled, and the pe titioner cut the victim once. She ra n to the do or , but the do or wa s d e a db olt e d a

nd the pe tit ion e r h a d th e ke y . T he vic timwe nt t o the windows on either side of the door, br oke the g lass, and attempted to g et out. Howeve r, bar s on the windows pre vented he r escape. T he petitioner told trial counse l that the victim sustained

nume ro us wo un ds fr om t

he wi nd ow g la ss. Th e pe tit ion e r a dmi tte d th a t he “ stu c k” the vic timwi th the box cutter three times. The petitioner said that the victim died at some point af ter he r thwar

ted attempt to leave. T rial counsel stated t hat when police arrived at the s cene of t he crime, they took pictures of

the petitioner’s c uts and abra sions. Trial counsel opined that the petitioner’s inj uries we re indicative of a

“monumental strug g le.”

Th e pe tit io ner to ld c ouns e l th a t he g ot a c ut o n h is f

ing e r w hil e fi g hti ngwi th t he vic tim

. Af te r h is a rr e st, po lic e too k him to the ho sp ita l, an d he re c e ive d stitc he s in his fi ng e r. Cou

ns e l sa id that Offic er Joseph Reed Eldridg e testified at the preliminary hear ing that he did not take a statement fr om t he pe tit ion e r at

the ho sp ita l. H ow e ve r, on the da y of tr ia l th e State re ve a le d th a t it ha d ju st le arn e d th a t, w hil e a t th e ho sp ita l, the pe tit ion e r tol d Of fi c e r El dr idg e that he ha d kil le d the vic tim beca use she ha d disrespec t ed him. Trial counsel said that the State disc losed the ora l statement immediately

upon discovery

of its exis tence

. Trial counsel testified t hat he spoke with the petitioner and explained that they

could re quest a c onti n u an ce to consider their strateg y . Howeve r, trial counsel be lieved that the oral statement supported the pe titioner’s version of e vents, namely that the strug g le beg an shortly

afte r the victim disrespec ted the petitioner by knocking his crac k pipe out of h i s h an d s

. Al t h o u gh t h e or al s t at em en t co u l d h av e be en u s ed t o es t ab l i s h a m o t i v e f o r t h e k i l l i n g, counsel said that he did not move to have the state ment excluded beca use it wa s consistent with the petitioner’s unwa

veringversion of events. Trial counsel believed that the S tate’s theory at t rial wa s that “at some point dur ing the infliction of the wounds . . . he pr emeditated to kill her.” Trial counse l

conce ded that at tria l he did not cross-e x amine Of fice r Eldridg e about h i s fa i l u re to disclose the statement at the pr eliminary hear ing. T rial counsel surmised that when Offic er Eldridg e testified at the pre liminary

hear ing tha

t he had not take n a statement from the petitioner at the hospital, he meant that he had not take n a wr itten statement from the pe titioner.

The petitioner told tria l c ounsel that most of the victim’s wounds were cause d by her attempt to esca pe throug h the broken windows. Trial counse l noted that althoug h the petitioner said he had

re mov e d g la ss f

ro m the vic tim ’s wo un ds a ft e r s he fe ll t o th e fl oo r, the pe tit ion e r h a d o nly a sin g le cut to his finge r. Reg ardle ss, trial counsel told the petitioner that he would “dea l with” that discrepa ncy during trial.

Trial counse l said that he had sever al di scussions with Dr. S mith, the medical examiner who testified re g ardingthe victim’s autopsy . He spe cifica lly asked D r. Smith i f t he victim’s wounds could have been cause d by the broken g lass. Trial counsel did not reque st that the g lass shards found

on the sc e ne be te ste d f

or blo od or tis su e ; ho we ve r, Dr . Smith state d th a t th e vic tim ’s wo un ds c ou ld have be en ca

used by sharp g lass. Trial counsel said he wa s surprised whe n Dr. Smith stated that no-6-

g lass was re cover ed fr om the victim’s wounds and questioned Dr . Smit h about it. Trial counse l would have sa id that the medical e x aminer’ s office missed the g lass during the autopsy , but “that’s a lot of wounds not to see a ny g lass whatsoe v er

. ” Trial counse l acknowle dg ed that he did not int e rv ie w D r. Gunth e r, the me dic a l e xami ne r w ho ha d pe rf or me d the a uto ps y , p ri or

to t ri a l be c a us e sh e ha d move d to ano the r state

. Re g ard le ss, tr ia l cou ns e l sta te d tha t he fe lt that he h a d th or ou g hly interviewe d Dr. Smith and cross-e x amined him at t ri al

. Fur ther, Dr . Smit h was Dr . Gunther’ s supervisor, a

nd Dr. Smith was prese nt at the autopsy

.

Trial counse l acknowle dg ed that the petitioner, in his written statement to police, maintained that he could not re member w here his first swing of the box cutter struck the victim. Trial c ounsel

a sk e d th e pe tit ion e r i f h e wa s impa ir e d by dr ug s o r a lc oh ol at th e tim e of the of fe ns e , im plo ri nghim to disclose any

information that might r evea l h e wa s intox icated a nd that might lea d to a def ense. Th e pe tit ion e r c on sis te ntl y state d th a t he ha d a

“ ple a sa nt b uzz” a t the tim e of the of fe ns e , bu t he did not indicate that he w as too impaired to think clea rly

. T ri al co u nsel lear

ned throug h his pretrial investigation that the petitioner had pre viously soug ht treatment for

his drug addiction.

Tr ia l c ouns e l sa id t

hat te sti ngre ve a le d th e vic timha d c oc a ine in h e r s y ste m. D ur ingtr ia l,
tr ia l c ouns e l a sk e d D r. Smith a bo ut the e ff

e c ts o f c oc a ine on

the bo dy . H ow e ve r, he did no t a sk

a bo ut t he e ff e c ts of c oc a ine wh e n c ou

ple d w itha lc oh ol. Tr ia l c ouns e l e xpla ine d th a t he did no t a sk the question beca

use the pe titioner had not boug ht much alcohol prior to the of fense and bec ause the incident occ urre d two to three hour s after the petitioner c onsumed the alc ohol.

Trial counse l stated that h e h ad re quested a jury instruction on voluntary

intox ication. He
was surpr ised when the trial court sa id that the petit ioner’s statement that he was “full of dope ” wa s ins uf fi c ie nt t o wa

rr ant the ins tr

uc tio n. Tr ia l c ouns e l c on c e de d th a t he c ou ld h a ve purs ue d th e re qu e st for the instruc tion more ag g ressively
, but he believed it c ould ha ve serve d as a ta

ng ential def

ense at best. Counsel said that the petitioner was not “knock down sloppy slobbering drunk or hig h on

coca ine,” a

nd he showed the presence of m ind to beg in cleaningthe cr ime scene prior to the ar rival of pol ic e

. A ls o , O f

f ic e r E ld r id g e s a id th a t th e p e ti ti o n e r a c te d “ c a lm an d c o ll e c te d ” w h e n police

arr ived on the sce ne.

Tr ia l c ouns e l te sti fi e d th a t f ro m th e be g inn ingof

his re pr e se ntatio n, the pe tit ion e r ha d s a id that he would testify at trial. Ther efor e, trial c ounsel was “ stunned” whe n the petitioner a nnounced d u r i n g t r i a l t h a th e d i d

n o tw an tt o t e s t i f

y.
Memphis Poli ce of

fice r Jos eph Ree d Eldridg e testified that wh en he a rrived at the scene
, most of t he glass was outside the reside nce, not inside. At the hospital, the pe titioner told Office r Eldridg e that he killed the vic tim because she disrespe ct ed h i m

. Offic er Eldr idge said that he testified at the preliminary hear ing that he did not take a statement from the petit ioner at the hospital beca use he did not consider

the petitioner’s or al statement to be a formal, written statement. Offic er Eldridg e said that the pe titioner did not appear to be under

the influenc e at the hospital.

The pe titioner’s mother, B arba ra Jones, testified that trial counse l never interviewe d her-7-

about the petitioner’ s drug use. Howeve r, she conce ded that she did not learn of the petitioner’s dr

ug use until after

he wa s ar re s t ed when a drug deale r ca me to her house seekingpay ment from the petitioner for

drug s.

Dr. O’ Br ian Cleary Smit h testified at the post-convic tion hearingthat he met with both the State and trial c ounsel prior to trial. During the m eeting s, he went over the a utopsy repor t with them
on a pag e-by -pag e basis. The autopsy repor t stated that the ca

use of de ath was sixty -eig ht “knife” wounds

. Dr . Smit h explained that the notation did not necessar ily mean that the w ounds were

c a us e d b y a kn if e ; th e no ta tio n s imp ly me ant that the y we re “ wo un ds of

sh arp fo rc e .” Dr . Sm ithsa id that the autopsy repor

t indicated that the vic tim had some defe nsive wounds. He e x plained that the term “de fensive w ound” wa s a term of art that wa s d ev eloped in for ensics to indicate the injuries

occur red when a person was try ing to pr otect themselves. He said he wa s relucta nt to use the term in front of the jury beca

use, as a pathologist, he was not present whe n the wound wa s inflicted and could not d ef

i n i t i vely say how the wound oc curr ed. Dr . Smit h said that the medica l examiner’s office had bee n told that a box cutter was found at the scene ; how ever , the medical examiner’s off ice

wa s n ot a dv ise d th a t so me of the wo un ds we re po te nti a lly ma de by g la ss. Dr . Sm ithop ine d th a t a “def ensive wound” on the victim’s hand could have bee n cause d by holding a shard of g lass.

Dr. Smith said that no glass wa s detec ted in the vi ctim’s wounds by either visual inspec tion or low lev el m agn i fi cation. He stated that additional testing could have been done if it had bee n reque st ed

. Dr

. Smit h said that if g lass had bee n found in the wounds, the g lass could have been introdu c e d w h e n th e b o dy w a s r o ll e d in th e c ar p e t th a t h a d “ c r

u mb s o f g la s s ” o n it

. F urther, D r. Smit h noted that “the r

ug itself contained body fluids or tissue f luids such that finding that sort of materia l on a small fra g ment of gl as s i n association with the rugbut not the body would not have been of value.” On cr oss-examination, he acknow ledg ed that at tria l h e t es t i fi ed that “the ty pe of pattern of injury that Iwould expect from shar ds of g lass would not be consistent with producingthe

c lus te r t y pe e ff e c t of the wo un ds wi th t

he fl ic k ma

rk s in tho se thr e e are a s. ” Re g ard le ss, Dr . Sm ith stated that the some of

the wounds we re c onsistent with being made by either a g lass shard or

a box

c utt e r; ho we ve r, the re wa s n o in dic a tio n th a t th e wo un ds we re ma de by g la ss.

Dr . Sm ithsa id t

hat he di scu ss ed with

tr ia l c ouns e l th e e ff

e c ts o f c oc a ine . D r. Smith explained that the use of c ocaine initially cre ates a n “excitement phase ” which is c hara cter ized by i n c r e a s e d b l o o d p r e s s u r e an d

s t i m u l a t i o no f

t h e h e art

. T h e “ e x c i t e m e n tp h a s e ” i s f o l l o w e d b y a “cr ash phase ” whe re a

n individual’s personality become s depre ssed or slowed.

The pe titioner testified that he c onsistently told trial counsel that he had cut the victim three times w ith a box cutter w hile he wa s defe nding himself but that he r death resulted fr om wounds she sustained when she tr i ed t o go t h rough the windows on e ither side of his door. The petitioner acknow ledg ed a history

of drugabuse. H oweve r, he said that theft was the most ser ious crime he had eve r bee n convicted of beca use of his drug addiction. The petiti oner told trial counsel that since he bega n using crac k coca ine i n 1992, he had been throug h sever al drug treatment progra ms. The
pe tit ion e r r e c a lle d, “ Ia lso e xpla ine d to [tr ia l c ouns e l], ho w c an on e g o fr om the ft to m ur de r, be c a

us e I ’m a drug addict. I g et high. And he was like, it doesn’t matter. He didn’t want to hea r any thing-8-

that I had to sa

y .” The petitioner maintained that trial counsel often told him th at h i s s ug g estions

wer e not important.

The pe titioner said that the victim attacke d him when h e was “para noid, spooked, and

surp ri se d. ” He state d th a t he fo ug ht b a c k b y takin g awa

y the bo x cu tte r an d swi ng ing a t her wi th i t,

cu t t i n g h er

a t o t al o f t h re e t i m es

. T h e p et i t i o n er s ai d t h at af t er t h e v i ct i m at t em p t edt o get t h ro u gh the windows, she f

ell to the floor and did not respond when he asked her if she was okay

. At that point, he picked g lass out of her w ounds, ro l l ed her body in a rug , and starte d clea ning the house. Th e pe tit ion e r sa id h e smo ke d mo re c ra c k c oc a ine wh ile he c le ane d. He a c kn ow le dg e d th a t,

a lth ou g h th e re c itatio n o f e ve nts he g a ve tr ia l c ouns e l wa s ve ry de ta ile d, he “ pr ob a

bly fo rg ot” to t e ll trial counsel that he smoked more c rac k coca ine while cle aning the house. The pe titioner said that he had not c hang ed his story to he lp himself; he could only reme mber “ portions” of what happene d beca use of his intox ication.

The pe titioner complained that trial counsel did not put on any proof a bout the petitioner’s drug addiction. The petitioner said that he had planned to te stify reg arding his dr ug us e. T he petitioner maintained that trial counsel should have called the petitioner’s roommate to testify about the petitioner’s dr

ug use.

The pe titioner maintained that trial counse l should have mor e vig orously pursued a

n instruction on voluntary

intox ication. The petiti oner a cknowledg ed that trial c ounsel reque sted the instruction, “but he didn’t under stand exactly what he w as explaining” and the r equest wa s denied. The pe titioner said he asked his a ppellate counsel to inc lude the issue on appea l, but he was told the issue would have to be raised “ [o] n the next appeal.”

The pe titioner said that trial counsel supplied him with copies of all discovery materia ls, but he did no t r e vie w the ma te ri a ls with th e pe tit ion e r. Pr ior to t ri a l, h e and

tr ia l c ouns e l di sc us se d h is trial testimony

. Howeve r, before voir dir e of the jury , trial counsel pulled the pe titioner aside and advised him not to testify beca use the S t ate would br ing in his prior c onvictions and “e at [the petitioner] alive.” The petitioner ac knowledg ed that his prior c o n victions included five c ounts of

cre dit card f

raud a nd one convic tion for theft.

The pe titioner did not know until the day of trial that t h e S t at e p l anned to introduc e a statement he alleg edly made to Officer Eldridg e at the hospital. The petitioner told trial counsel that he made no such statement a nd asked tria l counsel to object t o i t

. T h e p eti tioner also aske d trial counsel to move to suppre ss his written statement bec ause he made the statement while unde r the influence of drug s and alc ohol.

The pe titioner said that he aske d trial counsel to do seve ral thing s prior t o t ri al, s uch as investigate the crime scene and ask people in the neig hborhood if the victim had a ssaulted any one else. How ever , the petitioner ne ver r ece ived any indication th at trial counse l perfor med the
reque sted tasks.-9-

The pe titioner acknow ledg ed that during his Momon hearing , he told the trial cour t that he had intended to te stify but that, ba sed upon the development of the State’s proof, he n o l o ng er wanted to ta k e the stand. The petitioner a lso acknowle dg ed that he told the tria l court he w as satisfied with the re prese ntation of trial counse l.

The pe titioner maintained that he w as telling the truth at the post-conviction hear ing but that trial counsel a

nd Offic er Eldr idge wer e not beingtruthful.

The post-c onviction court found t hat the petitioner w as not a c redible w itness, stating that the petitioner “ exhibi ted a ve ry selec tive memory at t he evidentiary hear ing.” Howeve r, the c ourt found that trial counse l and Off icer Eldridg e we re cr ed i b l e witnesses. The post-conviction cour t found that trial counse l and the petitioner ma d e a t ac t i cal decision to focus on self- defe nse, not voluntary intox ication. Additionally
, the post-conviction court found that the proof indicated that the pe tit ion e r w a s n ot i nto xicate d at th e tim e of the c rime or wh e n g ivi nghis wr itt e n s ta te me nt t o police.

The post-c onviction court found that the State did not lear n of the pe titioner’s oral state ment to Office r Eldridg e until the day of trial and that the S tate dis closed the statement as soon as it was discovere d. The c ourt furthe r found t h at t ri al counsel made a tac tical dec ision not t o seek a continuance afte r lea

rning of the stateme nt. The post-convic tion c ourt noted that the jury reje cted the petitioner’s c laim of self-de fense , opining that the jur y did so beca

use of the stre ng t h of the State’s ca se on the pre meditation issue.

Reg arding the petitioner’s claim that counsel should ha ve submitt ed proof about the victim’s

c ri min a l hi sto ry , the po st- c on vic tio n c ourt fo un d that the pe tit ion e r did no t kn ow the vic tim pr ior to the cr ime; theref

ore, the victim’s criminal history would not have been admissibl e to prove that the vic timwa s th e fi rs t a g g re sso r. Th e po st- c on vic tio n c ourt state d that th e so le pr oo f t hat th e vic tim ha d g la ss i n h e r w ound s c a me fr om t he pe tit ion e r’ s a lle g a tio ns . T he c ourt state d tha t the la c k o f c uts on the petitioner’s fing ers and the medical examiner’s failure to find g lass in the victim’s wounds
sug g ested that the petitioner’s ve rsion of eve nts was improbable. A ccor dingly , the post-conviction court found that the petitioner fa iled to prove by clea r and c onvincing evidenc e that trial c ounsel was ineffe ctive. On a

ppeal, the pe titioner challeng es this ruling.

II. Ana lys is

To be succ essful in his claim for post-conviction relief , the petitioner must prove a ll factua l alleg ations contained in his post-conviction petiti on by clea r and c onvincing evidenc e. See T enn. Code Ann. § 40-30- 110(f) (2006). “‘Clea r and convincing evidenc e means evidenc e in which there is no serious or sub s t anti al doubt about the cor rec tness of the c onclusions drawn f rom the

e vid e nc e .’ ” State v. Ho lde r, 15 S.W. 3d 90 5, 91 1 ( Te nn . Cr im. Ap p. 19 99 ) ( qu oti ngHo dg e s v . S. C. To of & Co. , 833 S.W. 2d 89 6, 90 1 n.3 (T e nn . 199 2) ). I ssu e s re g ard ing the c re dib ili ty of wi tne sse s, the weig ht and value to be ac corde d their testimony , and the f actua l questions raised by the evidenc e add u c e d a t tr ia l ar e to b e r e s o lv e d b y th e p o s t- c o n v ic ti o n c o u rt a s th e tr ie r o f f a c t. Se e He nley

v.-10-

S t at e, 9 6 0 S

. W

. 2 d

5 7 2
, 5 7 9 (T en n

. 1 9 9 7 ). T h er ef o re , we af fo rdth e p o s t -c o n v i ct i o nco u rt ’s fi n d i n gs of fa ct the weig ht of a jury verdic t, with such findings be ing c onclusive on appe al abse nt a showing that the evidenc e in the re cord pr eponder ates a g ainst those finding s. I d. at 578.

A c la im o f i ne ff

e c tiv e a ssi sta

nc e of c ouns e l is a mixe d que sti on of law an d fa c t. See State v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a pre sumption t hat those finding s are corr ect. See Fields v. State, 40 S.W.3d 450, 45 8 ( Te nn . 2 00 1) . H ow e ve r, we wi ll r e vie w the po st- c on vic tio n c ourt ’s c on c lus ion s o f l aw p ur e ly de novo. I d.

When a petit i o n er se eks post-convic tion relief on the ba sis of ineffe ctive assistanc e of counsel, “ the petitioner be ars the bur den of proving both that c ounsel’s per formanc e wa s deficie nt and that the de ficienc y

prejudice d the def

ense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (c iti ngStr ic kla

nd v. Was hin g ton , 46 6 U. S. 66 8, 68 7, 10 4 S. Ct. 20 52
, 20 64 (1 98 4) ). To e sta bli sh d ef i ci en tp er fo rm an ce , t h e p et i t i o n er m u s ts h o w t h at co u n s el ’s p er fo rm an ce wa s b el o w “ t h e r an ge of compe tence demande d of atto rney s in criminal case s.” B axter v. Rose, 523 S.W .2d 930, 936 (T e nn . 1 97 5)

. To e sta

bli sh pr e jud ic e , the pe tit ion e r mus t sh ow that “ the re is a re a so na ble pr ob a bil ity that, b ut f or c ouns e l’ s unp ro fe ssi on a l er ro rs , the re su lt of the pr oc e e din g wo uld have be e n d if

fe re nt. A re asonable probability is a probability

sufficie nt to undermine conf i d en ce in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Moreover,

[b]e c a us e a pe tit ion e r mus t e sta bli shbo th p ro ng s o f t

he te st,

a failure to pr ove either defic iency or prejudice provides a suf ficient basis to deny

relief on the ineff

ective a ssistance c l ai m . I ndeed, a
court ne ed not addre ss the components in any particula r orde r or e ven addre ss both if the [petit ioner] makes an insuff icient showing of one

c omp on e nt.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

On ap p ea l
, t h e p et i t i o n er

fi rs t ar gu es t h at h i s t ri al co u n s el wa s i n ef fe ct i v e f o r “ n o tp re p ar i n g, introducing
, and arg uing for an intox ication charg e.” The post-conviction rec ord reflec ts that trial

c ouns e l r e qu e ste d a

c ha rg e on vo lun tar y int oxic a tio n, bu t th e re qu e st w a s d e nie d. At the po stconviction hea

ring , trial counsel state d that the petitioner insisted that he ha d a “ple asant buzz” but

was not intoxicated. Moreove r, Offic er Eldridg e testified that the petitioner did not seem intoxi cate d when they

spoke shortly

afte r the c rime. There fore
, the post-conviction cour t found that there was no evidenc e that the pe titioner was intox icated at the time of the cr ime; in fact, the post-c onviction court found that the evidenc e strong ly sug g ested that the pe titioner was in full control of his fa culties when the c rime wa s committed. Accor dingly , the post-conviction cour t found that t h e petiti oner suffe red no prejudice by trial counsel’s failure to pur sue a voluntary intox ication char g e. We ag ree with the post-conviction cour t.

Second, the pe titioner contends that trial c ounsel failed to pr operly investigate and present-11-

the pe tit ion e r’ s c la im o f s e lf de fe ns e . Sp e c if

ic a lly , th e pe tit ion e r not es tr ia l c ouns e l’ s f a ilure to interview D r. Gunther, his failure to have the g lass collecte d at the sce ne tested f or blood or tissue, his fa ilure to re qu e st a dd iti on a l te sti ng of the wo un ds to c he c k f or g la ss, and

his fa ilure to o bje c t to the cha rac terization on the autopsy repor t of ce rtain wounds as “ defe nsive wounds.”

The post-c onviction court found that Dr. Smit h’s testimony comported with the information

c on ta ine d in

the a uto ps y re po rt

. Th e re c or d sup po rt s this fi nd ing . F ur the r, the pe tit ion e r f

a ile d to
prese nt the testimony

of Dr. G unther at the post-con v i ct i on hear ing to de monstrate how he r testimony would have dif

fer ed fr om Dr. Smith’s testim ony

. Generally, “ [w ]h e n a p e ti tioner conte nds that tr ia l c ouns e l fa ile d to dis c ov e r, int e rv ie w, or pr e se nt wi tne sse s in su pp or t of his de fe ns e , th e se wi tnesses should be prese nted by the petitioner at the evidentiar y hear ing.” Bla ck v. State, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990)

. We ma y not speculate on what ben ef i t Dr. Gunther might have offe red to the pe titioner’s ca s e, n o r m ay we guess as to wha t evidence further investigation may have unc overe d. Id.

Reg ardingthe petitioner’s c omplaint that trial counsel fa iled to have the g lass rec overe d at the sc e ne test e d f

or blo od and tis su e , w e no te that c ouns e l te sti fi e d th a t he int e rv ie we d D r. Smith

sever al t imes and aske d about the pre sence of g lass. Dr. Smith tol d counsel that ther e wa s no evidenc e of g lass in the wounds. The post-conviction court found such a lack of g lass to be “telling ,” finding the petitioner’s ve rsion of eve nts incredulous. We conclude that the post-conviction cour t did not err in finding no prejudice in this reg ard.

The pe tit io n e r

a ls o c o mp la in s r e g a

r d ingtrial counsel’ s failure to object to the cha rac terization

o n t h e au t o p s y

re p o rt o f c er t ai nwo u n d s as “d ef en s i v e w o u n d s

. ” T h e r ec o rdre fl ec t s t h at al t h o u gh Dr. Smith testified that he prefer red not to use t he term “def ensive wound,” he ac knowledg ed that the phra se is a “term of ar

t” commonly

used by medical e x aminers. Dr . Smit h said that in the instant

case , the def

ensive wound on the victim’s hand could have been c aused by her holding a shar d of sh arp g la ss. Ho we ve r, the re wa s n o a lle g a tio n, e ve n f ro m th e pe tit ion e r, that the vic time ve r h e ld
g lass. Dr. Smith acknowledg ed that he wa s questioned extensively about the wounds at trial, and he explained the wounds in detail. Acc ording ly
, we conclude that the pe titioner has fa iled to prove ho w D r. Smith’ s u se of

the c on te ste d te rm

pr e jud ic e d h im.

Next, the petitioner m aint ains that trial counse l should have moved to suppre ss Office r El d ri d ge’s testimony

conce rning the petitioner’s or al statement a t the hospital. The petitioner contends that the State’ s failure to disclose the statement prior to trial wa s a violation of Tenne ssee Ru le o f Cr im in a l Pr o c e d

u r e 1 6 w h ic h p r e

ju d ic e d th e p e ti ti o n e r

. T h e p e ti ti o n e r a s s e rts that trial counsel’s ineffe ctiveness in this reg ard was compounded by his f ailure to inter

view the pol ice witnesses prior to trial. Fur ther, the pe titioner contends that trial c ounsel was inef fec tive by failing to move to suppr ess his w ritten statement to police
, contending that he was under the influence of drug s and alc ohol when the state ment was made

.

Te nn e sse e Rul e of

Cr imi na l Pr oc e dure 16 (a)(1 )( A) pr ov ide s th a t, u po n r e qu e st, the Sta te must allow a defe ndant to inspect and c opy any rele vant written statements made by the def endant-12-

wh i ch ar e “ wi t h i n t h e p o s s es s i o n , cu s t o dy o r c o n t ro l o f t h e s t at e. ” A tt h e p o s t -c o n v i ct i o nh ea ri n g, Of fi c e r E ldr idg e te sti fi e d th a t he did no t tell the State a bo ut t he or a l st a te me nt u

nti l th e da y of tr ia l. Trial counse l testified that the State disclosed the oral statement immediately upon its discove ry , and the trial cour

t ga ve the de fense the opportunity to consider ove rnig ht whether to seek a continuance

. Tr ia l c ouns e l sa id t

hat, a ft e r d isc us sin g the iss ue wi th t he pe tit ion e r, the de fe ns e de c ide d n ot t o pursue a continuance . Trial counse l concluded that the oral statement was not inconsistent with the petitioner’s ve rsion of eve nts, and, afte r di scussions with the petitioner, the pe titioner said he did not

wa nt a c on tin

ua nc e

. Pur su ant to Rul e 16
, on e of the op tio ns a va ila ble to the tr ia l c ourt

if a pa rt y fa ils
to c omp ly wi th t he Rul e is to g ra

nt a co nti nu anc e

. We not e that supp re ssi on of e vid e nc e up on

a Rul e 16 violation is a drastic reme dy rese rved for t he mos t flag rant of violations. See S tate v. House, 743 S.W .2d 141, 146 (Tenn. 1987)

. Moreove r, we note that trial counse l stated that he wa s unsure of a ny benef it whic h could have been g ained by a continuance . Fur ther, trial c ounsel’s dec ision not t o seek

a c on tin ua nc e wa s tr ia l strate g y

wh ic h, e ve n if

qu e sti on a

ble , w e wi ll no t se c on d- g ue ss. Se e State v. Hellar d, 629 S.W .2d 4, 9 (Tenn. 1982) . There fore , we c onclude that t rial counse l was not ineffe ctive in this reg ard.

Reg ardingthe petitioner’s complaints about the failure to suppr ess his w ritten statement, we note that the petitioner a dmitted that during his Momon hea ring he told t h e t rial cour t that he knowing ly

and voluntarily g ave his written st atement to poli ce. O ffice r Eldridg e testified that the petitioner was calm and collecte d afte r t he crime and that he did not appe ar to be under the influence of an intoxi cant at the time he g ave his state ment. Moreove r, the pe titioner repe atedly told counsel that he wa s n ot i nto xicate d. F ur the r, the po st- c on vic tio n c ourt state d th a t th e pe tit ion e r’ s p os tconviction testimony

was not cre dible. Ba sed upon this evidence , the post-conviction cour t found that trial counsel wa s not ineffe ctive for failing to move to suppress the wr itten statement. We ag ree

. Thus, we conclude that the petitioner has failed to prove his alleg ations of ineff ective a ssistance of counsel.

III. Conclusi on
Finding no reve rsible er

ror, we aff

irm the judg ment of the post-c onviction court.

___________________________________ NORMA McGEE OGL E, J UDGE