### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs S ep te m be r 26, 200 7

JERR Y G RA VES v. S TAT E OF TEN NES SEE

Appeal f rom the Cr im inal Cou rt for K nox Coun ty No. 79735 Richard R. Baum gartner , Judge

No. E2007-00064-CC A-R3- P C - F iled March 5, 2008

The pe titioner, J err

y Graves, was convicted by a Knox Count y

jury of first deg ree felony

murder a nd

e sp e c ia lly a g g ra vate d r ob be ry

and re c e ive d sen te nc e s of lif

e and tw e nty -t

hr e e y e ars

. He se e ks po stconviction re lief, conte nding that his trial counsel was ineffe ctive. On appeal, he argues t hat the trial

co u rt erre d

i nd en y i n g p o s t -c o n v i ct i o nre l i ef b ec au s e h i s t ri al co u n s el wa s i n ef fe ct i v e i nad o p t i n g a self-de fense strateg y

at trial. We aff

irm the judg ment of the trial c ourt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J O S EP H M. T I PTON , P.J ., delivere d the opinion of the cour t, in which J A M ES C UR WO OD W I TT , J R ., and N OR MA M C G EE O G LE , J J ., joined.

J. L idd e ll K ir

k, Kn oxvil le , T e nn e sse e , f or the a pp e lla nt, Jer ry Gr a ve s.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l a n d R e p o r t e r ; Da vid H. F ind le y , A ssi sta

nt A tto rn e y

Ge ne ra l; Randall E. Nichols, District Attorney Gene ral; and Willie Rena Har per, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

Th e Te nn e sse e Sup re me Cou rt a ff ir me d th e pet it io ner’ s co nv ict io ns andsu mm ari z ed the fa c ts of the c a se a s f

oll ow s:

The de fenda

n t, J err y B. G rave s, and Take ita M. L ocke w ere separ ately i ndicted for

felony murder a

nd espec ially

ag g ravated robber y for actions arising out of events that occur red on O ctober

17, 1998, in Knox County , Tenne ssee. . . .

. . . .-2- Th e fo llo wi nge vid e nc e wa s in tr od uc e d a g a ins t G ra

ve s at hi s trial.

Ac c or din g to t

he te sti mon

y of Ad a m F aw, in t

he e arl y
mor n i n g h o u r s o f

O c t o b e r 1 7 , 1 9 9 8 , t h e d e f

e n d an tG r a v e s , T a k e i ta L ocke, Christina Ma

rtin, and F aw dr ove ar ound Knoxvi lle in Faw ’s van wh i l e d ri n k i n g al co h o l an d s m o k i n g m ar i

j u an a l ac edwi th coca ine

or cr ack. A fter a

fewhours, Gra

ves d i re cted Faw to g o to an apar tment in Montgomery

Villag e so that he could r ob someone. Upon ar rival, Gra ves g ot out of t h e v an ca rry ing F aw’ s pistol and heade d towards a

n apar tment.

Robert Richards te stified that h e, Karen V erkla s, and the victim, Chuck Newman, w ere hang ing out in Ve rklas’ a partment when Gr aves kic ked in t he door. A fter G rave s knocked the apar tment door open, h e forced N ewman into the kitche n, and bac ked him up ag ainst the stove. R ichar ds said that he ini tially thought the de fenda nt was only playing, but then he hear d the def endant r epeatedly

saying “g ive me the money .” Richar ds testified that when Ne wman re fused, Graves wre stled Newma

n onto the living room c ouch a n d started beating him on the head while continui ng to demand money . At the same time, L ocke w as a l s o t ry i ng to pry the victim’s hands open. Richard s u n s ucce ssfully

tried to pull Grave s off of N ewman, a fter which he le ft the apa

rtment to find help. Once outside, he found Ver klas, who had f

led the apa

rtment to call 911. Richards te stified that he sa w Graves and L ocke le ave the apar tment and over

hear d Graves tell L ocke that the victim had at least $150.

Fa w testified that Gr aves a

nd L ocke c ame r

unning out of the apar tment building and g o t back into his van. F aw notice d that Graves h ad b lood all over his ar ms and jacke t. When Faw a sked Graves if he ha d g otten any thing, Grave s responde d that he had g otten $50.

The de fenda

nt Grave s testif

i ed and conc eded that he had beate n Newma

n with a pistol and stabbed him wit h a k nife. He claimed that Ne wman took cr ack coca ine from him a nd ref used to pay fo r i t. N e wm an e ve ntu a lly die d f ro m th e sta

b w ound to h is c he st.

Ba sed on the for eg oing e vidence , the jury c o nv ic te d d efe ndant Graves of f

elony murder a nd espec ially

ag g ravated r o b b er y , and he

was later sentenc ed to life imprisonment a nd twenty -thre e y ear s
r e s p e c t i v e l y.-3-

State v. Graves, 126 S.W.3d 873, 874-75 (Tenn. 2003) ( footnotes omitted).

I n the post-conviction hea ring , the petitioner’s tria l counsel testified that she prepa red for the petitioner’s trial by

visiti ng sever al times the apar tments w here the victim was killed and locating and intervie wing witnesses. She said sh e revie wed photog raphs of the cr ime scene . She said she

me t w iththe pe tit ion e r s e ve ra l ti me s b e fo re the tr ia l and a lso ha d an inv e sti g a tor wo rk ingon the c a se who al s o m et wit h her a

nd the petitioner. She said that she discussed with the petitioner the tr ial strateg y during these mee tings a

nd that the petitioner wa s very easy to work with. She said the trial strateg y develope d as a r esult of the ac count of e vents that the petitioner r elay ed to her

.
She testified that she wa s awa re that in o rd er t o p ro v e the petitioner c ommitt ed fe lony murder, the state had to pr ove the underly ing felony of robber

y

. She said that there was no question at the trial that the pe titioner killed the victim and that the petitioner a lway s insist ed to her that he, and not Take ita L ocke, sta bbed the victim. S h e reca lled that the evidenc e at tria l was that the petitioner wa s car

rying a firea rm and that the victim wa s unarme d until, accor ding to the pe titioner’s testimony , the victim took the petitioner’s pistol. She r eca lled that there was also evidenc e that the victim had a hea d injury

cause d by

blunt force trauma f

rom a gun. The pe titioner’s testimony was that he and the victim strugg led af ter the vic tim refused to pa y for c ra ck co ca i n e and that the petitioner hit the victim on the head with his pistol. The petiti oner also testified t hat he stabbed the victim in self-defe nse af

ter the vic tim g rabbe d the pi stol from him

. Trial counse l acknowle dg ed that this wa s a “diffic ult sc enar io” by which to pr ove self-de fense but that she had no choice but to arg ue self-de fense beca

use that wa s the petitioner’s a ccount a nd how he testified. She a cknowledg ed that if the petitioner had been at the vi ctim’s house for a drugdeal a nd not to rob the victim, the petitioner could have been c on v i ct ed of sec ond deg ree murder instea d of first deg ree murder a nd rec eived a lighter sentenc e. She said she argued at the trial that the evidenc e did not prove a robber y occur red. Ho we ve r, sh e sa id she did no t cho os e to pur su e that def e ns e on ly , at th e e xclu sio n o f a se lf -d e fe ns e argument, beca

use she ha d to base he r def ense on w hat the petitioner told her

.

Tr ia l c ouns e l te sti fi e d th a t sh e tol d th e pe tit ion e r t hat it w a s h is d e c isi on

wh e the r h e wo uld te sti fy a t tr ia l. H ow e ve r, sh e sa id sh e did a dv ise the pe tit ion e r that he wa s th e on ly pe rs on wh o c ou ld g i v e h i s a c c o u n t o f w h a t o c c u r r e d

. S h e s a i d t h e r e w a s n o t h i n g t o l o s e b y h a v i n g t h e p e t i t i o n e r t e s t i f y. She sai d t h at s h e met fr equently with the petitioner and discusse d his testimony and that she ha d pr e pa re d h im t o te sti fy , a lt ho ug h s he a lso tol d h im i t w a s h is u lti ma te de c isi on wh e the r h e wo uld testify

. She said she told the petitioner that it was a difficult ca se to defe nd, espec ially beca use the state had f our ey ewitnesses. She said, howeve r, that they had no choic e but to g o to trial beca use the petitioner wa s never

offe red a plea a g ree ment.

Trial counse l testified that she re prese nted the petitioner on direc t appea l. She said she ra ised

a numbe r of iss ue s in the a pp e a l bu t did no t argue that the e vid e nc e wa s ins uf fi c ie nt to s up po rt

his convictions. She said she did not argue t h i s beca use the e vidence was suff icient; the state ha d multipl e ey ewitnesses, including witnesses who t estified that the petit ioner planne d a robbe ry of the vic tim

.-4-

The trial c ourt denied t h e petitioner post-convic tion relief, f inding that he did not prove g rounds for r elief by

clea r and c onvincing evidenc e. Th e co urt found that the pe titioner’s trial

c o u n s e l w a s e f

f e c t i v e an d
, i np a

rt i c u l ar , t h a tt r i a l c o u n s e l w a s n o ti n e f f e c t i v e i nh e r

t r i a l s t r a t e g y. I n this appeal, the pe titioner contends that the t rial court err ed in denying him post -convic tion relief, and he a rg ues that his trial counsel was ineffe ctive in pur sing a self-de fense trial strateg y when the

e vide nc e a t tr ia l ma de su c h a de fe ns e inc re dib le . T he pe tit ion e r a rgue s th a t, i ns te a d, the de fe ns e should have foc used solely on whether

a robbe ry

occur red. The s t at e u rges us to af firm the trial court’s de nial of pos t- conviction re lief bec ause the re is no evide nce that trial counsel wa s ineffe ctive.
The burden in a post-convic tion procee ding is on the pe titioner to prove his g rounds for r elief by cle ar an d co n vincing evidenc e. T.C.A. § 40-30- 110(f) . On appe al, we a re bound by

the trial

c ourt ’s fi nd ing s o f f

a c t un le ss w e c on c lud e that th e e vid e nc e in t he record prep onde ra

te s a g a ins t those finding s. Fields v. State, 40 S.W .3d 450, 456-57 (Te nn. 2001). B eca use they relate to mix ed questions of law a

nd fac t, we re view the t ri al co u rt ’s conc lusions as to whether c ounsel’s pe rf or manc e wa s d e fi c ie nt a

nd wh e the r t hat de fi c ie nc y

wa s p re jud ic ia l un de r a

d e n o v o sta

nd ard wi th no presumption of cor

rec tness. I d. at 457. Post-conviction r elief may only be g iven if a c onviction or sentenc e is void or voidable beca use of a violation of a

constitutional right. T.C.A. § 40-30- 103.

Under the Six th Amendment to the United States Constitut ion, when a c laim of ineff ective assistance of counsel is ma de, the burde n is on the petitioner to show (1) that counsel’s pe rfor mance was de ficient a

nd (2) that the de ficienc y was prejudicial. S trickland v. Washing ton, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see L ockhar t v. Fr etwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993) . A petitioner will only preva il on a claim of inef fec tive assistance of couns el after satisfying both pr o n gs o f the Strickland test. See Henley v. State, 960 S.W .2d 572, 580 (Tenn. 1997). The perf

ormanc e prong require s a petitioner raising a claim of ineffe ctiveness to showthat the counse l’s repr esentation fell below an objective standar d of re asonable ness or “ outside the wide rang e of pr ofessionally

competent a ssistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The prejudice prong require s a petitioner to de monstrate that “ther e is a re asonable probability that, but for c ounsel’s unprof

essional er

rors, the r esult of the proc eeding would have been differ ent.” I d. at 694, 104 S. Ct . at 2068. “A re as o nable pr obability is a probability

sufficie nt to undermine confide nce in the outc ome.” I d., 104 S. Ct . at 2068. Fa ilure to satisfy either pr ong results in the denial of r elief. I d. at 697, 104 S. Ct. at 2069.

I n Bax ter v. Rose, 523 S.W.2d 930, 936 (Tenn . 1975), our supre me cour t decided that attorney s should be held to the g ener al standar d of whe ther the se rvi ce s rende red w ere within the

ra n ge of co mp et en ce d em an d ed o f at t o rn ey s i n cr i m i n al ca s es

. Fu rt h er , t h e c o u rt s t at edt h at t h e r an ge of c omp e te nc e wa s to be me a sure d b y the du tie s a

nd c ri te ri a se t f or th i n B e a sle y

v. Un ite d St a te s, 491 F.2d 687, 696 ( 6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Ci r. 1973). Also, in r eviewing counsel’s conduct, a “fa ir assessment of a

ttorney perf ormanc e re quires that ever y eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s c halleng ed conduc t, and t o evaluate the conduc t from counse l’s pe rs pe c t i v e a t t h e t i m e

. ” S t r i c k l an d
, 4 6 6 U

. S

. a t 6 8 9 , 1 0 4 S

. C t

. a t 2 0 6 5

. “ T h u s , t h e f a c t tha t a particula r strate g y or tac tic failed or

even h urt the def

ense doe s not, alone, support a c laim of-5-

ineffe ctive assistanc e.” Coope r v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992) . Def ere nce is m a de to t

ri a l strate g y

or ta c tic a l c ho ic e s if t hey are inf or me d o ne s b a se d u

po n a de qu a te prepa ration. He llard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F .2d at 1201.

We conclude that the petit ioner has not demonstrated that his trial counsel wa s ineffe ctive. The pe titioner complains that his trial counsel ar g ued and br oug ht up evidenc e of self- defe nse at the trial. Howe ver, as trial counsel testified, the petitioner’s own ac count of what occur red w as that he stabbed the victim in self-de fense . Moreove r, trial counse l raised e vidence and ar g ument reg arding a drugtransac tion between the petitioner and vic tim to refute evide nce that the petitioner killed the victim during the course of a robbery . The e vidence shows that trial counsel a dequate ly prepa red for tria l, which included mee ting with the pe titioner man y t i m es , interviewingwitnesses, and examining the crime scene . We give defe renc e to the trial strateg y that counsel used, r eg ardle ss of whether a diffe rent strateg y

theore tically

could have led to a differ ent result. We conclude that trial counsel’s pe rfor

mance was not def

icient and that the pe titioner did not rec ei ve the inef fec tive assistance of counse l.

B a se d o n th e fo re g oin g and the re c or d a s a

wh ole , w e a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE