### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A ugust 6, 2002 LEE O. ANDER SON v. STATE OF TENNESSEE Appeal from the Circuit Court for Fayette C ounty No. 4786 Jon Kerry Blackwood, Judge

No. W2001-02951-CCA-R3-PC - F iled September 5, 2002
The petitioner, Lee O. Ande rson, appeals the Fay

etteCounty Circuit Court’s denial of his petition for post-conviction relief from his convictions for delivery of one-half gram of coca

ine and delivery of less than one-half gram

of coca ine. This c ourt aff

irmed the judgmen ts of conviction. See State v. Lee O. Anderson , No. W2000- 00671-CCA-R3-CD, Faye tte County (Tenn. Crim. App. Feb. 9, 2001), app. denied

(Tenn. June 25, 200 1). The p etit ioner claims that he received the ineffective assistance of counsel because his trial attorney (1) failed to present evidence of t he petition er’s treatment for drug addiction in order to support a casua l exchang e defen se and (2 ) failed to raise an insufficiency

of the evidence c laim on ap peal of h is convictions. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed J OSEPH M. T IPTON , J., delivered the opinion of the court, in which T HOMAS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined. Shana McCoy-Johnson, Somerville, Tennessee, and Didi Christie, Brownsville, Tennessee for the appellant, Lee O. Ande

rson. Paul G. Summers, Attorney Gene ral andReporter ; Brade

n H. Bouc ek, Assist

ant Attor ney Genera l; Elizabeth T. Rice, District Attorney Ge neral; and Rya

n D. B rown, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION This court’sopinion in

the petitioner’s appeal of his convictions recounts the following facts: On November

21, 1998, the defendant was approached by an undercover

police off

ic er who was working as part of a drug sting operation that was b eing co nducted b y la w enfor cement o fficial s. During the first of

three sa les the de fendant made tothe undercover-2- police officer, the defendant sold $35 worth of cra ck cocain e to the undercover

officer, which was later tested and found to we igh .1 grams. On November 25, 1998, the same underco verofficer made contact with the de

fendant a second time and asked the defenda nt to sell him $60 worth of crack co caine. The defendant told the undercover

officer to drive his car to the same are a w her e the defenda nthad sold crack cocaine to the office r four day s earlier. After a brief wait, the defendant met the officer and sold the office r $60 worth of crack cocaine. To play the role of a thankful drug user who appreciated the

defendant getting

the crack cocaine for him, the undercover

officer gave the defendant some of the dr ugs. Whenthe crack c ocaine w as later

tested, it weighed .3 gra

ms. Fi na ll y, on November 28, 1998, the same undercover off icer wa s flagge d down by the defe ndant. On this third occasion, the defendant and the un dercover officer returned to the area where the previous two drug transactions occurred. When the two arrived, the undercover

office r told the d

efenda nt th at he wan ted to buy $100 worth of crack cocaine. The def endant then got out of

the undercover officer’s car, l eft for

a short time, and then returned. When the defendant returne d with th e crack cocaine, the defendant found someone else in the car with the undercover officer. Thedefendant proceeded

to run the other person of f, tell ing that person that the undercover

officer was “his customer.” The transac tion then occurred, ending

withthe undercover officer ag ain giving the defendant some of the cr ack cocaine. When the crack cocaine was later te sted, it we

ighed . 5 grams

. On July 2 6, 1999, th

e defendant wasindicted by a Fayette County Grand Jury

for two c ounts of

delivery of a

controlled substance in an amount less than .5 grams, to wit cocaine, a nd o ne count of delivery

of a controlled substance in an amount equal to .5 grams, to wit

cocaine. Thedefendant was subsequently arrested . . .

. A j ury convicted the petitioner of deliver y of one-half gram

of coca ine, a Cla ss B felony ; delivery of less than one-half gram of cocaine, a Class C felony ; and simple possession of cocaine, a Class A misdemeanor. The trial court sentenced him as a career offender

to concurrent sentences of thirty y ears for the delivery of

one-half gram of coca

ine conviction; fifteenyears f or the delivery of le ss th an on e- ha lf

gr am of co ca in e c on vi ct io n; an d e le ve n m on th s, tw en ty- ni ne da ys for the simple possession conviction.-3-

At the post-conviction evidentiary hearing, the petitioner testified that his trial attorney, who was retained, never explained to him the elements of t he deliver y of coca

ine offenses and that he never understood his offenses. He acknowledged that there may ha ve been witnesse s who coul d have helped in

his defe nse and th at his attorney did not investigate them. He said he was addicted to drugs and alcohol at the time of the offenses. He said that betwee n the time of the crimes in 1998 and the time of

his arre st in 1999, he got help for his addictions through the J. B. Summer Treatment Progra m, Mem phi s M ent al H eal th Inst it ut e (M MHI) , New Directions Rehab, and Alcoholics Anony mous. The defense sub mitted recor ds of the petitioner’s treatment at the J. B. Summer Counseling Center and MMHI to the tria l court. The petitioner testified that he was working and “bac k on track” when he was indicted and arrested for the offenses. He said his attorney did not pursue any def

enses other than casual exch ange and simple possession. He said that his attorney neve

r discussed using records from the drug treatment centers as evidence for his casual exchang e defen se and tha t his attorne

y di d not call witnesses from the t

reatmen t center s to testif

y. He said tha

t his fami ly me

mbers kne

w about hi s addictions and that h

is attorne y di d not call

them to tes tify

in his def

ense. Th

e petit ione r acknowledged

that although he had

wanted his attorney

to pursue an entrapment defense, he never di sc us se d e nt ra pm en t w it h h is at to rn ey. The petitioner acknowledged that he had seve ral prior felony

drug convictions, that he was on parole a

t the time o f trial, a

nd that hisattorne

y f iled motio ns regarding whether those prior convictions could be used against him at trial. He said that he and his attorney discussed his right to testify and that his attorney indicated it was un neces sary for him to testify because the a ttorney “hadcov ered every

thing.” He said he took his a ttorney ’s advic e and did not testify at trial o r his sentencing hearing. When asked if he ever e xpressed a wish to testify, the petitioner

replied, “Now I do.” He said that his trial attorney wa s appointed to repre sent him in t he appe al of his c onviction s. He said he did not know if his attorney a lleged on appeal that the evidence w as insuffi cient t o support the convic tions. On cross-examination, the petitioner testified that he spoke with his attorney about six times before trial. He said th at althou gh his attorne y e xplained un

lawful de livery to him, his a

ttorney did notfully explain it. He

stated that he said something to his attorney about presenting records from the drug tr

eatment c enters a

t trial. He acknowl edged

that his at

torney didnot tell him that he could no t t es ti fy. Lily Anderson, the petitioner’s mother, te stified th at the pe titioner l ived with h

er befo re his 1999 arrest. She said that

in 1997 and 1998, the petitioner was addicted to drugs. She acknowledged that he went to several rehabilitation centers and that af ter his release from

rehabilitation, he got a job. She said that at the time of the petitioner’s arrest, he also was attending c ounseling sessions for his addic tions. She s aid the pe titioner’ s attorne

y di d not ask he

r to testif y a t the petit ioner’strial. The petitioner’s trial attorney testified that his law practice focused on criminal defense. He said that he had hoped to work out a plea agreement for the petitioner but that the st

ate would not-4-

consent to it. He said he met with the petitioner about six times before trial. He said he explained unlawful delivery

to the petitioner and how it differed from casual exchang e. He said he thought the petitioner understood the elements of the offenses. He said the only way to defend the cas e was to argue casual e xchange . He said

that entr apment wa s not a poss ible def ense bec ause the

state could have sho wn with the

petitione r’s prior convicti ons that he

was pre disposed t

o commit the

crimes. The attorney testified that the pe titioner had pled guilty to six or e ight prior f elony drug offense s. H e said he told the petitioner that if the petitioner was convicted, the trial court woul d senten ce him as a caree

r offender and h

e would ha

ve to ser ve sixty percen t of his sen

tence in incarceration. He acknowledged that the petiti oner hel

ped him prepare a trial strategy . He said the petitioner had planned t o testif

y about the petitioner’s tre atment for drug addiction and that the testimonywould have supporte d the cas ual excha nge defense. He said tha t through his cros sexamination of the sta

te’s wit nesses, the jury he ard about the petitioner’s drug addiction, and, therefore, the petitioner did not need to testify. He said that when the petitioner’s testimony became un ne ce ss ar y, he reco mmended t o the petitioner tha

t he not te stify . He said

that a ltho ugh the trial court had ruled that the state could not impeach the petiti oner with

prior co nvictions , he was a fraid the petitioner would open the door to the prior eight felonie s. He said

that he e xplained the risk in testifying to the pe

titioner and that the petitioner did not argue with him. The attorney testified that he interviewed the state’s witnesses, including Underc over Officer Dan Feathers, who was invol ved in the dr ug transactions. He said that he filed a request for discovery and that the state turned over a videotape showing the petitioner. He said that he handled the petitioner’s appeal and that he did not raise a sufficiency of t he evidence claim. He said he regretted not arguing on appeal that the evidenc e was insuff icient to support the petitioner’s convicti ons. On cr oss-examin ation, the attorne y te stified th at he did n ot rememb er a con fid entia l informant being in volved in t

he petitio ner’s c ase. He

said that the evidenceshowed at trial that the petitioner was a dr ug addi ct. He sa

id he did not introduc e the pet itioner’ s rehabi litation r

ecords into evidence because he did not think they would add anything

to the defense. The trial court

denied the petitioner post-conviction relief. In its order, the trial court stated, Petitioner’s basic contention is that counsel failed to present evidence that after the alleged event

took place the petitioner began a process of d rug and alcohol rehabilitation. Specifically , petitioner believed counsel should have presented reports from rehabilitative centers showing petitioner’s treatment, as well as witnesses who could testify that petition er ha d straig

htened ou

t his life. The purp ose of thi s evidence was to show that pe titione r was a u ser of dr ugs and not a drug dealer. Counsel for petitioner testified that this was exactly the trial strategy

he pursued. Further, the record indica ted that the State’s-5- proof conceded that

the petitione

r was a u ser. The

refore , counsel felt th at th is pr oo f w as am pl y be fo re th e j ur y. The trial court did not address the attorney ’s failure to raise an insufficiency of the evide nce cla im on direc t appeal

. Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance wa s deficient and (2) that the deficie ncy was pre judicial in terms of rendering a reasona ble probability that the result of the tria l was unreliable or theprocee dings fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart

v. Fretw ell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standar d has bee n applied to the rig ht to counse l u nde r Ar ti cle I, Section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989). In Baxter v. Rose , 523 S.W.2d 930, 936 (T en n. 1975), our supreme court decided that at to rn eys should be h

eld to the gener al standa rd of whe th er the services rendered were within the range of co mp et en ce de ma nd ed of at to rn eys in criminal cases. Further, the court stated that the ran ge of competence was to be measured by the duties and criteria set forth in Beasley v. United States , 491 F.2d687, 696 (6th Cir. 1974), and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in re

viewing counsel’ s conduc t, a “fa

ir assessment of attorney

performance requires that every e ffort be made to eliminate the distorting effects of hindsig ht, to reconstruct the circumstances of counsel’s challen g ed conduct, and to evaluate the conduct from counse l’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular stra tegy or tactic failed or even hurt the defense does not, alone, support a claim of ineffective assistanc e. Defe

rence i s made to

trial strat egy or tactica l choice s if

they are informed ones based upon adequate prepar ation. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201. In a post-conviction case, the burden is on the petitioner to prove by cle ar and convincing evidence his grounds for relief. Tenn. Code Ann. § 40-30-210(f). On appeal, we are bound by the trial court’s findings of

fact unless we conclude that the e vidence in the re cord pre

pondera tes aga inst those findin gs. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). We review the trial court’s conclusions as to whether counsel’s performance was defi cient and whether that deficiency was prejudicial under a de novo standard with no presumption of correctness. Id. at 457. First, the petiti oner cla

ims that he received the ineffective a ssistance of counsel because his trial attorney fa

iled to present evidence of the petitioner’s treatme

nt for dr ug addi ction. He

claims that th is ev id en ce wa s n ec es sa ry t o per suade the jury tha t he was a drug addict who was g uilty of casual exchange. The

state contends that the petitioner was not prejudiced by his attorney’s fa

ilure to present the evide nce bec ause the

evid ence was cumulative. We believe that the petitioner has failed to demonstr

ate that h e rece ived the ineffective assis tance of counsel.-6-

At the evide

ntiary hearing , the petitioner’strial atto rney stated tha

t evid ence of the petitioner’s drug tr

eatment w as not needed bec ause state witnesses testified at trial that the petitioner was a drug addict. Our review of the tri al transc

ript reve als that O fficer

Feathe rs was the only state witness who made statements about the petiti oner’s b eing ad

dicted to drugs. During the defense’s cross-examination of Officer Feathers, the following exchange occurred: Q. Investigator, you have known Mr . Anderson for a while, haven’t you? A. That’s c orrect

. Q. How long

have y ou known h

im? A. Approximat

ely , 20 someth

ing y ears. Q. A long time? A. Yes. Q. You know h

e is a cr ack add ict? A. I know that he has an addiction. Q. You don’t know that it is crack cocaine? A. No t p er so na ll y. Q. But you kn ow tha t he is addic ted to some k ind o f drug? A. Alcohol or cocaine. I know that he h as some type of addiction. Q. You know that he knows who most of the drug suppliers are ar ou nd Fa yet te Co un ty? A. Most of the

m.

. . . . Q. Don’t

you al so know that he accommodates and helps out those who are loo king fo r drugs , and he g ets him a little something for doing so?-7- A. He assist

ed in three cases , ye s. Q. You are not sugg esting t hat that’ s the only

three times that he has ever done that ? A. No. Q. In fa

ct, y ou know tha

t he has do ne that a

lot? A. That’s c orrect

. During closing statements, the defense argued to the jury that the petitioner was a cocaine addict who was guilty of

casual exchange. Alth ough additional evidence of the petitioner’s drug addictio n was ava

ilable to bolster his casual exchange defense, we believe he has failed

to show that he was prejudiced by his attorney’s failure to present such evidence. At trial, the defense que stioned Officer Feat hers abo ut the petitioner’s drug addiction, and Officer F eathers testified that the petitioner was addicted to cocaine or alcohol. In addition, the defense a rgued the petitione r’s dr ug addi ction and cas ual ex change defense to the jury during

closing statements. Moreover, the evidence in the tria l regarding the drug sales stron gly milit ates aga inst casual ex change. I n light of the proof and argument at trial, we conclude that the p etitioner

has faile d to demonstrate that

he received the ineffective a ssistance of counsel. The petitione

r also co ntends tha

t his trial a

ttorney was inef fective for fail i ng to argue on appeal that the e

vidence was insuf

ficient t o support h

is convic tions. How ever, w hen view ed in

the light most favorable to the state, theevidenc e is suffi cient to show that the petitioner committed the offense s. There fore, he has not shown by clea r and convincing evidence that his attorney was ineffe ctive fo

r failing to raise t he issue o n appea

l. Based on the foregoing and the recordas a whole, we affi rm the judg

ment of the

trial cou rt.

___________________________________ JOSEPH M. TIPTON, JUDGE