### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec embe r 2, 200 8

ADAM BETTS v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 02-03911 Jame s C. Beasley, Jr., Judge

No. W2008-00302-C CA-R 3-PC - Filed Jun e 17, 2009

The pe titioner, Adam B etts, appea ls the Shelby County Criminal Court’s denial of hi s petition for post-conviction re lief. The petitioner was c onvicted of f irst deg ree murder a

nd is curre ntly

serving
a sente nce of

life imprisonment with the possibil ity of par ole. On appe al, he a rg ues that he w as denied his Six th Amendment rig ht to the effective a ssistance of c ounsel, specif ically arguing that tr ia l c ouns e l w a s in e ff

e c tiv e in: (1 ) f

a ili ngto i nv e sti g a te the c a se or hir e an inve sti g a tor , to f ile

cer tain pretria l motions , and to interviewwitnesses prior to trial; and (2) failing to liti g ate the motion
to s up pr e ss t

he pe tit ion e r’ s st a te me nt. Af te r r e vie w, the jud g me nt of th e post- c on vic tio n c ourt is aff irmed.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J. , de liv e re d th e op ini on of the c ou rt , in wh ic h J .C. M C L IN and C AM I LLE M C M ULLEN , JJ., joined.

Cha rl e s S. Mit c he ll, Me mph is, Te nn e sse e , f or the app e lla nt, Ad a m Be tts

.

Rob e rt E. Coo pe r, Jr
., At torne y G e ne ra l a ndRe po rt e r; Sop hia S. L e e , A ssi sta nt A tto rn e y G e ne ra l; William S. Gibbons, District Attorney Genera l; and Tere sa McCusker , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

Fa c tu al B ac kgr ound

Th e re le va

nt u nd e rl y ingfa c ts o f t

he c a se , a s e sta

bli sh e d o n d ir e c t a

pp e a l, a re a s f oll ow s:
On May 16, 2 001, the victim, Debra Walker, wa s at her mother ’s house on Hasting s Circle in Memphis. At around 9:30 that eve ning, the vi ct i m , her mother
, M ar l y nW al k er , an d

h e r s i s t e r , L ak es h a W al k er , we re i nt h e l i v i n g ro o m , t al k i n g. The tele phone ra

ng , and L akesha

answe red it. Ther e was a knock on the door, and the vic timop e ne d th e do or . A man, la te r ide nti fi e d a s the [pe tit ion e r], sh ot t he vic tim-2-

twice throug h the glass s torm door, then ra n off. The victim died from the g unshot wound she sustained.

L ie ute na nt T ra c y Gr os se t of

the Me mph is Po lic e De pa rtme nt r e c e ive d a

tip throug h Crime Stoppers that the [petiti oner] was the shooter and that he had admitted shootingth e v ic ti m. O nM ay 1 7
, 2 0 0 1
, L t. G r o s s e tt

lo c a te d th e [p e ti ti o n e r ], who

a g re e d t o tal k to the of

fi c e rs a t th e po lic e statio n. Th e [pe tit ion e r] w a ive d h is Miranda rig hts and g ave a statement to the police. I n his statement, he admitted that he knocke d on the door at 668 Hasting s Circle and shot the v i cti m twice whe n she opened the door.

. . . .

Severa l witnesses, including the victim’s mother, Mar ly n Walker, as we ll as the [petiti oner] and his mother, Sherr y Be tts, de scribed an incident that had oc curr ed in Aug ust o f 2 0 0 0

. A y o ung g irl named Ang el, who wa s a fr iend of the vic tim’s f a m i l y , g o t i n t o a f

i g h t w i t h t h e [p e t i t i o n e r ’ s ] c o u s i n , n a m e d E r i c a P e r k i n s

. As a result, sever al members of the [petiti oner’ s] family , including E rica , g ot into a truck and we nt to Hastings Circle
, wh ere the victim’s family lived. The g irls, who wer e

a pp ro xima te ly

te n o r e le ve n y e ars old , f ou g ht again , a

nd Er ic a “ wo n” the fi g ht. Acc ording to Ms. Walker , Erica and her g roup then lef

t. Howeve r, the [petitioner] and his mother testified that Ang el then r an i n s i d e the house a nd retrie ved a knif

e. The [petit ioner] te stified that Ang el lunge d at Erica with the knife, but hi s mother omitted this detail in her t es timony . They both testified that a lady , who had be en standing near

by , pulled a pistol out of he r purse and fired it into the air at least twice

. At that point, the [ petitioner’s] family left and r eturne d to their home.

Acc ording to Ms. Betts, later that evening , she saw a black va n g o by her house. She rec og nized the driver as the lady who had fired the shots in the air ea rlier that e ve nin g . Sh e a lso saw A ng e l in the ba c k s e a t. T he [pe tit ion e r] t e sti fi e d th a t it was only ten minutes after

they arr ived at their a

partment whe n h e sawwhat he descr ibed as a

“blac k Bla zer” g o by

their re sidence . He a lso saw the little gir l named Ang el in the vehicle . The [petitioner] approac hed the ve hicle and shots we re f ired out the passeng er w indow. The [petit ioner] e stimated that betwee n nine and twe lve shots were fired. O ne of the bullets gr azed the [petitioner’s] fa ce , and one of the bullets struck his mother in the che st.

Sta te v . A da m B e tts , No. W 2003-01910-CCA-R3-CD (Te nn. Crim. App., at J ackson, July 20, 2004). Both the pe titioner and his mother also g ave te stimony at trial re g ardinga continual pattern of h ar a s s m e n tt h a to c c u r

r e d d u r i n g t h e t e nm o n t h s a f

t e r t h i s i n c i d e n t

. A c c o r d i n g t o t h e i r t e s t i m o n y, differ ent vehicle s would drive by their hom e and the passenge rs would point and laugh. Accor ding to the petitioner, the drive r of the ve hicles wa s alway s the man that he ha d seen shoot his mo t her.-3-

They bot h testified that they

felt threa tened by this harassment and that the police we re c alled on multipl e occ asions. Id

. On the day p ri o r to the petitioner’s shooting of the victim, he a nd his mother wer e sitting

ou tsi de wh e n a

va n p ull e d u p at th e ir a pa rtme nt. Ac c or din g to t

he vic tim , th e man who ha d sho t hi s mot her a nd Angel was ins ide . T he man g ot o ut o f t he va n b ut l e ft wh e n th e pe tit ion e r t old his mother that this was the man who had shot he r. Police wer e called but, acc ording to the petitioner, did not respond. Id . The ne x t morning, Ms. Betts testified that a man, w hom she did not recog nize, dr ov e int o h e r d

ri ve wa y , p ull e d a

g un on he r, and thr e a te ne d h e r. She we nt ins ide the ho me and tol d the petitioner what had happe ned. Id

.

L ater that afte rnoon, t he petiti oner met severa l friends, including Cory Roberson, at a

local pool hall. Accor ding to the pe titioner, the g roup dra nk alcohol, smoked mar iju ana, a nd play ed dominos. W hen the pe titioner informed R o b erson that he “nee ded to do something about [the situati o n wi t h h i s m other] tonight,” Rober son ag ree d to let the petitioner borr ow his g un. L ater , Roberson drove the petitioner to Ha stings Circle w here , afte r donning a ski mask and a black hood, the pe tit ion e r a

pp ro a c he d the ho us e and sh ot the vic tim

. Ac c or din g to the pe tit io ner, he “r e a lly

wa sn ’t pla

nn ing to kil l he r. I wa s ju st try ingto s e nd

a me ssa g e to t

he se pe op le , y ou

kn ow , le a ve me and my family alone.” Id

.

B a se d u po n the se a c tio ns , the pe tit ion e r wa s indi c te d by a She lby County g ra nd jur y fo r f ir st degre e mur de r a

nd , f oll ow inga

jur y tr ia l, w a s f

ound g uil ty a s c ha rg e d. He wa s su

bs e qu e ntl y sentenc ed to serve a term of life imprisonment with the possibi lity of par ole. A pane l of this court aff irmed his conviction and se ntence on direc t appea l. Id

. The petiti oner the n filed a pr o s e petition for post-c onviction relief a lleg ing, a mong other issues, that he wa s denied his Six th Amendment rig ht to the effe ctive assistanc e of c ounsel. Following the appoi n t m ent of c ounsel, an amended petition w a s f

il e d
, a n d a h e ar in g w a s h e ld

a t w h ic h th e p e ti ti o n e r , h is mo th e r , an d tr ia l c o u n sel testified.

The pe titioner testified at t he hearing that trial counsel was hired to repr esent him beg inning

a t th e g e ne ra l se ssi on s le ve l. A c c or din g to t he pe tit ion e r, tr ia l c ouns e l c a me to the ja il o nly on e tim e pr ior to t ri a l in or de r t o in te rv ie w him. He fu rt he r te sti fi e d tha t tr ia l c ouns e l f a ile d to : pr ov ide him with discovery ; ask about po s s i b l e witnesses; interview his fa mily members; hire an investig ator; explain the elements of the c harg ed off ense; a nd argue the motion to suppress the petitioner’ s state me nt, wh ic h w a s th e on ly mot ion fi le d p re tr ia l by

c ouns e l.

The pe titioner stated that he ha d been drinking alcohol and smoking mar ijuana on the da y he g ave his statement t o police. Howeve r, he acknowle dg ed that he did not inform the police or trial counsel of this, stating that they did not ask. The petitioner a lso testified that he had dr opped out of school in the seventh g rade at age six teen a nd had re peate d the third g rade three times. He stated that trial counsel did not reque st any sort of m ental evaluation prior to trial. He a lso testified that trial counsel fa iled to prepa

re him to testify

and fa iled to inf

orm him that he had the r ight not to do so.-4-

The pe titioner stated that he be lieved his testimony prejudice d him at t rial and that he only testified based upon tria l counsel’s a dvice.

I n response to questioning by the pos t-conviction court, the petit ioner ag ain testified as to the fac ts of the ca se, spec ifically acknow ledg ing that he had shot the victim. Despite his asser tion that he only testified bec ause tria l counsel told h i m h e h ad no defe nse otherw ise, the petitioner

a c kn ow ledged th at he w ante d th e jur y to k no w that he wa s so rr

y and that th e re wa s a

jus tif ia ble

rea son for shooting the vi ctim. He then proce eded to testify that his statement had bee n coer ced by the police, testify

ing that the detec tives informed him that h e wo u l d get a plea if he talked. The petitioner testified that he later swa llowed ca rpet c leane r in an attempt to kil l h imself afte r the de te c tiv e s le ft

the ro om. Ac c or din g to t

he pe tit ion e r, up on

the de te c tiv e s’ re tur

n, the y inf or me d h im that they would not call par amedics unle ss he g ave a statement. The pet i t i o ner te stified that he informed tria l counsel of these events.

Th e ne xt wi tn ess to t e sti fy wa s th e pe tit ion e r’ s mo the r w ho state d th a t tr ia l c ouns e l di d nothing to pre pare her pr ior to her tria l testimony

. She acknow ledg ed testify ing at trial reg ardingthe situation between the families and the hara ssment the y endure d. Finally
, she testified that she w as

unawa re of the petitioner e ver r ece iv ing tr eatment in a me ntal health prog ram or se eking medical assistance for a

mental illness.

F ina lly , tr ia l c ouns e l te sti fi e d and c on tr a dic te d the pe tit ion e r’ s te sti mony in s e ve ra l r e g a rd s. Tr ia l c ouns e l te sti fi e d th a t f ro m th e be g inn ing of

his re pr e se ntatio n, he be lie ve d th a t th e be st d e fe ns e to pursue wa s one of state of mind in hopes of sec uring a convic tion for a lesse r included of fense

. He f elt it was imperative to g et the evide nce be fore the jury reg ardingt h e p ri o r ac tions of the victim’s family

and the ong oing “fe ud.” He stated that he f elt the best wa

y to ensure this wa s for the
pe tit ion e r t o te sti fy

and tha t, a ft e r s pe a kin g wi th the pe tit ion e r, he fe lt h e wo uld be a g oo d w itn e ss. Trial counse l acknowle dg ed that he ha d filed a moti on to suppress, which w as not argued. He stated this was a tac tical dec ision because he fe lt that allowing the statement t o be int roduce d to the jury supported the pe titioner’s testimony and ver sion of events. Moreove r, he denied that the pe titioner had eve r informe d him of the suicide attempt or c oerc ion by police in proc uring the statement.

Trial counse l testified that he we nt to the jail and met with the petitioner thre e or f our times prior to trial. He acknow ledg ed that he did not intervie w all the witnesses listed in the indictment but stated that he wa s basically awa re of what they

would say

from the discove ry

materia ls and the petitioner’s statements. He specific ally testified that he did not interviewCory Roberson base d upon what he r ead in the pe tit i o n er’ s statements. Mr. Roberson did not testify at trial. Howe ver, tria l counsel stated that Mr. Roberson, whom he believed would be a damag ing witness to th e case, probably would have testified at trial if the petitioner’s statement had been suppressed, as t he

s t a t e m e n tw a s t h e o n l y e v i d e n c e p l a c i n g t h e d e f e n d an t a t t h e s c e n e a

b s e n tM r

. R o b e r s o n ’ s t e s t i m o n y. C o u n s el s t at edt h at i twa s h i s n o rm al p o l i cy t o i n t er v i ew wi t n es s es wh o m ay b e t es t i fy i n g. Acc ording to trial counsel, he sa w no nee d for a

mental eva luat i o n an d was not advised of any potential problems. Fina lly
, trial counsel acknow ledg ed that he did not file any pretria l motions but stated that he w as g iven discover y by the State, as wa s their policy

.-5-

After hear ing the evidenc e pre sented, the post-c o n v i ct i o n court found that the petitioner failed to e stablish his claim of ineffe ctive assistance of counsel. The court enter ed an orde r deny ing relief . The pe titioner has now filed timely notice of a

ppeal with re g ard to that de nial.

Ana lys is

On appea l, the petitioner asser ts that the post-conviction court err ed in de ny ing his petition for post-c onviction relief. Spec ifically
, he conte nds that the court e rre d in finding that trial counsel was not ineff

ective ba sed upon: (1) his failure to investigate and hire an investigator, to file pretr ial motions, and to int ervie w witnesses; and ( 2) his failure to liti g ate the motion to suppress the petitioner’s stateme nt.

To succe ed on a c halleng e of ineffe ctive assist ance of counse l, the petitioner bea rs the burde n of establishing the alleg ations set forth in his petition by clea r and c onvincing evidenc e. T.C.A. § 40-30-110( f) (2006). The petiti oner must demonstrate that counsel’s re prese ntation fell below the
rang e of competenc e demande d of attorney s in c riminal case s. Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975). Under Strickland v. W ashington
, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the petitioner must e stablish ( 1) defic ient perf ormanc e and (2) prejudice resulti n g fr o m t he defi cie ncy . T he pe tit ion e r is no t e nti tle d to the be ne fi t of hin ds ig ht; may no t se c on d- g ue ss a

rea sonably based trial strateg y ; a nd cannot c riticize a sound, but unsucce ssful, tactica l decision made during the cour se of the pr o ceeding s. Ad k ins v . S tat e , 911 S.W .2d 334, 347 (Tenn. Crim. App. 1994). This defe renc e to the t actica l decisions of trial counsel is depende nt upon a showing that the decisions wer e made afte r ade quate pr epar ation. Coo pe r v . S tat e , 8 47 S.W. 2d

52 1, 52 8 ( Te nn . Cr im. App. 1992).

I t is unnecess ar y for a court to addr ess def iciency and pre judice in any

particula r orde r or even to addre ss both if the petit ioner makes an ins ufficie nt showing on either. Strickland , 4 66 U. S.

a t 69 7, 10 4 S. Ct. a t 20 69 . In o rd e r t o e sta bli shpr e jud ic e , th e pe tit ion e r mus t est a bli sha “ re a so na ble probability

that, but for counse l’s unprofe ssional error s, the resu lt o f the proc eedingwould have be en differ ent. A re aso n able probability is a probability

sufficie nt to undermine conf idence in the outcome.” State v. Burns
, 6 S

. W

. 3 d 4 5 3
, 4 6 3 (T en n

. 1 9 9 9 ) ( qu o t i n g Strickland , 466 U.S. at 694, 104 S. Ct . at 2068).

The issue s o f d e f

ic ie n t p e r f

o r ma n c e b y c o u n s e l an d p o s s ib le p r e ju d ic e to th e d e f

e n s e are mix ed questions of law and fact. Id. a t 46 1. “ [A] tr ia l c ourt ’s findings of fact underlying a

claim of ineffe ctive assistanc e of counsel are reviewe d on appea l under a de novo sta nd ard , a c c omp anie d w ith
a pre sumption t hat those finding s are corr ect unless the prepondera nce of the evidence is otherw ise.” Fi e lds v . S

tat e , 4 0 S. W.3 d 4 50 , 4 58 (T e nn . 2 00 1) (c iti ng Te nn . R. Ap p. P. 1 3( d) ; He nle yv . S tat e , 960 S.W .2d 572, 578 (Tenn. 1997) ). Howe ver, conclusions of law are revie wed unde r a de novo standard with no presumption that the post-conviction cour t’s finding s are corr ect. Id.

I. F ailure to Investigate , F ile P ret rial Motions, and I ntervie w Wi tnesses-6-

First, the pe titioner contends that trial counsel bre ache d his duty to the petitioner by

failing to i nv est igate and

hir e an inve sti g a tor , f

ile ba sic pr e tr ia l mo tio ns , a nd int e rv ie w w itn e sse s. S p ec ifically , the petitioner c ontends that trial counse l was ineff ective f or fa iling to file a

Rule 16 discovery motion, a motion for exculpatory evidenc e, or a Rule 12( b) motion. Accor ding to the petitioner, bec ause the discovery rule is only

trig g ere d by

the petitioner’s r equest, trial c ounsel’s decision to simply

rely upon the State to g ive him acc ess t o the file a nd to provide any

exculpatory evidenc e constituted def

icient per formanc e. More over, he assert s t h at a Rule 12(b) , a motion for intention to use evidence , would have forc ed the State to disclose what spec ific evide nce it intended
to u se again st the pe tit ion e r at tr ia l, w hic h w ou ld h a ve a ssi ste d in the de ve lop me nt o f a

de fe ns e strateg y

. The petitioner also points to trial counsel’s specific admissions that he failed to intervie w witnesses listed on indictment, as well as cer tain witnesses mentioned in the petitioner’s c onfession, namely Cory Roberson. F inally , he cha lleng es trial counse l’s decision to not hire an inve stigator,

asser ting that a n investigator co u ld

h a v e intervie wed f

riends and a ssociates re g ardingthe petitioner’s drug and alc ohol use prior to his g iving a statement to the police, c ould have r esea rche d rec ords
reg ardingthe petitioner’s a lleg ed suicide attempt prior to the confe ssion, a nd could have r eviewe d school and medic al re cords f or evide nce of

a mental de fec t.

I n denying r elief upon the se asse rtions, the post-conviction cour t found, in releva

nt pa rt, as fo llo ws :
[Trial counsel] testified he knew what the issues wer e. He knew a bout the statement
g iven by [t he petiti oner]. He knew about the hi story betwee n these two families, the feudingthat went on betwe en the two f amilies, and he ha d tal k ed with the mother,

and a pp are ntl y ha d ta lke d wi th the nie c e s, or wh oe ve r, wh a te ve r the ir te sti mony wa s, but y ou know, was the re a need to g o t al k t o the other pa rties involved, Cory Roberson, may

be I don’t know.

But it would appe ar to me that Cory Roberson could ve ry

easily have be en

c ha rg e d a s an a c c e sso ry

un de r t he fa c ts as I un de rs too d the m f ro m [th e pe tit ion e r’ s] state me nt, and

Ic ou ld s e e ho w he c ou ld b e a po te nti a lly

ba d w itn e ss f

or the de fe ns e if he we re pu t on

the wi tne ss s tand. S o wh e the r o r n ot f a ilure to t ry to t a lk t o h im amounts to ineffe ctive assistanc e of c ounsel, Iwould have to look and se e that.

Appar ently
, [t rial counsel] kne w what he need to know to put his c ase on, a nd Idon’t know a w hole lot of defe nse lawy ers that f rankly talk to police office rs bef

ore t r i a l

. I k n o w t h i s i s s u e c o m e s u p a l l t h e t i m e i np o s t

- c o n v i c t i o n s an d i t ’ s a l w a ys asked, but I

fra nkly don’t know a wh o l e l o t of police off icer s that would talk to a defe nse lawy er if the y

ask, but Ig uess y ou could make the inquiry

. . . . You know, I

- - [trial counsel] say s h e talked to [the petitioner] on several

o cc as i o n s

. [ T he petitioner] say s he only talked to him once. I

find that somewhat hard to be lieve. [Trial counsel] had full acc ess to ever y thing he neede d to know and ind ic a te d th a t he ta lke d to him on se ve ra l oc c a sio ns

.-7- . . . .

And then with re g ard to a mental evaluation, no mental evaluation, . . . there’ s something a

bout t h e i n t egrity

of what we do in this profession that filing frivolous motions j ust to file a frivolous motion to me is not good - - is not a g ood lawy er.
Now, it may

be the r ight thing to do under the A BAstandards and it may be the thing that we’r e r eq u i red to do now f or nothing else to protec t ourselves a s attorney s, but to file a motion to have a m an evaluated at a mental hea lth inst itute by

a p s yc h o l o g i s tw h e nt h e r e ’ s a b s o l u t e l y n o b a s i s f

o r i t , w h e nt h e r e ’ s n o th i s t o r y, there ’s no indication; there ’s no sig ns.

. . . . And so to say

that a lawy er is inef

fec tive beca

use he doe sn’t file a fr ivolous motion, I just - - I have a hard time a cce pting that. You know, I don’t - - the fa ct that [t he petiti o n e r ] h a s a

v e r y mi n im a l e d

u c ati o n I ’ ll b e h o n e s t w it

h y o u

. If

e lt [t he
pe tit ion e r] a

nd his te sti mony

up he re , y ou

kn ow , as ar

tic ulate and

a ble to communicate his thoug hts.

And, fra nkly , y ou know when I

- - I went over

the fa cts with him what, y ou know, ge n er al ly . Iknow not in gr eat de tail but ge nera lly . Ithought he explained him se lf , e xpla ine d w hy , e xpla in ed h is a c tio ns , a nd wh y he did wh a t he did understandingth at it was wrong , and it was a bad dec ision, but y ou know, he g ave a valid explanation for it.

. . . . [L ]eg a lly Ido no t se e - - I ’m no t con vin c e d th a t [tr ia l c ouns e l] wa s la c kin g in h is eff orts. I ’m not convince d that any further discussion w i th any

other potential witnesses would have chang ed, A, his the ory of the case , that being that this was not
a pre meditated ac t but that it was something less.

. . . .

Ican’ t see that ther e’s a

ny thing e lse that Ican a

nticipate, based on the proof I ’ve he ard, that [ trial counsel] co u l d have done differ ently , and a f ew thing s that

may be c ou ld h a ve be e n d on e a lit tle bit dif fe re ntl y Ido no t f e e l, b a se d u

po n th e fa c ts of the c a se , w ou ld h a ve c ha ng e d th e ve rd ic t.

. . . .-8- So I ’m cha

rg ed with deter

mining whe ther or not [trial c ounsel’s] actions were eff ective or not e ffe ctive did those actions impact or a ffe ct the outcome of the jury and the verdict, and in my opinion, they did not. I find that [trial counsel’s] actions

we re pr op e r a

nd e ff e c tiv e a s an atto rn e y

and that he ha d a the or

y of the c a se , in

my op ini on , a via ble the or y of the c a se that he su c c e ssf ull y g ot his the or

y of the c a se in front of the j ury that he made a determination that his client was a g ood witness, and he g ot all that in front of the jury , and it’s just was not succe ssful, but not for lack of eff ort.

We find nothing in the re cord w hich pre ponderates ag ainst the p o s t -conviction court’s finding s. Wi th reg ard to the alleg ed failure to f ile motions for discovery or exculpatory evidenc e, the petitioner ha s failed to put forth a ny evidenc e that he suf

fer ed pre judice as a

result. He ha s prese nted no proof that trial counsel wa s not give n all materia ls in discovery by the State or that he did not rece ive any

exculpatory

information. Whil e it mig ht ha ve been the better pr actice to file such a motion, trial counsel testified that ope n-file discovery was the policy , and the post-c onviction court found that trial counse l had ac cess to all he needed to pre pare for the c ase. Absent proof that trial counsel wa s not g iven full discovery
, the petitioner has fa iled to establish his entitl ement to re lief.

L ikewise, with r ega rd to the alleg ation that trial counsel f ailed to interview

the witnesses lis te d o n th e ind ic tme nt, a s f ound by the po st- c on vic tio n c ourt , th e pe tit ion e r ha s fa ile d to e sta bli sh prejudice as he ha s in no way shown that the interview

would have c hang ed the trial strateg y which was pursued. Trial counsel testified t hat he was basically awa re of what the witnesse s would testify
to. Withre g ard

to t ri a l c ouns e l’ s f

a ilure to i nte rview Cor

y Rob e rs on , th e pe tit ion e r h a s f a ile d to

car ry his burden by

his failure to pre sent Mr. Roberson at the post-conviction hear ing, so, as noted by the post-conviction cour

t, we are unable to a ssume what his te stimony might have be en. I t is the petitioner’s burden to pre sent such witnesses. See Bl ac k v . S tat e , 7 94 S.W. 2d

75 2, 75 7 ( Te nn . Cr im. App. 1990).

Finally , we a g ree with the post-conviction cour t that the petitioner has failed to e stablish that
tr ia l c ouns e l w a s in e ff

e c tiv e in f a ili ngto i nv e sti g a te or

hir e an inve sti g a tor . The c la ims he a sse rt s could have been investigated were the petitioner’s alleg ed mental defic iencies, his consumpti on of alcohol and dr

ug s on the day of his inter view, and the a lleg ed coe rcion of his stateme nt and suicide

a tte mp t

. T h e s e c l a i m s w e r e e i t h e r r e j e c t e d
, b a s e d

u p o nt h e p o s t

- c o n v i c t i o nc o u rt ’ s c r e d i bil ity deter mination of th e p et i tioner’s testimony , or not made know n to trial counsel. Tria l counsel
te s ti f ie d th a t h e w a s n o t a d v is e d o f n o r d id h e s e e an y s ig n s o f me n ta l p r o b le ms

. Moreove r, he testified that he wa s not awar e of a n y co er ci o n o r suicide attempt in relation to the petitioner’s statements. Additionally , the petitioner a cknowledg ed t h at h e d id not inform trial counsel or the police that he ha d inge sted drug s or alcohol on the day of hi s arr est. Trial counsel cannot be faulted fo r f a ilure to i nv e sti g a te wh a t th e pe tit ion e r ne ve r ma de him awa re of

. Th e pe tit ion e r b e ars so me responsibility

in communicating the fa cts of the c ase to trial c ounsel. Thus, afte r re view, we conclude that nothing pr eponder ates a g ainst the post-conviction cour t’s finding s.

II. M ot ion to Suppr e ss-9-

Next, the defe ndant contends that trial counsel wa s ineffe ctive for failing to pursue and a

rg ue the mot ion

to s up pr e ss t

he de fe nd ant’ s st a te me nt. He a sse rt s th a t

[ a] s s u m i n g arguendo that trial counsel c ould have s h o wn in a suppression hea ring the following : (1) that [the petitioner] had a six th gr ade e ducation; (2) that [ the petitioner] had been smoking m arijuana prior to his confe ssion; (3) that [t he petitioner] had been drinking alcohol prior to his confe ssion; (4) that [ the petitioner] drank c arpe t cleane r prior to his confe ssion; and that (5) homicide de tectives said that [t he petitioner] had to provide a statement bef

ore a id would be re ndere d, [appellate] counsel strong ly

believes that [ the petitioner’s] confe ssion would have been
sup p re s s ed b y

the trial cour

t. Conti nuing this line of r easoning , it is l ikely that without [ the petitioner’s] statement, the State of T ennesse e would not have suf ficient evidenc e to sustain a convic tion ag ainst [t he petitioner].

I n d e nyingre lie f o n th is c on te nti on , th e po st- c on vic tio n c ourt fo un d:

As far as the statement’s c oncer ned, fr ankly , Idon’t see a whole lot in here that’ s - - you

kn ow , I have n’ t he ard a bas is to fi nd tha t th e re wo uld

be - - thi s statement would have been suppr essed if t h es e issues had [ ]gone f orwa rd. To be honest with y ou, Idon’t know that there is a valid basis for it now.

Th is ne w thin g that [ the pe tit ion e r] h a s th ro wn in h e re a bo ut d ri nk ingso me kin d of p ois on

and no t be ingtake n to the ho sp ita l un til he fi nis he d g ivi nghis confe ssion, y ou know, t hat’s nowhere to be found in any thing I see, and I just - - I- - Ifind it r eally almost be y ond my compre hension that if [trial counsel] were told that his client drank some poison and w hile he’s in the police depar tment interview room and the police called the para medics from the M ED and ref used t o let them come a

nd
treat the man and take n him to the M ED unt il he finished g iving a confe ssion, that’s

re al l y hard f or me to imag ine that that wouldn’t show up somewhe re in some kind of docume nt, somewhere , A, in the file, B , in [ trial counsel’ s] m otion to suppress.

Knowing [t rial counsel] the way I know hi m that would have been in there,

and I e ve n loo ke d thr ou g h the tr ia l [tr ans c ri pt], and the re ’s no thi ng- - no me nti on in the trial. I n the statement fr om the office r who t o o k the statement, ther e’s nothing about that, nothing from [t he petitioner]. The re’ s nothing a ny wher e about that, a

nd so Idon’t know if ther e’s a ny thing in the state ’s fil e about that, but there ’s nothing
any wher e other

than what I ’ve he ard toda y

.

And so I don’t have any basis for be lieving that that frankly is true. I just - - there ’s nothing in f

ront of me that g ives me ca use to believe that that’s true.

. . . .-10- Idid no t se e any

thi ngin t he tr ia l tr ans c ri pt that c on ne c te d [th e pe tit ion e r] t o this, a t le a s t my p e r

u s a l, o th e r th an h is s tate me n t. T h e w it n e s s e s w h o wer e ther e when Ms. Walker wer e shot w ere not a ble to make an ide ntification. They wer e not able to g ive any

- - didn’t look to me l ike any descr iptions. . . . S o Iwould think that this statement obviously

was ve ry damning in and of itself.

Bu t , aga i n , Idon’t know that there ’s a leg al basis for ha ving it suppre ssed. At least, I haven’ t hear d any thing a s to how or why

it would have bee n suppressed, and so the fa ct that nothing w as done on it other than [t rial counsel] ma de a de cision that even if

he had the ability

to ge t it suppressed, he chose not to do so beca use he fe lt i t w a s th e be st o pp or

tun ity to pu t a g a in his the or

y of the c a se by

sh ow ingov e ra ll beca use [the petitioner] appare ntly has laid out the history

of this relationship in that
state me nt a

nd fe lt that it wo uld

g o b e tte r f

or the jur y to h e ar t hat th an n ot t o h e ar i t, to hear the def ense’ s version of why

this happened tha

n not to hear it.

. . . .

But I don’t see a

ny thing that I ’ve he ard that would give me re ason to believe that th e state me nt s ho uld

have be e n s up pr e sse d o r w ou ld h a ve be e n s up pr e sse d. So I ’m no t w ill ing

to s ay tha t hi s f a ilure to g o f

or wa rd wi th t hat mo ti on to s up pr e ss impacted or

aff ecte d the outcome of

the ca se.
The pe titioner argues t hat trial counse l perfor med def iciently by failing to pursue an

e vid e nti ary

he ari ngon

a mot ion to s up pr e ss h is s ta te me nt. I n o rd e r to be ent it led to re lie f o n th is

a sse rt ion , th e pe tit ion e r mus t sh ow by c le ar and c on vin c ing e vid e nc e that (1 ) a mot ion to s up pr e ss would have be en g rante d and (2) there was a rea sonable probability that the proceeding s would have conclude d differ ently

if counsel ha d perf

ormed a s sugg ested. Vaughn v. State, 202 S.W .3d 106, 120 (T en n

. 2 0 0 6 ) ( ci t i n g Stric kl a n d, 466 U.S. at 687, 104 S. Ct . at 2064-65). T he petitioner ha s failed
to e sta bli sh e ith e r of the se fa c tor s. I nd e e d, the po st- c on vic tio n c ourt ’s fi nd ing s are c le ar that a mot ion to s up pr e ss woul d n ot h a ve pr e va ile d, and we fi nd no thi ngin t

he re c or d to pr e po nd e rate ag ainst that finding. Trial counsel cannot be considere d ineffe ctive for failing to make or pur sue a motion that would have bee n meritless.

I n his a rg ument, the petitioner asks us to assume “ arguendo ” that he be lie ve s the mot ion to suppress would have been g rante d if ce rtain fa cts had be en esta blished. Howeve r, i t is not the province of this c ourt to a ssume “fa cts.” The only evidenc e of the fac ts presente d by the petitioner upon which he w ishes this court t o b as e this determination was the te stimony of the pe titioner. No ta bly , th e po st- c on vic tio n c ourt sp e c if ic a lly fo un d th a t th e pe tit ion e r’ s te sti mony , w ithre g a rd to his alleg ed suicide attempt and the detec tives’ subsequen t b eh av ior, was not cr edible. I ssues of wi tne sse s’ c re dib ili ty and the we ig ht to be g ive n the ir te sti mony are to b e re so lve d b y the tr ie r o f f

a c t. See H enley , 9 60 S.W. 2d

a t 57 9. I t is no t th e pr ov inc e of thi s c ourt to r e we ig h s uc h d e te rm inatio ns

.-11-

Moreove r, as a

n additional g round for denial of relief , the petitioner ha s failed to show that the evidenc e adduc ed at the post-c onviction hear ing pr eponder ates a g ainst the court’ s finding that trial counsel’ s failure to pursue the motion to suppress was pa rt of a r eason ab l e, informe d trial strateg y based on a dequate prepa

ration. See T. C.A . § 40 -3 0- 10 3; W illiams v . S

tat e , 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980). Trial c ounsel specif ically testified that it was a m at t er of trial strateg y to allow the s t at em en t i n to evidence as it bolstered the the ory of def ense in the c ase by allowing the petitioner to g et bef ore the jury

his state of mind at the time of the c rime base d upon the pre vious shooting of himself a nd his mother, as well as the repe ated hara ssment by members of the victim’s family . Havingpre viously conclude d that trial counsel a dequate ly investigated and
prepa red pr ior to trial, we may not call into question matters of trial strateg y in hindsight. See He lla rd v . S tat e , 629 S.W .2d 4, 9 (Tenn. 1982) . Thus, the petitioner is not entitled to relief.

CO NC LU SION

Ba sed upon the for eg oing, the denial of post-c onviction relief is a ffirme d.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE