IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 13, 2010

PERDIDO COOK v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26846 John P. Colton, Jr., Judge

No. W2009-02038-CCA-R3-PC - Filed December 15, 2010

The petitioner, Perdido Cook, appeals the denial of his petition for post-conviction relief.

After being convicted of especially aggravated robbery, aggravated robbery, and attempted

aggravated robbery, he was sentenced to an effective twenty-five-year sentence. On appeal,

he contends that trial counsel was ineffective for failing to properly investigate and prepare

for his case. After careful review, we affirm the denial of post-conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.

WOODALL and CAMILLE R. MCMULLEN, JJ., joined.

Jason R. Poyner, Memphis, Tennessee, for the appellant, Perdido Cook.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The underlying convictions arose after the petitioner and a co-defendant, both armed

with guns, forcibly entered an apartment in Memphis. They took money and jewelry from

the occupants of the apartment before shooting and paralyzing one of the victims. This court

summarized the facts on direct appeal. See State v. Perdido Cook, No. W2001-00381-CCAR3-CD, 2002 Tenn. Crim. App. LEXIS 26, at **2-7 (Tenn. Crim. App. Jan. 9, 2002).

Trial counsel testified during the post-conviction hearing that she did not have a good

recollection of the petitioner’s case due to the amount of time that had passed. She recalled

that the petitioner contended at trial that he was not present during the crimes. Counsel
cross-examined the witnesses for the State and introduced the statement of the co-defendant,

who claimed the petitioner was not present and that another man was his accomplice.

Counsel testified that she filed several motions on behalf of the petitioner and investigated

the co-defendant. She did not recall issuing a subpoena for Quinton Perkins, the man

identified by the co-defendant as his accomplice, but she did not have her complete file to

review.

The petitioner testified that counsel should have subpoenaed three witnesses who

would have provided exculpatory evidence. He said that he confessed to the crimes because

the police told him they would lock his mother up. The petitioner said that he expected all

the witnesses he discussed with counsel to be present at trial. He also testified that he

thought the State’s main witness lied during his testimony.

The court clerk testified that two subpoenas filed by trial counsel were found in the

petitioner’s file. One subpoena was for the co-defendant, and another was for a member of

the Memphis Police Department. The witness testified that she did not look at the subpoenas

issued by the State and that it was possible the petitioner’s potential witnesses were included

in the State’s subpoenas.

Analysis

On appeal, the petitioner argues that trial counsel was ineffective because she failed

to properly investigate his case in preparation for trial. Specifically, the petitioner contends

that he was convicted due to counsel’s inability to present witnesses that had given

statements favorable to the petitioner.

In this post-conviction proceeding, the petitioner bears the burden of proving factual

allegations by clear and convincing evidence. T.C.A. § 40-30-210(f). The factual findings

entered by the post-conviction court are conclusive unless the petitioner establishes that the

evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 457 (Tenn.

2001).

For a petitioner to successfully overturn a conviction based on ineffective assistance

of counsel, the petitioner must first establish that the services rendered or the advice given

was below “the range of competence demanded of attorneys in criminal cases.” Baxter v.

Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the

deficiencies “actually had an adverse effect on the defense.” Strickland v. Washington, 466

U.S. 668, 693 (1984).

“When a petitioner contends that trial counsel failed to discover, interview, or present

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witnesses in support of his defense, these witnesses should be presented by the petitioner at

the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see

also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is

the only way the petitioner can establish that (1) a material witness existed who could have

been discovered but for counsel’s negligent investigation of the case; (2) a known witness

was not interviewed; (3) the failure to discover or interview the witness caused him

prejudice; or (4) the failure to present a known witness resulted in the denial of critical

evidence which caused the petitioner prejudice. Black, 794 S.W.2d at 757. Neither the trial

court nor this court can speculate on what a witness’s testimony might have been if

introduced by counsel. Id.

The petitioner is not entitled to the benefit of hindsight; the petitioner may not

second-guess a reasonably based trial strategy; and the petitioner may not criticize a sound,

but unsuccessful, tactical decision made after adequate preparation for the case. Adkins v.

State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992).

The petitioner argues that counsel was ineffective for failing to call three witnesses

who had information that would exonerate him. However, because the petitioner did not call

these witnesses to testify at the post-conviction hearing, he cannot show prejudice and fails

to meet his burden of proof. See Black, 794 S.W.2d at 758.

The petitioner also points out other instances of what he considers ineffective

assistance, including counsel’s inability to recall a motion hearing in which she participated

or to recall the basis of some witnesses’ testimony. However, the record does not

preponderate against the finding of the post-conviction court that counsel was not ineffective.

Conclusion

Based on the foregoing and the record as a whole, we affirm the judgment from the

post-conviction court

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JOHN EVERETT WILLIAMS, JUDGE

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