Michael Blackburn v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 7, 2004

MICHAEL BLACKBURN v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Franklin County
Case No. 11223-B J. Curtis Smith, Judge

No. M2003-02549-CCA-R3-PC - Filed February 15, 2005

The Petitioner, Michael Blackburn, was convicted of first degree premeditated murder, first
degree felony murder, and aggravated robbery, and the trial court sentenced him to life plus
twenty years. This Court affirmed the convictions and sentences on appeal. The Petitioner
subsequently filed a petition for post-conviction relief, which the post-conviction court
dismissed after a hearing. On appeal, the Petitioner contends that the post-conviction court erred
because he was denied the effective assistance of counsel. Finding no reversible error, we affirm
the post-conviction court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODALL, JJ., joined.

Glen A. Isbell, Winchester, Tennessee, for the Appellant, Michael Blackburn.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION
I. Facts

On December 3, 1998, a jury convicted the Petitioner of first degree premeditated
murder, first degree felony murder, and aggravated robbery. The trial court merged the murder
convictions, and sentenced the Petitioner to life in prison for the murder conviction and to
twenty years for the aggravated robbery conviction, to be served consecutively. This Court
summarized the facts on direct appeal as follows:

At trial, the State called Coffee County Sheriff's Deputy Brian Allen. On August
14, 1996, Deputy Allen was working the midnight shift when the defendant came
in around 12:15 a.m. to report a drowning at the Turkey Creek boat ramp. The
defendant reported to him that he, co-defendant Tommy Dickerson, and victim
David Singer were at the boat ramp that evening. According to the defendant, co-
defendant Dickerson and the victim started arguing and co-defendant Dickerson
hit the victim in the face, which knocked the victim into the water. He told
Deputy Allen that he tried to help the victim, but that co-defendant Dickerson
ordered him back into the truck, threatening him that he would be next if he did
not comply. He said that the victim never resurfaced. He told Deputy Allen that
they then took the victim’s truck to Tullahoma. Because the Turkey Creek boat
ramp is in Franklin County, Deputy Allen notified the authorities there.

The State called Deputy Earl Morse of the Franklin County Sheriff’s
Department, who was dispatched to meet the defendant at the boat ramp, to
testify. Deputy Morse observed an article of clothing in the water. He testified
that the defendant told him that he, Dickerson, and the victim were hanging out
around the boat dock when the victim went down on the dock. The defendant
claimed that he told Dickerson that he needed to go home because he had to be up
early for work. According to the defendant, Dickerson then went onto the dock
and began “messing” with the victim. The two began arguing and the defendant
said he saw “a motion come around,” heard a “smack,” and something then hit the
water. The defendant said he then turned on the truck headlights.

The defendant further told Deputy Morse that Dickerson said, “He ain’t
come up yet,” and then, “Let’s go, he’s dead. Get in the truck.” The defendant
said that when he tried to go in after the victim, Dickerson told him to get in the
truck or he would be next. The two then got into the truck and went to
Tullahoma. According to the defendant, he jumped out of the truck at a red light
and Dickerson tried to run over him. He said that once he got to his father’s
house, he told him what had happened and his father told him to go to the police.

At the crime scene, the defendant identified a pair of shoes found in the
parking lot as belonging to the victim. He also said that Dickerson was his
cousin, but he had only met the victim a few days earlier. He further informed the
deputy that Dickerson and the victim had run away from a rehab center in
Shelbyville. A search of the boat dock revealed a shirt about four feet from the
dock, a pair of blue jeans about ten feet from the end of the dock, and the victim’s
body 15'7" from the end of the dock. The victim’s feet were tied with a blanket
and his jeans had been pulled down over the blanket. The victim had scratches
and abrasions on his face and head.

The autopsy revealed multiple superficial lacerations on the victim’s
forehead, linear abrasions on his right shoulder, a bruise on his right wrist, and

−2−
scrapes on his knees and right forearm. The victim had a blood alcohol level of
.19%. The medical examiner determined drowning was the cause of the victim’s
death.

The State also called Franklin County Sheriff’s Deputy Danny Warren,
who took a statement from the defendant in the early morning hours of August
14, 1996, to testify. The defendant said that Dickerson and the victim had run
away from a rehab center on August 12th and had been drinking all day. The
defendant met up with Dickerson and the victim around 9:00 p.m. the next
evening, August 13, to go to a party at the Traveler’s Inn in Manchester. He said
that Dickerson and the victim had again been drinking.

The defendant said that when they left, they went to Turkey Creek. Upon
arrival, around 9:45 p.m., the victim got out of the truck and went onto the boat
dock. The defendant said that he told Dickerson that he needed to get home
because he had to be up early for work. He said that Dickerson then got
something out of the back of the truck and went onto the dock and told the victim
to get up. He said that the two began arguing and then he heard a “smack” and
something hit the water. He then turned on the truck headlights and asked
Dickerson what was going on. Dickerson replied that the victim was messing
around and jumped into the water. He told Deputy Warren that he did not think
much of it until Dickerson said that the victim was not coming up. The defendant
said that when he offered to jump in after the victim, Dickerson threatened to kill
him if he did. He claimed that he was afraid of Dickerson because Dickerson was
bigger than him.

According to the defendant, they left Turkey Creek in the victim’s truck.
He then reiterated his story about stopping at a red light, Dickerson trying to run
over him, and getting to his father’s house. When questioned about the victim’s
legs being tied, the defendant claimed he did not know how that happened. He
told Deputy Warren that Dickerson and the victim had been arguing earlier
because the victim wanted to go home to his family, but Dickerson did not want
him to go.

Shortly thereafter, the defendant gave a second statement to Deputy
Warren. He told the deputy that Dickerson threatened him if he did not help. So,
he tied a blanket around the victim’s feet. He said that the victim was conscious,
but did not resist them. The defendant claimed that he then blacked out.

Approximately an hour later, the defendant again summoned Deputy
Warren with additional facts about the victim’s death. He said that when the

−3−
three were on their way to the boat dock, Dickerson told the defendant that he was
going to rob the victim and kill him. The defendant said that when he objected,
Dickerson threatened to kill him. He said that when they arrived, Dickerson
ordered him to get a blanket and a pair of pants out of the trunk. The defendant
then tied the victim’s hands together with the pants and tied his feet together with
the blanket. According to the defendant, Dickerson tied the blanket tighter, took
$15.00 out of the victim’s pocket, and then picked the victim up and threw him
off the dock. When again questioned about the victim’s pants being around his
ankles, the defendant persisted that he did not know.

A couple of days later, on August 16, the defendant gave another
statement to Deputy Warren. He said that after they arrived at Turkey Creek, the
victim got out of the truck and leaned up against it. Dickerson got out, smiled
real big, and hit the victim. After the victim hit the ground, Dickerson got on top
of him and started beating him saying, “You want to fight? You want to fight?”
Although the victim never said a word, he was awake. At one point though, the
victim did ask Dickerson why he was doing this. Dickerson just beat him more.

The defendant claimed that Dickerson got a blanket and a pair of pants out
of the truck, and made the victim walk down the boat dock. Again, the defendant
insisted that he did not want to participate, but that Dickerson threatened him with
death if he did not. Per Dickerson’s orders, the defendant tied the victim’s hands
and feet. Then Dickerson smiled big again and pushed the victim off the end of
the dock. The defendant told Deputy Warren that the victim came up a couple of
times, but that Dickerson would not let him go in to help the victim.

The two returned to Tullahoma and drove to the Traveler’s Inn in
Manchester. There the defendant met up with his girlfriend Charity Austin and
told her that Dickerson killed the victim. She and the defendant left Manchester,
drove to his father’s house, and then went to the sheriff. The defendant also told
Deputy Warren that Dickerson said the victim was rich and that Dickerson told
his sister Rhonda that he was about to rob someone, get some money, and leave
town.

The State’s final witness was Rhonda Smith, the defendant’s first cousin
and Dickerson’s sister. She testified that on August 12th, the defendant,
Dickerson, and Charity Austin came to her house around 11:00 p.m. According to
Smith, Dickerson had been drinking, but the defendant had not. The defendant
told her that he needed money. When she said she did not have any, he told her
he was going to get some money one way or another, even if he had to kill
someone. In her presence, the defendant asked Dickerson how much money the

−4−
victim had, and Dickerson told him that he was about to receive $400. The
defendant said he would kill the victim for that money. He claimed it would be
easy to tie some blocks around his feet and throw him off into the water. While at
the Smith's house, the defendant also approached Robert Smith about borrowing a
shotgun. He told Smith that he needed to make some money. However, Smith
told him that he did not loan out his guns. This concluded the State’s proof.

The first witness on behalf of the defendant was James Parker, a.k.a.
Poncho. He stated that in August 1996, he lived with the defendant’s father,
Alfred Blackburn. On August 13th, the defendant, Dickerson and the victim were
at Parker’s house. Evidently, the victim had spent the night at his house, and was
going to turn himself in that morning. However, the victim gave Dickerson $40
and they proceeded to drink all day long.

Around 5:00 p.m., Parker kicked everyone out of his house because they
were drinking and he did not want to get in trouble with his landlord. Later,
around 9:00 p.m., the defendant and Dickerson returned to Parker’s house, but the
victim was not with them. They talked with the defendant’s father and then they
left. When Dickerson and the defendant later returned, Janice Brown and Charity
Austin were with them. The defendant told his father and Parker what had
happened, and the defendant and his father then left to go to the police.

The defense also called Janice Brown to testify. She testified that when
the defendant arrived at the Traveler’s Inn, he seemed scared. He told her that the
victim was at the lake. He said he hoped that the victim was just passed out.
However, he also told her that he jumped in the water to help the victim and that
Dickerson performed CPR, but then pushed the victim back in. After that, she,
Charity and the defendant drove out to the landing, called for the victim, and then
returned to Parker’s to talk with the defendant’s father.

Alfred Blackburn, the defendant’s father, also testified on behalf of the
defendant. He testified that Dickerson and the victim had been drinking all day
on August 13th. Dickerson and the victim had argued several times and
Dickerson swung a 2 x 4 piece of lumber at Blackburn when he would not take
them to Georgia. Around 11:15 p.m., the defendant came to the house and told
him that Dickerson had killed the victim. They then went to the police.

Finally, the defendant testified on his own behalf. At trial, he stated that
he did not initially tell police the true story of what happened at the dock because
he was afraid his parole would be revoked. He testified that when he, Dickerson
and the victim left Poncho’s on August 13th, he was driving the victim’s truck.

−5−
 They stopped at a market, and Dickerson wanted to drive. Though Dickerson was
drunk, and the defendant did not want him to, Dickerson ended up driving
anyway. Dickerson indicated that he wanted to go for a swim, so they headed to
Turkey Creek. On the way there, Dickerson told him that he was going to kill the
victim. Although the victim was sitting in between Dickerson and the defendant,
he had no reaction to this statement.

When they arrived at the dock, Dickerson and the victim got out of the
truck and leaned up against it. According to the defendant, Dickerson told the
defendant to get out or he would do to him what he was going to do to the victim.
The defendant noticed a boat in the water and yelled out to it, hoping to dissuade
Dickerson, even though he really did not believe Dickerson was serious. But, the
boat drove off. Then Dickerson smiled real big, and hit the victim. After the
victim hit the ground, Dickerson got on top of him and started beating him saying,
“You want to fight? You want to fight?”

Dickerson got the blanket and pants out of the truck. He took the victim
down to the dock, told him to lie on his stomach and then ordered the defendant
to tie the victim's hands and feet. Again, the defendant maintained that he tried to
resist, but Dickerson threatened him with death if he did not help him. The victim
asked Dickerson what he was doing, and Dickerson told him he was about to die.
Dickerson then pushed the victim off the end of the dock. The defendant testified
that he started to go in after the victim, but that Dickerson again threatened him
with death if he did.

They left in the victim’s truck and drove back to Parker’s, where his father
was still located. He did not say anything to his father then about what happened
because he was scared of Dickerson. He and Dickerson then drove to Manchester
and met up with Charity and Janice. After he told Charity what had happened, he,
Charity and Janice went back out to the boat dock to look for the victim. When
he did not answer their calls, they drove back to his father’s house. He then went
to the police with his story.

State v. Michael Blackburn, No. M2000-01202-CCA-R3-CD, 2001 WL 1251239, at *1-5 (Tenn.
Crim. App., at Nashville, Oct. 19, 2001), perm. app. denied (Tenn. Apr. 8, 2002).

The Petitioner filed a pro se petition for post-conviction relief, which was later amended
by appointed counsel. In his petition he alleged, in part, that he received ineffective assistance of
counsel because his trial counsel failed to: (1) adequately prepare for trial; (2) give him an
assessment of the evidence against him and the applicable law; (3) file a motion to suppress his
statements to police; and (4) request any jury charges. The following evidence was presented at

−6−
the hearing on the Petitioner’s petition for post-conviction relief: Robert S. Peters (“Counsel”)
testified that he has been practicing law since 1970, and criminal law is a substantial part of his
practice. Counsel said that he was appointed to represent the Petitioner on November 8, 1996,
and the Petitioner’s trial began on December 2, 1998. Counsel said that the time sheet that he
submitted to the court shows that, prior to the trial, he spent thirty-one hours out-of-court, and
six hours in-court, on the Petitioner’s case. He estimated that he actually spent close to twice
that number of hours out-of-court, but he did not report those hours.

Counsel testified hat he had “lengthy discussion[s]” with the Petitioner on several
occasions about the case. He said that he spoke with the Petitioner each time the Petitioner came
to the courthouse, and he visited the Petitioner in jail on the day of trial. Counsel said that he
may have met with the Petitioner in jail on other occasions, but he was unsure of exact dates and
times. Counsel said that, between October 30, 1997, and December 2, 1998, he wrote the
Petitioner two or three letters.

Counsel said that the strategy in the Petitioner’s case was “simple.” He said that the
Petitioner and his co-defendant both made full and complete statements to the police, and the
strategy was for the Petitioner to “take the stand, look the jury in the eye and convince them that
he was a smaller man, was intimidated by [his co-defendant], and it was [the co-defendant who]
committed the crime and that he was afraid, intimidated . . . .” Further, the Petitioner was to tell
the jury that, following the commission of the crime, he came back to the scene and admitted
what had happened. Counsel said that, originally, one of the Petitioner’s defenses was duress.
Counsel said that the Petitioner was going to convince the jury that his co-defendant was a
violent person who had committed this crime and other violent acts earlier in the day on the
same day as the murder.

Counsel testified that he did not explain to the Petitioner how he was going to incorporate
the defense of duress. He said the Petitioner was going to tell his story, and, if the jury believed
the Petitioner, there was a chance that they would not convict him of the more serious crime.
Counsel said that he did not instruct the Petitioner about the law of duress, rather he told the
Petitioner to tell the truth and then the jury would decide if the law of duress applied. Counsel
said that he did not think that an attorney should tell a client what a client would have to say in
order to meet the elements of a defense. Additionally, Counsel said that he intended to tell the
jury that the State allowed the Petitioner’s co-defendant to plead to second degree murder and
then argue to the jury that the Petitioner deserved a lesser punishment. Counsel conceded that
the trial judge did not allow him to present this evidence, but he said that this was a strategic
decision.

Counsel said that he interviewed both officers in this case, and some, but not all, of the
other State’s witnesses. He said that he and the Petitioner never disagreed about the trial strategy
or which witnesses Counsel interviewed. Counsel testified that he and the Petitioner went over

−7−
all of the discovery provided by the State, which included the Petitioner’s, and his co-
defendant’s, statements to police. Counsel said that he did not interview the police officer who
searched the Petitioner’s co-defendant and found items that were stolen in the robbery on the co-
defendant. Counsel explained that, since there was no issue about where these items were found,
this was not pertinent to the case. Further, there was no evidence that the Petitioner had these
items, so this testimony was unnecessary. Counsel testified that he interviewed each of the
witnesses that he called in defense of the Petitioner before they testified at trial.

Counsel testified that he called witnesses to state that the Petitioner’s co-defendant had
committed this crime. The trial court excluded that testimony at trial, and Counsel appealed that
ruling, but it was upheld on appeal. Counsel testified that he thought that, even though the
Petitioner’s co-defendant did not testify at trial, he could still admit the co-defendant’s
statements that he killed the victim at trial under an exception to the hearsay rule. Counsel
testified that he asserted to the trial court that these statements were admissible pursuant to
Tennessee Rule of Evidence 803(e), but the trial court disagreed. Counsel thought that it would
be impossible to admit these statements if he called the co-defendant because they were unlikely
to be admitted during direct examination. Rather, his strategy was to hope that the State called
the co-defendant so that he could cross-examine the co-defendant. Then, when the State did not
call the co-defendant, he argued to the jury that the Petitioner was prejudiced by, and the State
was to blame for, the co-defendant not being present at trial. Counsel stated that it would have
been the “height of idiocy” to have subpoenaed the co-defendant because the co-defendant had
already given a statement to police that he was afraid of the Petitioner and, had the co-defendant
testified, that information would have been before the jury. Counsel said that, after researching
the applicable law, he made a tactical decision not to call the Petitioner’s co-defendant because
he determined that it would have done more harm than good.

Counsel said that he did not file a motion to suppress any of the statements that the
Petitioner gave to police because, since the Petitioner intended to testify, these statements would
be admissible during cross-examination. Further, Counsel thought that the statements, on the
whole, were favorable to the Petitioner. Counsel stated that, in his opinion, if he got the
statements suppressed, and the Petitioner did not testify, their chances “of succeeding would
have been much much less. It was a tactical decision on [Counsel’s] part.” Counsel said that he
thought that the Petitioner’s only chance to win this case was to tell his truthful story, which was
that he was scared and intimidated by the co-defendant and he did not profit from this crime
whatsoever. Counsel said that this was a strategy that the Petitioner agreed with. Counsel
conceded that some of the officers who testified about the Petitioner’s statements would not have
been able to testify if he had successfully filed a motion to suppress those statements. Counsel
said that, even if the Petitioner’s statements were excluded, the State could still place the
Petitioner at the scene of the crime because the Petitioner returned to the crime scene with a
female friend to look for the victim. Counsel testified that, if this evidence had been excluded,
the case might have been a “little different,” but the outcome would have been the same.

−8−
Counsel testified that part of the reason that he did not file motions to exclude some of the
evidence, such as the Petitioner’s statements and the fact that he was recently released from
prison, was because his strategy was to have the Petitioner testify, therefore, this evidence would
have been admissible. He stated that the evidence could only have been excluded if the
Petitioner did not testify, which was not his strategy.

Counsel testified that he did not file any jury charges, including a request for a duress
instruction. Counsel said that the trial court must not have thought that the elements of duress
were present. He testified that, ultimately, their strategy was not duress, but that, while the
Petitioner was there, he did not commit the crime. Counsel noted that the jury was instructed on
facilitation and other lesser-included offenses.

Counsel testified that he told the Petitioner about the plea offered by the State for the
Petitioner to plead guilty to second degree murder, and the Petitioner rejected that offer.
Counsel said that he did not think that it was in the Petitioner’s best interest to plead guilty if the
Petitioner did not want to plead guilty. He said that, if the jury had believed the Petitioner, the
Petitioner would have been found not guilty. Counsel reiterated that, even considering the
Petitioner’s prior criminal history, if the jury believed the Petitioner he would have been found
not guilty. Counsel then said that he had recently tried a similar case, in which the jury did not
convict a defendant with a “horrendous” record because they believed the defendant.

On cross-examination, Counsel testified that he graduated first in his law school class at
the University of Tennessee, and he was editor in chief of the law review. He said that he was a
member of the Order of the Coif, an honor society for law students. Counsel said that he has
probably tried more criminal cases and more appellate cases than anyone in the county and has
argued nearly 200 appellate cases. Counsel testified that he discussed the Petitioner’s case with
both the Petitioner’s father and the district attorney prosecuting the case on multiple occasions.
Counsel testified that he never discovered any facts that led him to believe that he could have
successfully suppressed the Petitioner’s statements to police. Counsel said that some of the
statements that the Petitioner made to police were made after the Petitioner voluntarily went to
police, and Counsel thought that, because the Petitioner initiated the contact, it would be
favorable to the Petitioner’s defense. Further, Counsel said that this fact supported the defense
theory that the Petitioner’s co-defendant was the primary perpetrator of this crime.

Counsel conceded that he, perhaps, should have requested a duress jury instruction, but
said that the classic case of duress was not applicable here. He said that the defense strategy was
to eliminate the elements that would have been necessary for the jury to convict the Petitioner of
both felony and first degree murder. Counsel testified that the State offered to allow the
Petitioner to plead guilty to second degree murder, but the Petitioner rejected that offer.

−9−
 Mary Adams testified that she is the Petitioner’s mother, and she said that she “pretty
well [had to] tell [Counsel] who all needed to be subpoenaed.” She said that she issued and
served the seventeen subpoenas in the Petitioner’s case. Adams testified that she told Counsel to
ask certain questions, and she had to act as his secretary. She said that Counsel “thought we
didn’t have [any]thing to worry about” with regard to the Petitioner’s case. Adams testified that
Counsel told her, up to and even on the day of trial, that the Petitioner’s co-defendant would be
present at trial. She said that both she and her son wanted the co-defendant present.

On cross-examination, Adams testified that she knew that the Petitioner’s co-defendant
would blame the Petitioner for the crime. She said that she talked to Counsel about witnesses
that she thought were important, and he told her about witnesses he thought were important. She
said that she had to assist Counsel because he was not “doing his job,” and she did not see him
vigorously cross-examine witnesses. Adams testified that she believed the story that the
Petitioner told her that he was not the main perpetrator of this crime, and she said that it was the
same story that he testified to at trial, which the jury rejected.

Alfred Blackburn testified that he is the Petitioner’s father, and he spoke with Counsel
once or sometimes twice a week for two years. Blackburn said that Counsel told him that they
had “nothing to worry about. [The Petitioner] wasn’t guilty, he knew he wasn’t guilty, and he
was going to prove that point.” He said that he and Counsel discussed that the Petitioner’s co-
defendant had a violent rage and that the co-defendant was found with all of the items taken in
the robbery. Blackburn testified that he gave Counsel the names of a few people who the co-
defendant had asserted violence against.

On cross-examination, Blackburn testified that he and Counsel discussed this case about
once or twice a week for two years, and they discussed the witness list. Blackburn said that he
testified at trial, and the prosecutor would not let him tell the truth and kept objecting. He
conceded that the co-defendant’s penchant for violence came out during the trial, and the jury
rejected that argument. On redirect examination, Blackburn testified that he told Counsel about
an incident in which the co-defendant displayed violence against the victim, but he did not get to
tell that story at the Petitioner’s trial. Blackburn said that, during this incident, the co-defendant
told him that the co-defendant was going to throw the victim in the river. He said that he could
not tell this story in court because the co-defendant was not at the trial, even though Counsel told
him that the co-defendant would be there. When he found out that the co-defendant would not
be there, he told Counsel to stop the trial, but Counsel went ahead with the trial anyway. On re-
cross-examination, Blackburn conceded that he actually did tell the story about the co-
defendant’s violence to the jury, but said that he has been in the hospital with a heart attack, a
stroke, and a failing liver, so he did not remember telling the story.

The Petitioner testified that his co-defendant is also his cousin. He said that he has been
incarcerated for this crime since August of 1996. The Petitioner said that another attorney

−10−
represented him during his preliminary hearing, and then Counsel represented him during the
rest of the proceedings against him. The Petitioner said that he attempted to contact Counsel, but
Counsel’s secretary always answered because Counsel was “never there.” The Petitioner said
that Counsel never visited him in jail, and, while he met with Counsel before court proceedings,
Counsel would never discuss his case with him. He testified that each of these meetings lasted
ten minutes “at the most.” He said the only time he discussed his case with Counsel was outside
the courtroom the day before his trial. The Petitioner said that, prior to his trial, he received two
letters from Counsel, one that asked him to submit to a blood test and one that informed him of
his court date. He said that, after his trial, he received a letter telling him that Counsel would
appeal his case.

The Petitioner said that he wrote Counsel letters and told him that he wanted “everything
that pertained to [his] case so [he] could have somebody . . . look [at] it and . . . help [him]
understand . . . .” He said that he never received any materials, including the statements of any
witnesses, or a copy of any of his statements to police. He testified that Counsel never went over
any of the Petitioner’s statements with him. Further, Counsel did not interview witnesses that he
asked Counsel to interview. The Petitioner said that Counsel never discussed with him the
evidence that was against him, and the only thing that Counsel told him was that it would be in
his best interests to testify. He said that, when he took the stand, he was unaware of any of the
allegations that witnesses had made against him. The Petitioner said that it was Counsel’s
decision for him to take the stand.

The Petitioner said that he never received an offer from the State to plead guilty. He said
that, one time when he was in court, he learned that his co-defendant was given an offer to plead
guilty and, when he asked why he did not get one, he was told by the prosecutor that he could
plead guilty too, but he would get a life sentence. The Petitioner said that Counsel never showed
him an offer to plead guilty from the State.

The Petitioner testified that Counsel told him that everything was going to be “okay” and
not to worry about anything. He said that Counsel told him “[w]e’re going in under duress.
There’s no reason why you should be found guilty of murder when you done what you done
under duress.” The Petitioner said that Counsel told him that his co-defendant would be there
the day of trial to testify. He said that, on the day of trial, when his co-defendant was not there
he told Counsel that “you already know that our defense is based on him being here, because we
can’t get [any]thing on the stand,” and Counsel told him that his co-defendant would be there.
He testified that he asked Counsel to subpoena his co-defendant, but Counsel never did, and
Counsel gave him no explanation as to why this was not done.

The Petitioner said that Counsel told him that, if he was found guilty, he could be put in
prison for “a long time.” Counsel did not tell him the possible sentences for his crime or that the
sentences could be ordered to run consecutively. The Petitioner said that “the only thing” that he

−11−
discussed with Counsel was the fact that the Petitioner’s co-defendant had all of the belongings
that were taken from the victim during the robbery.

On cross-examination, the Petitioner testified that the fact that the victim’s belongings
were found on the Petitioner’s co-defendant was presented to the jury at trial without the co-
defendant testifying. The Petitioner testified that he did not know what charges he was facing
until the morning of trial. He said that the attorney who represented him at his preliminary
hearing did not tell him what charges he faced. He conceded that, while he had said that he did
not know the possible sentences that he was facing, he knew he was facing life in prison for
these crimes. He said that Counsel lied when he said that he relayed the State’s offer to allow
the Petitioner to plead guilty to second degree murder. The Petitioner said that he would have
pled guilty had Counsel told him that he might be convicted and told him of the plea offer made
by the State.

The Petitioner testified that he was brought to the jail near the courthouse on the day
before his trial, but he did not meet with Counsel at that time. He said he did not meet with
Counsel until the morning of his trial. At that time, Counsel discussed with him the defense of
duress. He said that his defense at his trial was “the truth,” and he presented this to the jury. He
conceded that the jury rejected this defense, but said that they did so because his co-defendant
was not there to testify. The Petitioner said that, while the jury heard testimony about the co-
defendant being a violent man, they only heard it “somewhat.” He said that he knew that the co-
defendant had accused him of this crime, but the co-defendant might have accepted
responsibility for this murder during the Petitioner’s trial.

The Petitioner admitted that most of the evidence that the State presented at trial was also
presented at his preliminary hearing, at which Counsel did not represent him. He then conceded
that, while Counsel did not represent him at that time, he asserted in his petition in his post-
conviction petition that Counsel was ineffective when he represented him at the preliminary
hearing. The Petitioner conceded that some of the claims included in his petition for post-
conviction relief did not apply to him. The Petitioner said that Counsel was ineffective because
he did not communicate adequately with him. He said that, had he had more conversations with
Counsel, he could have gotten more familiar with his case and there would have been a different
outcome at his trial. The Petitioner could not provide any specific facts that he would have
communicated to Counsel.

On redirect-examination, the Petitioner said that Counsel did not explain the defense of
duress to him, and only told him that he would have to explain to the jury that he was “under fear
for [his] life.” The Petitioner said that Counsel never told him that, to prove duress, he would
have to prove that there were no means for him to escape. The Petitioner reiterated that he did
not know that he was charged with felony murder until the day of trial. He said that he knew he
was charged with first degree premeditated murder and aggravated robbery, but he said that

−12−
Counsel never discussed the elements of these crimes with him. The Petitioner said that a
“jailhouse” lawyer filled out and filed his original petition for post-conviction relief in exchange
for cigarettes. He also said that his attorney at the preliminary hearing told him that duress was
his best defense, but he did not discuss this defense with Counsel until the morning of the day of
his trial.

On re-cross-examination, the Petitioner conceded that he could only speculate about how
a difference in Counsel’s actions would have affected his trial. He admitted that he could not
say with any certainty that, had anything different happened, it would have changed the outcome
of his trial.

Carol Medley testified that she is the circuit court clerk assistant and she is primarily
responsible for the criminal docket in Franklin County Circuit Court. She testified about the
orders to transport the Petitioner to court. She said that the Petitioner was transported to court on
May 13, 1997, November 17, 1998, and December 2, 1998. She testified that, according to her
orders, the Petitioner was not at the jail on November 16, 1998, when Counsel said that he met
with the Petitioner. Medley testified that the Petitioner was not transported to the court on
November 13, 1997, the day Counsel said that he had a status conference with the Petitioner in
the court. On cross-examination, Medley conceded that her report does not reflect when the
Petitioner was transported to court from other counties. She conceded that her transport orders
do not show that the Petitioner was present in court on November 6, 1996, but she was sure he
was present in court because he filled out an affidavit of indigence on that day.

Based upon this evidence, the post-conviction court dismissed the Petitioner’s petition
for post-conviction relief, and the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred when it dismissed
his petition because Counsel failed to: (1) adequately prepare for trial; (2) give him an
assessment of the evidence against him and the applicable law; (3) file a motion to suppress his
statements to police; and (4) request any jury charges. In order to obtain post-conviction relief, a
petitioner must show that his or her conviction or sentence is void or voidable because of the
abridgment of a constitutional right. Tenn. Code Ann. § 40-30-103 (2003). The petitioner bears
the burden of proving factual allegations in the petition for post-conviction relief by clear and
convincing evidence. Tenn. Code Ann. § 40-30-110(f). A post-conviction court’s factual
findings are subject to a de novo review by this Court; however, we must accord these factual
findings a presumption of correctness, which is overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40 S .W.3d
450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject to a purely de
novo review by this Court, with no presumption of correctness. Id. at 457.

−13−
 The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to
representation includes the right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461.
The Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a
mixed question of law and fact and, as such, is subject to a de novo review. Id.

In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of competence
demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of
ineffective assistance of counsel, a petitioner must show that “counsel’s representation fell below
an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),
and that this performance prejudiced the defense, resulting in a failure to produce a reliable
result. Id. at 687; Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the
requirement of prejudice, a petitioner must show a reasonable probability that, but for counsel’s
unreasonable error, the fact finder would have had reasonable doubt regarding the petitioner’s
guilt. Strickland, 466 U.S. at 695. This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Id. at 694; see also Harris v. State, 875 S.W.2d 662, 665 (Tenn.
1994). ..

When evaluating an ineffective assistance of counsel claim, the reviewing court should
judge the attorney’s performance within the context of the case as a whole, taking into account
all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149
(Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct from the
attorney’s perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly
deferential and “should indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be
deemed to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App.
1980). The fact that a particular strategy or tactic failed or hurt the defense does not, standing
alone, establish unreasonable representation. House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(citation omitted); Thomas Brandon Booker v. State, No. W2003-00961-CCA-R3-PC, 2004 WL
587644, at *4 (Tenn. Crim. App., at Jackson, Mar. 24, 2004), no perm. app. filed. However,
deference to matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation. House, 44 S.W.3d at 515.

−14−
 A. Adequate Trial Preparation

The Petitioner first asserts that Counsel was ineffective by failing to adequately prepare
for trial. The post-conviction court found:

Was trial counsel deficient by failing to properly prepare for trial? The
[Petitioner] complains that [Counsel] did not spend adequate time with him to
prepare him for trial. [The Petitioner] had given the four statements to law
enforcement long before [Counsel] was appointed. While these statements did
support his defense, the statements were inconsistent in many respects. The
[Petitioner] was related to the co-defendant and voluntarily spent time with him
pr[ece]ding the night [the victim] was killed. Thus, the [Petitioner] had provided
an arguable defense in his statements, but he also provided considerable grounds
to attack his credibility both in the statements and in other events before and after
[the victim’s] death. Many facts were undisputed and the outcome of the trial
was in large part dependent on whether the jury believed [the Petitioner’s]
testimony. The [Petitioner] has failed to show that [Counsel] spent inadequate
time preparing him for trial.

[The Petitioner] further claims [Counsel] failed to talk with various state and
defense witnesses prior to trial and did not call certain witnesses at trial which
were necessary to adequately present his defense. [Counsel] testified he talked
with many witnesses and read the statements of the other witnesses before trial.
At trial, [Counsel] had been in practice some twenty-eight (28) years during
which he had an active practice in criminal law and had tried numerous homicide
cases. [Counsel] adequately cross-examined all state’s witnesses and called any
witnesses who would have appreciably added to the defense. Petitioner failed to
call any such witnesses at the post-conviction hearing, therefore no prejudice was
shown.

We conclude that the evidence does not preponderate against the trial court’s findings of
fact. Further, we conclude that the Petitioner has not met his burden of proving that Counsel’s
representation of him fell below an objective standard of reasonableness. This case presented a
difficult set of circumstances. The Petitioner made multiple statements to police, as did his co-
defendant. Counsel’s strategy, under the circumstances, was to have the Petitioner testify and
hope that the jury believed the Petitioner’s story. We will not second guess this strategy on
appeal. In accordance with Counsel’s strategy, Counsel said that he interviewed many of the
State’s witnesses, but some he did not because he thought that such interviews were unnecessary.
Counsel said that, in his twenty-eight years of experience, he was sure that some of the State’s
witnesses would not cooperate with him. Further, Counsel said that he met with the Petitioner
on multiple occasions and had lengthy discussions with him regarding his case. Even the

−15−
Petitioner’s father testified that he discussed this case with Counsel at least once a week for two
years. The trial court found that Counsel adequately cross-examined each of the State’s
witnesses and presented an adequate defense. Accordingly, we conclude that the Petitioner has
failed to meet his burden of proving that Counsel’s representation fell below an objective
standard of reasonableness. Furthermore, the Petitioner has not presented any evidence of how
Counsel’s alleged lack of preparation prejudiced him.

B. Assessment of the Evidence and Applicable Law

The Petitioner asserts that Counsel was ineffective because he never informed him of
what he would have to prove in order to establish the defense of duress. This is not an argument
that was specifically ruled upon by the post-conviction court. At the post-conviction hearing, the
Petitioner stated that his defense at trial was “the truth,” and, while he presented this defense to
the jury, the jury rejected this defense. The Petitioner then stated that Counsel did not explain
the defense of duress to him, and only told him that he would have to explain to the jury that he
was “under fear for [his] life.” The Petitioner said that Counsel never told him that, to prove
duress, he would have to prove that there were no means for him to escape. Counsel said that he
explained to the Petitioner that the Petitioner had two possible defenses that they would present
to the jury, one was duress and the other was that he did not participate in the actual crime itself.
Counsel said that he did not “lecture” the Petitioner on the law of the duress, but rather he told
the Petitioner to tell the truth, and they would let the jury decide if the law of duress applied.
Counsel said that he explained to the Petitioner that this was the defense strategy, and he and the
Petitioner “never had any disagreement about what was going to be done at trial.” Under these
circumstances, we conclude that the Petitioner has not proven that Counsel’s representation fell
below an objective standard of reasonableness. Further, he has not proven prejudice by showing
how a difference in Counsel’s assistance would have affected the verdict.

C. Motion to Suppress

The Petitioner asserts that Counsel was ineffective because he failed to file a motion to
suppress the Petitioner’s statements to police. With regard to this issue, the post-conviction
court found:

Was trial counsel deficient when he failed to seek exclusion of [the
Petitioner’s] statements? The [Petitioner] gave four tape recorded statements
concerning the death of [the victim]. The first three statements were given in the
early morning hours of August 14, 1998. Before the first statement, Officer
Warren read the [Petitioner] his Miranda rights . . . . Before the second and third
statements [the Petitioner] was asked, and acknowledged that he still remembered
his constitutional rights. Officer Warren again read and explained to the

−16−
 [Petitioner] his constitutional rights before the fourth statement and again the
[Petitioner] signed a waiver.

....

[Counsel] of Winchester, Tennessee, admitted to the bar in 1970,
represented the [Petitioner] at trial and had considerable trial experience in
homicide cases. [Counsel] testified his defense strategy was to show that the co-
defendant . . . had killed [the victim]. He further intended to show that [the co-
defendant] was much larger than the [Petitioner] and had threatened and
intimidated him on the night [the victim] was killed and that any involvement the
[Petitioner] had in the events surrounding the murder was due to the duress placed
on the [Petitioner] by [the co-defendant].

[Counsel] believed the four statements, taken as a whole, established the
[Petitioner’s] defense, and that he could not suppress any of the statements. He
also believed the [Petitioner] would have to testify to establish this defense and if
the [Petitioner] testified, he would be subject to cross-examination on all his
statements, whether suppressed or not. Thus, he felt the statements would come
out at trial, regardless. Both [Counsel] and the [Petitioner testified the
[Petitioner] wanted to tell the jury his story.

[Counsel] reviewed the statements given by the [Petitioner], spoke with
witnesses and the [Petitioner], and determined a strategy that was reasonable,
given the circumstances. [Counsel] developed a basic defense strategy that he
would show his client did not commit the murder, that he would not challenge the
statements, and that the [Petitioner] would explain any discrepancies in those
statements. Such was an informed and adequately prepared defense and cannot
now be second guessed.

We conclude that the evidence does not preponderate against the trial court’s findings of
fact. Further, we conclude that the Petitioner has not proven that Counsel’s representation was
ineffective. Counsel testified that his strategy, a strategy that the Petitioner agreed with, was to
have the Petitioner testify and to tell the “truth” and hope that the jury believed the Petitioner.
Counsel did not file a motion to suppress the Petitioner’s statement for three reasons: (1) he
could not find a legal basis for their suppression; (2) they would be admissible if the Petitioner
testified; and (3) they were, on the whole, favorable to the Petitioner. These are strategic and
tactical reasons for Counsel’s actions and we will not second guess those reasons on appeal.
Accordingly, we conclude that the Petitioner has not proven that Counsel’s representation fell
below an objective standard of reasonableness or that he was prejudiced by Counsel’s actions.

−17−
 D. Jury Charge

The Petitioner next contends that Counsel was ineffective by failing to request a duress
jury instruction. The post-conviction court found:

Was trial counsel deficient in failing to request a jury charge on duress? . . . .

[Counsel] did not request a jury charge on duress and none was given.
[Counsel] testified the [Petitioner] had always stated [the co-defendant] pushed
[the victim] into the lake and it was his strategy to show that the [Petitioner]
simply did not participate; not that he participated in the actual drowning because
he was forced to do so by the co-defendant. This defense requires that a
defendant experience a well-grounded apprehension of death or serious bodily
injury but be unable to withdraw in safety before he commits the illegal act. [The
Petitioner] testified to no alleged threats from [the co-defendant] other than verbal
ones. Regardless, the defense is unavailable to one who “intentionally,
knowingly, or recklessly becomes involved in a situation in which it was probable
that he would be subjected to compulsion” when according to the [Petitioner], he
remained on the scene and tied the victim’s legs after [the co-defendant]
announced he was going to rob and kill [the victim]. See, T.C.A. § 39-11-504(b).
While this court does not find that trial counsel’s performance in this regard was
deficient under the first prong of the analysis, even if so, under the second prong
the result of the trial would not in all reasonable likelihood have been different if
the charge of duress had been given.

Counsel testified that one of the two defenses that he attempted to prove to the jury was
duress. His strategy was to have the Petitioner testify and allow the judge and the jury to
determine whether the defense of duress applied. After the Petitioner testified, Counsel
determined that the defense of duress did not apply, and he did not request such a charge from
the judge. Under the circumstances, we conclude that Counsel should have requested a duress
charge. This was clearly one of his defenses, and it is within the judge’s purview to determine
whether the elements are present sufficiently to instruct the jury on duress. We cannot, however,
conclude that Counsel’s failure to request this instruction prejudiced the Petitioner. The
elements of duress were not present from the Petitioner’s testimony, as was clearly explained by
the post-conviction court. Therefore, the trial court would not have instructed the jury on duress,
even if Counsel had requested such a jury charge. The Petitioner has not met his burden of
proving that Counsel’s actions prejudiced him. This issue is without merit.

−18−
 III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the post-conviction
court’s judgment dismissing the Petitioner’s petition for post-conviction relief.

___________________________________
ROBERT W. WEDEMEYER, JUDGE

−19−