IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 7, 2013
TONY WOLFE v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 05-00559 James C. Beasley, Jr., Judge
No. W2012-00611-CCA-R3-PC - Filed September 30, 2013
The petitioner, Tony Wolfe, was convicted by a Shelby County Criminal Court Jury of first
degree premeditated murder and was sentenced to life imprisonment. Thereafter, he filed a
petition for post-conviction relief, alleging that his trial counsel was ineffective. The post-
conviction court denied the petition, and the petitioner appeals. Upon review, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.
Paul K. Guibao (on appeal) and Larry Copeland (at trial), Memphis, Tennessee, for the
appellant, Tony Wolfe.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Paul Hagerman, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
On direct appeal, this court summarized the proof adduced at trial as follows:
The underlying crime occurred at a Memphis
convenience store following an altercation between the
[petitioner], the victim, and several other men. The [petitioner]
shot and killed the victim when the victim exited the store.
At trial, the [petitioner] asserted that the victim,
Leondous Hawkins, and the two men with Hawkins were
members of a gang that shot him in 1997. He contended that the
three men displayed weapons to him inside the convenience
store. He denied that he waited for the men to exit the store. He
said that the trio shot at him and that he then shot at them in
self-defense.
State v. Tony Wolfe, No. W2008-01243-CCA-R3-CD, 2009 WL 1025871, at *1-3 (Tenn.
Crim. App. at Jackson, Apr. 8, 2009). This court affirmed the petitioner’s conviction and
sentence. Id.
Subsequently, the petitioner filed a pro se post-conviction petition, alleging numerous
grounds for relief, including the ineffective assistance of trial counsel. Attached to his
petition was a letter purportedly written by trial counsel on April 15, 2009, which stated:
Please find enclosed herewith a copy of the order from
the Court of Criminal Appeals where they upheld your
conviction. I am not sure what I am going to do about this yet,
but I know I will appeal further. As you know, the Court
Reporter altered your transcript and all the errors I testified to on
the stand were erased from your transcript. I may file a petition
for rehearing for you with the Court of Criminal Appeals, or I
will file an application for permission to appeal to the Tennessee
Supreme Court on your behalf.
This was a crooked trial, and the appeal was based upon
a crooked transcript. You know it, I know it, and I am going to
do something about it. If every thing else fails I will testify at a
post conviction hearing on your behalf that I was ineffective
because I was sleep deprived and that I totally screwed your case
up if that is what it takes to get you out of jail.
The record reveals that the petitioner’s trial counsel was deceased at the time of the
post-conviction hearing.
At the post-conviction hearing, petitioner called David Michael Zak, the assistant
district attorney general who prosecuted the petitioner’s case. Zak testified that he spoke
with trial counsel on various occasions prior to trial. For example, one or two weeks prior
to trial, trial counsel informed Zak that he was having trouble viewing the videotape of the
crime scene, and Zak assisted counsel in bringing the petitioner into the courtroom to view
-2-
the videotape.
Zak stated that trial counsel was provided discovery materials, including the
statements from more than six eyewitnesses, photographs, and the videotape. Zak said that
the State had to resupply trial counsel with the discovery materials, which were damaged by
a flood in trial counsel’s office.
Zak stated that the only offer made to the petitioner was to enter a guilty plea to first
degree murder and receive a life sentence. He recalled that trial counsel successfully argued
that the petitioner was not eligible for a sentence of life without parole because the State
failed to timely submit a notice of enhancement.
Zak said that the petitioner’s trial occurred the second week in December 2006. The
petitioner required dialysis treatments every other day; therefore, the trial proceedings began
around 11:00 a.m. or noon and ended around 9:00 p.m. on those days. Zak acknowledged
that the situation was unusual, that there were “issues in terms of how late the jury was
staying,” and that trial counsel raised those issues in his motion for new trial.
Zak stated that trial counsel’s teenage son had been in a bus accident the week of trial
but that counsel “was fine with that.” Additionally, counsel was on medication. Zak said,
“[T]hat was all in the motion for new trial when he testified.” The prosecutor recalled that
trial counsel was assisted by co-counsel during approximately ninety percent of the trial.
Zak said that he was aware of trial counsel’s style and that trial counsel “was known
[to] go around in circles before he got to certain issues.” Trial counsel acted consistently
with his normal practice during the petitioner’s trial. Zak said:
He was raging against the machine. He was walking up and
down and making his points. He was showing the jury that he
was animated and fully invested in this case.
Regardless, because of the strength of the State’s case, the jury “had no reason to consider
self-defense.”
Zak acknowledged that trial counsel complained to the trial court about the lateness
of the trial, his sleepiness, and his difficulty concentrating due to the medication. Zak said,
however, that the petitioner’s dialysis “changed everything.” Zak could not detect that trial
counsel was suffering any side effects from medication, noting that “[h]e was alert as he was
at ten p.m. as he was at ten a.m.” Zak stated that the trial court once “admonished [trial
counsel] that he understood that there was medication involved but he couldn’t do anything
-3-
about it since the fact that [trial counsel] was still practicing and doing as well a job as he
was.” Zak said that trial counsel would complain about being tired and unable to concentrate
“when it was convenient.”
Zak acknowledged that at one point, the trial court refused to allow trial counsel to
practice in his court but rescinded the order approximately two years later.
On cross-examination, Zak said that trial counsel had all of the Jencks material prior
to trial. Trial counsel argued motions prior to trial and made numerous objections during
trial. Trial counsel
stated on the record quite a few times that he was going to take
every witness very slowly and cross examine them methodically.
If this case took three weeks, it would take three weeks. He –
that was part of his plan, which – which was to extend this trial
as much as possible, and he did that on cross examination.
Zak stated that trial counsel passionately argued points to the trial court and the jury.
Trial counsel never appeared to have difficulty arguing and was usually “spot on. He was
saying what he wanted to say in front of the jury and they were listening to him.” Zak said
that trial counsel attempted to establish that the victim and the victim’s friend shot at the
appellant first. In support of this defense strategy, trial counsel tried to show that the video
“wasn’t giving you the full story” by going frame by frame through the video while asking
the witnesses who were present during the crime to explain what was happening off camera.
Trial counsel tried to convince the jury that “[w]hat was happening off camera was as
important or more important than what was happening on camera.” Zak opined that trial
counsel’s trial strategy was “brilliant” and was the only one available based on the proof.
However, the jury did not believe the claim of self-defense.
On redirect examination, Zak asserted that the trial court tried to accommodate trial
counsel’s needs by allowing him breaks to eat or to speak with the petitioner, co-counsel, or
witnesses. Zak said that near the end of the trial, the trial court agreed to start the
proceedings at 11:30 a.m. to allow trial counsel a minimum of ten hours to sleep. Zak stated
that trial counsel’s “strategy was to extend everything as much as possible.” Zak never saw
any indication that trial counsel was sleepy and did not recall ever seeing him yawn during
trial. Zak said that trial counsel “was on his game, he was in front of that jury . . . there was
never a moment where he wasn’t giv[ing] a hundred percent in what he was doing at that
moment.” He noted that he and trial counsel engaged in a “screaming match[]” at one point
during the trial outside the presence of the jury.
-4-
Zak said that trial counsel never said on the record or off the record that he was
ineffective. In fact, during the motion for new trial, Zak asked counsel if he had been
ineffective, and counsel responded that he had not been ineffective. However, counsel did
state that he was having trouble sleeping, that he was taking medication for the problem, and
that he was unable to take the medication because of the unusual hours during which the trial
was taking place. Zak said that even though the petitioner had been having dialysis
treatments for a while, the trial court was not apprised of his need for treatment during
normal trial hours until after the jury was selected. Zak also recalled that on the nights the
court worked late, the court would pause the proceedings for dinner breaks.
Zak stated that the State’s proof at trial was overwhelming. Specifically, he noted that
two survivors of the assault and two or three other witnesses testified, and a video from the
crime scene depicted the petitioner “basically making the kill shot against [the victim] as he
laid on the ground.” Trial counsel cross-examined and attempted to impeach the witnesses,
and the petitioner testified to establish self-defense. Trial counsel’s requests that the jury
visit the crime scene and that the petitioner expose scars to the jury to establish why he acted
in self-defense were denied. Zak said these actions demonstrated that trial counsel “was on
his game.” Trial counsel repeatedly said that “he would uncover every stone . . . if it took
all week.”
The petitioner testified that he rarely saw trial counsel before trial and that trial
counsel did not visit him in jail until the week of trial. Trial counsel did not tell the petitioner
about investigating the case. The petitioner stated that when trial counsel informed him that
counsel was on medication, co-counsel began assisting him during trial. The petitioner did
not meet co-counsel prior to trial.
The petitioner said that he was concerned about the lack of communication with trial
counsel, noting that he wanted counsel to know that he acted in self-defense because of an
“ongoing feud” between himself and the victims. The petitioner wanted trial counsel to
inform the jury that the victims were members of a gang and that the petitioner was formerly
a member of the same gang. The petitioner said the victims shot him when he “denounce[d]”
the gang. Since being shot, the petitioner had to undergo dialysis treatments. The petitioner
stated trial counsel wanted the petitioner to show his scars from the shooting at trial, but the
trial court would not allow it. The petitioner said that after he was shot, he was put in prison
and the victims threatened to kill him when he was released. However, the jury was not told
of the threat because the petitioner was unable to contact the witness he told about the threat.
The petitioner said that trial counsel told him that as part of the trial strategy, he could ask
the petitioner questions to elicit proof about the prior threat. Regardless, trial counsel did not
ask the necessary questions on direct examination. He acknowledged that his sister testified
about the victims’ gang membership and their shooting of the petitioner.
-5-
The petitioner said that trial counsel did not make many objections during trial.
Additionally, trial counsel was on medication and would “nod out.” The petitioner said that
he had to wake trial counsel at least twice to ensure he was paying attention but that trial
counsel seemed disoriented. Trial counsel asked the court for a continuance because he felt
that he could not handle the trial. The trial court denied the continuance but asked if trial
counsel wanted a mistrial. Trial counsel responded, “I’m just saying I need to be able to take
this medicine or whatever.” The petitioner said trial counsel cross-examined witnesses and
would “stumble and bumble so long” that the trial court insisted that counsel proceed more
quickly. The petitioner said trial counsel did not say that he intended to be thorough “just for
the sake of being a good lawyer” but because he felt rushed by the trial court.
The petitioner said that trial counsel woke the petitioner twice when he fell asleep
during trial because of exhaustion from his dialysis treatments. The petitioner said that on
the days of his treatments, the trial lasted until 11:00 p.m. On the days he did not get
treatment, the trial started around 10:00 or 10:30 a.m. and lasted until 10:00 p.m. The
petitioner said one juror closed her eyes during trial. He asked trial counsel if the juror was
paying attention, and trial counsel “noted it down that she had her eyes closed.”
The petitioner stated that during the trial, the State committed prosecutorial
misconduct by showing the jury the video of the petitioner shooting the victim when trial
counsel requested other scenes be shown. Additionally, the petitioner complained that the
State failed to show the jury the photographs that supported the defense.
The petitioner acknowledged that his medical records were admitted at trial to
demonstrate that the victims had shot him six times after he left the gang.
On cross-examination, the petitioner maintained that although he testified at trial, he
“didn’t get to tell the jury what I felt needed to be related so they could understand the
circumstances of my case.” The petitioner said that he answered the questions that were
asked and did not tell the jury about being shot by the victims or about being in the gang. He
said that trial counsel requested the trial court’s permission to ask about the prior threats and
gang affiliations but that the trial court would not allow it. The petitioner said that
once [trial counsel] let the judge know that he was on
medication and he was sleep deprived and he was feeling like
this or that, the judge told him to do the best he can and that’s
what I felt like he tried to do. He didn’t do the best he could,
because if he did, I wouldn’t be faced with life.
The petitioner said that the theory of defense was self-defense and that trial counsel argued
-6-
that theory. During closing argument, trial counsel also tried to persuade the jury to, at most,
convict the petitioner of a lesser-included offense. The petitioner acknowledged that trial
counsel cross-examined the witnesses.
The letter purportedly written by trial counsel was never made a formal exhibit at the
post-conviction hearing.
After the post-conviction hearing, the post-conviction court1 entered an order, denying
relief. The post-conviction court stated it had listened to the testimony of the petitioner and
the prosecutor and read the trial transcript and the opinion of this court on direct appeal. The
court determined that trial counsel
presented a very thorough, meticulous and detailed defense in
this case. He cross examined each witness thoroughly. He
argued issues on behalf of his client. He made many motions to
the court on behalf of his client. He vigorously defended his
client. There were many confrontations between the parties to
this trial. The issues about the hours the court was in session
and the reason for those unusual hours were addressed on
appeal. The trial court found that [trial counsel] was effective
in his representation. Likewise this [c]ourt has seen or heard no
proof that would indicate that [trial counsel] did not zealously
and effectively represent the [p]etitioner. . . . [Additionally, this]
case was heatedly contested by both sides but the proof was
overwhelming as to [the petitioner’s] guilt.
On appeal, the petitioner challenges the ruling of the post-conviction court.
II. Analysis
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
1
The post-conviction judge was not the same judge who presided over the petitioner’s trial.
-7-
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,
[b]ecause a petitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an
insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
On appeal, the petitioner maintains that trial counsel should have shown the jury
evidence that the victims were members of a gang who had previously shot him and that,
therefore, he acted in self-defense. We note that on direct appeal, this court said:
At trial, the [petitioner] asserted that the victim,
Leondous Hawkins, and the two men with Hawkins were
members of a gang that shot him in 1997. He contended that the
three men displayed weapons to him inside the convenience
store. He denied that he waited for the men to exit the store. He
-8-
said that the trio shot at him and that he then shot at them in
self-defense.
State v. Tony Wolfe, No. W2008-01243-CCA-R3-CD, 2009 WL 1025871, at *1 (Tenn.
Crim. App. at Jackson, Apr. 8, 2009). In other words, the record reveals that the jury heard
the evidence the petitioner wanted them to hear. Accordingly, there is no evidence that trial
counsel was ineffective in this regard.
The petitioner’s chief complaint seems to be that counsel was ineffective by being
sleep deprived and “out of it” during trial. Specifically, the petitioner argues that
the admission of counsel in the letter made exhibit to the hearing
was in a sense testimony from the grave. But that admission
was not unsupported, as counsel set this record from the trial on
as he felt that the conditions for trial impaired his ability to
represent his client. In this matter, the [petitioner’s] conviction
if sustained without retrial is tainted by the cloud of his trial
counsel’s statements, especially in light of the serious nature of
the charge and sentence in this case. Justice demands that [the
petitioner] receive a new trial in the matter.
We acknowledge that in the letter, counsel stated that he was sleep deprived during
the trial; however, we note that the letter does not state specifically what counsel could have
done or failed to do because he was sleep deprived. Therefore, the letter contains no specific
allegation of deficiency or prejudice the petitioner may have suffered by the alleged
deficiency and fails to establish that counsel was ineffective.
Further, the post-conviction court stated that this issue was addressed on direct appeal.
Specifically, this court’s opinion on direct appeal reveals that trial counsel contended that the
“trial court . . . conduct[ed] the trial under unreasonable hours ‘for no good reason,’ . . .
which rendered [trial counsel] tired and unable to concentrate.” Id. at *4. On the third day
of trial, after the trial court stated an intention to work late that evening,
[t]rial counsel informed the court that he was taking medicine
that might affect his ability to work longer hours and might
render him ineffective. The trial court asked counsel if he
wanted a mistrial, and he declined. He said he felt fine but
surmised that he could only work until 8:30 p.m. that day. The
record reflects that the court adjourned sometime after 10:00
p.m., after trial counsel concluded his direct examination of the
-9-
defendant. The State objected that trial counsel had deliberately
engaged in time-consuming irrelevant questioning to circumvent
the State from conducting an immediate cross-examination.
Trial counsel did not complain that the late hour was
affecting his ability to represent his client. The record reflects
that trial counsel stated that he was being “thorough” in his
direct examination. The record further reflects that the trial
court took a long dinner break and several additional breaks
throughout the day.
Id.
Moreover, at the post-conviction hearing Assistant District Attorney General Zak
testified that trial counsel was thorough in his cross-examination of witnesses and “brilliant”
in his presentation of the theory of defense. Additionally, the proof against the petitioner was
overwhelming. Several witnesses to the shooting testified at trial, and the State played for
the jury a video of the shooting. The jury heard the petitioner’s claim of self-defense and
rejected it. The post-conviction court found that there was no evidence that trial counsel’s
performance was diminished by the hours of the trial or by any alleged sleep deprivation. To
the contrary, the court found that counsel’s representation was thorough, meticulous, and
detailed and that he zealously and vigorously defended the petitioner. The record does not
preponderate against this finding.
III. Conclusion
In sum, we conclude that the petitioner has failed to prove that his counsel was
deficient or that he was prejudiced by any alleged deficiency. Therefore, the post-conviction
court did not err in denying relief. The judgment of the post-conviction court is affirmed.
_________________________________
NORMA McGEE OGLE, JUDGE
-10-