### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 12, 200 6

AN TON IUS H AR RIS v. STA TE OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Gibson Coun ty No. H6962 Jam es L. Weather ford, Ju dge

No. W2006-00175-C CA-R 3-P C - F iled Janu ary 4, 2007

Petitione r, Ant onius Harris, appea ls the dismis sal of his petition for post-convic tion relief whic h alleg edth a t h is tria l c o u n s e l r e n d e r e d in e f f e c ti v e a s s is tan c e o f

c o u n s e l. Sp e c if

ic a ll y , Pe ti tione r c on te nd s th a t tria l c ou ns e l’ s a ssi sta nc e wa s in e ff e c tiv e fo r f

a ilu re to c a ll c e rt a in w itn ess e s a t tria l. Petitioner also contends that the tria l court erred in failing to instruct the j ury on self-de fense as an aff irmative def

ense a nd in imposi ng consec utive sentenc ing. After a thoroug h revie w of the r ecor d,
we co n clude that Petitioner ha s failed to show a ny defic iencies in his counse l’s assistance or prejudice for f

ailing to c all Petitioner’s sug g est ed wi t n es s es. Petitioner’s cha lleng es to the trial court’s jury instructions a nd the imposit ion of consec utive sentenc ing wer e raised i n Petitioner’s direc t appea l and thus have be en previously determined. Acc ording ly , we a ffirm the judg ment of the po st- c on vic tio n c ou rt

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

T H O M A S T. W O O D A LL , J ., delivere d the opinion of the court, in which D AVI D H. W ELLES and J ERRY L. S MI TH , J J ., joined.

Ha ro ld R . G un n, Hu mbo ldt , T e nn e sse e , f or the app e lla nt, An ton ius Ha rris.
Paul G. Summers, Attorney Gene ral a nd Reporter ; C. Daniel L ins , A s s is ta n t Attorney

Gene ral; Ga

rry G. B ro wn , D ist

ri c t A tto rn e y Ge ne ra l; a nd El a ine Gw inn To dd , As sis ta nt D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, the State of Tenne ssee.
OP IN ION

I. Bac kgr ound Following a jury

trial, Petitioner was c onvicted of two c o u n t s of espe cially ag g ravated kidnapping , one count of attempted second de g ree murder, two c ounts of ag g ravated assault, and one count of fe lony

rec kless endang erme nt. The trial court sentenc ed Petitioner to twe nty y ear s for e ach of his espec ially

ag g ravated kidnapping convictions, eig ht y ear s for his attempted se cond deg ree-2-

mur de r c on vic tio n, thr e e y e ars fo r e a c h a g g ra vate d a ssa ult c on vic tio n, a nde ig hte e n mo nth s f or his felony rec kless endang erme nt conviction. The trial court ordere d Def endant to ser ve his sentenc es in count one, espe cially

ag g ravated kidnapping , count three , attempted sec ond deg ree murder, a nd count five, a g g ravated assault, conse cutively , and all other sentences concurr ently to count one, for an ef fec tive sentenc e of thirty -one y ear s. The fa cts surrounding Petitioner’s c onvictions were
su mma ri zedby thi s Co urt in the dir e c t app e a l a s f oll ow s:

An g e la B arn e tt, her bo y fri e ndDe rric k H arris, a frie ndDa

rn e ll T ho ma s, he r e ig hty ear -old daug hter Essenc e Ha rris, and he r four -y ear -old son I saiah Har ris lived in a mobile home park in Humboldt, Tenne ssee. Ang ela Bar n et t t est ified that she wa s ho me a lon e with h e r s on on Janu ary 7, 20 00 , w he n th e de fe nd a nt, Es se nc e Ha rris' fathe r, ar rived at appro x i m at el y10:00 a.m. with presents for their daug hter. The prese nts were i n W al -M ar t sacks. B arne tt and Thomas testified they later f ound a
re ce i p ti n t h e W al -M ar ts ac k s fo r r o p e an d d u ct t ap e p u rc h as ed at 9 : 3 2 t h at m o rn i n g.

Ba rnett stated the de fenda nt went out to his car and later returne d. She said that afte r a fe w sec onds, defe ndant' s wife, co-de fenda nt Claudia Har ris, who was waiting in the
car , also ca me inside. Ba rnett t es t i fi ed the defenda nt then pulled out a re volver. Ac c or din g to B arn e tt, the de fe nd a nt i nd ic a te d s ome on e ha d s tol e n $ 48 ,0 00 fr om h im, and that he he ar d Derrick Ha rris wa s involved in the theft. B arne tt stated the defe ndant questioned he r about Mar k C u nningham, an alleg ed ac quaintance of Ba rnett and D errick Har

ris, whom the def

endant be lieved wa s also involved i n the alleg ed thef

t. Ba rnett said the defe ndant asked about Der rick Ha rris, and she replied he wa s in Trenton. B arne tt testified she complied with the de fenda nt's c ommand that sh e pa g e De rric k H arris, bu t th a t he didno t r e turn th e ph on e c a ll.

Acc ording to Ba

rnett, the de fenda nt instructed her to chang e clothes be cause she wa s “fixing to take [him] to Trenton.” B arne tt stated the defe ndant asked her if she knew someone who c ould w atch her son; w hen she replied that she did not, he and the c ode fe nd a nt d e c ide d th e y

wo uldtake the c hil d to the de fe nd a nt' s moth e r. B arn e tt s a id the de fe nd a nt f

oll ow e d h e r o uts ide . Co -d e fe nd a nt Claud ia Ha rris c arrie d th e c hil d and put him in the back se at of the c ar nex t to the defendant, who was seated behind Ba rnett. Barne tt testified s he could not see if the def endant wa s still holding the g un, bu t sh e he ardhe r s on a sk

the de fe nd a nt, “ Wha t is that?” De rric k H arris a ndDa rn e ll Thomas t es ti f

ie d th e y r e tu r n e d h o me w ith E s s e n c e H arr is a t a b o u t 1 0 :0 0 a

. m. and f o u n d t h e h o u s e e m p t y.

Ba rnett stated they

drove to the home of the de fenda nt's mother in Trenton, whe re the co-de fenda nt took the child inside while the defe ndant and Ba rnett rema ined in the
car . Ba rnett said the de fenda nt stil l had the g un draw n and kept sa y ing he had to find the stolen money . Ba

rnett t estified that af

ter the c o-def

endant r eturne d to the car , the y dr ov e aro un d T re nto n lo oking fo r De rric k Harris, bu t we re un able to f indhim

. B arn e tt state d the c o- de fe nd a nt tol d he r the y wo uld no t hu rt he r if sh e wou ld he lp-3-

them. They

then re turned to B arne tt's home in Humboldt, where the y found De rrick Ha rris.
Ang ela B arne tt said the co-de fenda nt stated, “Well, we' re just gonna have to pull up there and do this” when Ba rnett advised them that Essence Har ris was al s o i n t he house. Ba rnett testified she approa ched the house with the defe ndant walking behind h erh o l d i n g t h e gu n ; s h e s ai d h e t h re at en ed h eri f s h e t ri ed an y t h i n g.

Derrick Harr is a n d A n g e la B ar n e tt te s ti f ie d D e rric k

H arr is o p e n e d th e d o o r

a f te r Ba rnett knocke d; they

said Ba rnett immediately g rabbe d her daug hter a nd ran to he r daug hter' s room. Essence Har ris testified she was standing near Der rick Har ris as he opened the door, and the defe ndant, who had a gu n, g rabbe d Der rick Ha rris and pu sh e d h im a g ain st the wa ll. De rric k H arris s ta te d th e de fe nd a nt f oll ow e d B arn e tt into the hous e an d spray ed him with mace. A ng ela B arne tt said the defe ndant g rabbe d Der

rick Ha rris and she hear d them scuff ling. Da rnell Thomas testified he was in his room and he ard tussling afte r De rrick H arris answer ed the door

.
Acc ording to D errick Har ris, he fell into the bathroom and tried to shut the door, but the de fe nd a nt s tuc k the g un ba rr e l into the do or to pr e ve nt it fr om cl os ing . D arn e ll Th oma s te sti fi e d h e loo ke d o ut o f h is r oo m a nd sa w the de fe nd a nt t rying to f or c e his way into the bathroom by

bang ing the door with his shoulder while “a iming his g un around.” Thomas stated he retre ated into his room and jumped out of the window. Der rick Ha rris said he opened the bathroom door beca use t he defenda nt threate ned to shoot every

body and wa s “wa ving the g un around.”

Der rick Ha rris testified the de fenda nt then g rabbe d him by the nec k, pointed the g un to h i s head, a nd threw him ag ainst the wall. Essenc e Ha rris also testified she observe d the def

endant g rab D errick Har

ris and push him ag ainst the wall. De rrick Ha rris stat ed th e de fe nd a nt q ue sti on e d h im a bo ut M ark

Cun nin g ha m a ndsa id Cunningha m had taken $50,000 r elating to drug s. He said the de fenda nt threate ned him if he did not take the defe ndant t o Cunningha m. Der rick Ha rris further testified the co- def

en d ant t hreatened they

would shoot every one in the house unle ss he
c omp lie d, a nd the y “ we re n' t g on na le a ve no wi tne sse s. ” He state d he i ni ti ally
re sis te d the ir e ff

orts to take him ou t of the ho us e , bu t he a g re e d to g o o uts ide be c a us e he fe are d for the sa fety

of B arne tt and her dau gh t er if the defe ndant wer e to shoot him in the house. Ba

rnett and Essence Har

ris stated the de fenda nt escorte d Der rick Ha rris o uts ide a t g un po int

.
Darnell Thomas testified he w ent to the nea rby home of Willi am Gaine s to seek help. Gaines te stified he we nt to assist De rrick Har ris and saw the def

endant wa lk down the steps behind Der

rick Har ris with his arm around D errick Har ris' neck and a g un po int e d to h is h e a d. De rric k H arris s a id the de fe nd a nt andc o- de fe nd a nt atte mpt e d to-4-

forc e him into their car , and he resisted their e fforts. Darne ll Thomas testified he saw the def endant with a r evolver

try ing to f

orce Der rick Ha rris into the ca

r.
Ga ine s te sti fi e d h e wa s sp e akin g wi th the c o- de fe nd a nt, tw o f e e t a way fr om he r, in an ef fort to assess the situation whe n the def endant told Gaine s to keep his hands off of her ; Gaines said he rema ined wher e he w as. Der rick Ha rris stated he told Gaines to gr ab her an d “b re ak h er ne ck,” but be fore Gaines c ould move towards he r, the de fe n d a n t p o i n t e d t h e g u n a t G a i n e s a n d t o l d G a i n e s t o s t e p b a c k

. D e rr ic k H a rr is
sa id G a ine s c omp lie d. Ga ine s c on fi rm e d he ma de no e ff ort to g ra b th e c o- de fe nd a nt.

Ba rnett said she took her gun, a nine m illim eter , from her bedroom; went to the door; said, “L et him g o;” fired her gun once; and shot the defendant. Gaines stated the shot struck the de fenda nt in the back. The n, acc ording to the wi t n es ses, the def endant turned a nd pointed his gun at Ba rnett, who quickly ducked inside the house. Essenc e Har ris testified she was standing near her mother when her mother s h o t the de fe nd a nt.

De rric k H arris a ndWil li am G a ine s st a te d th e c o- de fe nd a nt r a n a way a ft e r B arn e tt shot the defe ndant. Der

rick Ha rr i s s ai d the def

endant shot him as he trie d to run. Essence Har

ris, An gel a Barnett, and D arne ll Thomas also testified they saw the de fe nd a nt s ho ot D e rric k H arris.

Willi a m G a ine s te sti fi e d th e de fe nd a nt fi re d fou r sho ts at him , an d one of the sh ots passed throug h t h e swe ater he wa s wea

ring . Der rick Ha rris testified he hear d the defe ndant fire the four shots at G aines. Ba rnett and Thomas also stated they saw the defe ndant firing shots toward Ga ines befor e g etting in his ca r.

Detec tive Dennis Wright of the Humboldt Police Depa rtment testified the de fenda nt
was a pprehe nded t wo months later in California; the de fenda nt's mother had previously

told Detective Wrig ht the defe ndant was de ad.

S ta t e v
. A n t o n i u s H

a r r is , No. W2001-02617-CCA-R3-CD, 2002 WL 31654814, at *1-3 (T enn. Crim. App., at J ackson, N ov. 7, 2002), perm. to appeal de nied (Tenn. Ma

r. 17, 2003).
On appe al, Petitioner’s conviction of t he agg ravated assault of Derrick Harris was mer g ed wi th h is c on vic tio n o f atte mpt ed seco nd de g re e mur de r u nd e r d ou ble je op ard y princ ipl e s. Petitioner’s convictions wer e other wise af fi rm ed, including the trial court’s finding that the proof did not establish that Petit ioner wa s entitled to a self-de fense instruction to the jury and the i m p o s i t i o n o f c o n s ec u t i v e s en t en ci n g.-5-

II. P os t- Co nvi c ti on H e ar ing

Def endant’ s counsel has pr actice d law since 1984, with a si g nificant portion of his pra ctice devoted to criminal case s. Counsel testified t hat he filed a motion for discovery and then a motion to compel discovery , which wa s g rante d b y t he trial c ourt. Counsel acknow ledg ed that Petitioner had re quested that he obtain the prior c riminal and medica l rec ords of the vic tims, and he did not
rec eive any information from the State conce rning these reque sts. Counsel stated, howeve r, that as of the da y

of trial, he be lieved t hat he ha d all of the discove ry materia l, and no evidenc e wa s admitted at trial that counse l had not seen a nd revie wed.

Counsel stated that he did not have a per sonal rec ollection of re questing a re duction in bond
or a c hang e of ve nue. Counsel said that the a m o u n t of Petitioner’s bond re flec ted his flight f rom Tenne ssee a fter the commissions of the offense s, and the fa ct that bef ore Petitioner’ s appre hension in California, a le tter wa s s ent t o the investig ating office rs stating that Petitioner was dec ease d. Counsel said that Petiti oner’ s trial occur red approxim ately

eig hteen months afte r the off enses, a nd he didno t be lie ve that pr e -t ri a l pu bli c ity wa s a n iss ue

. Th e pr os pe c tiv e jur or s we re po lle d a s to the ir fa mil iari ty

wi th the fa c ts s ur

ro un din g the c a se . O ne jur or ind ic a te d th a t sh e ha d h e ard so me pu bli c ity about the ca se, and she was e x cused. None of the other jurors indicate d any familiarity

with the case

. Cou n s el s aid t hat Petitioner told him prior to trial that he believed that Derrick Har ris had abus e d h is d a u g h te r , E s s e n c e H arr is , p r io r to th e o f f e n s e s

. Pe ti ti o n e r

d is c o v e r e d th is in formation wh ile his daug hte r w a s v isi tin g w ith Pe tit ion e r i n A ri zon a . Pe tit ion e r a sk e d c ou ns e l to c a ll a p h y s i ci an an d a s o ci al wo rk erfr o mAr i z o n a t o t es t i fyt o t h at fa ct

. P et i t i o n erwa s t ri ed o n t h e c h ar ge of the fir st deg ree preme ditated attempted murder of Mr. Har ris, howeve r, and counsel be lieved that the information conc erning the alleg ed abuse would have pr ovided both a mot ive for the shooting of Mr. Ha rris and support for a f

inding of preme ditation.

C o u n s el s t at ed t h at h e be l i ev ed t h at t h e ev i d en ce i n tro d u ce d at tri al s u p p o rt ed a j u rych ar ge on self-de fense based on the fac t that Ang ela B arne tt f ired the first shot, wounding Petitioner, a nd Petitioner responde d by

firing his own wea

pon. Counsel said he appe aled, without succ ess, the trial court’s f ailure to provide such an i n struction. Counsel said that he appe aled the trial court’s imposit ion of consec utive sentenc ing, but wa s also unsucce ssful on this is sue.
Petitioner testified that he wa nted the Arizona phy sician and soc ial worke r to testify about the possible abuse of

his daug hter be cause he believe d that the jury would have be en inclined to fe el sy mpathetic towar d his conduct. Petitioner acknow ledg ed that it wa s possible that such information could have streng thened the State’s ca se on the fir st deg ree preme ditated attempted murde r cha rg e.

Pe tit ion e r s a id tha t he a lso a sk e d co un se l to ob ta in D e rric k H arris’ me dic a l r e c or ds be c a us e he did not believe that Mr. Harris was a s sever ely injured as his use of

a whe elcha ir at trial indicate d. Petitioner said that he wa nted counse l to obtain the vic tim’s prior convictions bec ause he believed the i nformation would have supported hi s defe nse of self-de fense

. Petitioner acknow ledg ed that he d i d n o tk n o w w h e t h e r

a n y o f t h e v i c t i m s h a d a

p r i o r c r i m i n a l h i s t o r y.-6-

Petitioner stated that the trial c ourt had c ommented to Claudia Harris, Petit ioner’s w ife a nd co-de fenda nt, that Petiti oner was “facing thirty or forty y ear s.” Petitioner ac knowledg ed that neither he no r cou ns e l w e re pr e se nt w he n th is r e mark wa s ma de , a ndthe c omm e nt o c c ur re d a pp are ntl y during a pre -trial h ea ri ng for the c o-def endant. Petitioner insisted, howeve r, that the c omment ref lected that the trial court wa s not impartial during sentenc ing, e specia lly in th e imposit ion of
consec utive sentenc ing.

III. Stand ard of Review
A petiti o n er s eeking post-c onviction relief must establish his alleg ations by clea r and
c on vin c ing e vid e nc e . T . C. A. § 4 0- 30 -1 10 (f ). Ho we ve r, the tr ia l c ou rt ’s app lic a tio n o f the la w t o the fac ts is reviewe d de novo , without a presumption of cor rec tness. Fi e lds v . S tat e , 40 S.W .3d 450, 458 (Tenn. 2001) . A claim that counse l rende red ine ffe ctive assistanc e is a mix ed question of f act and law and there fore also subject to de novo revie w. Id .; State v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999).
When a petition er s eeks post-c onviction relief on the basis of ineff ective a ssistance of counsel, h e must establish that counsel’s pe rformancefell below “ the rang e of c ompetence demande d of attorney s in c riminal case s.” Ba x te r v . R os e , 5 2 3 S

. W

. 2 d 9 3 0 , 9 3 6 ( T e n n

. 1 9 7 5 )

. In
a ddit io n, he mu st s ho w tha t c ou ns e l’ s in e ff e c tiv e pe rf

orma nc e a c tua lly

a dv e rs e ly

imp a c te d h is defe nse. Strickland v. W ashington , 466 U.S. 668, 693, 104 S. C t. 2052, 2067, 80 L

. Ed. 2d 674 (1 98 4) . I n r e vie wi ng c ou ns e l’ s p e rf or ma nc e , th e dis tortio ns of hin ds ig ht m us t be a vo ide d, a ndthi s Court will not s econd- g uess cou n s el ’s d ecisions re g arding trial strateg ies and tac tics. Hellard v. Sta te , 6 29 S.W. 2d4, 9 ( Te nn . 1 98 2) . T he re vie wi ng c ou rt , th e re fo re , s houl d no t con clude that a pa rt ic ula r a c t or omi ssi on by c ou ns e l is un re a so na ble me re ly

be c a us e the str a te g y

wa s u ns uc c e ssf

ul. Strickland , 466 U.S. at 689, 104 S. Ct . at 2065. Rather, counsel’s alleg ed err ors should be judg ed from counse l’s perspe ctive at the point o f t i me they wer e made in light of a ll the fac ts and circ umstances at that time. Id . at 690, 104 S. Ct. at 2066.

A petitioner must satisfy

both prong s of the Strickland test befor e he or she may preva il on a claim of i neff

ective assistance of counsel. See Henley v. State, 960 S.W .2d 572, 580 (Tenn. 1997)

. Th a t is , a pe tit ion e r m us t no t on ly sh ow that hi s c ou ns e l’ s p e rf orma nc e fe ll b e low a c c e pta ble standards, but that suc h perf ormanc e was prejudicia l to the pe titioner. Id

. Fa ilure t o satisfy either p rong will result in the denial of re lief. Id

. A c c o r d in g ly , th is Co u r t n e e d n o t a d d r e s s one of the components if the pe titioner fails to establish the other. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.

IV. F ailure to Call Witnesses

Petitione r ar gu es that his counsel’s assistanc e wa s ineffe ctive bec ause he failed to c all as witnesses at trial the phy sician and soc ial worke r fr om Arizona wh o h ad ex amined Petitioner’s daug hte r, Es se nc e Ha

rris. Pe tit ion e r s ub mit te d th a t th e se wi tnes se s w ou ld h a ve te sti fi e d th a t hi s daug hter wa s abused by

the victim, Der ek Ha

rris. Petitioner surmised at the post-c onviction hearing-7-

that su c h te sti mon y

wo uldha ve ma de the jury sy mpathe tic tow ard him

. I n his br ie f, Pe tit ion e r a lso submits t hat the testimony would have supported his c ontention that he went to Ms. Ba rnett’s house,
no t to c on fr on t Mr . H arris, bu t to c on fr on t Ms . B arn e tt. The post-c onviction court found no defic ient conduct on the pa rt of counse l in this reg ard. The post-c onviction court found that counsel’s conduct was based on a reasonable tactica l decision not to raise the issue of

Mr. Har ris’ possible a

buse of Petitioner’s daug hter be cause such evide nce “w o u l d h av e s u p p l i ed t h e S t at e w i t h a m o t i v e f o r P et i t i o n er ’s cr i m es an d h el p ed t o p ro v e th e c h ar ge of attempted f

irst deg ree murder.” Ba sed on our r eview of the re cord, w e conc lude that the evide nce d o es n o tp re p o n d er at e a gai n s tt h e p o s t -c o n v i ct i o n co u rt ’s fi n d i n g.

Moreove r, althoug h Petitioner challeng ed counsel' s failure to c all these witnesses at trial, he did not produce e ither witness to testify at his post-conviction hea ring . Gene ra l l y , “[w]hen a p et i t i oner c ontends that trial counse l failed to discover , interview, or prese nt witnesses in support of his defe nse, these w itnesses should be pre sented by the petitioner a t the evidentiary hearing." Bla ck v. State, 794 S.W.2d 752, 757 (Ten n

. C ri m

. Ap p . 1990). We may not speculate on what benef it these witnesses might have offe red to Petitioner' s case

. Id

. Acc ording ly , Petitioner has fa iled to demonstrate pr ejudice in this reg ard.

V. P reviously Dete rm ined Iss ues

I n his post- conviction petition and in this appeal, Petitioner cha lleng es the trial c ourt’s fa ilure to instruct the j ury on self-de fense and the imposition of consec utive sentenc ing. B oth issues were raised in Petitioner’s dire ct appe al and a ddresse d by this Court. An ton ius Ha rri s , 2 0 0 2 WL 3 1 6 5 4 8 1 4 , * 9 -1 0 , 1 4 -1 5

. I s s u es wh i ch h av e b ee n p re v i o u s l y d et er m i n ed m ayn o tb e r ai s ed t h ro u gh a post-convic tion challeng e. T.C.A. § 40-30- 106(h). An issue is “p re v iouslydetermined when a court of c ompetent jurisdiction has ruled on the issue’ s merits af t er a full and fair he aring .” Id

. Ac c or din g ly , Pe tit ion e r i s n ot e nti tle d to re lie f o n th e se iss ue s.
CO NC LU SION

Af te r r e vie w, we a ff

ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

.

___________________________________ THOMAS T. WOODAL

L , J UDGE