### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON June 3, 200 8 S es sio n
AN THON Y B ROWN v. S TAT E OF TEN NES SEE
Appeal from t he Circuit Court for Obion Coun ty No. C06-410 William B. Acr ee, Jr ., Judge

No. W2007-02402-C CA-R 3-PC - Filed November5, 2008

The pe titioner, Anthony

Br own, was de nied post-conviction re lief by the Circu i t C o u rt for Obion County fr om h is c on vic tio ns fo r fi rs t degre e mur de r, e sp e c ia lly a g g ra vate d r ob be ry , a

nd e sp e c ia lly ag g ravated burg lary

and the resulting eff

ective sentence of l ife without parole in the Depa rtment of Correc tion. He appeals and contends that he is entitled to post-conviction relief because (1) he w as de nie d th e e ff

e c tiv e a ssi sta

nc e of c ouns e l, an d ( 2) the state e ng a g e d in imp ro pe r c los ingargume nt. We affir m the trial court’ s judgme nt.
Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cir cuit Court Af firme d

J OS EP H M. T I P TO N , P.J., delivere d the opi nion of t he court, in which A LA N E. G LE NN and D. K ELL Y T HOMAS , J R ., JJ., joined.
James T. Powell, Union City, Tennessee , for the a ppellant, Anthony Brown.

Rob e rt E. Coo pe r, Jr ., At torne y G e ne ra l a nd Re po rt e r; La c y W ilb e r, As sis ta nt A tto rn e y G e ne ra l; Thomas A. Thomas, District Attorney Gene ral; and James T. Cannon, Assistant D istrict Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

The fa cts underlying t he petitioner’ s convictions wer e summarize d by this court on direc t
app e a l:

On the mornin g o f M a y 1 , 2 00 3, Hi lon Pr uitt, the vic tim

in this case, did not show up f o r wo rk. Concerned, Jer

ry Sherrill, S r., and Willi am C rowe ll (“Mustar d”), two co-w orker s and friends of the eighty-one- year -old victim, went to his residence w h er e they dis c ov e re d h is b od y ly in g fa c e up in the liv ing ro om. A c on so le television was turne d over and lying on his l egs, butche r knives we re sticking out of hi s abdomen and neck, and an ice pick pr otruded fr om the ce nter of his ne ck. A portable television that had be en smashed-2- down on his head w as lying beside his b o d y

. S herrill and Mustard lifted the television off the victim’s legs and ca lled the police.

Police office rs, Tenne ssee Bure au of I nvestigat ion (T.B.I.) Ag e nt J oe W a lke r, a ndthe c ou nty me dic a l e xa min e r, Dr . A lle n C. Gooch, soon a rr i v ed at the sce ne. Inside the home, Agent W alker

sear ched f or finger prints left by the assailant, f inding a blood pattern in the dining room and a palm print on the back of the tele vision. The pattern in the print on the television indicated that the a ssailant had

wo rn g lo ves. Th e un ide nti fi e d a ssaila nt l e ft the kit c he n u te ns il draw er ope n and the victim’s billfold lying beside his body. Although the bi llfold contained no cash, approximately $900 was found in the vict im ’ s f

r o n t rig h t s h irt p o c k e t. A trig g e r g u ar d a n d a

f iring mecha nism also [lay] next to the victim’s body, but no gun was eve r
rec overe d.

Base d u p o n th e c o n d it io n o f th e v ic ti m’ s b o d y , D r

. G o och determ i n ed the time of de ath to have be en betwe en 7:00 p.m. and 12 :00 a .m. on the pr e vio us nig ht o f A pril 3 0, 20 03 . A n auto ps y
re ve a le d th a t th e c a us e of de a th w a s th e re su lt o f mult ipl e inj urie s, including eight major stab wounds t o t h e v i ctim’s body as we ll as blunt injuries to his head and neck. D r. O.C. Smi t h
, who was responsible for

perf orming the autopsy, could not determine whether

an u n found item may have cause d some of the injuries or whether more than one assailant per petrated the crime.

The de fenda nt was cha

rged w i t h t h e crimes based upon the testimony of sever al witnesses. Howeve r, initially, seve ral o ther

su sp e c ts we re c on sid e re d du e to the ir his torie s, inc lud ing Sco tt Hayne s. Hayne s was stopped by police office rs for questioning

re ga rd ing a se pa rate ho me inv a sio n th a t occ ur re d in Cr oc ke tt Co un ty t w o n i g h t s a f

t e r t h e m u r d e r

o f t h e v i c t i mi n t h i s c a s e

. T h i s h o me invasion also involved the assault of an older man

. When stoppe d, Hayn e s to ok

of f r unni ng . A n in ve nto ry se arc h o f H a yn e s’ ve hic le

uncover ed a glove with a weave pattern similar to the we ave pattern in the print

fo un d at th e vic tim ’s ho me . H ow e ve r, the glo ve wa s a common “stock va

riety glove,” and the pa lm print was never chec ked against that of Haynes. Bec ause no physica l evidence connec ted Hayne s to the crime, Agent Walke r ul timately disregar ded Haynes as

a p o t e n t i a l s u s p e c t

. F u r t h e r m o r e , H a y n e s h a d a n a l i b i : h is stepdaughter
, J o yce Ca vness, stated that Haynes wa s having a cookout the night of April 30, 2003, and that she was ther e until 8:30 p. m. o r 9 :00 p. m.-3- At trial, the victim’s daughter , Linda Brown, testified that her fathe r would have been a sleep by 9:00 p.m. and that he did not leave he r h ou se on the nig ht o f A pril 3 0, 20 03 , u nti l a bo ut 7 :15 p. m. Milton Sn o w te s ti f

ie d th a t h e r e c e iv e d a c a ll f r o m h is n e p h e w, the defe ndant, around 8:40 p.m. on the evening of the m u rd er

. Snow, who stated that he was ba by s i t t i n g at the time, testified that the d ef en d ant conf

essed to killing the victim. S now stated that the defe ndant admitted to stabbing the victim and to pushing a television onto his head. Snow stated that the de fenda n t s h o wed him t welve dollars stained with blood whic h he stated that he had stolen fr om the vic tim

.
Joshua M cE lrath testified that he saw the de fendant on the basketba ll courts on Nash Stree t at about 8:30 p.m. on the night of the victim’s murder. Contrary t o S now’s testimony that he wa s bab ys itt ing , M c El rath s ta te d th a t Sn ow wa s a t th e ba sk e tba ll c ou rt s wi th h im a ndthe de fe nd a nt. Th e de fe nd a nt l oo ke d “ lik e he ha d ju st go t ou t of the sh ow e r or

so me thi ng

. . . h e wa s n e rv ou s. ” Mc El rath testified that the def

endant the n confe ssed the crime to him, st ating that “the old man jumped on his bac k” and that he just “snapped and he killed him.” At first McElrath did not be lieve the def endant, so he fo llo we d th e de fe ndant o ve r t o th e vic tim ’s ho us e a ndsa w “ the old man l aying on the floor w ith some knives in him.” McElrath stated that the def

endant did not implicate anyone else in the c rime.

Robbie Walke r testified that [she] saw the defe ndant coming from the side of

the victim’s house about four days prior to the murder and that he appea

red nervous and swe ating. She reme mbere d

ov e rh e ari ng the de fe nd a nt re c ou nt the mur de r wh ile sh e pr e te nd e d to be asle ep. Wa lker stated that the def endant a dmitted that “he got high off some pills, and he didn’ t have nothing to do, so he went over the re and he be at the old man till his arms got ti red, the n he starte d sticking the old man.” W alker

stated that the de fendant refe rre d to the victim’s blo od a s r e d “ Ko ol- Ai d, ” the de fe nd a nt’ s f a vo ri te c olo r. Con tr ary to W a lke r’ s b e lie f that th e de fe nd a nt w a s sp e aki ng to Sno w and“ Ti e Dye,” a n a ll e g e d n ic k n a me f o r St a c e y Pa

rh a m, Pa rh a m d e n ie d ever being pre sent. Parh am s tated it was only later that he aske d the defe ndant about the c rime and w as told “stay out of my business.”
During the c ourse of

the trial, the S tate also int roduce d sever al wi tne sse s who te sti fi e d tha t, w hil e in j a il, the de fe nd a nt a dmi tte d h is involvement in the crime. Timothy McPherson, w ho stated t h at he was in the same jail pod with the defe ndant, testified that the de fe nd a nt t oldoth e r i nmate s th a t he ha d me sse d u p h is l if e be c a us e he kil le d a

ma n o ve r t we lve do lla

rs

.-4- Jo se ph Is be ll t e sti fi e d th a t th e de fe nd a nt wa s sh ow ing c ri me
sc e ne p i c t u r e s t h a th e h a d r e c e i v e d f r o mh i s l a w y e r

ar o u n d i n j a i l. Isbell stated that the defe ndant admitted to the crime, but implicated

a se c on d a ssaila nt. Is be ll test if ie d th a t th e de fe nd a nt a dmi tte d to getting the knives out of the victim ’s d ra we r and that he was

re ta liatin g b e c a us e the “ ma n wa s c a lli ng the po lic e a ndstu ff on him saying they wa s traff

icking and stuff, a

lot of traff

icking.”

Jerry Sulli van also testified to ove rhea ring the def

endant admit to the murder while in jail. Sullivan stated:

[T he de fe nd a nt] tol d a

bo ut h ow the y g ot t og e the r, him and this dude got high, snorted some powde r, smoked

some wee d, and told the dude they w as go i ng to get him. So he snuck up on him in h i s h o u s e, and dude was be nding over loo k i n g at the television, or doing something, and he snuck up on the dude a nd told the dude, “H ey, what did I t el l y ou about what I was going t o d o to y o u ? ” So w h e n th e d u d e tur ned

ar o u n d

- s e e , I d id n ’ t k n o w it w a s a n o ld man at that time. I thought it was a young dude about li k e our age, that he was trying to interf ere with dude’s business out there on the s t ree t . . . . So when dude turned a round, he s aid, “Didn’t I tell you what I wa s going to do to you, ” t he old man said, “ Whatc ha doing here ,” and he stabbed him in the stomach.

Sulli van also testified that the defe ndant i mplicated anothe r assa ilant in the crime.

T i m o t h y C arr

was a lso in the same jail pod with the de fe nd a nt. Carr te sti fi e d tha t the de fe nd a nt “a dmi tte d to do ing so me of it, but he said he didn’t a ct alon e. ” Carr state d that the def endant implicated McElrath as the other a ssailant. Carr further te stified that the def endant ha s threate ned him and aske d him to ensure that Snow and W al k er were not available to testify. Ac cording to Lieutenant Ric k K e lly of

the Union Ci ty P oli c e De pa rt me nt, the de fe nd a nt i s aff iliated with the Vice L ords, wherea s Carr is aff iliated with a riva l ga ng , th e Ga ng ste r D isc ipl e s.

Th e de fe ns e arg ue d th a t T .B. I. fo re ns ic sc ie nti sts , D arrin Shockey and D onna Ne l s on, wer e not able to matc h any physica l evidenc e fr om the scene to t h e defe ndant. The only DN A pre sent under the victim’s fingernails and at the s cene was e ither the victim’s own or matc hed to an unknown person. The de fense urged the jury-5- to consider the possibili ty that the crime was commit ted by one of the oth e r i nit ia l su sp e c ts. Kay P e rkins , w ho liv e d n e ar the vic tim
, testified to seeing Haynes and another man ri d i n g up and down the str e e ts in th e n e ig h b o rh o o d “ a c o u p le o f d a y s to a w e e k p r io r to the murder.” Nolan Simms also testi fied to see ing Haynes in the a rea
ne ar th e ti me o f th e mu r d e r , a t J e rr y Sh e rr il l’ s s a lv a g e yard. A nn Sellers, another

neighbor, saw a “strange ca r” pull into the neighborhood on the night of the vic tim’s murde r. S ell ers testified that two white males “dressed like womens” exited the ca r and the n, about twenty or thirty minutes later, “ left like they wa s in a hurry.”

The de fense also attempted to introduce the testimony of Pam Byrd, and the State reque sted “a jury-out hearing on the rele vance .” Byrd was stabbe d about twelve year s ago by her e x-husband, Robert Ki mmo ns , a no the r i nit ia l su sp e c t in thi s c a se . T he de fe ns e so ug ht t o introduce he r testimony because “it demonstrates that one of the two suspects . . . had a

tendenc y to use a knife.” The trial judge sustained the State’s objec tion to the testimony, stating: “she w ill not be allowed to testify to something that Mr. Kimmons did 12 years ago. There ’s nothing to tie Mr. Kimmons t o this case.”

State v. Anthony Dwayne Brown, No. W2004-01139- CCA-R3-CD, O bion County, slip op. at 1-4 (Tenn. Crim. App. Apr . 18, 2005) (f ootnote omitted), app. denie d (Tenn. O ct. 24, 2005).
The pe titioner filed a pe tition for post-convictio n relief , and counse l was appointed. The court c ondu ct ed a h ea ri ng on the petition. The evide nce at the hearing relate d to the petitioner’s allegation that trial c ounsel had not provided him with the ef fec tive as s i s t ance of counse l in the

c on vic tio n p ro c e e din gs

.
At the hea

ring, trial counse l testified that he met with the petitioner se vera l times and

rec eived the names of potential witnesses. He said he had information that bef ore his involvement in the case , the authorities suspec ted individuals named Scotty Hayne s and R o b er t Ki mmons of committing t he crimes. He said he spoke wit h Special Agent Joe Walker about these individuals and le arn e d that Hayn e s ha d be e n arr e ste d inMin ne so ta a ndKi mmo ns wa s in the Cr oc ke tt Co un ty J a il. He sa id h is i nv e sti gator s we re un able to ta lk to Ki mmo ns be c a us e his a tto rn e ys wo uld no t a llo w i t. He sa id h e e nc ou ra ge d Ri c k K e lly of the Un ion City Pol ic e De pa rt me nt t o ta lk t o Ki mmo ns , a s w e ll, bu t th a t he didno t th ink

Ke lly e ve r d id s o d e sp ite his ha vin g ta lke d to Ke lly on a ne ar- da ily ba sis for se vera l weeks. H e said he also attempted to c onvince Walke r and Kelly to go to Minne sota and obtain a palm print fr om Hayne s for c omparison with one found at the crime sc ene but that they would not do so. He said he thought it would have been a waste of time to subpoena Kimmons for tr ia l be c aus e Ki mmo ns ’ l a wy e rs pr ob ably wo uld ha ve be e n suc c e ssf ul in ha vin g the tr ia l cou rt ru le that K imm on s w ou ld n ot t e sti fy a ndthat e ve n if Ki mmo ns di d take the stand , h e wo uldpr ob ably invoke his Fifth Amendment privilege. Counsel ac knowledged that he knew the authorities had dis c ov e re d a bloo d y g l o v e p r i n ti n t h e v i c t i m ’ s h o m e a s w e l l a s a g l o v e w i t h t h e s a m e p a t t e r n in Hayne s’ ca

r.-6-

Trial counse l testified that he pre sented e videnceof a w oman who had se en two white men, one of w hom was i dentified as Hayne s, driving around the neighborhood where the victim lived a

wee k or two bef

ore the murder. He said there was evidenc e Haynes wa s at a c ookout on the evening of the c ri me s b ut that he wa s able to sh ow that H a yn e s n e ve rthe le ss h a d th e op po rtun ity to c omm it the c ri me s a ft e r h e le ft

the c oo ko ut.

Trial counse l testified th at he pre sented e vidence that Kimmons had a friend whose f ather

was a friend of the vi ctim. He said he did this in an attempt to connec t Kimmons and Haynes to the victim’s murder.

Trial counse l testified that he talked to the vic tim of a similar crime c ommitt ed by Haynes

a ndKi mmo ns . Co un se l sa id the vic tim c la ime d th a t a

tw e lve -y e ar- oldMe xic a n b oy wh o to ld h im that H a yn e s h a d s a id h e tho ug ht he ha d co mmi tte d a mur de r an d ne e de d to ge t ou t of tow n. He sa id he wa s able to get a deputy s heriff to speak with the child but that the child “was not at all helpful.”

Trial counse l testified that the petitioner identi fi ed Ta nika Brown, Frede rick Pirtle, and Lare tha Bledsoe as a libi witnesses. H e said that to the best of his r ecollec tion, he investigated Mr. Pirtle a ndMs. Ble ds oe a ndbo th w e re “ de a d e nd s. ” He s aid th at to the be st o f h is m e mory, Ms. Br ow n ha d give n a st a te me nt t o th e a uth oriti e s w hic h w a s in c on sis te nt w ith wh a t th e pe tit ion e r t old him she would s a y

. H e s a idh e h a d a me mo r a n d u m w h ic h r e f le c te d th a t M s

. Br o w n to ldthe

a uth oriti e s th a t sh e did no t re me mbe r be ing wi th the pe tit ion e r o n A pril 3 0 o r M a y 1 , 2 00 3. He sa id that he had investigated Ms. Bledsoe and that he thought he rec alled that she was t h e petiti oner’ s girlfriend a nd that she had be en with him beginning at midnight or 1:00 a.m. on t h e n i g ht of the

c ri me s a ndthr ou gh the re st o f the nig ht. He sa id the pe tit ion e r t oldhim that he sp e nt the nig ht w ith Lare tha Bledsoe but that he ga ve ac counts which va ried the time the pe titioner and Ms. Bledsoe got together f rom 10:00 p.m. until 1:00 a.m. He sa id that based upon the e vidence ab out when the murder oc curr ed, these witnesses would not have helped the defe nse because they could not acc ount for the pe titioner’s wher eabouts during a ll of the rele vant time period. He stated t hat the petitioner pr ov ide d h im w ith inc on sis te nt inf orma tio n ab ou t the ide nti ty of his a lib i witn e sse s and that f or thi s
re a so n, he ha d li ste d o nly Ta nik a Br ow n o n th e No tic e of

Al ibi

.
Trial counse l testified t h at h e did not specific ally rec all having talked with the pe titioner about the petitioner’ s right to testify. He said he did not re call what advice he gave the petitioner about whethe r he should testify and admitted he might have advised the petitioner not to testify. He said, howeve r, that despite his lac k of memory, he thought he would reme mb er had the petitioner ha d a ny ob

je c tio n to no t te sti fy ing or a ny la c k o f u nd e rs ta nd ing of his ri gh ts.
The pe titioner testified that h e gave trial counsel the names Frederick Pirtle and Tanika Br ow n a s p ote nti a l a lib i wi tne sse s. He sa id t ri a l c ou ns e l to ld h im h e ha d h is i nv e sti gator sp e ak to Ms. Brown and that she r emember ed being with the pe titioner but could not reca ll at what time. He

c la ime d at on e po int

that c ou ns e l di d n ot c on ta c t Mr

. Pirtle , b ut h e sa id l a te r that c ou ns e l to ld h im he had c ontacted Mr . Pirtle. He said counse l told him the witnesses would not be he lpful if they

c ou ld n ot e sta

bli sh the e xa c t time s th e y w e re wi th the pe tit ion e r o n th e nig ht o f the c ri me s. He sa id he wa s with Mr. Pirtle and Ms. Brow n from about dark until 11:00 p.m. or 12:00 a.m. The pe titioner denied tria l counsel’s a ssertion that the petit ioner had change d his alibi information. He stated that-7-

he had always tol d counsel that he was with both Mr. Pirtle and Ms. Brown and that he had neve r
me nti on e d an a d d i t i o n a l p e r s o n o r s a i d t h a tM r

. P i r t l e o r

M s

. B r o w n w e r e n o tp r e s e n t

. H e s a id

c ou ns e l a lso faile d to ca ll Lare tha Ble ds oe a s a witn e ss, wh o co uldve ri fy that he wa s w ith Mr . Pi rt le

a ndMs. Br ow n a ndthat he wa s w ith he r a ft e rw ard s. He said h e ha d id e nti fied Ms

. Bl edso e to
c ou ns e l bu t th a t c ou ns e l di d n ot c a ll h e r a s a wi tne ss.
The pe titioner testified that he wanted to testify but that counsel told him he had an attitude problem and w ould not be believed. H e said c ounsel did not explain to him his right to testify. He

sa id h e didno t te sti fy be c a us e c ou ns e l a dv ise d h im n ot t o d o s o. He be lie ve d, howe ve r, that hi s test i m o n y wo u ld have be en bene ficial to the de fense . The pe titioner acknow ledged that he was asked on the witness stand whether he wanted t o testify and that trial counsel a sked the c ourt to be allowed to t al k with him further. Headmitted that afte r talking with counsel, he r eturne d to the stand, wher e he a cknowledge d that he had be en advise d of the a dvantage s and disadvanta ges of testifying and stated that he did not want to te stify. He testified at the post-convictio n h ea ri ng, howeve r, that he ha d answe red the questions about wheth er he would testify as trial c ounsel had ins truc te d, rathe r tha n g ivi ng a c c ur a te re sp on se s.

Lare tha Bledsoe testified that she had known the pe titioner for ye ars a nd that she had se en him o n t h e night of the victim’s murder . She said that no one fr om the public defe nder’ s office ta lke d to her aro un d the tim e of tr ia l, a lth ou gh sh e ha d s po ke n w ith a po lic e of fi c e r, wh om s he tol d she saw the def

endant with his cousin Tanika and Fred Pirtle ar ound 8:30 or 9:00 p.m. She said she and the pe titioner “ca lled eac h other ba ck and f orth” a fter that and that the petitioner pic ked her up and took her

to his house around 11:00 p.m. or midni g h t , wher e she staye d with him unti l the following afternoon. She said that she wa s subpoenae d for tria l by the state but that she wa s never
c a lle d a s a

wi tne ss. She sa id that had sh e be e n ca lle d to tes tif y at tria l, s he wo uldha ve te sti fi e d in

acc ord with her te stimony at the post-conviction hearing.

Ms. Bledsoe acknow ledged, however
, that she had give n a stateme nt to the authorities saying th at on April 30 between 11:00 p.m. and midnight, she had see n the petitioner a nd Tanika Brow n riding around. She sa id she did not say anything in this statement about Fred Pirtle being in the ca r wi th the pe tit ion e r andMs. Br ow n b e c a us e sh e ha d n ot be e n a sk e d. She a dmi tte d th a t in thi s statement, she sa id that the petit ioner came to get her at 1: 00 or 2: 00 a.m. She testified s he wa s not
sure e xactly what time the events happe ned.

Frederick Pirtle testified he was with the petitioner on the night of the murde r. He said they ha d b e e n “ mos e yin g ar ou nd ” the ne igh bo rh oo d dri nk ing fr om 8:0 0 p .m. un til abo ut 2 :30 or 3:0 0 a .m. He sa id he was ne ver inter viewed by anyone fr om the police depa rtment or the p u b lic defe nder’ s office . He a cknowledge d that he had be en intervie wed by the police afte r t he petitioner’ s conviction but denied that he re membere d that he told them he ac tually might have been w ith the petitioner the nig ht b e fo re the c ri me s.

The trial c ourt found that the p et i t i o ner f ailed to prove his claims by clear and convinc ing evidenc e. The court de nied re lief. This appe al followed.-8-

The pe titioner claims that he is entitled to post-conviction relief beca use (1) he re ceive d the ineffe ctive assistance of trial counsel a nd (2) the state made imprope r closing ar gument at trial. The burden in a

post-conviction proceeding is on the petitioner to prove his grounds for re lief by cle ar and convinc ing evidence . T.C.A. § 40-30-1 10(f) . On appe al, we a re bound by the trial court’ s fi nd ing s o f f

a c t un le ss w e c on c lud e that th e evi de nc e in the re c or d p re po nd e rate s a ga ins t th os e findings. F i el d s v. State, 40 S.W.3d 450, 456-57 (Te nn. 2001). Beca use they re late to mixed quest i o n s o f l aw and fa ct, we r eview the trial court’ s conclusions as to whethe r counse l’s pe rf orma nc e wa s d e fi c i e n t

an d w he the r that de fi c ie nc y w a s p re jud ic ia l un de r a

de no vo stand ardwi th no presumption of correc tness. Id. at 457. Post-conviction re lief may only be give n if a c onviction or sentenc e is void or voi dable because of a violation of a constitutional right. T.C.A. § 40-30-103.

I

We c onsider first the petitioner’s claim that counsel was ineffe ctive. He a rgues that c ounsel faile d to int e rv ie w w itn e sse s a ndoth e r s us pe c ts andthat c ou ns e l e rr on e ou sly a dv ise d h im a gain st testifying.

Under the Six th Amendment to the United States Constitut ion, when a c laim of ineff ective assistance of

c ouns e l is made, the burden is on the petit ioner 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. Fre twell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993) . A petition er will only preva il on a claim of inef fec tive assistance of counse l after satisfying both pr ong s of the Strickland test

. S ee H enley 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 obje ctive standa rd of r easona

bleness or “outside the wide rang e of pr ofessionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The prejudice prongrequire s a petitioner to de monstrate that “ther e is a rea sonable proba bility 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 r easona ble proba b i l i t y i s a proba bility sufficie nt to undermine confide nce in the outc om e.” 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 at t orney s should be held to the g ener al standar d of whe ther the se rvice s rende red w ere within the

ra n ge o f c o 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 , th e c o urt s t at edth at th e r an ge of c omp e te nc e wa s to be me a sure d b y the dutie 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. Cir. 1973). Also, in revie wing counsel’s conduct, a “fa ir assessment of attorne y 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 to evaluate th e conduc t from counse l’s pe rs pe c tiv e a t th e tim e .” S tr ick lan d, 46 6 U .S. a t 68 9, 10 4 S. Ct. a t 20 65 . “ Thus , th e fa c t th a t a particula r strate g y or tac tic failed or

even hur t the defe nse does not, a l o ne, support a c laim of ineffe ctive assistanc e.” Coope r v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Def ere nce-9-

is m a de to t

ri a l strategy or tac tic a l c ho ic e s if the y 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.

A. Witnesses: Tanika B rown, Fre d Pirtle, and Laretha Bledsoe
The pe titioner complains that trial counsel f ailed to interview Tanika Brow n, Fred Pirtle, and Lare tha Bledsoe. He argues that counsel relied on information from others to discount Ms. Brown

as a w itness and did not have a nyone conta ct Mr. Pirtle or Ms. Bledsoe. He a lso argues that although Ms. Bledsoe had bee n subpoenae d by the state and was prese nt at trial, counsel failed to call her as a witness whe n the state did not do so.

Mr. Pirtle and Ms. Bledsoe testified at the post-conviction hearing. Ms. Brow n did not. The trial court f

ound that counsel intervie wed Ms. Brown but that she said she did not remember being wi th the pe tit ion e r o n the ni gh t of the c ri me s. Th e c ou rt

fo un d th a t Mr . Pi rt le wa s n ot a c re dib le wi tne ss an d tha t his te sti mon y c on fl ic te d w ith that of Ms. Ble ds oe . Fu rthe r, the c ou rt fo un d th a t if either Mr . Pirtle’s or Ms. Bledsoe’s testimony were ac cr edited, the pe titioner would not have established an a libi because under e ither sce nario, he still had time to commit the crimes bef ore
me e tin g the se pe op le

. Li ke wi se , the c ou rt no te d th e ov e rw he lmi ng e vid e nc e of the pe tit ion e r’ s g uil t at trial. The c ourt found that the pe titioner failed to esta blish his cl ai m b y clea

r and c onvincing

e vid e nc e . W e ho ld that th e e vid e nc e do e s n ot p re po nd e rate a ga ins t th e tr ia l c ou rt ’s fi nd ing s.

B. Suspe c ts : S c ot t H ay ne s a nd R obe r t K im mo ns
The pe titioner also complains that counsel f ailed to interview potential suspects Hayne s and Kimmons, failed to investigate their involvem en t , an d fa i led to call them as w itnesses. The tria l

c ou rt fo un d th a t th e pe tit ion e r ha d faile d to de mon str a te that H a yn e s a ndKi mmo ns we re re sp on sib le for the c rimes and noted that there ha d been e vidence at the petitioner’ s trial t hat they had be en
c on sid e re d b ut e lim inate d a s su sp e c ts. Th e c ou rt fo un d th a t th e pe tit ion e r ha d faile d to de mon str a te
a ny pr e jud ic e fr om c ou ns e l’ s c ou rs e of a c tio n. W e ho ld that th e e vid e nc e do e s n ot p re po nd e rate
a ga ins t th e tr ia l c ou rt ’s fi nd ing s.

C. Adv ic e Abo ut

Te st if yin g
The pe ti ti o n e r c laim s th a t c o u n s e l f a il e d to e x p lain th e a d v a n ta g e s a n d d is a d v a n ta ges of testifying. He ar g u es that despite his decla ration that he w anted to testify, counse l told him he should not because he had an attitude problem. The pe titioner contends that counse l made a n “appa rent unilater al dec ision” about t he petitioner’ s wish to testify. The trial court found that the pe tit ion e r w a nte d to te sti fy bu t th a t tria l c ou ns e l c on vin c e d h im o ther wi se . T he tr ia l c ou rt a lso

re vie we d th e re c or d of tr ia l and fo un d tha t the pe tit ion e r kno wi ng ly wa ive d h is r igh t to te sti fy a t a hearing conducted pur suant t o M omon v. State, 18 S.W.3d 152 (Tenn. 1999) . Thus, the court reje cted the c laim. On appellate revie w, t he evide nce doe s not preponder ate a gainst the trial court’s fi nd ing s.
The pe titioner is not entitl ed to post-conviction re lief base d upon his ineffe ctive assistanc e of c ou ns e l c la ims

.-10- II

Th e pe tit ion e r a lso c on te nd s th a t th e state ma de a n impr op e r c los ing arg ume nt at tria l:

The third count would be felony murde r, first degree murder in the perpe tration of a the ft. If f or whatever

rea son you didn’t fee l that there was sufficient proof to show that there wa s a robbe ry, there

certainly was a the ft, bec ause that twelve dollars wa s taken.

No w, we ’r e a sk ing yo u to con sid e r both of the se [t wo c ou nts of fe lony m u rd er ] and return a ve rdict on both of these simply for purposes of a

ppeal. Bec ause if you c onv ict of both, the Court of Criminal Appeals could later reverse one of those, but the other one stands on its own. So t hat pre vents nee dless retria ls. So, t hat’s why we’ re asking you, even though it’s going to take a littl e longer , we’ re
a sk ing yo u to c on sid e r b othof tho se c ou nts

.
Th e tr ia l cou rt fo un d tha t the pe tit ion e r fa ile d to dem on str a te that th e arg ume nt a ff e c te d th e ou tc ome of t he tr ia l o r

in a n y w a y a f

f e c te d th e p e ti ti o n e r

. O n ap p e a l, th e p e ti ti o n e r h a s n o t a r ti c u late d a ny constitutional basis upon which he cla ims entitl ement to post-conviction relief . See T.C.A. § 40-30- 10 3 ( pr ov idi ng fo r p os t- con vi cti on re lie f “ wh e n th e c on vic tio n o r s e nte nc e is v oidor vo ida ble beca use of the a

bridgment of any right guarante ed by the Const i t u t i on of Tenne ssee or the Con sti tut ion of

the Un ite d St a te s” ). W e ho ld that th e pe tit ion e r h a s n ot d e mon str a te d a ny e rr or in the trial court’s ruling denying him relief.

In consider ation of the for egoing and the r ecor d as a whole, the judgment of the trial court is affirme d.

___________________________________ JOSEPH M. TIPTON, PRES IDIN G JUDGE