### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A s s i gne d on B r i e f s D e c e m be r 7, 2004

M I C H A EL BLA C K BU R N v . STA TE OF TEN N ESSEE

Direc t Appeal from the Circ uit Court for F ranklin County Case No. 11223- B J. Curtis Smit h, Jud ge

No. M2003- 02549-CCA -R3-P C - F iled Fe bruary 15, 2005

Th e Pe tit ion e r, Mic ha e l B la c kburn, wa s c on vic te d o f f ir st d e g re e pr e me dit a te d mu rd e r, fi rs t deg ree felony

murder, an d aggr av ated r obbery , and the tria l court sentenc ed him to life plus twenty y ear s. This Court aff irmed the convictions and sentenc es on appea l. T h e P et i t i oner subsequently

filed a pe tition for post-conviction relief , which the post-c onviction co urt dismiss ed af

ter a hearing. O n appea l, the Petitioner contends that the post-c onviction court er red beca use he w as denie d the ef

fec tive assistance of counse l. Finding no reve rsibl e er ro r, we aff irm the post-conviction court’s judgme nt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES and T H O M A S T. W O O D A LL , J J ., joined.

Glen A. I sbell, Wi ncheste r, Tenne ssee, f or the Appe llant, Michael B lackburn.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B re nt C . Ch e rry , A ssi sta nt A tto rn e y Ge ne ra l; J . Michae l Tay lor, District At t o rn ey Gene ral; and Steve n M. Blount, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. F acts

On Dec ember

3, 1998, a jury

conv i cted the Petitioner of first deg ree preme ditated murder, f irst deg ree felony

murder, an d aggr av ated r obbery . The trial c ourt merg ed the murde r

c on vic tio ns , a n d s e n t e n c e d t h e P e t i t i o n e r t o l i f e i n p r i s o n f

o r t h e m u r d e r c o n v i c t i o n a n d to twenty y ear s for the ag g ravated robbery conviction, to be serve d consec utively

. Thi s Court

su mma ri zedthe fa c ts o n d ir e c t app e a l a s f oll ow s:

At tr ia l, the S tate c a lle d Co ff e e Cou nty

She ri ff ' s D e pu ty B ri a n A lle n. On Au g us t 14 , 1 99 6, De pu ty

Al le n w a s w or

kin g the mid nig ht s hif

t w he n th e de fe nd a nt c a me in aroun d 12:15 a.m. to report a drowning at the Turke y Creek boa

t ramp. The− 2

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de fe nd a nt r e po rt e d t o him that he , c o- de fe nd a nt T omm y Di c ke rs on , a ndvic tim David Si n ger we re at the boat ra mp that evening . Acc ording to the defe ndant, codefe ndant Dicke rson and the vic tim st arte d arg uing an d co -d efendant Dicke rson hit the vic tim in th e fac e , w hic h kno c ke d th e vic tim int o th e wate r. He tol d Deputy Allen that he trie d to help the victim, but tha t co -d efe ndant Dicke rson

or de re d him b a c k in to the truc k, thr e a te nin g him that he wo uldbe ne xt if he did not comply . He sa id that the victim never resurface d. He told Deputy Allen that they then to o k t h e v i ctim’s truck to Tullahoma. B eca use the Tur

key Creek boat ramp is in Fr anklin County , Deputy Allen notified the authorities there.

The State c alled De puty Earl Morse of the Franklin County Sheriff’ s De pa rt me nt, wh o w a s d isp a tc he d to me e t th e de fe nd a nt at th e bo a t r a mp, to testify . Deputy

Morse o b s er v ed an article of clothing in the w ater . He testified that the defendant told him that he, Dicke rson, and the vic tim were ha ng ing out around the boat dock wh en the victim went down on the doc k. The de fenda nt claimed that he told Dickerson that he n ee d ed to go home beca use he ha d to be up

ear l y fo r work. Accor ding to the de fenda nt, Dicker son then went onto the doc k and began “messing” w ith the victim. The two beg an ar g uing and the def endant said he saw “a motion come a round,” he ard a “smac k,” and some thing then hit the

wate r. Th e de fe nd a nt s a id h e the n tu rn e d o n th e truc k h e a dli g hts

.

The de fenda nt further

told Deputy

Morse that Dic kerson sa id, “He ain’t
come up y et,” a nd then, “L et’s g o, he’s de ad. Ge t i n the truck.” The de fenda nt said t h at wh en he tried to g o in after the victim, Dicker son told him to ge t in the
truc k o r h e wo uldbe nex t. Th e tw o th e n g ot i nto the truc k a ndwe nt t o Tullahoma. Acc ording to the defe ndant, he jumped out of the truck at a r ed l i g ht and Dicke rson tried to run ove r him. He said that onc e he got to his father’ s house, he told him what had ha ppened and his father

told him t o g o to the police.

At the crime scene , the def enda nt identified a pa ir of shoes f ound in the
pa rking lot a s b e lon g ing to the vic tim . H e a lso sa id that D ic ke rs on wa s h is cousin, but h e had only

met the victim a fe w day s ear lier. He further informed the de pu ty that D ic ke rso n and the vic tim ha d r un a way fr om a re ha b c e nte r i n Shelby ville. A sear ch of the boat dock r eve aled a shirt about four f eet f rom the dock, a pair of blue jeans about ten fe et fro m t h e end of the dock, and the victim’s body 15' 7" f rom the en d o f the dock. The victim’s fee t were tied with a blanket and his jeans ha d been pulled dow n over t he blanke t. The victim had scr atche s and abr asions on his face and hea d.

The autopsy

reve aled multiple superf icial lace rations o n t he victim’s fore head, linea

r abr asions on his right shoul d er , a bruise on his rig ht wrist, and− 3

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scra pes o n h is k n e e s a n d r ig h t f o r e ar m. T h e v ic ti m h a d a b lo o d a lc o h o l le vel of .19%. The me di cal ex aminer de termined drow ning w as the c ause of the victim’s death.

The State a lso called Franklin County Sheriff’ s Deputy Danny Warren, wh o to ok a state me nt f

ro m th e de fe nd a nt in th e ea rl y mornin g ho ur s o f A ug us t 14, 1996, to testify

. T h e d ef en d ant s aid that Dicke rson and the vic tim had run

awa yf r o m a r e h ab c e n te r

o n A u g u s t 1 2 tha n d h a d b e e n d r in k in g a ll d a y

. T he d e f e n d a n tm e tu p w i t h D i c k e r s o n a n d t h e v i c t i mar o u n d 9 : 0 0 p

. m

. t h e n e xt

e ve ning, A ug us t 13 , to g o to a pa rt y a t th e Tr a ve le r’ s I nn in M a nc he ste r. He sa id
t h at Di ck er s o n an d t h e v i ct i mh ad aga i n b ee n d ri n k i n g.

The de fenda n t s ai d that when they left, they went to Turke y

Creek. U pon

arrival, aro u n d 9 : 4 5 p.m., the victim got out of the truc k and we nt onto the boat do c k. Th e de fe nd a nt s aid that he tol d D ic ke rs on that he ne e de d to g e t ho me beca use he had to be up early for wor k. He sa id that Dicker son then g ot

so me thi ng ou t of

the ba c k o f the t ruck and we nt o nto the do c k a ndtol d th e vic tim to ge t up. He said that the two be g an a rgu i n g an d t hen he he ard a “smac k” and something hit the water. He then turne d o n t h e truc k headlig hts and asked Dicker son what wa s g oing on. Dicker son replied that the vic tim was messing

ar o u n d a n d ju mp e d in to th e w a te r

. H e to ld D e p u ty Wa rr e n th a t h e d id n o t think much of it until Dickerson said that the v i ct i m wa s not coming up. The defe ndant

sa id that w he n h e of

fe re d to jump in a ft e r the vic tim , D icker so n th re a te ne d to kil l him if he d id

. H e c laim e d th a t h e w a s a f r a ido f D ic k e r s o n b e c a u s e D ic k e r s o n w as big g e r tha n h im.

Acc ording to the defe ndant, they left Turke y

Creek i n the victim’s truck. He then r eiterated his story about stopping at a red light, Dicke rson try ing to r un over him, and ge t t ing to his father’s house . When questioned about the victim’s l egs b eing tied, the def

endant c laimed he did not know how that ha ppened. H e told Deputy

Warren that Dicker son and the victim had be en ar g uing e arlier beca use the v i ct im wanted to g o home to his family , but Dicker son did not want him to go.

Sho rt ly the re a ft e r, the de fe nd a nt g a ve a se c on d stat e me nt t o D e pu ty Warren. H e told the deputy that Dicker son t h re at en ed him if he did not help. So, he tie d a bla nk e t aro un d th e vic tim ’s fe e t. H e sa id that th e vic tim wa s c on sc iou s, bu t di d n ot r e sis t th e m. T he de fe nd a nt c la ime d th a t he the n b la c ke d o ut.

Ap pr oximate ly

a n h ou r l a te r, the de fe nd a nt a g a in s umm on e d D e pu ty Warren w ith additional facts about t h e v i ct i m’s death. He said that when the− 4

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three wer e on their w ay

to the boat dock, Dickerson told the def endant that he was g oing to r ob the victim and ki l l h i m

. T h e defenda nt said that when he objected, Dicker son threate ned to kill him. He said that when they arrived, Dicke rson

o r d e r e d h im

to g e t a b lan k e t an d a

p a ir o f p a n ts o u t o f

th e tr u n k

. T h e d e f

endant the n ti e d th e vic tim ’s ha nd s to g e the r with the pa nts a ndtie d h is f e e t to g e the r w ith the blanket. Ac cording to the defe nd an t , Di ck erson tied the bla nket tighte r, took $1 5. 00 ou t of

the vic ti m’ s po cket, a ndthe n p ic ke d th e vic tim up a ndthr e w h im of f the do c k. Whe n a g a in q ue sti on e d a bo ut the vic tim ’s pa nt s bei ng aro un d h is ankles, the de fenda nt persisted that he did not know.

A couple of day s later, on Aug ust 16, the defe ndant g ave another statement to Deputy

Warren. H e said that a fter the y arrived at Turke y Creek, the victim got out of the truc k and lea ned up ag ainst it. Dickerson g ot out, smi led

rea l big, a nd hit the victim. After the victim hit the g round, Di ck er s o n g ot on top

o f h i ma n d s t ar t e d b e a t i n g h i ms a y i n g , “ Y o u w a n tt o f i g h t ? Y o u w a n tt o f

i g h t ?” Although the victim never sa id a word, he wa s aw ake. At one point though, the victim did ask Dickerson w hy he wa s doing this. Dicke rson just beat him more.

The de fenda nt claimed that Dicke rso n go t a blanke t and a pa ir of pants out of the truc k, and ma d e t h e v ictim walk down the boat doc k. Ag ain, the def endant ins ist e d th a t he didno t w a nt to p art ic ipate , b ut that D ic ke rs on thr e a te ne d h im w ith death if he did not. Per Dicker son’s order s, the defe ndant tied the victi m ’s h an ds and fe et. Then D i ck er s on smiled big a g ain and pushe d the victim off the e nd of the dock. The defe ndant told Deputy Warren that the v i ct i m ca m e up a couple of tim e s, bu t th a t D ic ke rs on wo uldno t le t hi m g o in to h e lp the vic tim

.

Th e tw o re turne d to Tu llaho ma a nd dr ov e to the Tr a ve le r’ s I nn in Manche ster. The re t he def endant met up with his g irlfriend Charity Austin and told her that Dicke rson killed the victim. She and the def en dant left Manc hester, dr ov e to h is f

a the r’ s h ou se , a nd th en we nt t o th e sh e ri ff . T he de fe nd a nt a lso tol d De pu ty War re n th a t D ic ke rs on sa id the vi cti m was ri c h a ndthat D ic ke rs on tol d h i s s i ster Rhonda that he was a bout to rob someone, g et some money , and lea ve town.

Th e Sta te ’s fi na l w itn e ss w a s Rh on da Smith, the de fe nd a nt’ s f ir st c ou sin

a ndDi c ke rs on ’s sis te r. She te sti fi e d th a t on Au g us t 12 th, the de fe nd ant, Di c ke rs on , a ndCha

ri ty Au sti n c a me to h er hous e aro un d 1 1:0 0 p .m. Ac c or din g to S m i t h

, Di ckerson had bee n drinking , but the defe ndant had not. The defe ndant told her that he ne eded mone y . When she said she did not have any , he told her he wa s g oin g to g e t s om e mo ney one way or a no the r, e ve n if

he ha d to kil l someone. In her pr esenc e, the de fenda nt ask ed Di cker son how much money the− 5

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victim had, and Dicke rson told him that h e wa s ab o u t to rec eive $400. The defe ndant said he w ould kill t he victim for that mo n ey . He c laimed it would be
easy to tie some blocks around his f eet and throw him of

f into the water

. Whil e at t h e S m i t h 's h o u s e, t h e d ef en d an tal s o ap p ro a c h e d R o b er tS m i t h ab o u tb o rr o wi n g a sh otg un . H e tol d Sm ith that he ne e de d to make so me mon ey . H ow e ve r, Smith told him t hat he did not loan out his g uns. This concluded the State’s proof.

The fir st witness on behalf of the def endant wa s J ames Parke r, a.k.a

. Poncho

. He stated that in Aug ust 1996, he lived with the defe ndant’s father, Alfre d Bla ckburn. O n Au gu s t 1 3 th, the defe ndant, Dicke rson and the vic tim were at Parker’s house. Evide ntly , the victim had spent the nig ht at his house, and wa s g oing to turn himself in that morning . Howeve r, the victim g ave D icker son $40

an d t h eyp ro ce ed ed t o d ri n k al l d ayl o n g.
Around 5:00 p.m., Parker kicked e v er y o n e out of his hous e bec ause the y

wer e drin k i n g and he did not wa nt to ge t in trouble with his landlord. L ater , around 9:00 p.m., the de fenda nt an d Di ck er son returne d to Parker’ s house, but the victim was not with them. Th ey t al k ed with the defe ndant’s father a nd then they le ft . Wh e n D ic ke rs on a ndthe de fe nd a nt l a te r r e turne d, Jani c e B ro wn a ndCha ri ty Austin were with them. The def endant told his father

and P arker what had happene d, and the de fenda nt and his father then left to g o to the police.

The de fense also ca lled J anice Br own to testify . She testified that when the def endant a rrived at the Trave ler’s I n n , h e s eeme d scar ed. He told her that the vic tim wa s a t th e lake . H e sa id h e ho pe d th a t th e vic tim wa s just pa sse d o ut. Howeve r, he a l s o t old her that he jumped in the water to help the victim and that Dicker son perf

ormed CPR, but t hen pushed the victim back in. Af t er t hat, she, Charity and the de fenda nt drove out to the landing , called f or the victim, and then
returne d to Parker’ s to talk with the defendant’s fathe r.

Alfre d Bl a c k

b u r n , th e d e f

e n d a n t’ s f

a th e r , a ls o te s ti f

ie d o n b e h a lf

o f the defe ndant. He te stified that Dicker son an d t h e victim had bee n drinking all day on Aug ust 13th. Dickerson a nd the victim had ar g ued seve ral times and Dicker son swung a 2 x 4 piece of lumber at Bla ckburn when he woul d n o t take the m to Ge or g ia . A ro un d 1 1:1 5 p .m. , t he defe nd a nt c a me to the ho us e a ndtol d him that Dickerson ha d killed the victim. They then went to the police

.

Finall y , the def

endant testified on his own be half. At trial, he stated that he di d no t initia lly

te ll p oli c e the true sto ry

of wh a t ha pp e ne d a t th e do c k b e c a us e he was afr a idh is p ar o le w o u ldb e r e v o k e d

. H e te s ti f ie d th a t w h e n h e , D ic k e r s on and the victim left Poncho’s on A u gu s t 1 3 th, he was driving the vic tim’s truck.− 6

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T h e y s to p p e d at a ma

rk e t, a n d D ic k e r s o n w a n te d to d r iv e

. T h o u g h D ic k e r son was drunk, and the defe ndant did not want him to, Dickerso n ended up driving

a ny way . Dic ke rs on ind ic a te d th a t he wante d to g o f or a sw im, so the y

he a de d to Turk e y Cr e e k

. O n th e w a y th e r e , D ic k e r s o n to ld h im th a t h e w a s g o in g to k ill the vic tim . A lth ou g h th e vic tim wa s si tti ng in b e tw e e n D ick ers on a ndthe de fe nd a nt, he ha d n o r e a c tio n to thi s st a te me nt.

When they arr iv e d a t th e d o c k

, D ic k e r s o n a n d th e v ic ti m g o t o u t o f the truck a nd leane d up ag ainst it. According to the defe ndant, Dicke rs o n t old the de fe nd a nt t o g e t ou t or

he wo ulddo to hi m w hat he wa s g oin g to d o to the vic tim

. The de fenda nt noticed a boat in the water and y elled out to it, hoping to dissuade Dicker son, even thoug h h e re al l y did not believe Dicke rson was se rious. But, the boat drove o ff. Then Dicke rson smiled rea l big, a nd hit the victim. After the

v i ct i mh i tt h e gr o u n d

, Di ck er s o n go to n t o p o f h i man d s t ar t ed b ea t i n g h i ms ay i n g,

“ Y o u w a n tt o f

i g h t ? Y o u w a n tt o f

i g h t ?”

Di c ke rs on g ot the blank e t a ndpa nts out of the truc k. He too k th e vic tim down to the dock, told him to lie on his st omach a nd then orde red the defe n d ant to t ie the vic tim ' s h a nd s a ndfe e t. A g a in, the de fe nd ant mai nt ainedthat he tr ie d to

re sis t, b ut D ic ke rs on thr e a te ne d h im w ith de a th i f h e did no t he lp him

. Th e vic tim asked D icker son what he w as doing , and Dicke rson told him he was about to die. Dicker son then pushed the victim of f the end of the dock. The defe ndant t est ified that he sta

rt e d to g o in a ft e r the vic tim , b ut that D ic ke rs on a g a in thr e a te ne d h im with death if he did.

They left in the victim’s tr uck and drove back to Par ker’ s, wher e h i s fa ther

was still located. He did not say anything to his fathe r then about what happe ned beca use he w as sca

red of Dicker son. He a nd Dicker son then drove to Ma ncheste r and met up with Charity

and Janice. After he told Charity what had ha

ppened, he

, Charity and Janice we nt back out t o t he boat doc k to look for the victim. When he did not answe r their c alls, they drove ba ck to his father ’s ho u s e. He then w ent t o t h e p o l i c e w i t h h i s s t o r y.

State v. Michael Bl ac k b urn, No. M2000-01202- CCA-R3-CD, 2001 WL1251239, at *1-5 (T enn. Crim. App., at Nashville, Oc t. 19, 2001), perm. app. de nied (Tenn. A pr. 8, 2002).

The Petitioner filed a

pro se pe tition for post-conviction relief

, wh i ch was later a mended by appointed counse l. I n his petition he al l eged, in pa rt, that he re ceive d ineffe ctive assistanc e of counsel be cause his tria l counsel failed to: (1) ade quately prepa re f or trial; (2) g ive him an

a sse ssm e nt o f the evi den ce again st him andthe app lic able la w; (3 ) f ile a mot ion to s up pr e ss h is statements to police; and ( 4) re quest an y j u ry ch arg es. The f ollowing e vidence was pre sented a t− 7

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the hea ring on the Petitioner’s pe t i tion for post-conviction re lief: Robert S. Peters (“ Counsel”)
te sti fi e d th a t he ha s been prac ti cin g law sin c e 19 70 , a ndc ri min a l la w i s a su bs ta nti a l pa

rt of his
prac tice. Counsel s ai d t h at he was appointed to re prese nt the Petitioner on November 8, 1996, and the Petitioner’s tria l beg an on De cembe r 2, 1998. Counsel said that the time shee t that he submitt ed to the court shows that, prior to the trial, he spe nt thirty -one hour s out-of-court, and six hours in-court, on the P et i t i o n er ’s case . He e stimated that he ac tually spent close to twice that number of hour s out-of-c ourt, but he did not report those hours.

Counsel testified hat he h ad “leng thy discussion[ s]” with the Petit ioner on seve ral

oc c a sio ns abo ut the c a se . H e sa id that he sp ok e wi th the Pe tit ion e r e a c h ti me the Pe tit ion e r c a me to the courthouse, and he visited the Petitioner in jail on the day o f trial. Counsel said that he
may have me t with the Petiti oner in ja i l o n other oc casions, but he wa s unsure of e x act dates and times. Counsel said that, between O ctober 30, 1997, and De cember 2

, 1998, he wr ote the Petitioner two or three letters.

Counsel said t h at t h e s trateg y in the Petitioner’s ca se wa s “simple.” He said that the Petitioner and his co-de fenda nt both made full and c omplete statem en t s t o t h e police, and the strateg y was for the Petitioner to “take the stand, look the jury in the ey e and co n v i n ce them that he wa s a smaller ma n, was intimidated by [hi s co-de fenda nt] , and it was [t h e co -def endant who]

c omm itt e d th e c ri me a ndthat he wa s a fr a id, intimi date d .

. . .” F urthe r, the Pe tit ion e r w a s to te ll the ju ry t h at , fol lowing the commission of the crime, he came back to the sc ene and admitted wh a t hadha

pp e ne d. Cou ns e l sa id that, o ri g ina lly , o ne of the Pe tit ion e r’ s d e fe ns e s w a s d ur e ss. Coun sel sa id that th e Pe tit ion e r w a s g oin g to c on vin c e the jury that hi s c o- de fe nd a nt w a s a violent person who ha d committed this crime and other violent acts ea

rlier in the day

on the same da y as the murde r.

Cou ns e l te sti fi e d th a t he didno t e xpla in to the Pe tit ion e r h ow he wa s g oin g to i nc or po rate the def ense of duress. He said the Petitioner was g oing t o t el l h i s s t o ry , and, if the jury believed the Petitioner, there was a chanc e that they

would n o t convict him of the more serious crime. Counsel said that he d i d n o t i n s t ru ct t he Petitioner about the la w of dure ss, rather he told the Petitioner to tell the truth and then the jury would decide if the law of duress a pplied. Counsel

sa id that he didno t th ink that a n atto rn e y

sh ou ld t e ll a

c lie nt w hat a

c lie nt w ou ld h a ve to s a y in order to meet the ele ments o f a d efense. Additionally , Counsel said that he intended to tell the jury that the State allowed the Petitioner’ s co-de fenda nt to plead to second de g ree murder a nd then ar g ue to the jury

that the Petitioner deserved a le sser punishment. C o u n s el conce ded that the tr ia l jud g e did no t a llo w him to pr e se nt thi s e vid e nc e , bu t he sa id that thi s w as a s tra te g ic decision.

Counsel said that he int ervie wed both off icer s in this case, and some, but not all, of the

o t h erS t at e’ s wi t n es s e s

. He s ai d t h at h e a n d t h e P et i t i o n ern ev erd i s agr ee d ab o u tt h e t ri al s tra t egy or wh i ch wi t n es ses Counsel interviewe d. Counsel testified that he and the Petitioner went over− 8

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all of the discove ry

provided by

the State, which include d the P etitioner’s, a nd his codefe ndant’s, stateme nts to poli ce. Counsel sa id th at h e did not interview the police office r who

sear ched the Petitioner’s co-de fenda nt and found items that wer e stol en i n t h e robberyon the codefe ndan t . Counsel expl ained that, since there was no issue a bout where these items wer e found, thi s w a s no t pertin e nt t o th e c a se . F urthe r, the re wa s n o e vid e nc e that th e Pe tit ion e r h a d th e se items, so this testimonywas unne cessa ry . Counsel testified that he intervie wed e ach of the witnesses that he c alled in def ense of the Petitioner befor e they testified at trial.

Cou n s e l te s ti f

ie d th a t h e c a ll e d w it n e s s e s to s tate th a t th e Pe ti ti o n e r ’ s c o

- d e f e n d ant had committed this crime. The trial c ourt excluded that testimony at trial, and C o u n s el appealed that ruling , but it was upheld o n ap p eal. Counsel testi fied that he thought that, e ven thoug h the Petitioner’s co -def

endant did not testify

at trial, he c ould stil l admit the co-de fenda nt’s statements that he killed the victim at tri al under a n exception to the hear say rule. Counsel
te sti fi e d th a t he a sse rt e d to the tr ial cou rt th a t th e se state me nts we re a dmi ssi ble pu rs ua nt t o Te nn e sse e Rul e of

Ev ide nce 80 3(e) , but the tr ia l c ou rt dis a g re e d. Cou ns e l th ou g ht that it wo uld be imp os sib le to a dmi t th e se state me nts if he cal led the c o- de fe nd a nt b e c a us e the y we re un lik e ly to be admitted during direc t ex amination. Rather, his strate g y was to hope that the State called the co- defe ndant so that he c ould cross-e x amine the c o-def endant. The n, when the State did not

c a ll the c o- de fe nd a nt, he arg ue d to the jury that th e Pe tit ion e r was prej ud ice d by , a ndthe Sta te

w a s to b lame f

o r , th e c o

- d e f

e n d a n t n o t b e in g p r e s e n t a t tria l. Co u n s e l s tate d th a t it would have been the “heig ht of idiocy ” to have subpoenae d the co- defe ndant bec ause the co-de fenda nt had alre ady g iven a statement to police that he was afr aid of the Petitioner and, had t h e c o -d ef en dant
tes t i fi ed , that information would have been be fore the jury . Counsel said that, after rese arc hing the app lic able la w, he ma de a ta c tic a l de c isi on no t to c a ll th e P etiti on e r’ s c o- de fe nd a nt b e c a us e he dete rmined that it would have done more ha rm than g ood.

Counsel said that he did not file a motion to suppress any of the stateme nts that the Pe tit ion e r g a ve to p oli c e be c a us e , s inc e the P eti ti on e r i nte nd e d to te sti fy , th e se state me nts wo uld be admissible during cross-e x amination. Further, Counsel thoug ht that the statements, on the whole, we re f

avora ble to the P et i t i o n er

. Counsel stated that, in his opinion, i f he g ot the
st ate men ts su pp re sse d, a ndthe Pe tit ion e r d id n ot t e sti fy , th e ir c ha nc e s “ of

su c c e e din g wo uld have be en m u ch m u ch l es s. I t was a ta ctical de cision on [C ounsel’s] part.” Counsel said that he thought that the Petitioner’ s only chanc e to win this case w as to tell his t ru t h fu l story , which wa s that he wa s sc are d a ndint imidate d b y the c o- de fe nd a nt andhe didno t pr of it f ro m th is c ri me whatsoeve r. Counsel said that this was a strateg y t h at t h e P etitioner ag ree d with. Counsel

conce ded that some of the office rs who testified a bout the Petitioner’s statements would not have bee n ab le to testify

if he ha d succe ssfully

filed a motion to suppress those stateme nts. Counsel said that, eve n if the Petitioner’s stateme nts were excluded, t h e S tate could still place the Petitioner at the sce ne o f t h e cr i m e bec ause the Petitioner returne d to the crime sc ene w ith a fema le frie nd to look for the victim. Counsel testified that, if this evidence had bee n exclud ed, the ca s e mi g h t h a v e b e e n a “ li tt le d if

f e r e n t, ” b u t th e o u tc o me w o u ldh a v e b e e n th e s a me.− 9

−

Counsel testified that part of the rea son that he did not file motions to ex clude some o f t he evidenc e, such as t h e P etitioner’s stateme nts and the fa ct that he wa s rec ently rele ased f

rom priso n, wa s b e c a us e his str a te g y wa s to h ave th e Pe tit ion e r t e sti fy , th e re fo re , th is e vid e nc e wo uld h a v e b e e n a d mi s s ib le

. H e s tate d th a t th e e v id e n c e c o u ld o n ly h a v e b e e n excluded if the Petitioner did not testify , which wa s not his st rate g y

.

Cou ns e l te sti fi e d th a t he di d no t fi le a ny jury c ha rg e s, inc lud ing a

re qu e st f or a du re ss ins truc tio n. Cou ns e l sa id that th e tr ia l c ou rt mus t no t ha ve th ou ght th a t th e e le me nts of du re ss

wer e pr esent. He testified that, ultimately , their strate g y was not dure ss, but that, while the P et i t i o n er wa s there , he did not commit the crime. Counsel noted that the jury was instructe d on fac ilitation and other lesser- included off enses.
Counsel testified that he told the Petitioner about the plea offe red by

the State for the Petitioner to plead g uiltyto second de g ree murder, and the Petitioner rejec ted that offe r. Counsel said that he d i d n o t think that it was in the Petitioner’s be st interest to plead g uiltyif the Petitioner did not wa nt to plead g uilty . He sa id that, if the jury had believe d the Petitioner, the Petitioner would have be en found not g ui l t y . Counsel reiterated that, eve n considering the Petitioner’s prior c riminal history , if the jury b el i eved the Petitioner he would have been f ound

n o t g u il ty

. Co u n s e l th e n s a idth a t h e h a d r e c e n tl y trie d a s im il ar c a s e , in w h ic h th e ju r y

d idnot convict a de fenda nt with a “horr endous” r ecor d beca use they believed the defe ndant.

On cr oss-examinatio n , Counsel testified that he g raduated first in his law school cla ss at the Un ive rs ity

of Te nn e sse e , a ndhe wa s edi to r in ch ie f o f the la w r e vie w. He sa id that he wa s a member of

the Orde r of the Coif, a n h o n o r s o ciety for law students. Counsel said that he has probably tried more c riminal case s and more a ppellate c ases than any one in the county and has

arg ue d n e arl y

20 0 a pp e llate c a se s. Cou ns e l te sti fi e d th at he dis c us se d th e Pe tit ion e r’ s c a se wi th bo th the Pe tit ion e r’ s f

a the r andthe dis tr ic t a tto rn e y pr os e c uti ng the cas e on mul tip le oc c a sio ns

. Counsel testified that he neve r discover ed any fac ts that led him to believe that he c ould have

succe ssfully

suppressed the Petitioner’s statements t o p o l i ce. Counsel said that some of the
state me nts that th e P eti ti one r m a de to p oli c e we re ma de a ft e r the Pe tit ion e r v olu nta ri ly we nt t o police, and Counsel thought that, bec ause the Petitioner initi ated the c ontact, it would be fa vo ra ble to the Pe tit ion e r’ s d e fe ns e . F urthe r, Cou ns e l sai d th a t th is f a c t su pp orte d th e de fe ns e theory that the Petitioner’s co- defe ndant was the primary perpe trator of

this crime.

Counsel conce ded that he, pe rhaps, should have reque sted a dure ss jury i n s t ru ct ion, but said that the cla ss i c ca s e o f d u ress was not applicable he re. H e said that the de fense strateg y was to eliminate the eleme nts that would have been nece ssary for the jury

to convict the Petitioner of both f e lo n y a n d f ir s t d e g r e e mu r d e r

. Co u n s e l t e s ti f ie d th a t th e St a te o f

f e r e d to a ll o w the Petitioner to plead g uiltyto second de g ree murder, but the Petitioner r ejec ted that offe r.− 10

−

Ma ry Ad a ms t e sti fi e d th a t sh e is the Pe tit ion e r’ s mo the r, a ndsh e sa id that sh e “ pr e tty well [had to] tell [ Counsel] wh o al l n ee d ed to be subpoenaed.” She said that she issued and

se rv e d th e se ve nte e n s ub po e na s in the Pe tit ion e r’ s c a se. Ada ms test if ie d th a t sh e tol d Co un se l to ask ce rtain questions, and she ha d to act as h i s s ec re tary . She said that Counsel “thoug ht we didn’t have [any ]t hing to wor ry about” with re g ard to the Petitioner’ s case . Adams testi fied that Counsel told her, up to and ev en o n t h e day of trial, that the Petitioner’s c o-def endant would be
prese nt at trial. She said that both she and he r son wante d the co- defe ndant pre sent.

On cr oss-examination, Adams testified that she knew that the Pet i t ioner’s c o-def endant would blame the Petitioner for the crime. She said that she talked to Cou n s el ab o u t witnesses that she thoug ht were important, and he told h er about wit nesses he thought we re important. She

sa i d t h a t s h e h a d t o a s s i s t C o u n s e l b e c a u s e h e w a s n o t “ d o i n g h i s j o b

, ” a n d s h e d i d n o t se e him vigor ously

cross-e x amine witnesses. A dams testified that she be lieved the story that the Petitioner told he r that he was not the main perpe trator of this c rime, and she said that i t wa s the same story

that he testified to at tria l, which the jury reje cted.

Alfre d Bla ckburn te stified that he is the Petitioner’s fa t h er, and he spoke w ith Counsel

once or sometimes twic e a wee k for two y ear s. Bla ckburn said that Counsel told him that t hey had “nothing to worry

about. [The Petitioner] wasn’t guilty , he knew he wa s n ’t g uilty , and he
was g oing to pr ove that p o i n t

. ” He said that he a nd Counsel discussed that the Petitioner’s code fe nd a nt h a d a

vio le nt r a g e a ndthat th e c o- de fe nd a nt w a s f ou ndwi th a ll o f the it ems take n in the robbe ry . Bla ckburn te sti fi ed t h at h e gave Counsel the names of a f ew pe ople who the c odefe ndant had a sserted violenc e ag ainst.

On cr oss-examination, Blackburn testified that he a n d C o unsel discussed this case about

once or twice a wee k for two y ear s, and t h ey d i s cu s s ed t h e witness list. Blac kburn said that he testified at trial, and the prosec utor would not let him tell t he truth and ke pt objecting . He

conce ded that the c o-def endant’ s pencha nt for violence came out during the t ri al

, an d the jury rej ec t ed t h at arg ument. On re direc t examination, Blackburn te stified that he told Counsel about

a n in c ide nt i n w hic h the c o-d efe nd a nt d isp la y e d v iol e nc e a g a ins t th e vic tim , b ut h e didno t g e t to tell t h at story

at the Petitioner’s trial. B lackburn said that, during this incident, the co-de fenda nt tol d h im that th e c o- de fe nd a nt w a s g oin g to thr ow the vic tim in the ri ve r. He sa id that he c ou ld

no t te ll this sto ry

in c ou rt be c a us e the c o- de fe nd a nt w a s n ot at th e tr ia l, even tho ug h Co un se l to ld him that the co-de fenda nt wou l d b e t here . When he found out that the c o-def endant would not be ther e, h e t o l d C o u n s el t o stop the trial, but Counsel went ahea d with the trial any way . On re

cross-e x amin at i on, Bla ckburn c oncede d that he ac tually did tell the story

about the codefe ndant’s violence to the jury , but said t h at he has been in the hospital with a he art attack, a stroke, and a

failing liver, so he did not re member te lling the story

.

The Petitioner testified that his co- defe ndant is also his cousin. He said t h at h e has bee n incar ce rated for this crime since Aug ust of 1996. The Petitioner said that a nother attorney− 11

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repr esente d him duri ng his preliminary hearing, and then Counsel repr esente d him during the rest of the proce eding s ag ainst him. The Petitioner said that he attempted to c ontact Counsel, but Cou ns e l’ s se c re tary

a lw a y s a ns we re d b e c a us e Cou ns e l w a s “ ne ve r the re.” Th e Pe tit ion e r s a id that Coun sel ne ve r v isi te d h im i n jail, a nd , w hil e he me t w ith Cou ns e l be fo re c ou rt pr oc e e din g s, Counsel would never

discuss his case w ith hi m . He testified that eac h of these me eting s lasted ten minutes “at the most.” He said the only t i m e he discussed his ca se with Counsel was outside the courtroom the day

befor e his trial. The Pe titioner said that, prior to his trial, he re ceive d two letters fr o m C o u n sel, one that a sked him to submit to a blood test and one tha t informed him of his c ou rt date . H e sa id that, a ft e r his tr ia l, h e re c e ive d a le tte r t e lli ng him

that Co un se l w ou ld
appea l his case.

The Petitioner said that he wrote Counsel letter s and told him that h e wanted “ every thing
t h a t p e r t a i n e d t o [h i s ] c a s e s o [h e ] c o u l d h a v e s o m e b o d y

. . . l o o k [at ] i t a n d

. . . he lp [h im] understand . . . .” He sa id that he neve r rece i ved any materia ls, including the state ments of any witnesses, or a

copy of any of hi s s t atements to police. H e testified that Counsel neve r we nt over any of the Petitioner’s state ments with him. Further, Counsel did not interview witnesses that he asked Counsel to interview . The Petitioner said that Counsel neve r discuss ed wi th him the

e vid e nc e that w a s ag a ins t hi m, andthe on ly thi ng that Co un se l to ld h im w a s th a t it wo uldbe in his best interests to testify

. He s aid t hat, when he took the stand, he wa s unawa re of any of the alleg ations that witn esses had made a g ainst him. The Petitioner said that it was Counsel’s decision for

him to take the stand.

Th e Pe tit ion e r s a id that he ne ve r r e c e ive d a n o ff e r fro m the Sta te to p le a d g uil ty . H e sa id that, one time when he was in court, he learned that his co- d ef en d an t was given a n offe r to plead
g uil ty a nd , w he n h e a sk e d w hy he didno t g e t on e , h e was to ld by th e prose c uto r that he c ou ld plead g uiltytoo, but he would g et a life sentenc e. T h e P et i t i o ner sa id that Counsel never showe d him an offe r to plead g uiltyfrom the State.

The Petitioner testified that Counsel told him that everything was g oing to be “okay ” and

no t to wo rry abo ut a nythi ng

. He sa id that Cou ns e l tol d him “ [w]e ’r e g oin g in un der d uress. There ’s no re as o n wh y y ou should be found g uiltyof murder when y ou done what y ou done under dur ess.” The Petitioner said that Counsel told him that hi s co -d ef en d an t would be there the day of trial to testify . He sa id that, on the day of trial, whe n his co -defendant wa s not there he told Couns el t h at “y ou alre ady know that our de fense is based on him being here , beca use we can’ t ge t [ any ]t hing on the stand,” a nd Counsel told him that his co-def endant would be there

. He testified that he aske d Counsel to sub p o en a h i s co-defendant, but Counsel never did, and Counsel ga ve him no explanation as to why this was not done.

T h e P e t i t i o n e r s a i d t h a t C o u n s e l t o l d h i m t h a t , i f h e w a s f o u n d g u i l t y , h e c o u l d b e pu t in prison for “ a long time.” Counsel did not tell him the possible sentenc es for h i s cr i m e o r t hat the
sentenc es could be order ed to run c onsecutively . The P et i t i o n er said that “the only thing” that he− 12

−

d i s cu s s ed wi t h C o u n s el wa s t h e f ac tt h at t h e P e t i t i o n e r ’ s co -d ef en d an th ad al l o f t h e b el o n gi n gs that wer e take n from the victim during the robbe ry

.

On cr o s s -e x am i n at i o n , t h e P et i t i o n ert es t i fi ed t h at t h e f ac tt h at t h e v i ct i m ’s b el o n gi n gs

wer e found on the Petitioner’s co-de fenda nt was pre sented to t h e juryat trial without the codefe ndant testify ing. T he Petitioner testified that he did not know what c harg es he w as fa cing until the morning of trial. He s aid that the attorne y who re prese nted him at his preliminary he ari ng didno t te ll h im w hat c ha rg e s h e fa c e d. He c on c e de d th a t, w hil e he ha d s a id that he did not kn o w t h e p o s s i b l e sentences that he was fa cing , he knew he wa s fac ing life in prison for these c rimes. He sa id th at C o u n s el l ied when he said that he re lay ed the State’ s offe r to allow the Petitioner to plead g uiltyto second de g ree murder. T he Petition er said that he would have pled g uilty h a d Co u n s e l to ld h im th a t h e mi g h t b e c o n v ic te d a n d to ld h im o f th e p le a o f f er ma de by the State.

The Petitioner testified that he wa s broug ht to the jail near the courthouse on the day be fo re his tr ia l, b ut h e didno t me e t w ith Cou ns e l a t th a t ti me . H e sa id h e didno t me e t w ith Counsel until t he morning of his trial. At that time, Counsel d i s cu s sed with him the defe nse of duress. He said that his defe nse at his trial wa s “the truth,” and he pre sented this t o t h e j u ry

. He conced ed that the jury

reje cted this defe nse, but said that they did so because his co-de fenda nt was not there to testify . The Petitioner said that, while the jury hear d testimony ab o u t the codefe ndant being a violent man, they only h ea rd it “somewhat.” He sa id that he knew that the codefe ndant had a ccuse d him of this crime, but the co-de fenda nt mi gh t h av e acce pted responsibilityfor this murder during the Petitioner’s trial.

Th e Peti ti on er ad mit te d th a t mo st o f the e vid e nc e that th e Sta te pr e se nte d at tria l w a s a lso
pre s e n te d a t h is p r e li mi n ar y h e ar in g , a t w h ic h Co u n s e l d id n o t r e p r e s e n t h im

. H e the n conce ded that, w hil e Cou ns e l di d n ot r e pr e se nt h im at th a t ti me , h e ass ert ed in hi s pe tit ion in h is p os tconviction petition that Counse l was inef fec tive when he repr esente d him at the preliminary he ari ng. Th e Pe tit ion e r c on c e de d th a t so me of the c la ims inc lud e d in his pe tit ion fo r p os tc on vic tio n r e lie f d id n ot a pp ly to h im. Th e Pe tit ion e r s a id that Co unsel wa s in e ff e c tiv e be c a us e he di d no t com mun ic a te a de qu a te ly wi th h im. He sa id that, h a d h e ha d mo re c on ve rs a tio ns wi th Counsel, he cou l d have g otten more familiar with his case a nd there would have be en a dif fer ent outcome at his trial. The Petitioner could n o t p rovide a ny specific fac ts that he would have communicated to Counsel.

On re direc t-examination, the Petit ioner s aid that Counsel did not ex plain the def ense of duress to him, and only

told him t hat he would ha ve to explain to the jury that he wa s “under

fea r fo r [h is] li fe .” The P eti ti on er said th a t Co un se l ne ve r t oldhim that, t o p ro ve du re ss, he wo uld hav e to p ro ve that th e re we re no me a ns fo r h im t o e sc ape . T he Pe tit ion e r r e ite rate d th a t he did not know that he was ch ar ged wi th felony murder until the day

of trial. He said that he kne w he

was c harg ed with first deg ree preme ditated m u rder and ag g ravated robbe ry , but he said that− 13

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Cou ns e l ne ve r d isc us se d th e e le me nt s of the se c ri me s w ith him . T he Pe tit ion e r s a id tha t a “j ai l h o u s e ” l aw y erfi l l ed o u tan d fi l ed h i s o ri gi n al p et i t i o n fo r p o s t -c o n v i ct i o n re l i ef i n ex ch an ge for c iga rettes. He also said that his at t o rn ey at the pre liminary hearing told him that duress wa s his best defe nse, but he did not discuss this defense with Counsel unti l t h e m o rn i ng of the da y of his trial.

On re -cr oss-examination, the Petit ioner c oncede d that he could only sp ec u l at e about how a diffe ren ce i n C o u nsel’s ac tions would have af fec ted his trial. He a dmitted that he could not

sa y wi th any c e rt a int y that, had any thi ng dif

fe re nt h app e ne d, it w ou ld h a ve c ha ng e d th e ou tc ome of his trial.

Caro l Me dle y

te sti fi e d th a t sh e is the c ir c uit c ou rt c le rk a ssi sta nt and sh e is p ri mari ly responsible for

the criminal docket in Fr an k l i n CountyCircuit Court. She testified about the order s to transport the Petitioner to court. She said that the P etitioner was transporte d to court on May 13, 1997, November

17, 1998, and De cembe r 2, 1998

. S he testified that, a ccor ding to he r order s, the P et i t i o n er was not at the ja il on November 16, 1998, w hen Counsel said that he me t with the Petitioner. Medley tes t i fi ed that the Petitioner wa s not transported to the c ourt on No ve mbe r 1 3, 19 97 , th e da y Cou ns e l sa id that he ha d a sta tus c on fe re nc e wi th the Pe tit ion e r i n the cour t. O n c r o s s

- e xa mi n a ti o n , M e d le y c o n c e d e d th a t h e r r e p o r t d o e s n o t r e f le c t w h e n the Petitioner was tra nsport ed t o co u rt from other counties. She conc eded that her tra nsport order s do not show that the Petitioner was pre sent in court on November 6, 1996, but she wa s sure he
was pre sent in court bec ause he filled out an af fidavit of indig ence on that day

.

Ba sed upon this evidence , the post-conviction court dismi ssed the Petitioner’s pe tition fo r p os t- c on vic tio n r e lie f, a ndthe Pe tit ion e r n ow app e a ls.

II. Ana lys is

On appe al

, t h e P etitioner conte nds that the post-conviction court erre d when it dismissed h i s petition because Counsel failed to: (1) a dequate ly prepa re f or trial; (2) g ive him an

a sse ssm e nt o f the e vid e nc e a g a ins t hi m and th e app li cable la w; (3 ) f ile a mot ion to s up pr e ss h is
statements t o police; and ( 4) re quest any jury char g es. I n order

to obtain post-conviction relief , a petitioner must show that his or her c onviction or sentenc e is void or voidable be cause of the ab ri d gm en t o f a constituti onal rig ht. Tenn. Code Ann. § 40- 30-103 (2003) . The pe titioner bear s the burde n of proving fac tual alleg ations in the petition for p o s t -c o n v i ct i on relief by clea r and convincing evidenc e. Te nn. Code Ann. § 4 0 -3 0 -110(f). A post-convic tion court’s fa ctual finding s are subject to a de novo revie w b ythis Court; howeve r, we must accor d these fa ctual finding s a pre sumption of correct n es s , whi ch is overc ome only when a preponde ranc e of the evidenc e is contra

ry to the post-conviction court’s fac tual finding s. Fields v

. State, 40 S .W .3d 450, 456 (Tenn. 2001) . A post-conviction court’s conclusions of law are subject to a pure ly de novo revie w by

this Court, wit h no presumption of cor rec tness. I d. at 457.− 14

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Th e ri g ht o f a

c ri min a lly

a c c us e d to re pr e se ntation i s g ua rante e d b y

bo th the Sixth Amendment to the United States Constituti on and Article I , sect i on 9, of the Te nnessee Constit ution. St ate v. White, 114 S.W .3d 4 6 9
, 475 (Tenn. 2003) ; State v. Burns, 6 S.W.3d 453, 46 1 ( Te nn . 1 99 9) ; B a xter v. Ros e, 523 S. W.2 d 9 30 , 9 36 (T e nn . 1 97 5) . T his ri g ht t o repr esentation includes the rig ht to “rea sonab l y ef fe ctive” a ssistance. B urns, 6 S.W.3d at 461. Th e Te nn e sse e Sup re me Cou rt ha s hel d that

the iss ue of

ine ff e c tiv e a ssi sta nc e of

c ou ns e l is a mix ed question of law and fa ct and, a s such, is subject to a de novo r eview. I d.

I n revie wing a cla im of i n effective a ssistance of c ounsel, this Court mus t determine whether the advice g iven or services re ndered b y t h e at t orney are within the rang e of c ompetence demande d of attorne y s i n cr i m i n al case s. Ba x ter, 523 S.W.2d at 936. To preva il on a claim of i n ef fec tive assistance of counse l, a petitioner must show that “c ounsel’s re prese ntation fell below an obje c ti v e s tan d ar d o f

r e a s o n ab le n e s s , ” Str ic k lan d v

. Wa s h in g to n , 4 6 6 U

. S. 6 6 8

, 6 8 8 ( 1 9 8 4 ),

a n d t h a t t h i s p e r f

o r m a n c e p r e

j u d i c e d t h e d e f

e n s e , r e s u l t i n g i n a f

a i l u r e t o p r o d u c e a re liable result. I d. at 687; Cooper v. State, 849 S.W.2d 744, 747 (Ten n

. 1 9 9 3 ). T o satisfy the require ment of pre

judice, a petitioner must show a rea sonable proba bilitythat, but for counse l’s

unrea sonable e rror , the fa ct finder would have ha d rea s o n ab l e doubt reg arding the petitioner’s
g uilt. S trickland, 466 U.S. at 695. This re asonable probability m u s t b e “suf

ficient to under

mine confide nce in the outc ome.” I d. at 694 ; s ee also Harris v. St ate, 875 S.W.2d 662, 665 (Tenn. 1994). ..

W h e n e v a l u a t i n g a n i n e f f e c t i v e a s s i s t a n c e o f

c o u n s e l c l a i m , t h e r e v i e w i n g c o u r ts ho uld judge the attorne y ’s per formanc e within the c o ntext of the c ase a s a whole, taking into ac count all rele vant circ umsta n ce s

. S t rickland, 466 U .S. at 690; St ate v. Mitche ll, 753 S.W .2d 148, 149 (Tenn. Crim. App. 1988) . The re viewing court must evaluate the questionable conduct f rom the attorney ’s per spective at the time. Strickland, 466 U. S. at 690; Cooper, 849 S.W .2d at 746; He lla rd v. Sta te , 62 9 S.W. 2d 4, 9 (T e nn

. 19 82 ). I n do ing so , the re vie wi ng c ourt mu st be hig hly defe rential a nd “should indulge a strong presumption that counsel’s c onduct fa lls withi n the wide
rang e of r easona

ble profe ssional assistance.” Burns, 6 S.W .3d at 462. C o u n s el s h o uld not be deeme d to have be en inef fec tive mere ly

beca use a diff

ere nt proce dure or

strateg y might have produce d a diffe rent re sult. W illiams v. S tate, 599 S

. W

. 2 d 2 7 6 , 279-80 (Te nn. Crim. App. 1980). The fa ct that a p articula r strate g y or tac tic failed or

hurt the def

ense doe s not, standing alone, e stablish unreasona ble re prese ntation. House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) ( c it a ti o n o mi tt e d ) ; T h o ma s B r a n d o n B o o k e r v

. Sta te , N o

. W2 0 0 3

- 0 0 9 6 1

- CC A

- R3

- PC

, 2 0 0 4 WL 587644, at *4 (Te nn. Crim. App., at J ackso n , M ar

. 24, 2004), no perm. app. filed . Howeve r, defe renc e to matters of

strateg y and tac tical choice s applies only if the choic es ar e informed ones based upon a dequate prepa ration. House, 44 S.W.3d at 515.− 15

− A. Adequate Trial P reparation

The Petitioner first a sserts that Counsel was inef fec tive by failing to adequately

prepa re for tria l. The post-convic tion court found:

Wa s t r ial c ouns e l def

ic ie nt by fa ili ng t o pr ope r ly p r e par e fortr ial ? The [Pet iti on e r] c omp la ins that [Cou ns e l] di d n ot s pe nd a de qu a te tim e wi th h im t o prepa re him for

trial. [The Petiti oner] had gi v en t h e four statements to law

e nf or cem e nt l on g be fo re [Cou ns e l] wa s a pp oin te d. Whil e the se state me nts did support his defense , the statements we re inc o n sistent in many respe cts. The [Pet iti on e r] w a s r e la te d to th e c o- de fe nd a nt andvo lun tari ly sp e nt t ime wi th h im pr[ece]ding the nig ht [ the victim] was k i l l ed. Thus, the [ Petitioner] had provided

an ar g uable defe nse in his statements, but he also provided c onsiderable g rounds to attack his cr edibilitybot h i n the statements and in other events be fore and af

ter [t he vi ct i m ’s ] death. Many fac ts were undisputed and the outcome of the trial

wa s in larg e pa

rt dep end ent on wh e the r the jury be lie ve d [th e Pe tit ion e r’ s]
te sti mon y . T he [Pet iti on e r] h a s f a iled to s ho w that [Cou ns e l] sp e nt i na de qu a te tim e pr e pa

ri ng him fo r t ri a l.

[The Petiti oner] further

claims [C ounsel] failed to talk with various state and defe nse witnesses prior to trial and did n o t ca l l certain witnesses at trial whic h

wer e nec es s ar y t o adequately prese nt his defense . [C ounsel] testi fied he talked wi th m a ny

wi tne sse s a ndre a d th e state me nts of th e oth e r w itn e sse s b e fo re tr ia l. At trial, [C ounsel] had been in pra ctice some twenty -eig ht (2 8 ) y ea rs during which he h ad an a ctive pra ctice in c riminal law and ha d tried numerous homicide

case s. [C ounsel] adequately cross-e x amined all state’ s witnesses and called any wi tne sse s w ho wo uldha ve app re c ia bly a dd e d to the de fe ns e . Pe tit ion e r f a ile d to call any such witnesses at t h e post -convic tion hearing , there fore no prejudice was shown.

We conclude that the evidenc e does not pre ponderate ag ainst the trial court’s finding s of fac t. Furthe r, we conclude that the Petitioner has not met h i s b u rd en of proving that Counsel’s
repr esentation of him fell below an objec tive standard of rea sonablene ss. Thi s ca s e pre sented a diffi c u lt s e t o f c ir c u ms tan c e s

. T h e Pe ti ti o n e r ma d e mu lt ip le s tate me n ts to p o li c e , a s d idhis codefe ndant. Counsel’s strateg y , under the circ umstances, wa s to have the Pe titioner testify and hope that the jury

believed the Petitioner’s story . We wi l l n o t s ec o nd g uess this strateg y on appea l

. I n ac co rdance with Counsel’s strate g y , Counsel said that he interview ed many of the S t a t e ’ s w i t n e s s e s , b u ts o m e h e d i d n o tb e c a u s e h e t h o u g h tt h a ts u c h i n t e r v i e w s w e r e u n n e c e s s ar y. C o u n s el s ai d that, in his twenty -eig ht y ear s of experienc e, he w as sure that some of the State’ s witnesses would not coope rate with him. Furt h er , C o unsel said that he met with the Petitioner

on multipl e o c c a s io n s a n d h a d le n g th y d is c u s s io n s w ith h im

r e g ar d in g h is c a s e

. E v e n the− 16

−

Petitio n er ’s fa ther testified tha t he discussed this case with Counsel at least once a we ek for two y ea rs

. The trial c ourt found that Counsel ade quately cross-e x amined ea ch of the State’s witnesses and pr esent ed an adequate def ense. A ccor dingly , we c onclude that the Petitioner ha s failed to mee t his b u rd en o f p roving that Counsel’s repr esenta tion fell below an obje ctive standard of

rea sonablene ss. Furthe rmore, the Petitioner has not prese nted any evidenc e of how Counsel’s alleg ed lac k of pre paration prejudiced him.

B. Assessm ent of the Evid ence and Appli cable Law

The Petitioner asse rts that Counsel was ineff ective be cause h e n ever

informed him of what he w ould have t o p ro v e in orde r to establish the def ense of duress. This is not an ar g ument that was spec ifically

ruled upon by

the post-conviction court. At the post-convictio n h ea ri ng , the Pe tit ion e r s ta te d th a t hi s d e fe ns e a t tria l w a s “ the truth ,” a nd , w hil e he p rese nte d th is d e fe ns e to the jury , th e jury

re je c te d th is d e fe ns e . T he P e tit ion e r the n s ta te d th a t Co un se l di d n ot e xpla in the d e f e n s e o f d u r e s s to h im

, a n d o n ly to ld h im th a t h e w o u ld h a v e to e xp lain to th e ju r y that he was “ under f

ear for [his] life.” The Petit i o n er s aid t hat Counsel never told him t hat, to prove duress, he would have to pr ove that ther e we re no me ans for him to escape . Counsel said that he explained to the Petiti oner tha t the Petitioner h ad two possible defe nses that they would prese nt to the jury , one wa s duress and t h e o t h er was that he did not participate in the a ctual crime itself. Cou ns e l sa id that he didno t “ le c tur e ” the Pe tit io ner on the la w o f the du re ss, bu t r a the r h e tol d the Petitioner to tell the truth, and they would let the jury

decid e i f t h e l aw of

duress a pplied. Counsel said that he explained to the Petition er t h at t h i s was the de fense strateg y , and he and the Pe tit ion e r “ ne ve r h a d a ny dis a g re e me nt a

bo ut w hat w a s g oin g to be d on e at tr ial.” Un de r the se

c ircumsta nc e s, we c on c lud e that th e Pe tit ion e r h a s n ot p ro ve n th a t Co un se l’ s r e pr e se ntatio n f e ll below an obje ctive standa rd of r easona

bleness. F urther, he has n o t proven pr ejudice by showing ho w a dif fe re nc e in C ou ns e l’ s a ssi sta nc e wo uldha ve a ff e c te d th e ve rd ic t.

C. M ot ion to Suppr e ss

Th e Pe tit ion e r a sse rt s th a t Co un sel wa s in e ff e c tiv e be c a us e he faile d to fi le a mot ion to suppres s th e Pe ti ti o n e r ’ s s tate me n ts to p o li c e

. Wi thr e g ar d to th is is s u e , th e p o s t- c o n viction

c ou rt fo un d:

Wa s t r ial c ouns e l de fic ie nt when h e fail e d t o s e e k e xc lusi on o f [t he P etitioner ’s] stat em ents? Th e [Pet iti on e r] ga ve fo ur tape re c or de d s ta te me nts

conce rning the death of [the victim] . The fir st three stat em en t s wer e g iven in the

early morning hours of Aug ust 14, 1 9 9 8

. Be fore the first statement, Of fice r Warren r ead the [P etitioner] his Mi randa rig hts . . . . Bef ore the second a nd third statements [the Petit ioner] was aske d, and ac knowledg ed that he still remembe red his constit u t i o n al ri g hts. Office r Warre n ag ain re ad and e x plained to the− 17

−

[P etitioner] his constit utional rig hts before the fourth state ment and ag ain the [P etitioner] signed a

waiver

.

. . . .
[C ounsel] of W inchester , Tenne ssee, a dmitted to the bar in 1970,

re pr e se nte d th e [Pet iti on er] at t ri a l a ndha d c on sid e ra

ble tr ia l e xpe ri e nc e in homicide ca ses. [Couns el] testified his defense str ategy was to show that the c odefe ndant . . . had kill ed [ t h e victim ]. He furtherintended to show that [the codef en d an t] was much la

rg er tha n the [P etitioner] and had thre atene d and int im id a te d h im o n th e n ig h t [t h e v ic ti m] w a s k il le d a n d th a t a n y in v o lvement the [P etitioner] had in the events surr ounding the murder w as due to the dur ess place d

o n th e [P e ti ti o n e r ] b y

[t h e c o

- d e f

e n d a n t]

.
[C ounsel] believed the four statements, taken a s a whole, est ablished the [P etition e r ’ s ] d e f

e n s e , a n d th a t h e c o u ld n o t s u p p r e s s a n y o f th e s tate me n ts

. He

a lso be lie ve d th e [Pet iti on e r] w ou ld h a ve to t e sti fy to e sta bli sh thi s d e fe ns e a ndif the [P e t i t i o n e r ] t e s t i f

i e d

, h e w o u l d b e s u b

j e c t t o c r o s s

- e xa m i n a t i o n o n a ll h is
state me nts , w he the r s up pr e sse d o r n ot. Th us , h e fe lt the state me nts wo uldc ome out at trial, reg ardle ss. Bot h [C ounsel] and the [P etitioner testified the [ P e t i t i o n e r ] w a n t e d t o t e l l t h e j u r y h i s s t o r y.

[Cou ns e l] r e vie we d th e state me nts g ive n b y the [Pet iti on e r], spok e wi th witnesses and the [P etition er ] , and dete rmined a strateg y that was re asonable

, g iven the cir cumstance s. [C ounsel] develop ed a basic def ense strateg y

that he would show his client did not commit t he murde r, that he w ould not challeng e the
state me nts , a ndthat th e [Pet iti on e r] w ou ld e xpla in any dis crep anci e s in tho se statements. Such was a n informed a nd adequately prepa red de fens e an d cannot now be se cond g uessed.

We conclude that the evidenc e does not pre ponderate ag ainst the trial court’s finding s of fac t. Furthe r, we conclude that the Petitioner has not proven that Counsel’s repr esenta tion was ine ff e c tiv e . Co un se l te st if

ied th at his str a te g y , a

str a te g y that th e Pe tit ion e r a g re e d w ith , w a s to have the Petitioner testify and to tell t h e “tr

uth” and hope that the jury believed the Petitioner. Counsel did not file a motion to suppress the Petiti oner’ s statement for thr ee r easons: (1) he could not find a leg al basis fo r t h ei r suppression; (2) they would be admissible if the Petitioner
tes t i fi ed; and ( 3) they

wer e, on the whole , favor able to the Petitioner. The se ar e strate g ic and
ta c tic a l r e a so ns fo r C ou ns e l’s a c tio ns a ndwe wi ll n ot s e c on d g ue ss tho se re a so ns on app e a l. Ac c or din g ly , w e c on c lud e that th e Pe tit ion e r h a s n ot p ro ve n th a t Co un se l’ s r e pr e se ntatio n f e ll be low a n o bje c tiv e sta nd ardof re a so na ble ne ss o r that he wa s p re jud ic e d b y

Cou ns e l’ s a c tio ns

.− 18

− D. Jury Charge

Th e Pe tit ion e r n e xt co nte nd s th at Co un se l w a s in e ff e c tiv e by faili ng to r e qu e st a

du re ss jury instruction. The post-convic tion court found:

Wa s t r ial c ouns e l de fic ie nt in fai ling to r e que st

a j ur y c har ge on dur e ss?

. . . .
[C ounsel] did not reque st a j u ry ch arge on duress a nd none wa s g iven. [C ounsel] testi fied the [Petitione r] h ad alway s stated [the co-def endant] pushed [t he victim] i nto the lake a nd it was his strateg y to show that the [ P et i t ioner] simply di d no t pa

rtic ipate ; no t th a t he pa

rt ic ipate d in the a c tua l dr ow nin g be c a us e he wa s f or c ed to do so bythe c o- de fe nd a nt. Th is d e fe ns e re qu ir e s th a t a de fe nd a nt ex per ie nc e a

we ll- g ro un de d a

pp re he ns ion of

de a th o r s e ri ou s b od ily injury but be unable to withdra w in safe ty befor e he c o m m i t s t he illeg al ac t. [ The Petitioner] t estified to no alleg ed thre ats from [the co-defe n d an t ] ot her tha n verba l

o n e s

. R e g ar d l e s s , t h e d e f e n s e i s u n a v a i l ab l e t o o n e w h o “ i n t e n t i o n a l l y, kn ow ing ly , o r r e c kle ssl y

be c ome s in vo lve d in a

situatio n in wh ic h it

wa s p ro ba

ble that he would be subje cted to compulsion” when a ccor ding to the [Petitioner], he

re ma ine d o n the s cene andtie d th e vic tim ’s le g s a ft e r [the c o- de fe nd a nt]

announce d he wa s g oing to r ob and kill [ the victim]

. S ee, T.C.A. § 39-11-504(b)

. Whil e this court does not find that trial co u n s el’s per formanc e in this reg ard w as defic ient under the first p ro ng of the a naly sis, even if so, under the sec ond prong the re su lt o f the tr ia l w ou ld n ot i n a ll r e asona ble lik e lih oo d h a ve be e n d if fe re nt i f the cha rg e of dur ess had be en g iven.

Counsel testified that one of the two defe nses that he attempted to prove to t h e jurywas du re ss. Hi s st

rate g y wa s to ha ve the Pe tit ion e r t e st if y and all ow th e jud g e a ndthe jury to determine whether

the def ense of duress ap plied. After the Petitioner testified, Counsel det er m i n ed that the def

ense of duress did not apply , and he did not re quest such a c harg e fr om the jud g e . U nd e r the c ir c umstan ces , w e c on c lud e that Co un se l sh ou ld h a ve re qu e ste d a du re ss char g e. This was c lear ly one of his defen s es , an d it is wit hin the judge ’s purview to determine whether the eleme nts are pr esent suff iciently to instruct the jury

on duress. We ca nnot, however

, conclude that Counsel’s failure to reque st this i nstruction p re j u d iced the Petitioner. The el em en ts of duress we re not pre sent from the Petitioner’ s testimony , as wa s clea rly explained by the po st -con vi c tio n c ou rt . T he re fo re , th e tr ia l c ou rt wo uldno t ha ve ins truc te d th e jury on du re ss, even if Counsel had re quested such a jury ch ar ge. The Petitioner has not met his burde n of
pr ov ing that Co un se l’ s a c tio ns pr e jud ic e d h im. Th is i ssu e is w ith ou t me ri t.− 19

− III. Conclusi on

I n acc ordanc e with the for eg oing r easoning an d authorities, we a ffirm the post-c onviction court’s judg ment dismiss ing the Petitioner’s petition for post-convic tion relief.

___________________________________ ROBERT W. WEDEMEYER, J UDGE