### 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 13, 200 5
WILSON NE ELY v. S TAT E OF TEN NES SEE
Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. P -26988 John P. Colt on, Jr., Judge

No. W2004-03006-C CA-R 3-P C - F iled Janu ary 4, 2005

Petitioner appea ls the dismis sal of his petition for post-convic tion relief arg uing that his trial counsel rende red ine ffe ctive assistanc e of c ounsel during the pre paration of his case. Specifica lly , Petitioner contends that trial c ounsel’s fa ilure to intervi ew an d call Andr e Jackson as a w itness at trial was de fi c ie nt c on du c t. A ft e r a tho ro ug h re vie w of there c or d, we c on c lud e that Pe tit ion e r h a s f a ile d to show that he wa s prejudice d by any d efic iencies in his trial counse l’s perf ormanc e, and w e thus a ff ir m th e jud g me nt o f 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 Cr im inal Cou rt A ff irm ed
T H O M A S T. W O O D A LL , J ., delivere d the opinion o f t h e co u rt , in which G AR Y R. W ADE , P.J ., and D AVI D G. H AYES , J ., joined.
C

. A n n e T i p t o n , M e m p h i s , T e n n e s s e e , f o r t h e ap p e l l a n t , W i l s o n N e e l y.
Paul G . Summe rs , Atto rn e y Ge ne ra l and Re po rt e r; Re ne e W. T urne r, As sis tant A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and A ndre Thoma s, As s i stant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee. OP IN ION
I. Bac kgr ound Following a jury

trial, Petitioner was c on victed of f irst deg ree preme ditated murder and se nte nc e d to lif

e imp ri so nme nt with the po ssi bil ity of pa ro le . Pe tit ion e r a

rg ue d o n a

pp e a l th a t hi s c on vic tio n w a s impr op e rl y ba se d u po n th e un c or

ro bo rate d a ndins uf

fi c ie nt t e sti mon y

of his acc omplices. P et i t i oner’ s conviction was uphe ld on appeal. Sta te v . W ils on Ne e ly , No. W2001- 01327-CCA-R3-CD, 2002 Tenn. Crim. App. L EXI S 724, at **1, 18 (Tenn. Crim. App., at J ackson, Aug . 23, 2002), perm. to appeal de nied (Tenn. D ec. 16, 2002)

.-2-

The fa cts surrounding Petitioner’s conviction we re summariz ed by this Court i n the direc t app e a l a s f

oll ow s:
This case ar i s es from the shooting of B illyRay Br own. It appea

rs from the r ecor d that the intended tar g et of the c rime wa s Be rtram Johnson; however , M r. Brown be c a me the un int e nd e d v ic tim . T he iss ue pr e se nte d inthi s c a se pe rt a ins to acc omplice testimony . Thus, it is essential to understand which components of the state ' s c a sewe re pr ov ide d b y the va ri ou s w itn e sse s.
Kar en Seymour, who by

all acc ounts was not invo l v ed i n t h e crime in question, te sti fi e d th a t onthee ve nin g of Oc to be r 2 9, 19 97 , s he vis ite d B e rt ram John so n at a "dope house" at 1010 Cella Street in Memphis. Although Mr. J ohnson did not reside at1 0 1 0 C e l l a , h e s p e n tt i m e t h er e. M r. J o h n s o n i s t h e f at h ero f M s
. S ey m o u r's daug hte r. Mr . J oh ns on be c a me up se t tha t Ms. Seymou r wa s a c c omp a nie d b y a ma le friend. Mr . J ohnson became ver bally abusive a nd took $5 0 fr o m h er. When she demande d that he re turn the money , he re fused a nd brandished a wea pon. Ms. Sey mour went to the home she share d with her mother and her br other, Robert Sey mour. She told her brothe r, who wa s a member of the Gang ster Disciples, what had happe ned. During the evening , other members of t he Ga ng ster Disciples a rrived at the Seymour reside nce. Ms

. Sey mour identified these individuals as Albert Wil son, Ira F arris, Kevin Porter, and the defe ndant Wil son Nee ly

. These g entlemen all left tog ether , and Robert Seymour returned 30 minutes to an hour late r. Kevin Porter, w ho denied a ny aff iliation with t he Gang ster Disciples, testified that he , A lbe rt

Wils on , a nd I

ra F arris w e nt t o th e Se y mou r r e sid e nc e on the date in question. Kare n Sey mour, Robert Sey mour, Brian B ison, and the def endant Wilson Nee ly wer e also pre sent that eve ning. Porte r cla imed that he wa s in the back r oom wi th K are n Se y mou r m os t of the tim e. How ever , he w a s a wa rethat th e rewa s a conver sation g oing on in the living room am ong Robert Wils on, Ira F arris, Bria n Bison and the d efe ndant. Porter we nt into the livi ng room from time to time and hear d bits of the conver sation. Acc ording to Porter, Robert Seymour s aid that he need e d to " r id e o n th is n
- - - - - a n d s e e w h a t' s u p
. " Po r te r w a s p r e s e n t w h e n the defe ndant was invo l v ed in t elephone conver sations in which the def endant wa s attempting to locate B ertram J ohnson.
Porter claime d that as the g roup of men le ft the Sey mour home, he be lieved they we re g oin g to a nig htc lub . Porte r, Al Wils on , Robe rt Se y mou r an d I ra F arris r od e in Porter' s Ponti ac Parisienne, and the defe ndant, B rian Bison and an individual whom Porter did not know wer e in a small, g reen car . During the ride, one of the passeng ers in Porter' s vehicle sugg ested that they g o to Cella Street. Porter te stified that he thoug ht the purpose of g oing to Cella Street was to g et some " wee d." A s they wer e approac hing Cella Street, P orter hear d a click and looked into the back se at. He-3-

sa w that Ro be rt

Se y mou r h a d a

Te c 9 o r U zi f

ir e arm
. He the n n oti c e d th a t I ra F arris had a sma ll, nine mill imeter we apon, and A l Wi lson had a lase r-site B ere tta. Porter claimed that he had not see n any wea pons prior to this point in the e vening . Porter testified that he thoug ht his passeng ers, whom he claimed not to know we ll, might be about to ca

rjac k him. He claimed to ha ve inquired what was g oing on, but one of the passeng ers told him it was "nothing " and to continue on his course

. Acc ording to Porter, t h e defe ndant was a lrea dy parke d on Cella Street as he approa ched. T he def

endant wa s out of his ve hicle and in the y ard of 1010 Cella. As Porter starte d to pull over, the def endant g ave some type of hand signa l, and Albert Wil son jumped out of Porter' s car befor e it was fully

s t opped. Gunf

ire e rupted. F arris andSe y mou r e xite d Po rt e r' s c ar, a ndPorte r c la ime d th a t he du c ke d d ow n in to the seat. Porter claimed that he was afr aid to drive away beca use he knew that if he fled, he would have to f

acethe other me n later and justify having left them. Porter hear d at least 25 shots, a pause, and the n five or six more shots

. He heard someone y ell, "H old up, man. Damn, what's up Wilson? " P o rt er l o o ked into his rear -view mirror, a nd about twenty

fee t away , he saw the victim's leg s extending fr om behind the small, g ree n car . Porter testified that the de fendant walked to the v i ct i m, who was on the gr ound, and st ood over him. Wit h a larg er handg un, the def endant shot the vic tim

fi ve or six time s. Th e oc c up a nts of bo th ca rs the n f le d intheve hic le s in wh ic h th e y

ha d a rriv ed. P orte r m a int a ine d th a t he wa s a fr a id h e wo uldbe sh ot, so he drove away . As they near ed an intersec tion on Cella, the pol ice be g an following them. Porter claimed to be conc erne d that his passeng ers wou l d b egi n shooting at the police. He fled for

[a] short distance, hit a tree, and fled on foot. He claimed that he intentionally

hit the tr ee b ecause he was fluster ed and w as conc erne d that he would be killed in the cour se of a chase . Porter hid in some bushes, and he was appre hended shortly

there afte r. At trial, Porter a cknowledg ed that he ha d g iven an initial stateme nt in which he wa s not entirely

for thcoming. H e explained that he wa s afr aid of re taliation. L ater , howeve r, he g ave a

more de tailed statement. Porter maintained at trial that he ha d no a dv a nc e kn ow le dg e tha

t th e pu rp os e of

g oin g to C e lla S tre e t w a s to c aus e ha rm to a ny on e . H e a lso ma int a ine d th a t he didno t have a we apo n w ith him a nd that he did not f ire a wea pon during the shooting. At the time of the defe ndant' s trial, Porter wa s under indictment for

fac ilitation of first-deg ree murder. He denied that he ha d any s o r to f p l e a b ar g a i n arr a n g e m e n tw i t h t h e s t a t e i n e x c h a n g e f o r h i s t e s t i m o n y. Travis Sug ars testified that he was pr esent at 1010 Cella and saw K are n Sey mour and Be rtram Johnson talking. L ater that same evening , Suga

rs was pr esent whe n Robert S ey m o u r c am e t o 1 0 1 0 C el l a t o l ea v e at h re atfo r B er tra mJ o h n s o n
. Al t h o u gh J ohnson was not pre sent at the time, he r eturne d afte r Mr. Seymour depa rted. Sug ars observe d J ohnson rec eive a call on his cellular telephone and become involved in an arg ume nt.-4-

I r a Far r i s t est i f

i ed t hat l i ke the def

end ant, he i s un der i nd i ct m ent f or f i r st

- degr ee m u rde r relati v e to th e sh o o ti n g. F o r the m o st p art, h is testim o n y w as co n sisten t w it h t hat g i ven by K evin Po r t er
. I t dif f er ed, ho w ever, i n cer t ai n sig nif i cant r espects.
F arri s id en ti f

ied h im self , Po rt er, the d ef en d an t, B ri an B iso n , R o b ert W alk er, A lbe rt W i l s on, Robe r t Se y mour , a nd a n i ndi vi dua l name d Andr e as add i t i ona l m e mbe r s of t he G angst er D i sci ples. He adm i t t ed t hat t here w as a con versat i on abo ut t he ear l i er i nciden t between K ar en S ey m ou r an d B er t r am J oh nso n and that i t w as deci ded t hat t he g r oup ne e de d t o s t r a i g ht e n t he m at t er ou t

. He s pe c i f i c a l l y i de nt i f

i e d t he d e fe n d a n t a s b e i n g p r e s e n t d u r i n g t h i s c o n v e r s a t i o n . C o n t r a r y to P o r t e r ' s te s t i m o n y, Farr i s sai d that B i son w as no t prese nt f or t he co nv er sat io n , alt ho ugh he sai d that B iso n join ed the grou p o u tside the S ey m o u r resid en ce an d tr av eled w ith them to C ella Street. Farris t estif ied that n o n e o f

this co n v ersatio n sp ecif ically p ertaine d to ki l l i ng or us i ng wea pons
. Fa r r i s i de nt i f i e d Robe r t W a l ke r a nd Andr e a s be i ng pr e s e nt l at er i n the even i ng at t he S ey m ou r r esi den ce.
Farr i s descr i bed t he cr i m i nal episod e m uch as had Po r t er , and he prov i ded add i t i on al detai l s. He re cal l ed seei ng t he d ef end ant i n a heated co n v e rs a tio n w i t h B er t r am J o h n s o n b e f

o re th e sh o o tin g b e gan
. F a rris d id n o t s e e J o h n s o n w ith a gu n , alth o u gh h e tho u ght f

rom J o h n so n ' s m o v em en ts t h at he h ad a g u n
. A cco rdin g to F arri s, the re w er e abo ut si x p eop l e on t he l aw n of 10 10 C el l a, al l of w ho m " hit t he g r ou nd " w hen t he sh ots beg an. Far r i s con t r adict ed P ort er ' s t est i m on y t hat g un f i r e beg an i mmedi a t e l y a s t he y a r r i ve d. A f t er m os t of

t he s hoot i ng wa s ov e r , Fa r r i s s a w t he de f e nda nt b acking up
. T he de f e nda nt a nd t he vi c t i m bumpe d i nt o e a c h o t he r ; t he def end ant t urned ar ou nd and f i r ed m ore shots. The v i ct i m f el l t o t he g r ou nd al m ost i m m e d i a t e l y.
L aw enf orcem ent wit nesses prov i ded add i t i on al evidence. A M e m ph i s Po l i ce D epart m ent of

f i cer t est i f

i ed ab ou t vario u s w e apo nry and other ph y si cal evidence f ou nd at the scen e. An ag ent f r om t he T enn essee B ureau of I nv est i g at i on t est i f

i ed as
a n e xpe r t i n f

i r e a r ms i de nt i f

i c a t i on. S he i de nt i f

i ed t he w ea pons a nd a mmuni t i on r e c o v e r e d f

r o m t h e s c e n e a n d i d e n t i f i e d t h e we a p o n s f

r o m wh i c h c e r t a i n i t e ms of
am m un i t i on had been f

i r ed. A dd i t i on al l y , sh e test i f i ed t hat g un sho t resi du e samp l es t a ke n f r om Ke vi n P or t e r a nd Tr a vi s Sug a r s wer e i nc onc l us i ve , whi l e t he s a mpl e f r om A nd r e Jack son w as neg at i ve an d f r om I r a Far r i s w as po si t i ve.
The c ount y ' s a s s i s t a nt me di c a l e xa mi ne r t e s t i f i e d a bout t he a ut ops y s he pe r f or med on t he vi c t i m. She i de nt i f

i e d t he g uns hot w ound s he s us t a i ne d, and she op i ne d t ha t he
w as sh o t f

rom m o re th an tw o f

eet d u e to the a b sen ce o f sti p p li n g f

rom g u n p o w d er. F u rt h er, sh e testif

ied that f

rag m en ts o f

asp h alt f

o u n d in a g ro u n d w o u n d w ere c ons i s t e nt wi t h t he vi c t i m ha vi ng be e n s hot a s he wa s l y i ng on t he g r ound

. W il so n N eely , 20 02 Te nn. Cr i m. App. L EXI S, a t ** 1- 9.-5-

II. P os t- Co nvi c ti on H e ar ing
Petitioner test i fied that his fa milyreta ined his trial counsel shortly afte r his arr est on the char g ed off

ense in April 2000. Petitioner said that trial counsel ha d repr esente d him numerous times on various criminal char g es, but Petitioner had neve r g one to trial on the prior char g es. Instead, he ha d e nte re d g uil ty

ple a s.
Petitioner said that he did not meet with trial counse l betwee n April and June 2 0 0 0, when a plea of not g uilty was e ntere d, althoug h he attempted to c ontact trial c ounsel by telephone during thi s p e ri odof

tim e . Pe tit ion e r s a id that his tr ia l c ou ns e l to ld h im n ot t o w or ry abo ut the c a se be c aus e trial counsel had been try ing criminal case s for more than forty y ear s. Petitioner s ai d t h at h e met with his trial counsel about four tim es between J une and the commence ment of trial in late Oc tober 2000, and two or three of the meeting s wer e held the wee k befor e trial. Petitioner said that he wa s a w ar e t h a ttr i a l c o u n s e l c o m m u n i c a t e d w i t h m e m b e r s o f P e t i t i o n e r ’ s f

a m i l y.
Petitioner said that trial counsel f ile d a m o t ion for discove ry , and a he aring on the motion wa s h e ld on themornin g of tria l. T he tria l c ou rt

or de re d th e State to turn o ve r i ts f ile to t ri a l c ou ns e l. Petitioner said that he assumed his trial c ounsel had revie wed the documents, beca use trial counsel copied the c ontents of the file and prese nted the copie s to Petitioner the next day . Petitioner said that afte r he r eviewe d the State’s evide nce, he asked trial counsel to intervie w Andre J ackson, B ertram J ohnson, and Tra cy

Suga rs, and he told trial c ounsel wher e to find these me n. Petitioner believed that trial counsel had subpoenae d Mr. J ackson to testify at t rial, but Mr. J ackson w as not ca lled as a wi tne ss. Pe tit ion e r wa s aw are that tria l cou ns e l talk e d to the a tto rn e y of on e of his c o- de fe nd a nts , bu t he did no t kn ow wh e the r or

no t tria l c ou ns e l ha d ta lke d w iththe oth e r c o- de fe nd a nts ’ atto rn e y s. Pe tit ion e r t e sti fi e d th a t tria l c ou ns e l di d n ot v isi t th e c ri me scen e, d id n ot h ir e a n in ve sti g a tor to assist him, and did not discuss the facts of t he case with P etitioner. Petitioner said he be lieved trial counsel’s a ssistance would have been more eff ective had t rial counsel rec eived the State’ s evidenc e be fo re the day

of tr ia l.
On c ro ss- e xami natio n, Pe tit ion e r s a id that he ne ve r t oldtria l c ou ns e l th at he wan te d to proce ed to trial instead of entering into plea neg otiations. He conce ded, howe ver, that trial counsel told him t he State would not consider a plea ba rg ain, and Petitioner wa s awa re that meant that there wa s g oin g to b e a

tr ia l.
On re direc t examination, P etitioner said that trial c ounsel was a ppointed to repre sent him on ap p ea l

. P eti tioner said that trial c ounsel did not discuss with him the issues which trial c ounsel intended to ra ise on appe al, but he said that trial c ounsel provided him wit h a copy of his brief. Pe tit ion e r s a id that he le arn e d th a t hi s c on vic tio n h a d b e e n a ff ir me d o n a

pp e a l, andthat th e Sup re me Court subse quently denied Petitioner’s application for permission to appea l, from someone in the priso n la w l ibr ary

ins te a d o f h is t

ri a l c ou ns e l.
Andre J ackson testified at t he evidentiary hearing that he g ave a

statement to the police on No ve mbe r 3 , 1 99 7, in w hic h h e sa id that Pe tit io ner was no t arm e d d uring thesh oo tin g on Ce lla-6-

Street, and that he did not see Petitioner firea g un at any point during the incident. Mr. Jackson pr ov ide d a

de ta ile d d e sc ri pti on to the po lic e of thema n wh o sh ot Mr

. B ro wn , b ut h e sa id that he did not know the shooter’ s name. Mr. J ackson testified that the shooter he described in his statement was not Petitioner. Mr. Jackson spoke with the prose cutor “ a couple wee ks” bef ore tria l. Mr. J ackson sa id that he was subpoenae d by Petitioner’s trial counsel to testify at trial, but trial counse l never interviewe d him. Mr. J ackson w as inca rce rate d on an unre lated cha rg e at the time of Petitioner’s trial, and he was transported to the courtroom two or th re e t i m es in anticipation of te sti fy ing . M r. Jac ks on sa id that heha d kno wn Pe tit ion e r s inc e the y we rete e na g e rs
. Petitioner’s trial counse l testified that he had be en an attorney for more than forty

y ear s and had tried be tween twenty and forty case s involving murde r cha rg es. Tria l counsel said he ha d known Petitioner about fiftee n or twenty y ear s. Trial counse l said that a sig nificant a mount of time passed betwee n the shooting and when Petitioner was appre hended by the police. Trial counsel a g ree d that he fr equently

communicated w ith Petit ioner throug h Petitioner’s mother.
Trial counse l said that he did not remembe r see in g M r. J ackson’s statement to the police. Trial counsel believed, however , that Mr. J ackson’ s potential testimonywould not have he lped the defe nse. Mr. Jackson’s statement at least put Petiti oner at the scene of the c rime, and it wa s Petitioner’s defe nse that he ha d not been present on Cella Street. Trial counsel said that he re viewed the statements of the State’s witnesses a nd the co- defe ndants.
On cr oss-examination, trial counsel stated that he did n o t h ire a n investigator bec ause the only witnesses we re Petit ioner’s co-def endants a nd Ms. Sey mour. Trial c ounsel rec ollected that he revie wed the State’ s discovery betwee n J une and N ovember . He attem pted to interview B ertram J ohnson, but the injuries Mr. J ohnson rec eived during the shooting pr evente d him from testify ing at trial.
Trial counse l reiterated on cross-e x amination that he did not remembe r re viewing or see ing Mr. J ackson’ s statement prior to trial, but he ag ree d that it would have bee n rea sonable to interview Mr. J ackson a s a potential witness. Tria l counsel st ated that Mr. J ackson’ s testimonywould have been mor e important had the State soug ht the death pe nalty . Trial cou n s el ac k n owledg ed that althoug h the State pursued a th eo ry o f cr i minal responsibilityas to the culpa bilityof the c odef e n d a n ts , th e St a te ’ s th e o r y a t tria l w a s th a t Pe ti ti o n e r w a s th e in d iv id u a l w h o s h o t M r
. Br own. Trial counse l stated, howeve r, t hat he did not believe that the absenc e of Mr . J ackson’ s testimony was pre judicial beca

use Mr. J ackson pla ced Petitioner at the scene , and the State c ould have a rg ued that Pe tit ion e r w a s c ri min a lly re sp on sib le fo r M r. B ro wn ’s de a th. Tria l cou ns e l sai d tha t he w ou ld not have handled the ca se diffe rently even if he had interviewed Mr . J ackson.
Th e e vid e nti ary he ari ng wa s c on tin ue d to a llo w Pe tit ion e r’ s p os t- c on vic tio n c ou ns e l ti me to produce Robert Sey mour as a witness. On the second day of the hea ring , trial counsel wa s rec alled to the stand. Trial c ounsel stated tha t , u p o n re fl ection, he f elt that if he ha d seen Mr . J ackson’ s statement prior to trial, he would have called him to testify . He r ecollec ted that he initially believed that Mr. J ackson was another co-de fendant be cause he was incar cer ated at the time of Petitioner’s-7-

tr ia l. A c tin g un de r this a ssu mpt ion , a ndwi tho ut re vie wi ng his state me nt, tria l c ou ns e l said h e wo uld not have c alled Mr. Jackson to testify beca use all of Petitioner’s c o-def endants identified Petitioner a s th e sh oo te r. Tria l c ou ns e l st a te d, “ I c e rt a inl y wo uldha ve int e rv ie we d [Mr . Jac ks on ] to s a tis fy my mind that he was telling the truth or telling a lie. I f I felt like he w as pre tty close to telling the truth, I would have put him on. I f I felt like he was lying, I would have ha d to take some sort of dif fer ent action. I would have done something.” Robert Sey mour testified that he ple d g uiltyto the l esser offe nse of attempted sec ond deg ree m u r d e r a s a r e s u l t o f h i s r o l e i n t h e i n c i d e n t

. M r
. S e ym o u r s a i d t h a tt h e S t a t e a s k e d h i mt o t e s t i f y, but did not gu ar an t ee h i m a certain sente nce prior to Petiti oner’ s trial. Mr. Sey mour said he wa s sentenc ed to ten y ear s at the g uiltyplea submission hearing which occ urre d afte r P eti tioner wa s convicted.
I I I
. I n ef f ec ti v e A s s i s ta n ce o f

T ri a l Co u n s el Cl a i ms
A. Standard of

Review A petit ioner see king post-c onviction relief must establish his alleg ations by clea r and con v in c in g e v id e n c e
. T e n n
. Co d e A n n
. § 4 0

- 3 0

- 2 1 0 ( f ) ( 1 9 9 7 )

. H o w e v e r , th e tria l c o u r t’ s application of the law to the fac ts is re viewed de novo , without a pre sumption of corre ctness. Fields
v . S tate , 4 0 S. W.3 d 4 50 , 458 (T e nn . 200 1) . A c la im that c ou ns e l r e nd e re d in e ff e c tiv e a ssi stanc e is a mix ed question of f

act and law and there fore also subject to de novo r eview. Id. ; State v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999)

. When a p et i t i o n er se eks post-convic tion relief on the ba sis of ineffe ctive assistanc e of counsel, he must e stablish that counsel’s perf ormanc e fell below “the rang e o f c o m p etence demande d of attorney s in criminal 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 dd iti on , h e mus t sh ow that c ou nsel’ 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. S t r i ck l a n d v. W ashington , 466 U.S. 668, 693, 104 S. C t. 2052, 2067, 80 L . Ed. 2d 674 (1 98 4)

. I n re vie wi ng c ou ns e l’ s pe rf orma nc e , the dis tortio ns of hin ds ig ht mus t be a vo ide d, a ndthi s Co u rt will not second-g uess counse l’s decisions re g arding trial strateg ies and tac tics. Hellard v. State, 62 9 S. W.2 d 4 , 9 (T e nn . 1 98 2) . T he re vie wi ng c ou rt , th e re fo re , s ho uld no t c on c lud e 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 aus 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 of time 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 petit ioner must satisfy

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

ective a ssistance of c ounsel. See H enley v. State, 960 S.W .2d 572, 580 (Tenn. 1997)

. Th a t is , a pe tit ion e r mus t no t on ly sh ow that hi s c ou ns e l’ s p erfo rm a nc e fe ll b e low a c c e pta ble standards, but that such pe rformance was pre judicial to the petitioner. Id. Fa ilure to satisfy either prong will result in the denial of re lief. Id. Acc ordi n gl y , this Court need not addre ss one of the-8-

components if the petitioner f ails to establish the other. Strickland , 466 U.S. at 697, 104 S. Ct . at 2069.
B . F a ilu reto C ommun ic a te
Pe tit ion e r c on te nd s th a t hi s tria l c ou ns e l’ s a ssi st a nc e wa s in e ff e c tiv e be c aus e he faile d to meet with Petitioner until shortlybefor e trial, a nd beca use he did not discuss with Petit i oner tria l str a te g y or thefa c ts o f the c a se du ri ng the se me e tin g s. Tria l c ou ns e l te sti fi e d th a t it wa s h is re c oll e c tio n th a t he ha d d isc us se d th e c a se wi th P e tit ion e r p ri or to t ri a l, andhe state d th a t hea lso fe lt like he wa s com m u n i ca ting with Petitioner whe n he met with Petitioner’s mother. Trial counsel stated that he rec eived the State’s evidenc e prior to trial. The State’s ca se-in-c hief wa s based on the c o- de fe nd a nts ’ andMs. Se y mou r’ s te sti mon y , a ndtria l counse l r e vie we d th e state me nts the se witnesses made to the police. The post-conviction court found that Petitioner failed to show that trial counsel’ s communication with Petitioner prior to trial fell below r easona ble standar ds or that Petitioner was prejudiced by his trial counsel’s conduct. Ba sed on our review, we conclude that the evidenc e does n o t p r e p o n d e r ate a g ain s t t h ep o st-conviction court’s finding that trial counsel r ender ed eff ective a ssistance in this reg ard. Petitioner is not entitled to relief on this iss ue.
C. Failure to I nterview or Call as a Witness Andre Jackson Petitioner arg ues that his trial counsel render ed ineffec tive assistance of counse l because he did not interview Mr. Jackson or ca ll Mr. J ac k s o n as a w itness at trial. Acc ording to the trial transcript, trial counsel informed the trial court in a he aring out of the prese nce of the jury that he had an unse rved subpoe na for Andre J ackson. [TH E CO UR T]: A w itn e ss w e ’r e ho ldi ng in the ja il. [TR I AL COUNSEL ]: Right. I ’ve got an unserve d subpoena back at t h e o ff i ce, bu t — [THE COURT] : I wi l l t el l t h e cl erk that [Mr. J ackson] is not to be re lease d,

and we can bring him up tomorrow — [TR I AL COUNSEL ]: No w, h e’ s g ot court tomorrow. He told Serg eant Moore he

has court somewhere tomorrow in the sy s t em , and I don’t be lie ve – I do n’ t kn ow if the State ’s g oin g to u se him or no t, bu t qu ite fr a nk ly , I

do n’ t kn ow wh a t we ’r e g oin g to d o u nti l I hear all the proof — [THE COURT] : Sure. [TR I AL COUNSEL ]: –and so I

just wanted to let y ou know –-9-

[THE COURT] : We’ll keep him around . . .

. . . [P RO SE CU T O R] : I c a n te ll [tr ia l c o u n s e l] , h e ’ s h o p in g I w il l c a ll [M r
. Ja c k s o n ], but the answe r is I

don’t think in thi s world that I will c all Mr. J ackson.
Trial counsel testified at the post-conviction hearing that he did not reme mber seeing Mr. Jac ks on ’s state me nt t o th e po lic e . M r. Jac ks on ’s state me nt w a s in tr od uc e d a s a n e xhibi t a t th e po stconviction hea

ring . I n his statement, M r. J ac k s o n stated that he did not know the name of Mr. Br own’s killer, but he de scribed the shooter as approximately five fee t, nine inches tall, and w earing a blac k jacke t and black skull cap. Mr. J ackson’ s statement provided the foll owing version of the s eq u en ce o f e v en t s l ea d i n g u p t o M r. Br o wn ’s k i l l i n g: [MR

. J ACKSON]: I was coming up Cella, Michae l Tay lor told me that [Bertram

J ohnson] was insi de and I wanted to g o holler at him. I went inside to holler at [ Mr. J ohnson] for about 5, 10, no more than 15 minutes. [ A] knock on the door oc curr ed, which [P etitioner] knocked on the do o r. Ifollowed [Mr. J ohnson] o u tt h e d o o r

ab o u tt o t h e e n d o f

t h e d r i v e w a y.
Moments later, the individuals [sic] came running around the c o r n e r , ar m e d w i t h t h e s e m i au t o m a t i c w e ap o n
. H e s a y, “Where my

[____] dope at . . . .” [ M r. J o hnson] run in t he ho us e a ndloc ke d th e do or . T he g uy wi th the se mi- auto ma tic ru n u p t o t h e d o o r r el ea s i n g s h o t s , l i k e a m ad m an , h o l l er i n g, “Eve ry [____] g oing to die! ” Started ba ck fr om the way he came and [ Mr. Brown] must have got in his way . Shot [ Mr. Br own], down to the g round [Mr. B rown] w ent, he stood over [Mr. Br o wn ] and re lease d sever al other shots into [M r. B r o w n ].
Se c on ds la te r, ano the r i nd ivi du a l e a se d u p b e sid e the wh ite car , which [sic] I

was standing , and shot me one t i m e in the head. I laid down on the g round and play ed possum. I hear d a c ar drive of

f. [Mr

. John so n] a nd his c re w I g ue ss, wel l, it wa s h i s u n cl e a n d h i s l i t t l e n ep h ew , fl ed t o t h e c arh o l l er i n g, “Come on, let’s g o!”
I g ot up to r

un toward the car with the se individuals and suddenly , I

seen [sic] the police car

. I fl agg ed the police-10- down and told them that I had bee n s h o t in the head. H e a sk e d me to la y do wn a nd wait fo r an a mbu la nc e
. Th a t’ s a ll. [OFFI CER] : Do y ou know why this shooti ng occur

red? [MR . J ACKSON]: No. [O F F I CE R] : Wh a t w a s s a idb e tw e e n [M r
. Jo h n s o n ] a n d [P e ti ti o n e r ]? [MR

. J ACKSON]: The only thing [P etitioner] sa id to [Mr. J ohnson] was, “Why

y ou coming all outside with the pistol i n y our hand.” [OF F I CER ]: Di d [Mr

. John so n] ha ve a pis tol in hi s han d whe n he ca me

outside? [MR. JACK SON ]: Ye s. [OFFI CER] : Did [P etitioner] have a pistol in his hand? [MR . J ACKSON]: No. [OFFI CER] : What did [ Petitioner] do when the shooting started? [MR. JACK SON ]: Di sa pp e are d. I wa s run nin g the op po sit e dir e c tio n, so I re a lly do n ’ t kn o w w h a t [ Pe ti ti o n e r ] d id

. Wh e n I lo o k e d back, [P etitioner] wasn’t there

. Therewas some c orrobor ating testimony at t rial t hat another individual was near Mr. B rown when he was shot. Mr. Farris testified that he saw Petitioner “bac king up beca use .
. . the shooting went on for

may be a minute or so and .

. . every body [was] coming back a cross the stre et wher e the car [ was] at. So that’s when I seen [sic] [ Petitioner] backing up, and he bump[ed] i nto . . . [ Mr. Br own]. Mr. Far

ris then testified: [P ROSECUTOR] : Was any body else a round whe re [Mr. B rown] and [P e ti tioner] was [sic]? Did y ou see any body else standing rig ht there? [MR

. FARRI S] : Yes, Robert Walker was near
. I t was like Robert Walker a nd

[P etitioner]. The y was [si c] like rig ht the re, and [Mr. Br own] was rig ht there. [PROS ECU TO R]: Di d y ou e ve r s e e Rob e rt Wal ke r f ir e a ny sh ots ? [MR . FARRI S] : No, but he did g et out the ca r, and he did have a

g un.-11-

Mr. Fa rris testified at the jury trial on cross-e x amination that Mr. Walker wa s “may be about 5 f oo t [sic ] an d 9 inc he s” ta ll. He state d th a t Mr . Wa lke r w a s Ch ie f o f S ecur ity fo r the Me mph is Gang ster Disciples whose job “was to e nforc e the Gang ster Disciple la w.”
Fa ced w ith Mr. Porter’s and Mr. Fa rris’ testimony

identify ing Petitioner a s the shooter, trial counsel’s the ory

of defense at trial was to attac k the State’s ca se-in-c hief throug h cross-e x amination, which, b ased on our

revie w of the tria l transcript, was ably and thoroug hly

conducte d. The inf orma tio n con tai ned in M r. Jac ks on ’s state me nt t o th e po lic e , h ow e ve r, wo uldha ve a t le a st p o t e n t i a l l y a l l o w e d tr i a l c o u n s e l t o i n v e s t i g a t e t h e m e r i t s o f a t h e o r y o f d e f e n s e b a s e d o n i d e n t i t y; that is, that Mr

. Walker, not Petitioner, killed Mr

. Br own. Trial counsel testified on the sec ond day of the e videntiary

hearing that if he had seen Mr. J ackson’ s statement, he w ould have inter viewed Mr. J ackson to satisfy

himself as to whethe r or not Mr. Jackson was te lling the truth.
T h at is not to say , howeve r, as Petitioner a rg ues, that trial counse l’s assistance was nece ssarily

defic ient beca

use he f ailed to ca ll Mr. J ackson a s a witness. B ased on the other e vidence prese nted at trial, it is clea r t hat t here wer e som e material omissions from Mr. J ackson’ s statement which would have raised c redibility issues with his testimony had he testified. Mr. Fa rris testified that the man whom he kne w only as “An d re ” wa s al so a member of the Gang ster Disciples. Mr. F arris s a id that A nd re me t with the oth e r me n at Mr . Seymou r’ s hou se prior to the c on fr on ta tio n w ith Mr. B rown, a nd then Andre drove Petitioner and Mr. Walker to Cella Stree t in his car.
I n addition, t ri al co u n sel testified that Petitioner’s def ense w as base d on his absence from the crime scene . Whatever be nefit might have been obtained from Mr. Jackson’s potential testimony , Mr. J ackson’ s s t atement placed Petitioner on Cella Stree t immediately prior to the shootings and dir ectly

contra dicted Petitioner’s de fense

. Nonethele ss, whether

or not trial counse l would have ultimately decide d to c all Mr. J ackson a s a wi tne ss, tria l c ou ns e l’ s a dmi tte d f a ilu reto i nv e sti g a te Mr . Jac ks on ’s po te nti a l tes ti mo ny is problematic. We will not second g uess trial counse l’s strateg ic dec isions if such strateg y was ba sed on adequate and r easona

ble investig ation. See H

enley , 9 60 S.W. 2da t 57 9; He llard v. Stat e , 629 S.W. 2d4, 9 ( Te nn . 1 98 2)

. Ho we ve r, “ [d]e fe ns e c ou ns e l ‘mus t c on du c t app ro pria te inv e sti g a tio ns , both fac tual and leg al,’ a nd ‘must assert them in a proper and timely

manner .’” Nic ho ls v . S tate , 90 S

. W

. 3 d 5 7 6 , 5 8 7 (T en n
. 2 0 0 2 ) ( q u o t i n g Baxter , 523 S

. W

. 2 d at 932, 935). This duty includes “attempting to obtain inf ormation in the possession of the prosec ution and law e n fo rc ement officia ls” and “raising all available claims, issues and def enses.” Sta te v . W

hite , 114 S.W .3d 469, 477 (Tenn. 2003) . “Tria l counsel has a duty to use wi tnesses who may be of a ssistance to the defe nse.” State v. Zimmerman , 823 S.W .2d 220, 227 (Tenn. Crim. App. 1991). T ri al counsel testified that he did not believe that Mr. J ackson’ s statement had been withheld from him

. Ba sed on ou r r e vie w, we c on c lud e that tria l c ounsel ’s pe rf orma nc e pr ob ably

fe ll b e low re a so na

ble standards w hen he ove rlooked Mr. Jackson’s stateme nt, as s u m ed that Mr. Jackson was an a c c omp lic e , a ndfaile d to a t le a st i nte rv ie w h im w he n M r. Jac ks on wa s a va ila ble in c on fi ne me nt.-12-

Nonethele ss, a showing that trial counsel’ s repr esentation fell below a reasonable standard, by itself, is in s u ff

i ci en t t o support a finding that the petitioner’s Six th Amendment rig ht to trial counsel wa s violated. Strickland , 4 66 U. S. at 69 1, 10 4 S. Ct. at 20 66

. Th e pe tit ion e r mus t demonstrate that but for counsel’s def icient per formanc e, the r esult of the proc eeding would have been dif fer ent. Id. a t 69 5, 10 4 S. Ct. a t 29 70 . In th e c a se of failu re t o in ves ti gate or pr e se nt a witness, the omitted e vidence must be signific ant, but not nece ssarily lead to an a cquittal. See H icks
v . S tate , 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998). “ [A] rea sonable proba bilityof being found g uilty of a lesser char g e, or a shorter sentenc e, satisfies the pre judice re quirement of Strickland

. Id

. (c i t i n g Zimmerman , 823 S.W .2d at 227).
The State arg ues in the case sub judice that even if Petitioner did not fire the shots that kill ed Mr. B rown, Petitioner’s conviction of premeditated first deg ree murder c ould have be en supported under a theory

of criminal responsibilit y . “A pe rson is criminally responsible a s a party

to the offe nse if the of

fense is committ ed by the person’s own conduct, by the conduct of another for w hich the pe rs on is c ri min a lly

re sp on sib le , o r b y

bo th. ” Te nn . Co de An n. § 3 9- 11 -401(a ). A p e rs on is criminally

responsible for the conduct of anothe r if “[a]cting w ith the intent to promote or assist the c omm iss ionof

theof fe ns e , o r t o b e ne fi t in the pr oc e e ds or re su lts of the of fe ns e , th e pe rs on so lic its , direc ts, aids, o r at t em pts to aid another pe rson to commit the offense [.] ” Id . § 39-11-402( 2). A defe ndant may

be convic ted of fir st deg ree preme d i t at ed murder unde r a the ory of criminal responsibility

. See State v . Mickens , 123 S.W .3d 355, 391-92 (Te nn. Crim. App. 2003).
I n Mickens , four de fendants, all members of the Ga n gs t er D isciples, wer e convic ted of various offe nses resulting from the kidnapping of two other me mbers of the g ang which led to one of the victims’ death. Def endant J ones was convicted of first deg ree preme ditated murder under a theory of criminal responsibilit y . This Court found that “[i] t was J ones who told [the victim] to ‘g et [hi s] ass in [J ones’] car ’ when [t he victim] was abducte d and J ones who, wi t n es s es t es t ified, retrie ved the murder weapons from his trunk, which Jones later admitted.” Id

. at 390. Ba sed on the e vid e nc e pr e se nte d at tria l, this Co urt fou nd the e vid e nc e su ff ic ie nt t o s up po rt

de fe nd a nt Jon e s’ conviction for first deg ree preme ditated m urder under a theory of criminal responsibilit y
. Id . at 391- 92.
The confr ontation le ading to Mr

. Br own’s death in the instant c ase beg an with an a ltercation betwee n Be rtram Johnson and Kare n Sey mour. Ms. Se y mour told her brothe r, Robert, that Mr. J ohnson had take n her money and brandished a g un at her and her children. Ms. Seymour, Mr. Porter, and Mr . Fa

rris testified that Petitione r wa s o n e o f the g roup of men w ho g ather ed at the Sey mour reside nce a fter Ms. Seymour told her brothe r about Mr. Johnson’s conduct. Va rious witnesses identified Petitioner, Mr. Seymour, Mr. Wilson, M r. Porter, Mr . Bison, and Mr . Fa rris as members of the Gang ster Disciples. Mr. Porter said that Petitioner made a telephone c all from Mr. Sey mour’s house, and he hea rd Petitioner ask whe ther Mr. Johnson was there . The men the n left the ho us e in t wo ve hic le s. Pe tit ion e r’ s veh ic le arrive d at Cel la Str e e t fir st. Mr . Jac ks on sa id i n h is statem e n t th a t Pe ti ti o n e r k n o c k e d o n th e d o o r o f th e Ce ll a Str e e t h o u s e , a n d M r
. Jo h n son went outside in response to the knoc k. Mr. P orter testified that Petitioner was in the y ard in front of the Cella Street house when he arrived, that Petitioner g ave a hand sig nal, and Mr. Wilson jumped out-13-

of Mr. Porter ’s ca

r and started shooting . Mr. Fa rris saw Petitioner talking with Mr. Johnson in t he y ard, and then Petitioner turned a round and started walking back to the c ar w hen Mr. Johnson rea ched f or what Mr. Fa

rris assumed w as a g un. Although some wha t d i s s i m i l ar in details, and no tw ith stand ing Mr . Jac ks on ’s state me nt that so me on e oth e r than Peti tio ne r a c tua lly fi re d th e sh ots that killed Mr. Brown, the testimony of all three men identified Petitioner as the one who lure d Mr. J ohnson out of the Cella Street house and into the fr ont y ard immediate ly prior to the shooting which ultimately

led to Mr. B rown’s de ath.
Un de r the the ory

of c ri min a l r e sp on sib ili ty , a

de fe nd a nt’ s p re se nc e a ndc omp a nio ns hip wi th the per petrator of the c rime bef

ore and afte r the c rime ar e cir cumstance s from which one may infer the def endant’ s participation. Se e Sta te v . B all , 973 S.W .2d 288, 293 (Tenn. Crim. App. 1998) . The de fe nd a nt n e e d n ot h a ve take n a ph y sic a l pa

rt in the c ri me ; me ree nc ou ra g e me nt o f the princ ipa l w ill suffice

. Id .; S ta te v . McBe e , 64 4 S. W.2 d 4 25 , 4 28 (T e nn . Crim. Ap p. 19 82 ). To be c ri min a lly re sp on sib le fo r the a c ts of ano th er, “[i]t is n e c e ssa ry that th e de fe nd a nt ‘ in s ome way a sso c ia te himself with the venture , act with knowledg e tha t an o ff en s e is to be committed, and shar e in the criminal intent of the principal in th e f i rs t d egr ee.’” State v. Max ey , 898 S.W .2d 756, 757 (Tenn. C ri m
. Ap p
. 1 9 9 4 ) ( q u o t i n g He mb re e v . S tate , 546 S.W .2d 235, 239 (Tenn. Crim. App. 1976) ).
Wh e th e r Pe ti ti o n e r w a s c o n v ic te d a s th e p r in c ip a l o r a s c r im in a ll y r e s p o n s ib le for Mr

. Br own’s pre meditated murde r, his conviction offense would re main first deg ree preme ditated murder. See Te nn . Co de An n. § 3 9- 11 -4 01 (b ) ( “ Ea c h p arty to an o ff e ns e may be cha

rg e d w ith commission of the offe nse.”) A defe ndant convicted of first deg ree preme ditated murder is subject to punishment by death, imprisonm ent for life wit hout the pos sibili ty of parole, or im prisonment for life. Id

. § 39 -1 3- 20 2( c ). B e c aus e Pe tit ion e r wa s se nte nc e d to lif e imp ri so nme nt w iththe po ssi bil ity of pa ro le fo r his fi rs t deg re e pr e me dit a te d mur de r co nv ic tio n, the re is not a re a so na ble pr ob abil ity that he would have rec eived a lesser se ntence as a r esult of being convicted of the offe nse under

a the ory of c ri min a l r e sp on sib ili ty

rathe r tha n a s a

princ ipa l.
I n o rd e r t o s ho w p re

jud ic e, th erefore , Pe tit ion e r w ou ld h a ve to s ho w that th e rewa s a rea sonable proba

bilitythat he would havebeen f ound g uiltyof a le sser off ense h ad trial counsel c a lle d M r. Jac ks ona s a

wi tne ss. See H

icks , 9 83 S.W. 2da t 24 6; Zi m m e rman , 8 2 3 S.W .2d at 227. F a c ili ta tio n o f f

ir st d e g re e pr e me dit a te d mu rd e r, a Cla ss Afe lon y , is a le sse r inc lud e d of fe ns e of fi rs t deg ree preme ditated murder

. Burns , 6 S.W .3d at 470. As a Class A felony , a fac ilitation conviction is subject to a sentenc ing rang e betwee n fiftee n and twenty -five y ear s if Petitioner wer e cla ssified as a Rang e I , standard of fende r. Tenn. Code Ann. §§ 39-11-117( a)( 1); 39-11-40 3 (b ); 40-35- 112(a) (1). “A person i s criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific fe lony , but without the intent required f or criminal responsibilit y

under § 39-1 1

- 4 0 2 ( 2 ) , th e p e r s o n k n o w in g ly f u r n is h e s s u b s tan ti a l a s s is tan c e in th e c o mm is s io n o f the felony .” Id . § 39-11-403( a). A fter a thoroug h revie w of the r ecor d, and including consideration of Mr. J ackson’ s statement to the police, which was not introduc ed into e vidence at trial, we c onclude that t here is not a rea sonable proba bilitythat a rational trier of f act would ha ve conc luded that-14-

Petitioner me re ly (and kn ow ing ly ) fu rn ish e d s ub stanti a l a ssi stanc e in the c omm iss ionof theof fe ns e while lacking the intent to promote or assist in the offe nse. Se e id .; State v. Robinson , 146 S.W .3d 469, 487 (Tenn. 2004)

. Ba sed on the for eg oing, e ven if Mr. Jackson had te stified at trial that Petitioner did not actua lly fire the shots that kill ed Mr. B rown, the State c ould have p u rsued a theory of criminal responsibilityto support a conviction of f irst deg ree preme ditated murder

. Acc ording ly , we c on c lud e that Pet it io ner has f a ile d to sh ow that hewa s p re jud ic e d b y

tr ia l c ou ns e l’ s f

a ilu re to interview Mr . J ackson prior to trial. Petitioner is not entitl ed to re lief on this issue.
CO NC LU SION
Af te r a thr ou g h r e vie w, we a ff

irm 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