IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 11, 2011

THOMAS J. TUCKER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Marshall County

No. 10CR14 Robert Crigler, Judge

No. M2010-01311-CCA-R3-PC - Filed May 19, 2011

A Marshall County jury found the Petitioner, Thomas J. Tucker, guilty of facilitation of

aggravated robbery and facilitation of aggravated burglary, and the trial court sentenced him

to an effective sentence of thirteen years in the Tennessee Department of Correction. The

Petitioner filed a petition for post-conviction relief, which the post-conviction court denied

after a hearing. On appeal, the Petitioner contends that the post-conviction court erred when

it dismissed his petition because he received the ineffective assistance of counsel. After a

thorough review of the record and applicable law, we affirm the post-conviction court’s

judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which DAVID H. WELLES

and JERRY L. SMITH, JJ., joined.

David J. Mckenzie, Lewisburg, Tennessee, for the Appellant, Thomas J. Tucker.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Chuck Crawford, District Attorney General; Weakley E. Barnard, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A. Trial

This case arises from the Petitioner’s participation in breaking into the victim’s home,

assaulting him, and taking his handgun. Based on this conduct, a Marshall County grand jury

indicted the Petitioner for especially aggravated robbery and especially aggravated burglary.
On direct appeal, this Court summarized the underlying facts of the case as follows:

At trial, the victim, Wesley Carroll, testified that he had lived at 134

Elm Avenue in Lewisburg for approximately 10 years. He described his

home as a small, one-room house with a partitioned bedroom and bathroom.

The home had a front porch with both a solid front door and a storm door.

Mr. Carroll explained that the solid door opened into the residence and that

the storm door opened toward the outside. He testified that he knew Mr.

Medley from attending high school with Mr. Medley’s older brothers and that

he had been acquainted with him for six or seven years. Mr. Carroll testified

that he had only met [the Petitioner] on two occasions.

Mr. Carroll testified that sometime in January or February of 2007, he

was browsing the internet on his home computer at approximately 3:00 or

4:00 a.m. He stated that he was having trouble sleeping and was “looking

through profiles” on the internet website, www.MySpace.com (“MySpace”).

He stated that Mr. Medley knocked on his door and appeared intoxicated. Mr.

Carroll explained that Mr. Medley stepped into his home with [the Petitioner],

whom he had not met until then. Mr. Medley asked if Mr. Carroll wanted to

either buy marijuana or trade prescription pills for marijuana. Mr. Carroll

responded that he did not want any marijuana, and he testified that he had not

used marijuana since November 11, 2006. Mr. Carrollstated that Mr. Medley

asked to use his computer to access his MySpace account but that Mr. Medley

was unable to operate the computer. Mr. Medley then asked Mr. Carroll to

log him into his account, and Mr. Carroll complied.

Mr. Carroll explained that MySpace is “a free public forum” on the

internet where an individual creates a “profile.” The profile allows an

individual to “post pictures . . . , write bulletins, try to keep in touch with old

friends,” and “post comments about [other] people.” He explained that a

password and electronic mailing address are required to access and maintain

a MySpace account.

Mr. Carroll testified that, while he was interacting with Mr. Medley

near his computer, he noticed that he had left his wallet lying on a table near

where [the Petitioner] was sitting. At one point, Mr. Carroll noticed that his

wallet had been taken from the table. He testified that he “kind of hurried

over to where [his] wallet was and where [the Petitioner] was sitting.” He

stated that [the Petitioner] had the wallet and was taking money from it. Mr.

Carroll asked [the Petitioner], “[D]o you mind getting your hand out of my

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wallet?” [The Petitioner] then rushed toward Mr. Carroll, struck him in the

jaw, and placed him in a “choke hold.”

Mr. Carroll testified that he repeatedly asked Mr. Medley to stop [the

Petitioner]. He said that Mr. Medley then walked behind him and that he

heard Mr. Medley and [the Petitioner] whispering behind his back. Mr.

Carroll testified that he overheard [the Petitioner] say, “I thought you told me

to,” and that Mr. Medley responded inaudibly. Mr. Carroll testified that [the

Petitioner] then said, “[T]his is how we are going to do this. I am going to

give you your money back, and don’t you swing on me when you get up. I am

going to get out of here. I am going to walk away.” Mr. Carroll stated that

[the Petitioner] then released him and threw his money on the floor. [The

Petitioner] left while Mr. Medley remained in the home. Mr. Carroll testified

that he then stared at Mr. Medley “with hate in [his] eyes” and that Mr.

Medley appeared “ill at [him] for the way [he] was looking at him.” Mr.

Medley then left.

Mr. Carroll testified that, about five minutes after the [two men] left

his home, he counted the money that [the Petitioner] had thrown on the floor

and noticed that he was missing approximately $80 from the $300 in his

wallet. After discovering that Mr. Medley had failed to log off his MySpace

account, Mr. Carroll decided to “get even” with Mr. Medley. Mr. Carroll

“wrote all kinds of vulgar, derogatory statements” alleging that Mr. Medley

was a homosexual. Mr. Carroll then changed the password for Mr. Medley’s

MySpace account so that he could no longer access his MySpace profile.

Mr. Carroll testified that, between 2:30 and 3:00 a.m. on March 19,

2007, he was at his home playing a video game and falling asleep when he

heard “[a] kick, a boom” at his door. Upon hearing another, louder kick, Mr.

Carroll awoke and stood up. Mr. Carroll testified that after hearing a third

kick, his door opened and that Mr. Medley came through the door. Mr.

Carroll stated that a man wearing a mask accompanied Mr. Medley. Mr.

Carroll testified that the second man later removed the mask, and he identified

him as [the Petitioner].

Mr. Carroll stated that Mr. Medley held a wooden stick, pried from

some furniture sitting on Mr. Carroll’s front porch. Mr. Medley hit him

across his ear and then “continually beat [Mr. Carroll] with the stick.” Mr.

Carroll then fell onto his coffee table, breaking it. Mr. Carroll testified that

he fell on his back and that [the Petitioner] held his feet as Mr. Medley

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jumped on him and “reared back” to punch him. Mr. Carroll explained that

Mr. Medley was “ranting” about what Mr. Carroll did to his MySpace profile.

Mr. Carroll testified that, after he “reared back,” Mr. Medley apparently

decided not to strike him again and let him stand.

At that point, Mr. Carroll ran toward his bedroom to find his portable

telephone. He testified that [the Petitioner] then pulled off his mask and said,

“Hold on. We don’t know what he has got in here. Let’s search this place.”

Mr. Carroll then “just froze” and observed [the Petitioner] remove a .25

caliber handgun from Mr. Carroll’s desk. Mr. Carroll testified that the pistol

once belonged to his grandfather and was very old. He did not know whether

the gun functioned. [The Petitioner] pulled back the slide of the pistol and

observed a bullet. Mr. Carroll explained that the bullet was a .22 caliber

rimfire bullet, although the pistol was a .25 caliber center-fire weapon. He

stated that [the Petitioner] asked, “You trying to kill us?” Mr. Carroll testified

that [the Petitioner] pulled out a pocket knife and said, “Let’s gut this MFer.”

Mr. Carroll testified that Mr. Tucker struck him with the gun and “jabb[ed]”

the knife in his direction several times, although Mr. Carroll stated that he did

not believe [the Petitioner] was attempting to stab him.

Mr. Carroll testified that he then hit the “page” button on the base unit

of his cordless telephone to determine the location of the telephone’s portable

receiver. He heard the receiver beeping in his bathroom, and he fought with

Mr. Medley to get to the telephone receiver. Mr. Carroll testified that Mr.

Medley attempted to take the receiver from his hands but that Mr. Carroll

managed to emulate dialing 9-1-1. He testified that the defendants left upon

observing him dialing the telephone and that, after they left, he called 9-1-1

to report the home invasion. He stated that [the Petitioner] took the pistol

with him when he left.

Mr. Carroll stated that law enforcement officers arrived at his home

within five minutes and that he informed the officers of the identity of his

assailants. The police then transported him to the hospital. Mr. Carroll

testified that he received three or four stitches on his face, eight or nine

stitches on his ear, and that his head was “busted.” He testified that he

suffered extreme pain for three weeks following the incident and that he had

periodic headaches for several months after the altercation. Mr. Carroll

displayed scarring from the incident.

On a later date, Mr. Carroll positively identified [Mr. Medley and the

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Petitioner]from photographic line-ups arranged by law enforcement officers.

Mr. Carroll testified that, during the altercation, he was in fear of bodily

injury. He also testified that he did not give either [man] consent to enter his

home or take his pistol on March 19, 2007. On cross-examination, he

testified that he had visited the hospital four or five times since the alteration.

Officer James Johnson of the Lewisburg Police Department testified

that he received a call on March 19, 2007, to investigate Mr. Carroll’s home.

He stated that he arrived at the scene within a minute of receiving the call

from his dispatching officer. Upon arriving at approximately 3:00 a.m., he

interviewed Mr. Carroll, who informed him that [the Petitioner] and Mr.

Medley entered his home “unwelcomed” and assaulted him. Officer Johnson

testified that he observed “obvious lacerations” on the victim and that he

arranged for him to be transported to Marshall County Medical Center’s

emergency room.

Officer Johnson testified that the front door of the home had been

forced open. He stated that the inside of the home looked as though a

struggle had occurred. He said that blood was located throughout the home

and that the furniture appeared damaged and misplaced. Officer Johnson

reported the incident to the on-call detective, Dac Burrow, and he requested

other officers to be on the lookout for [Mr. Medley and the Petitioner].

Detective Burrow of the Lewisburg Police Department testified that he

met with the victim, Mr. Carroll, at the police department and recorded a

statement from him. He stated that he visited the scene of the crime at

approximately 9:00 a.m. on March 19, 2007, and that he observed the victim’s

father repairing the front door. He collected from the scene a piece of wood,

allegedly used to strike Mr. Carroll, and the victim’s bloody tee shirt.

Detective Burrow created a six-photograph line-up for each defendant,

and Mr. Carroll positively identified both Mr. Medley and [the Petitioner] as

his assailants.

Detective Burrow interviewed Mr. Medley in the afternoon of March

19, 2007. He testified that Mr. Medley signed a waiver of his Miranda rights

and that he first denied any knowledge of the burglary at Mr. Carroll’s home.

Mr. Medley told Detective Burrow that he had been working with his mother

at the time of the crime. Detective Burrow then observed scratches on Mr.

Medley’sface and brought them to Mr. Medley’s attention. Detective Burrow

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testified that Mr. Medley then gave a statement that he transcribed. The

statement reflected that, at approximately 3:00 a.m. on March 19, 2007, Mr.

Medley went to Mr. Carroll’s house to speak with him about his changing Mr.

Medley’s MySpace account and password. Mr. Medley told Detective

Burrow that he knocked on the front door and that Mr. Carroll answered and

stepped onto the front porch. Mr. Medley’s statement represented that Mr.

Tucker stayed in the vehicle at this time. Mr. Medley maintained that he told

Mr. Carroll that he knew that he had altered his MySpace account.

We then began to argue and then we shoved each other

a couple of times and then [Mr. Carroll] swung at me and we

started fighting. As we were fighting I tackled [Mr. Carroll]

and we wound up inside his house and I was more trying to

hold [Mr. Carroll] down and asking him why he changed my

account. At one point I saw [Mr. Carroll] run toward [the

Petitioner] and [the Petitioner] got him in the head lock and

they were scuffling around. I never hit [Mr. Carroll] with

anything and I didn’t see [the Petitioner] hit [Mr. Carroll] with

anything nor did [Mr. Carroll] hit us with anything as far as I

know. At one point [Mr. Carroll] acted like he was rushing to

get something and I thought that he was trying to get a pistol.

At one point I saw [Mr. Carroll’s] ear bleeding and that’s when

I really tried to hold [Mr. Carroll] down and telling him to calm

down and asking him why did he do it. [Mr. Carroll] then got

to a phone and was calling someone and that’s when I said let’s

go. [The Petitioner] and I then got into my car . . . and I

dropped [Mr. Tucker] off at his friend[’]s house and I then

went home to Murfreesboro.

The statement reflected that Mr. Medley permitted Detective Burrow

to transcribe his account of the March 19, 2007 incident. Detective Burrow

testified that he spoke with [the Petitioner] on March 26, 2007, and that he

arrested him on that day for the pending charges.

Heath Brandon Morgan testified that he had known Mr. Medley for six

or seven years and that, although the two were once “kind of good friends,”

they had “went [their] separate ways.” Mr. Morgan testified that he had been

“good friends” with Mr. Carroll for approximately two years. Mr. Morgan

testified that sometime in January or February of 2007, he was at his home

with his friends Timothy Pringle and Josh Green. He stated that Mr. Medley

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was also present and that he “made a statement that he was going to F Mr.

Wesley Carroll up for getting []hold of his MySpace and changing that he was

gay or homosexual.”

Timothy Pringle also testified that he had known Mr. Medley for

“quite some time” and that he and Mr. Carroll were “good friends.” Mr.

Pringle testified that, while at Mr. Morgan’s home sometime in February of

2007 he overheard Mr. Medley speak about Mr. Carroll. Mr. Pringle said,

“[Mr. Medley] said that pretty much he would F [Mr. Carroll] up for messing

with his MySpace and calling him a homosexual or queer and he was pretty

ticked off and he said [Mr. Carroll] got him for a DUI and called the police.

. . . He was pretty upset.”

Jeremy Richardson testified that he was incarcerated at the Marshall

County Jail where he overheard a conversation between [the Petitioner] and

other inmates. He testified that somebody asked [the Petitioner] why he was

imprisoned and that [the Petitioner] responded that he had robbed Wesley

Carroll and had taken his .25 caliber pistol. Mr. Richardson testified that his

grandmother was a friend of Mr. Carroll’s grandmother, so he informed Mr.

Carroll of the conversation after being released on bond.

After the State rested, the defense called Doctor Tom Mitchell, Mr.

Carroll’s treating emergency room physician at Marshall County Medical

Center. Doctor Mitchell testified that Mr. Carroll suffered lacerations to his

left eyebrow, left ear, and the back of his head. Doctor Mitchell recalled that

Mr. Carroll indicated that he had been struck with a wooden stick. He

testified that the victim did not suffer any noticeable injury to his skull or

brain.

Doctor Mitchell testified that, upon arrival, Mr. Carroll testified that

he was suffering pain ranked as a “10” on a pain scale ranking from “0” as the

lowest to “10” as the highest. Doctor Mitchell noted that, after his initial

admittance to the hospital, Mr. Carroll ranked his pain as an “8.” By the time

the victim was discharged, and after his taking hydrocodone and local

anesthetic, he reported his pain as “0.” Doctor Mitchell testified that, based

on these circumstances, Mr. Carroll suffered mild to moderate pain.

Doctor Mitchell testified that Mr. Carroll suffered no substantial risk

of death or loss of function due to his injures. He testified that Mr. Carroll

possibly suffered some undetectable injuries to the brain that generally cause

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headaches; however, he noted that such headaches do not last more than two

weeks except severe injuries.

Brenda Cozart, Mr. Medley’s cousin, testified that she, her husband,

and her sister-in-law actively used MySpace and that she observed Mr.

Medley’s profile after Mr. Carroll altered it. She testified that she posted a

comment on Mr. Medley’s MySpace page criticizing his display of Disney’s

“Little Mermaid” in its background. She testified that Mr. Medley’s account,

under Mr. Carroll’s control, then posted a comment calling her a “B* * * *.”

She also testified that she observed the postings on Mr. Medley’s MySpace

profile demeaningly portraying him as a homosexual.

Mr. Medley, the defendant, testified that he had known Mr. Carroll for

approximately 11 years, had been to his house several times, and had smoked

marijuana with him. Regarding the January or February 2007 visit described

by Mr. Carroll, Mr. Medley explained that he and [the Petitioner] had been

drinking in Chapel Hill and “wanted to get high.” He admitted that he “had

a little buzz.” He testified that he knew that Mr. Carroll had marijuana and

that he went to his house to obtain some. He stated that they knocked on Mr.

Carroll’s front door and that Mr. Carroll let them into his home.

Mr. Medley testified that he spoke with Mr. Carroll about “smoking

pot” and that Mr. Carroll showed him and [the Petitioner] some marijuana

lying on a table. Mr. Medley testified that he requested Mr. Carroll to log him

onto his MySpace account and that [the Petitioner] “roll[ed] a blunt” during

this time. Mr. Medley stated that [the Petitioner] dropped the marijuana on

the floor and that “[Mr. Carroll] ran in there acting crazy because he thought

[the Petitioner] was trying to take some of his weed.” He explained that Mr.

Carroll had “[h]igh grade weed.”

He stated that [the Petitioner] then punched Mr. Carroll and placed him

in a “head lock.” Mr. Medley testified that he broke the two up and that he

told Mr. Carroll that he “was sorry for bringing something like that to his

house.” Mr. Medley stated that he instructed [the Petitioner] to go to his car.

He said that Mr. Carroll then asked him to leave and that he complied. He

was arrested for driving under the influence later that evening.

Mr. Medley testified that approximately three days later he discovered

that his MySpace profile had been altered and contacted the Marshall County

Sheriff’s Department. He testified that he was not a homosexual and that he

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took offense to the comments on his profile. He stated that he was very angry

over the situation and that, as time passed, he became more angered. Mr.

Medley estimated that between 25 and 30 people contacted him regarding the

changes to his MySpace profile.

Mr. Medley testified that, on March 19, 2007, he “got a little buzz[ed]

[and] wanted to go confront [Mr. Carroll] about [his] MySpace.” He testified

that he went to Mr. Carroll’s home, knocked on the door, and Mr. Carroll

came onto his front porch. Mr. Medley stated that Mr. Carroll denied

changing his MySpace profile, so Mr. Medley “got loud with him.” He

testified that Mr. Carroll pushed him and that he pushed back. He stated that

Mr. Carroll then retreated into his home, shutting the door on Mr. Medley.

Mr. Medley stated that he then kicked in the door, went into his home, and

“whipped his ass.”

He stated that, upon going into the home, the two men landed on, and

broke, the coffee table. During this fighting, Mr. Carroll grabbed Mr.

Medley’s foot, ripping off his shoe and sock. Mr. Medley stated that he was

on top of Mr. Carroll when he realized that Mr. Carroll was bleeding “pretty

bad.” He testified that he then got off of Mr. Carroll. During that time, [the

Petitioner] entered the home. Mr. Medley testified that Mr. Carroll rushed

toward [the Petitioner] but that [the Petitioner] restrained him. Mr. Medley

stated that, after [the Petitioner] released him, Mr. Carroll ran into his

bedroom to grab “something black.” He testified that he could not identify

the black object and feared it was a handgun, so he wrestled with Mr. Carroll

over the object. After realizing the black object was a telephone, he and [the

Petitioner] left the home. He testified that neither he nor [the Petitioner] took

anything from the home. He further maintained that he never used any

wooden weapon or knife to harm or threaten Mr. Carroll.

Mr. Medley testified that, later on March 19, 2007, he turned himself

in to the Lewisburg Police Department. He stated that he expected to be

arrested for “[a]ssault, trespassing[,] [m]aybe breaking and entering.” Mr.

Medley said that he was surprised when Detective Burrow informed him that

he was charged with especially aggravated robbery and especially aggravated

burglary. He maintained that this frightened him, which caused him to lie to

Detective Burrow about being at work with his mother. Mr. Medley stated

that he subsequently told the true story to Detective Burrow because he “knew

[he] was going to get in trouble about it anyway.” He said, “I committed the

crime. I mean, I assaulted [Mr. Carroll].”

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Mr. Medley stated that he gave a full account of the incident to

Detective Burrow and that Detective Burrow failed to include some of the

details in the written confession. He stated that he told Detective Burrow that

[the Petitioner] exited the car once he observed Mr. Medley and Mr. Carroll

fighting; however, this was not included in the statement.

Regarding the conversation with Mr. Morgan, Mr. Pringle, and Mr.

Green at Mr. Morgan’s home, Mr. Medley testified that the three men brought

up the subject of his altered MySpace profile. He stated that the men laughed

about the matter. Mr. Medley testified that this angered him and that he told

them, “I would whip his ass right now if he was right here.”

Mr. Medley testified that, in the early-morning hours of March 19,

2007, [the Petitioner] had no knowledge that Mr. Medley was going to break

the door of Mr. Carroll’s home and that [the Petitioner] did not help with the

assault. He said that [the Petitioner] only helped to break up the fight

between him and Mr. Carroll. He stated that he never saw [the Petitioner]

with either a gun or knife. He maintained that he and [the Petitioner] did not

plan to commit any crimes upon going to Mr. Carroll’s house. He

acknowledged that [the Petitioner] knew that Mr. Medley wanted to “whip

[Mr. Carroll’s] ass” but that he would not have hurt Mr. Carroll had he talked

with him “like a normal person.”

[The Petitioner] chose not to testify.

State v. Brandon Corey Medley and Thomas Jackson Turner, No. M2008-01286-CCA-R3-

CD, 2009 WL 1676051 (Tenn. Crim. App., at Nashville, June 16, 2009), perm. app. denied

(Tenn. Oct. 19, 2009). The jury convicted the Petitioner of facilitation of aggravated robbery

and facilitation of aggravated burglary, and the trial court sentenced him to ten years for the

facilitation of aggravated robbery conviction and thirteen years for the facilitation of

aggravated burglary conviction. The trial court ordered the sentences to be served

concurrently, for an effective sentence of thirteen years in the Tennessee Department of

Correction.

B. Post-Conviction Hearing

The Petitioner filed a petition for post-conviction relief claiming that he received the

ineffective assistance of counsel. The post-conviction court held an evidentiary hearing

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wherein the following evidence was introduced : The Petitioner testified that he was indicted

1

for especially aggravated robbery and especially aggravated burglary, but the jury convicted

him of facilitation of aggravated robbery and facilitation of aggravated burglary. The

Petitioner recalled that he was represented by the Public Defender’s Office during trial and

on direct appeal. When his direct appeal was denied, he was notified by the Public

Defender’s Office that they could no longer represent him and that he had sixty days to file

for permission to appeal the denial to the Tennessee Supreme Court. The Petitioner said that

he only dealt with one attorney, Counsel, from the Public Defender’s Office during this time.

The Petitioner testified that both he and his co-defendant asked their attorneys to

request a severance of their cases but that they were told that “it would be better for them to

work together, that it is in [the Petitioner’s] best interest to keep [the cases] together.” The

Petitioner said that he expressed his concern about trying the case with his co-defendant

because he knew his co-defendant was going to testify and admit some degree of guilt, which

the Petitioner thought would cast doubt upon his claim of innocence. Counsel told him it was

advantageous to try them together, so the Petitioner “went along” with Counsel’s advice.

The Petitioner agreed Counsel never threatened him about this decision but instead informed

him that the cases should be tried together.

Counsel testified that he was appointed to the case after the Petitioner’s preliminary

hearing. Counsel did not recall who represented the Petitioner at the preliminary hearing, but

he read a transcript of the preliminary hearing in preparation for the Petitioner’s trial.

Counsel first met with the Petitioner when he was appointed on the arraignment date. The

Petitioner entered a plea of not guilty and Counsel requested a continuance in order to

conduct an investigation. Counsel reviewed a copy of the indictments and researched the

felony classification of the charges. Counsel then communicated to the Petitioner the nature

of the offenses as well as the range of punishment for the offenses.

Counsel testified that he, the Petitioner, the Petitioner’s co-defendant, and Ms.

Thomas, the co-defendant’s attorney, met and talked about severance of the cases. Counsel

testified that the Petitioner and his co-defendant wanted the cases to be tried jointly because

the co-defendant was going to testify that the Petitioner had a very limited role in this

incident. There was also discussion that the Petitioner’s co-defendant might make a better

witness than the Petitioner at trial. Counsel said that it was the Petitioner who suggested the

In his petition for post-conviction relief, the Petitioner alleged several issues in which he asserted

1

Counsel was ineffective. On appeal, however, he maintains only one of these, that Counsel was ineffective

for failing to file a motion to sever. As such, we omit claims asserted within the petition for post-conviction

relief and testimony concerning allegations of ineffectiveness that the Petitioner does notmaintain on appeal.

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cases be tried together. Normally, Counsel did not prefer to try cases jointly, but after

meeting with both the Petitioner and his co-defendant, he “didn’t think it was going to be a

bad idea, because [the co-defendant] did seem to be more articulate than [the Petitioner], and

[the co-defendant] was going to get up there and take the brunt of the blame.” Counsel said

that he did not recall the Petitioner ever saying he was concerned about the cases being tried

together or wanting the cases to be severed. Counsel testified that he thought, in retrospect,

that trying the cases together benefited the Petitioner because the focus of the trial was on the

co-defendant rather than the Petitioner.

Counsel testified that he believed he had “adequate experience and knowledge of the

legal system” when he tried the Petitioner’s case. He said that he had tried at least thirty

cases at the time of the Petitioner’s trial and handled several hundred criminal defense cases.

On cross-examination, Counsel agreed that the Petitioner was convicted of lesser

charges than those with which he was indicted and that the Court of Criminal Appeals

affirmed those convictions.

Melissa Thomas testified that she represented the Petitioner’s co-defendant in this

case. Thomas recalled that her client had told her that he wanted the cases to be tried

together because “he felt sorry for [the Petitioner]” and felt the Petitioner was “much less

culpable.” Thomas said that her client wished to “help [the Petitioner] out any way he

could.” Thomas said that she and her client met with the Petitioner and Counsel and that they

all agreed that they would not seek a severance in this case.

Thomas believed that jointly trying the cases benefited the Petitioner. She said that

her client did “a good job of testifying,” which she believed resulted in both defendants

receiving lesser convictions. Had the cases been tried separately, she explained, the

Petitioner would not have benefited from his co-defendant testifying on his behalf, and the

Petitioner “would probably be looking at a greater sentence than what he had now.” Thomas

said she did not recall ever hearing the Petitioner express any concern about trying the cases

jointly.

Based upon this testimony, the post-conviction court denied post-conviction relief.

It is from this judgment that the Petitioner now appeals.

II. Analysis

In order to obtain post-conviction relief, a petitioner must show that his or her

conviction orsentence is void or voidable because of the abridgment of a constitutional right.

T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations

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in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-

110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and

weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless

we conclude that the evidence contained in the record preponderates against the judgment

entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,

this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the

credibility of witnesses, the weight and value to be given their testimony and the factual

issues raised by the evidence are to be resolved by the trial court judge, not the appellate

courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,

578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to

a purely de novo review by this Court, with no presumption of correctness. Fields v. State,

40 S.W.3d 450, 457 (Tenn. 2001).

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419

(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44

S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court

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should judge the attorney’s performance within the context of the case as a whole, taking into

account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the

questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be

highly deferential and “should indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.

Finally, we note that a defendant in a criminal case is not entitled to perfect representation,

only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of

counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally

compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,

466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective

merely because a different procedure or strategy might have produced a different result.

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a

particular strategy or tactic failed or hurt the defense does not, standing alone, establish

unreasonable representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d

363, 369 (Tenn. 1996)). However, deference to matters of strategy and tactical choices

applies only if the choices are informed ones based upon adequate preparation. House, 44

S.W.3d at 515.

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,

665 (Tenn. 1994).

In this case, the post-conviction court first recited the Petitioner’s co-defendant’s

statements to police, which limited the Petitioner’s role, and made the following findings:

So [the Petitioner], in effect, got the benefit of a favorable witness, that being

[the co-defendant], . . .[the co-defendant’s] testimony . . . tr[ies] to exonerate

[The Petitioner].

. . . .

[The co-defendant] took the brunt of the criminality in this case.

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[The Petitioner] got to do that without taking the witness stand. [The

Petitioner has a lengthy record that [his co-defendant] didn’t have.

Furthermore, I accredit [Counsel’s] testimony that they reasoned that [the codefendant] would be a more articulate witness than would [the Petitioner].

[ ] [The co-defendant’s] testimony on the witness stand, there was one leading

question where [the Petitioner] said he didn’t agree with, but, quite frankly,

from the totality of [the co-defendant’s] testimony, I find that [Counsel]

discussed this with him, the idea of trying them together or severing them.

The [Petitioner] felt like [Counsel] knew what was best and went along with

that, and I think [Counsel] knew what was best.

We conclude that the record supports the post-conviction court’s findings of fact.

Upon review of the record, we further conclude that the Petitioner has failed to establish by

clear and convincing evidence that Counsel was ineffective for failing to file a motion to

sever. The Petitioner asserts that he requested that Counsel file a motion to sever. Other

than this bare assertion he now makes on appeal, there is no proof in the record to support

this contention. The evidence shows that the Petitioner met with Counsel, his co-defendant,

and his co-defendant’s attorney, Ms. Thomas. The Petitioner’s co-defendant “felt sorry” for

the Petitioner and was willing to testify on the Petitioner’s behalf that the Petitioner’s role

was very limited in this incident. Counsel testified that the Petitioner’s co-defendant was

more articulate than the Petitioner and thus would make a better witness before the jury.

Everyone agreed at the end of the meeting that trying the cases jointly would be beneficial

for the two defendants. Both Counsel and Thomas testified that the Petitioner never

mentioned any concern about trying the cases jointly. Moreover, the co-defendant’s

testimony at trial considerably narrowed the Petitioner’s role in the robbery and burglary.

The co-defendant maintained throughout his testimony that the Petitioner did not know the

co-defendant was going to break into the victim’s house, did not help the co-defendant

assault the victim “in any way,” and did not use or display a weapon or take anything from

the victim’s house. The co-defendant testified that the Petitioner only entered the victim’s

house in an attempt to break up the fight between the co-defendant and the victim. The jury

ultimately found the Petitioner guilty of lesser included offenses of both counts.

Based upon this evidence, we conclude that Petitioner has failed to show by clear and

convincing evidence Counsel was ineffective for failing to file a motion to sever or that he

was prejudiced by this conduct. The Petitioner is not entitled to relief as to this issue.

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III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the

post-conviction court properly denied the Petitioner’s petition for post-conviction relief.

Accordingly, we affirm the judgment of the post-conviction court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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