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

ROB IN D AV IS v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. P -27660 W. Otis Higgs, Jr., Judge

No. W2005-02212-C CA-R 3-P C - F iled Jun e 28, 2006

Th e pe tit ion e r, Rob in D a vis , a pp e a ls the de nia l of

his pe tit io n for po st -c on vic tio n r e lie f. I n th is appea l, he asserts that he was de nied the ef fec tive assistance of counsel at trial. The judg ment of the post-conviction court is affirmed.

Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES a ndJ.C. M C L IN , J J ., joined.

Juni S. Ga ng uli , M e mph is, Te nn e sse e , f or the app e lla nt, Rob in D a vis

.
Paul G

. S u m m er s , At t o rn eyGe n er al & R ep o rt er ; Bl i n d Ak ra wi , As s i s t an tAt t o rn eyGe neral; W illiam L . Gibbons , Di s t ri ct Attorney Gene ral; and Paul Thomas H oover, Jr., Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

I n J anuary

of 2000, the pe titioner was convic ted of fir st deg ree preme ditated murder and thef t over $1000. The trial court imposed a n eff ective se ntence of life plus two y ear s in the Depa rtment of Corre ction. This court aff irmed on direc t a

ppeal. See State v. Robin Davis, No. W2000-03137- CCA -R 3- CD (T e nn . Crim

. App., at Jac ks on , M ar. 25 , 2 00 2) . A n a pp lic a tio n f

or pe rm iss ion to appea l to our supreme c ourt was de nied in October of 2002.
The pe titioner then filed a timely petit i o n fo r post -convic tion relief a lleg ing that he was denied the effe ctive assistanc e of c ounsel at trial. He specific ally asserted that his trial counsel wa s ine f f e c ti v e b y f a il in g to a d e q u a te ly

p r e p ar e f

o r tria l; b y f a il in g to ti me ly

s e c u r e a ll d is cover y
ma te ri a ls f

ro m th e st ate ; by

fa ili ng to c on du c t a n a de qu a te pr e tr ia l in ve sti g a tio n; b y faili ng to pr op e rl y a dv ise the pe tit ion e r o f the re su lts of the pr e tr ia l in ve sti g a tio n; b y fa ili ng to a de qu a te ly pr e pa re fo r v oir dir e ; by fa ili ng to e ff e c tiv e ly c ro ss- e xami ne state wi tne sse s; b y fa ili ng to o bje c t to-2-

leading questions by

the prosec utor; by

failing t o ad eq uately

communicate prior to trial; and by fa ili ng to a de qu a te ly

a dv ise him

of the ri g ht t o r e ma in s ile nt.

On dir e c t app e a l of

the c on vic tio ns , th is c ou rt su mma ri zedthe re le va nt f

a c ts:
On the morning of May 16, 1998, the vi ctim and his wife we re a wake ned by the sound of the e ng ine starting in their pickup truck. L ooki n g o ut the balcony of their bedr oom, they saw the defe ndant s itting i n the driver' s seat, bac king the truck out of their drive way . When the victim y elled, the defe ndant g ot out of the truck a nd

ra n

. T el l i n g h i s wi fe t o s t ay i n s i d e, t h e v i ct i mt o o k o ff i n p u rs u i t , d ri v i n g t h e c o u p l e's Toy ota Corolla and taking his pistol with him. S oon th er ea ft er, ne ighbor s hear d g un sh ots a nddis c ov e re d th e vic tim on the g ro un d be sid e the op e n d ri ve r' s d oo r o f h is

car , dy ing f

rom a g unshot wound to the chest. The defe ndant admitted in a stateme nt to police that he had shot the victim, but claimed that it was only afte r the victim had fi rs t trie d to ro b a ndsh oo t hi m.

I d., slip op. at 2.

At the evidentiary

hearing on the petition for post-conviction re lief, trial counse l testified that althoug h the ca se had g ener ated some publicity , he did not believe that a cha ng e o f v en ue or the filing of jury questionnaires w as nec essary

. Trial counsel stated that he met with the petitioner, who was inca rcera t ed , "[ a]s many

times as was ne cessa

ry for tria l prepa

ration. . . . [A] t least a dozen [time s], m a y

be mor e ." Tria l c ou ns e l in sis te d th a t he wa s a de qu a te ly pr e pa re d "bas ed o n [hi s] investigation of the ca se, going to the s cene , talking to the w itnesses, talking to [ the petitioner], [ and] revie wing the state' s file." He e x plained that he did n o t fi l e a m o tion to suppress the pretria l ide nti fi c a tio n o f the pe tit ion e r b e c a us e " ide nti fi c a tio n w a s no t [th e pe tit ion e r' s] de fe ns e . H is d e fe ns e was somewh a t o f a s e lf

- d e f e n s e

. " T r ia l c o u n s e l d e s c r ib e d h is r e lati o n s h ip w ith th e p e ti ti o n e r as "c ordial." He asserted that he made a thoroug h investigation but was unable to loca te any witnesses to support the petitioner' s version of the of fense

. The pe titioner testified that his tria l c ounsel met with him only three times prior to the trial and tha t ea ch v i s i t lasted less than thirty minutes. He cla imed that he aske d to meet with trial counsel on other

occa sions but rece ived no re sponse. The pe titioner admitted that trial counsel ha d advised him that the penalty for f irst deg ree murder w as life imprisonment and that suc h a sente nce would require the servic e of at least fifty -one y ear s. He al s o acknow ledg ed that trial c ounsel had

co m m u n i ca t ed a p l eao ff

erfr o mt h e s t at e wh i ch i n v o l v ed a s en t en ce o f t we n t y -f i v e y ea rs i n ex ch an ge for a plea of g uilty to second de g ree murder. T he petitioner c oncede d that he ac tively participa ted in his defense and that trial counsel " [s] ometimes" listened to his sug g estions and " [s] ometimes he would g o along with what he ha d planned."
During cross-e x amination by the state, the pe titioner acknow ledg ed that in a d d i t i o n to the thr e e f a c e

- to

- f a c e me e ti n g s w ith h is tria l c o u n s e l, h e h a d c o mm u n ic a te d w ith tria l c o u n sel by telephone on se vera l occa sions. He also admitted t hat he met with trial counsel during his pretrial-3-

court a ppear ance s. The petitioner c oncede d that trial counse l h ad provided him with all of the discovery materia ls that he had re ceive d from the state

.
The p o s t- c o n v ic ti o n c o u r t d e n ie d r e li e f, ru li n g th a t th e p e ti ti o n e r d id n o t r e c e iv e the inef fe ct i v e assistance of counse l. The court concluded that "[w]it h no proof g iven that there was signific ant pre -trial publicity to overc ome [t] rial [c]ounsel's conte ntion that the decision was a trial str at egy , t h e [ p]etit ioner ha s clea rly failed to prove by

clea r and c onvincing evidenc e that [t] rial [c] ounsel' s failure to move for a chang e in venue " r esulted in prejudice

. W i t h re gar d t o the pe tit ion e r' s c la im tha t tria l c ou ns e l fa ile d to se c ur e dis c ov e ry ma te ri a ls in a tim e ly ma nn e r, the po stco n v i ct i o n co u rt ac cr ed i t ed t h e te s t i m o n y o f t ri al co u n s el t h at h e w as p er m i t t ed t o i n s p ec tt h e s t at e's fi le a ndc op y a ny re le va nt ma te ri a l. As to the pe tit ion e r' s c la im tha t tria l c ou ns e l f a ile d to a de qu a te ly investigate the ca se, the post-c onviction court ac cre dited the testimon y o f trial counse l that he

c on du c te d a

tho ro ug h in ve sti g a tio n p ri or to the tr ia l a ndc on c lud e d th a t the pe tit ion e r ha d f a ile d to establish his c laim by clea r and convincing evidenc e. The post-conviction court a lso determined that pe tit ion e r h a d n ot m e t hi s b ur de n of pr oo f o n h is c la im tha t tria l c ou ns e l di d n ot a de qu a te ly a dv ise

or c on su lt w ith him

a s to the re su lts of the pr e tr ia l in ve sti g a tio n. With re g ardto the pe tit ion e r' s c la im that trial counsel failed to a dequate ly prepa re for voir dire, the post-c onviction court ruled that the petitioner "pr esente d no evidenc e in r eg ards to this alleg ation, thus the matter will not be addr essed." The c ourt ac cre dited trial counsel' s testimonythat he did not attempt to introduce into evidenc e the crime sc ene r eports bec ause the y would have be en inadmissible hear say . I t a lso de termined that trial counsel ha d adequately

cross-e x amined the of

fice rs who prepa

red the reports. The post-conviction court c oncluded that tria l counsel' s decision not t o o b ject to leading questions by the prosec utor qualified a s trial strateg y and that trial counsel had adequately consulted with the petitioner as to the plea of fer , the potential sentenc e should he be convicted at trial, and his "c hance s of winning at trial." Finally , the post-conviction court acc redit ed trial counsel' s testimonythat he had a dvised the petitioner of both his rig ht to remain silent and his corr esponding rig ht to testify in his own behalf.

I n this appeal, the pe titioner asserts that his trial counse l was ineff ective by failing to meet with him a sufficient number of times prio r t o t ri al ; by failing to employ

the servic es of a n i n v e s t i g a t o r ; b y f

a i l i n g t o f i l e j u r y q u e s t i o n n a i r e s ; a n d b y f a i l i n g t o p r e p ar e t h e p e t i t i o n e r t o t e s t i f y.

Un de r o ur statut ory la w, the pe tit ion e r be ars the bu rd e n of pr ov ing the a lle g a tio ns in h is p os tconviction petition by

clea r and c onvincing eviden ce

. Tenn. Code Ann. § 40- 30-110(f ) (2003)

. Evidence is clear

and convinc ing w hen ther e is no serious or substantial doubt about the ac cura cy of the c onclusions dr awn from the evidenc e. Hicks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998). On a

ppeal, the f

indings of f

act made by

the trial court are co n cl u s i v e an d will not be disturbed unl ess t he evidence contained in the record preponder ates ag ainst them. Br ooks v. State, 756 S.W .2d 288, 289 (T en n

. Crim. App. 1988). The bur den is on the petitioner to show that the

e vid e nc e pr e po nd e rate d a g a ins t th os e fi nd ing s. Cle nn y v. Sta te , 5 76 S.W. 2d12 , 14 (Ten n. Cr im. App. 1978).
When a petitioner see ks post-conviction relief on the basis of i n eff

ective a ssistance of

co u n s el , h e m u s tfi rs tes t ab l i s h t h at t h e s er v i ce s re n d er ed o r t h e a d v i ce gi v en we re b el o w " t h e r an ge-4-

of compe t en ce demande d of attorne y s in criminal case s." B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) . Second, he must show that the de ficienc ies " actua lly h ad an adverse e ffe ct on the de fe ns e ." Str ic kla nd v. Was hin g ton , 46 6 U. S. 66 8, 69 3 (1 98 4) . T he e rr or mus t be so se ri ou s a s to rende r an unr eliable r esult. I d. at 687. I t is not necessa ry , howeve r, that abse nt the defic iency , the trial would have re s u l t ed in an ac quittal. I d. at 695. Should the petitioner fail to establish either fa c tor , h e is n ot e nti tle d to re lie f. Ou r s up re me c ou rt de sc ri be d th e sta nd ardof re vie w a s f

oll ow s:

Be cause a petitioner must e stablish both prongs of the test, a fa ilure to prove either de ficienc y

or pre judice provide s a suffic ient basis to deny relief on the ineffe ctive assistanc e cla im. I ndeed, a court need not addr ess the compone nts in any particula r order or even addr ess both if the def endant make s an insufficie nt showing of on e c omp on e nt.
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of inef

fec tive assistance of counsel, the petitioner is not entitled to the benef it of hindsight, may

not second-g uess a reasona bly based tria l strateg y , and ca nnot criticize a sound, but

unsucce ssful, tactica l decision made d uring the cour se of the pr ocee dings. A dkins v. St ate, 911 S.W. 2d33 4, 34 7 ( Te nn . Crim. Ap p. 1994 ). Suc h d e fe re nc e to the ta c tic a l de c isi on s o f c ou ns e l, howeve r, applies only

if the choic es ar e made af t er ad eq u ate prepar ation for the c ase. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.
Cla ims of ine ff e c tiv e a ssi sta nc e of

c ou ns e l are re g ard e d a s mi xedqu e sti on s o f la w a ndfa c t. State v. Honey cutt, 54 S.W .3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999). Whe n re v i ew ing the application of la w to the post-conviction court's f actua l findings, our revie w is de novo, and the post-conviction court's conclusions of l aw are give n no presumption of

corr ectne ss. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. Eng land, 19 S.W .3d 762, 766 (Tenn. 2000)

.
Whil e trial c ounsel in this case testified tha t he did not remembe r the a ctual number of times he met with the petitioner prior to trial, he estimated the number a t "at least a dozen" and ins isted that he wa s adequately prepa red. The post-conviction court acc redited this testimony

. Moreove r, the petitioner ha s g iven no re asons why more mee tings with trial counsel would have resulted in a differ ent outcome at trial. The petitioner is not entitled to relief on this iss ue.

As to his next claim, t here was sim ply insufficient proof offe red by the petitioner during the

e vid e nti ary

he ari ng that tria l c ou ns e l w a s in e ff e c tiv e by faili ng to f

il e ju ry qu e sti on na ir e s in pr e pa ratio n f or vo ir dir e . It w a s tria l c ou ns e l' s o pin ion that a lth ou g h the c a se ha d g e ne rate d s ome publicity , he did not fe el t hat it was nec essary to file jury

questionnaires. Ty

pically , this choice would qualify

as a ta ctical de cision. Mo re i m p o rt antly , howeve r, there was no e vidence that the fi lin g of jury qu e sti on na ir e s mi g ht h a ve g arn e re d a dif fe re nt v e rd ic t.-5-

The pe titioner also claims that his t ri al co unsel was inef fec tive by failing to employ

the service s of an investig ator but has not demonstrated what facts or which witnesses were overlooke d during the pre trial investigation. The post-conviction court acc redited the testimonyof trial counse l that he ha d stud ie d the c ri me sc e ne a nd c a nv a sse d the are a in an a tte mpt to loc a te he lpf ul w itn e sse s. I n our view, the evidenc e does not pre ponderate ag ainst the finding s of the post-conviction court as to this i ssue.

F ina lly , th e pe tit ion e r a sse rt s th at his tr ia l c ou ns e l w a s in e ff e c tiv e by faili ng to a de qu a te ly prepa re him to testify

in his own defe nse. Trial counsel contende d that he advise d the petitioner of his right to testify

at trial and w arne d him of questions that would be aske d on direc t examination and those he anticipated w ould be asked on cross-e x amination. Trial counse l stated that he a nd the pe tit ion e r p ra c tic e d a " moc k" dir e c t e xami na tio n. Th e re c or d e sta bli sh e s th a t th e pe tit ion e r c ho se not to testify at t rial. Further, trial counsel questioned the pe titioner outside the prese nce of the jury reg arding his decision to maintain silence. Unde r these c ircumstance s, it i s our view tha t the petitioner has f

ailed to establish this claim by clea r and c onvincing evidenc e.

Acc ording ly , the judg ment of the post-c onviction court is aff irmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE