Khalfani Marion v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 1, 2015 Session

KHALFANI MARION v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
No. 03-01051 James M. Lammey, Judge

No. W2015-00453-CCA-R3-PC - Filed November 20, 2015
_____________________________

Petitioner, Khalfani Marion, was convicted of four counts of aggravated robbery, a Class
B felony, and one count of especially aggravated kidnapping, a Class A felony. After
merger of the four counts of aggravated robbery into two counts of aggravated robbery,
the trial court imposed consecutive sentences of twenty years for the especially
aggravated kidnapping conviction and nine years for each aggravated robbery conviction.
Following petitioner‟s unsuccessful direct appeal, he filed a petition for post-conviction
relief. The post-conviction court held an evidentiary hearing and denied relief. Appealing
therefrom, petitioner raises eight instances of ineffective assistance of counsel: (1)
whether trial counsel reasonably investigated petitioner‟s case; (2) whether trial counsel
erred in failing to file a motion to sever petitioner‟s case from his codefendants; (3)
whether trial counsel erred by failing to have petitioner sentenced under the 1989
Sentencing Act as written prior to the 2005 amendments; (4) whether trial counsel failed
to object to the trial court‟s decision not to instruct the jury on facilitation; (5) whether
trial counsel erred by failing to introduce evidence of petitioner‟s mental health history;
(6) whether trial counsel failed to advise petitioner of the State‟s plea offer and sentence
exposure; (7) whether trial counsel failed to impeach the State‟s witnesses on their
identification of petitioner; and (8) whether trial counsel erred in failing to present
mitigating evidence at the sentencing hearing. Following our review, we affirm the
judgment of the post-conviction court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Carlissa Andranette Shaw, Memphis, Tennessee, for the Appellant, Khalfani Marion.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Bryce Hulon Phillips,
Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts from Trial

Elisha Wilkins testified that during the evening of May 14, 2002, she was asleep in
the den of her boyfriend‟s house when she was awakened by a knock at the back door.
State v. Khalfani Marion, No. W2006-02444-CCA-R3-CD, 2008 WL 2262317, at *1
(Tenn. Crim. App. June 2, 2008), perm. app. denied (Tenn. Dec. 1. 2008). When she
looked through a window in the kitchen, a man was standing at the door. Id. He asked if
“Chris” was home, and she responded that he was not. Id. The man knocked a second
time. Id. Ms. Wilkins looked through the window and saw a taller man, armed with a
gun, standing beside the first man. Id. Seven or eight men, most of whom were armed,
then broke down the door and entered the house. Id. One of the men grabbed Ms.
Wilkins by the hair and demanded to know where the money was located. Id. She
informed the men that she did not know where any money was located, and the men took
her truck keys, her wallet, and her identification. Id. Codefendant Montreal Lyons told
Ms. Wilkins that she was going to die because she had seen his face and could identify
him. Id.

The men forced Ms. Wilkins into the backseat of her truck and drove to the home
of her friend, Latonya Cooper. Id. A burgundy van followed her truck as they left her
boyfriend‟s house. Id. At Ms. Cooper‟s house, Lyons held a gun to Ms. Wilkins‟ head
and ordered her to knock on the door while the other men hid from view. Id. When Ms.
Cooper recognized Ms. Wilkins, she opened the door, and the men forcibly entered Ms.
Cooper‟s house. Id. All of the men who were present at the home of Ms. Wilkins‟
boyfriend were also present at Ms. Cooper‟s house. Id. Ms. Cooper was permitted to
close the door to her children‟s bedroom so they would not be awakened. Id. The men
separated the victims, ordering Ms. Cooper into her bedroom and Ms. Wilkins into a
bathroom. Id. The men instructed both victims that they should reveal where the money
was kept because they were going to die anyway. Id. Lyons instructed one of the men to
retrieve one of Ms. Cooper‟s children as inducement for the victims to surrender the
money. Id. Codefendant Mario Morris took the victims into a bedroom and held them at
gunpoint. Id. The men subsequently forced the victims to lie down on the living room
floor, where they remained until the men left the house and Ms. Cooper‟s husband
arrived. Id.

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 On June 8, 2002, Ms. Wilkins spotted petitioner at a bus station in Memphis and
alerted police; he was then arrested. Id. at *2. She said that during the robbery,
petitioner said that he knew all about her and threatened that she would die because she
had seen the faces of her attackers. Id. She thought the assailants were going to kill her
during the robbery, and she felt afraid. Id. The victim could not remember whether the
petitioner was carrying a gun that night. Id.

Ms. Cooper testified that on May 14, 2002, she was home with her five- and six-
year-old daughters when she heard the doorbell ring. Id. She opened the door when Ms.
Wilkins identified herself. Id. Several armed men strode into her home and locked the
door behind them. Id. Petitioner told her to close her daughters‟ bedroom door, and then
the men demanded money. Id. Ms. Cooper explained that her purse was in her bedroom,
and petitioner accompanied her to the bedroom, removed money from Ms. Cooper‟s
purse, and searched her dresser. Id. Codefendant Lyons was upset that Ms. Cooper did
not produce more money and threatened to kill Ms. Wilkins, Ms. Cooper, and her
children.

Ms. Cooper testified that codefendants Lyons and Morris were carrying guns but
that she could not recall whether petitioner was armed. Id. She stated that the men stole
money, jewelry, a DVD player, a laptop computer, and her vehicle. Id. At one point,
someone knocked on her door, and petitioner instructed her to open it while telling
codefendant Morris to “spray her ass” if she attempted to flee. Id. The victims were then
ordered to lie face down in the living room. Id. Believing she was about to be shot, Ms.
Cooper begged the men to take her to a different location so that her children would not
witness anything. Id. Codefendant Lyons told her to lie down or be shot down. Id. The
victims complied, and the men exited through the rear door. Id.

Memphis Police Department Officer Larry Skaggs testified that on June 8, 2002,
he was working downtown when he was approached by a woman who told him that she
had seen a man at the bus station who had robbed her and burglarized her house. Id. He
proceeded to the bus station where he located petitioner, who matched the description she
had given. Id. Officer Skaggs arrested petitioner, and he was transported to the police
station. Id. Memphis Police Department Lieutenant Connie Maness testified that she
showed Ms. Wilkins a photograph of petitioner that night and that Ms. Wilkins confirmed
that petitioner was the person who invaded her home. Id. Sergeant Timothy Green of the
Memphis Police Department subsequently showed a six-person photographic array to
Ms. Cooper, and she circled petitioner‟s picture, identifying him as one of her assailants.
Id. at *3.

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 At the sentencing hearing, Ms. Cooper testified that the robbery had caused her to
live in constant fear. Id. She awakened three to four times each night to check on her
children and moved away from Memphis because she did not feel safe there. Id.

The trial court sentenced petitioner as a Range I, standard offender to nine years
for the aggravated robbery of Ms. Wilkins, finding two enhancement factors: (1)
petitioner had a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range and (2) petitioner was a leader in the
commission of an offense involving two or more criminal actors. Id. (citing Tenn. Code
Ann. § 40-35-114(1), (2) (2006)). For the aggravated robbery of Ms. Cooper, the court
sentenced petitioner as a Range I, standard offender to nine years, finding in addition to
the two previous enhancement factors that petitioner treated the victim with exceptional
cruelty during the commission of the offense and that he had no hesitation about
committing a crime when the risk to human life was high. Id. (citing Tenn. Code Ann. §
40-35-114(1), (2), (5), (10)). For the especially aggravated kidnapping conviction, the
court sentenced petitioner as a Range I, violent offender to twenty years, again applying
the prior criminal history and leadership enhancement factors. Id. The court found that
petitioner was a dangerous offender whose behavior indicated little or no regard for
human life and that he had no hesitation about committing a crime in which the risk to
human life was high and accordingly ordered consecutive alignment of all sentences, for
an effective sentence of thirty-eight years. Id.

II. Post-Conviction Proceedings

On September 14, 2010, petitioner filed an untimely pro se petition for post-
conviction relief in which he raised a number of claims. Khalfani S. Marion v. State, No.
W2011-00203-CCA-R3-PC, 2012 WL 601081, at *1 (Tenn. Crim. App. Feb. 22, 2012).
Petitioner alleged that he had been “erroneously informed” of the status of his appeal and
attached to the petition a letter from his trial counsel dated June 18, 2010, to that effect.
Id. The post-conviction court summarily dismissed the petition on December 2, 2010,
concluding that it was filed beyond the one-year statute of limitations. Id. Relying on
Williams v. State, 44 S.W.3d 464, 469 (Tenn. 2001) (holding that “„an attorney‟s
misrepresentation, either attributable to deception or other misconduct,‟ is „beyond a
defendant‟s control‟ and that „[i]f a defendant erroneously believes that counsel is
continuing to represent him or her, then the defendant is essentially precluded from
pursuing certain remedies independently‟”), this court remanded the case to the post-
conviction court for a determination of whether the statute of limitations should be tolled
in petitioner‟s case. Id.

Thereafter, the post-conviction court granted petitioner an evidentiary hearing on
the merits of his petition. The trial court held a trifurcated hearing in July, September,

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and November 2014, and after consideration of the testimony and evidence, denied post-
conviction relief by written order dated January 12, 2015.

III. Analysis

Appealing from the denial of post-conviction relief, petitioner challenges whether
he received effective assistance of counsel. We will address in turn the eight instances of
alleged ineffectiveness: (1) whether trial counsel reasonably investigated petitioner‟s
case; (2) whether trial counsel erred in failing to file a motion to sever petitioner‟s case
from his codefendants; (3) whether trial counsel erred by failing to have petitioner
sentenced under the 1989 Sentencing Act as written prior to the 2005 amendments; (4)
whether trial counsel failed to object to the trial court‟s decision not to instruct the jury on
facilitation; (5) whether trial counsel erred by failing to introduce evidence of petitioner‟s
mental health history; (6) whether trial counsel failed to advise petitioner of the State‟s
plea offer and sentence exposure; (7) whether trial counsel failed to impeach the State‟s
witnesses on their identification of petitioner; and (8) whether trial counsel erred in
failing to present mitigating evidence at the sentencing hearing. For ease of reference,
the testimony from the evidentiary hearing pertinent to each allegation, together with the
post-conviction court‟s ruling, is included under the appropriate heading.

A. Standard of Review

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of
proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann.
§ 40-30-110(f). “„Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.‟”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

Appellate courts do not reassess the post-conviction court‟s determination of the
credibility of witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing
R.D.S. v. State, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of
witnesses is a matter entrusted to the post-conviction judge as the trier of fact. R.D.S.,
245 S.W.3d at 362 (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-
conviction court‟s findings of fact are conclusive on appeal unless the preponderance of
the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011)
(citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d
615, 631 (Tenn. Crim. App. 1997)). However, conclusions of law receive no
presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453
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(Tenn. 2001)). As a mixed question of law and fact, this court‟s review of petitioner‟s
ineffective assistance of counsel claims is de novo with no presumption of correctness.
Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution require that a criminal defendant receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose,
523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective
assistance of counsel, he must demonstrate both that his lawyer‟s performance was
deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation
omitted). It follows that if this court holds that either prong is not met, we are not
compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn.
2004).

To prove that counsel‟s performance was deficient, petitioner must establish that
his attorney‟s conduct fell below an objective standard of “„reasonableness under
prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006)). As our supreme court held:

“[T]he assistance of counsel required under the Sixth Amendment is
counsel reasonably likely to render and rendering reasonably effective
assistance. It is a violation of this standard for defense counsel to deprive a
criminal defendant of a substantial defense by his own ineffectiveness or
incompetence . . . . Defense counsel must perform at least as well as a
lawyer with ordinary training and skill in the criminal law and must
conscientiously protect his client‟s interest, undeflected by conflicting
considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial
counsel‟s performance, this court “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel‟s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).

To prove that petitioner suffered prejudice as a result of counsel‟s deficient
performance, he “must establish a reasonable probability that but for counsel‟s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As
such, petitioner must establish that his attorney‟s deficient performance was of such
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magnitude that he was deprived of a fair trial and that the reliability of the outcome was
called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463
(Tenn. 1999)).

B. Ineffective Assistance of Counsel

Petitioner was represented at trial by retained trial counsel, who had thirty-two
years of experience in the practice of law and who had handled over one hundred
criminal trials between her roles as a prosecutor and as a defense attorney. Because
petitioner‟s file had been destroyed, she testified at the evidentiary hearing from memory.

1. Failure to Investigate

Petitioner argues that the post-conviction court erroneously concluded that trial
counsel reasonably investigated his case.

Petitioner testified that his family retained trial counsel to represent him. She
allegedly told petitioner‟s parents that her husband was the prosecutor in that division of
criminal court and that they should not inform petitioner of their relationship because it
was a conflict of interest. Petitioner claimed that accordingly, trial counsel felt that she
did not have to conduct an independent investigation and that petitioner had no reason to
be concerned because her husband was the assistant district attorney and she would
secure an acquittal. Petitioner testified that he requested that trial counsel present the
testimony of a particular witness but that she responded that there was “no need because
her husband was the prosecutor of the case.” Petitioner said that he insisted on trial
counsel‟s calling his witness but that she failed to interview him, did not attempt to
contact him, and did not instruct a private investigator to reach him because she “thought
she had it all figured out because her husband was the prosecutor of the case.”

Petitioner recalled that trial counsel‟s husband became the judge of that criminal
division and that his case was subsequently transferred to a different division for trial. He
wanted trial counsel to call Bryant Adair, Jocelyn Parker, Dorothy Marion, his father, his
mother, and his sister, Tiffany, as witnesses. He also wanted his records from the
Memphis Mental Health Institute (“MMHI”) introduced as evidence. However, he said
that trial counsel told him that it was “too late” and that she could do nothing about it.
Petitioner stated that Mr. Adair was incarcerated at the time, so he would have been easy
to locate and interview. Petitioner admitted, “I have no knowledge about if she tried to
contact anyone[,] but she never told me that she tried to contact anyone.” Petitioner
claimed that he learned about trial counsel‟s marital relationship years after his trial.

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 Petitioner maintained that Bryant Adair was willing to testify on his behalf despite
the probability that he would have been impeached with his guilty plea to practically the
same offenses of which petitioner stood convicted. Another of petitioner‟s possible
witnesses, Jocelyn Parker, was also convicted for her participation in the offenses. He
agreed that Ms. Parker was an ex-girlfriend and understood that the prior relationship
could have been presented as a reason to lie or exhibit bias. Petitioner said that he
understood that whether he testified at trial was a tactical decision and that the ultimate
decision was up to him. He restated that trial counsel‟s husband was the prosecutor
“specifically” assigned to his case even after trial counsel was retained.

Trial counsel emphasized that she always told her clients that she was married to a
prosecutor and denied that she told petitioner that she “had it covered” because of it.
Some of her clients had told her previously that having her represent them was the best
thing they ever did because it prevented her husband from “touching” their case; he had a
reputation of being a “tough prosecutor.”

With regard to trial preparation, trial counsel did not recall in what year she began
preparing for petitioner‟s trial. She remembered meeting petitioner‟s parents, whom she
described as “extremely kind people” who were “terribly worried about their son.” She
recalled that she received the case when it was in criminal court. It was in the same
division of criminal court where her husband was a prosecutor, but she clarified that their
cases “never overlapped.” If he was ever assigned a case involving someone she
represented, the case was transferred elsewhere. Upon her husband‟s election to the
bench, the case was transferred to another division. Although petitioner‟s case was not
transferred out of that division until the day of trial, trial counsel emphasized that her
husband was not involved in any aspect of the case and that “frankly, [the prosecutor]
was an ex[-husband] then.”

Trial counsel confirmed that she met with petitioner several times in addition to
meeting with him during court proceedings. She also met with his family. She
summarized her case investigation of petitioner‟s case, saying that she utilized the things
that were available to her, which “panned out to be very little.” Petitioner provided her
with the names of individuals who were incarcerated and a witness who could not be
located. Petitioner had two codefendants at trial, but no one would testify. She recalled
that there were additional codefendants prior to trial but that she was not involved in
petitioner‟s case at that point. While petitioner gave her two names of witnesses to call,
one witness was Mr. Adair, “who had already pled guilty and was worthless as a
witness,” and one was a female whom she could never reach. Mr. Adair would have
been “badly” impeached by his prior statement if she had called him as a witness, and
petitioner did not provide trial counsel with a telephone number for the female witness
nor any other contact information for her. As to Mr. Adair, trial counsel recalled that the
only thing she received was a handwritten statement from petitioner, which he purported
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had been written by Mr. Adair, claiming that neither Mr. Adair nor petitioner were
present at the scene. She said that even if Mr. Adair had been willing to testify, it would
have been a “silly” strategic move to call him as a witness.

At the evidentiary hearing, the post-conviction court heard arguments from
counsel regarding the competency and admissibility of Bryant Adair‟s testimony. Mr.
Adair, who had been a codefendant at trial, was prepared to testify on petitioner‟s behalf.
However, the State brought out that in his own petition for post-conviction relief, Mr.
Adair asserted that he was taking several medications, that he was unable to “think on his
own,” that he suffered from self-mutilating behaviors, and that he had been hearing
voices, which instructed him to kill people, since his youth. It was further learned that
Mr. Adair had not been taking his medications as prescribed. The post-conviction court
allowed Mr. Adair to testify.

Bryant Adair testified that he received a letter from petitioner prior to petitioner‟s
trial requesting that Mr. Adair testify on his behalf. Mr. Adair, however, was already
serving his prison sentence in Hardeman County and could not appear on his own
volition. He instructed petitioner to contact trial counsel to make arrangements, but trial
counsel never contacted him. Mr. Adair opined, “If they would have spoken to me, they
would have had me testify then. I mean, they could have probably freed him a little
because the fact that he had nothing to do with the robbery and the kidnapping.”
However, he acknowledged that petitioner was present when the offenses were
committed. He explained petitioner‟s involvement, “He came – he showed up at the door
at the place we [were] robbing. He was looking – he said he was looking for weed. So,
being that it was a weed man that we [were] robbing, we snatched him in. We [were]
looking for the product . . . . ” Mr. Adair expounded that the purpose for bringing
petitioner inside was to ensure silence outside and prevent being caught.

Mr. Adair confessed that he and nine other people met with the purpose of
organizing the robbery. He said that the kidnapping was not planned; he said that “it
ended up having to be there because it was the wrong time or whatever.” He clarified
that petitioner was not at the meeting. He recalled that prior to that time, he and
petitioner had an ongoing disagreement and animosity between them.

Mr. Adair stated that when he was arrested, he was caught in a vehicle with his
best friend, who was driving. His friend had no part in the robbery and kidnapping. To
secure his friend‟s release, Mr. Adair had to admit to his part in the robbery and had to
implicate the other eight people. In his statement to police, Mr. Adair named petitioner
as a participant as well as the organizer of the conspiracy. Approximately one year later,
Mr. Adair signed an affidavit recanting his prior statement and stated that petitioner had
no involvement in the crimes. He said that he was afraid because officers forced him to

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“give up” eight names, and while petitioner had nothing to do with the offenses, the
people who were involved were not incarcerated.

On cross-examination, Mr. Adair acknowledged that in his statement to police, he
told them that petitioner had provided him with the firearm he used in the offenses.
However, Mr. Adair said that he “made up all this,” meaning his statement. He said that
he admitted to his own involvement in the statement but that the problem the detectives
had was “who [were] the other eight people.” Mr. Adair explained, “I‟m an artist, so you
ask me to describe a story or paint a picture, I can really do that. So, I mean, making up a
story is not hard.”

The State called Stacy McEndree, the prosecutor in petitioner‟s case, as a witness.
She clarified that when she worked in the same division as trial counsel‟s ex-husband,
then an assistant district attorney, if trial counsel ever appeared on a case for whatever
reason, he would “immediately institute[] a Chinese wall . . . [H]e would not touch [the
case] to even write a reset date. He absolutely turned it over immediately and would not
touch or entertain or have anything to [do or] to be anywhere near that file.”

The post-conviction court denied relief on this claim, stating:

As required by the Petitioner in order for this Court to consider the
prejudicial effect, if any, resulting from the failure to call Adair as a
witness, Petitioner presented Bryant Adair as a witness at the post-
conviction hearing. Adair testified that while he was in prison, he told the
Petitioner to have [trial counsel] contact him so that he could testify on
behalf of the Petitioner at trial. Adair testified that had [trial counsel]
contacted him, he would have offered testimony that would have “freed
[the Petitioner] a little because the fact that he had nothing to do with the
robbery and kidnapping.” [Trial counsel] concedes that she never contacted
Adair, nor set up an interview to consider Adair as a potential witness.
[Trial counsel] recalled receiving a handwritten statement from her client,
which claimed to be written by Adair, essentially stating that neither Mr.
Adair nor the Petitioner were present at the scene of the crime. [Trial
counsel] stated she did not call Mr. Adair as a witness because he was the
Petitioner‟s charge partner and he had already pled guilty to the crime, thus
rendering him “worthless” as a witness. While testifying at the post-
conviction hearing, Adair was impeached by a prior statement that he gave
police, which implicated the Petitioner in the crime. Adair provided that
his statement to police was false, but after spending time in jail, he now
wanted to tell the truth about what happened.

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 [Trial counsel]‟s decision clearly falls within the realm of trial
strategy and tactics, and certainly falls within the wide range of reasonable
professional assistance. Petitioner‟s argument that the outcome of this case
would have been different had these witnesses testified does not give rise to
the level of probability sufficient to undermine confidence in the outcome;
it merely speculates a possible effect. Had Adair testified at Petitioner‟s
trial, his prior inconsistent statement would have been used to impeach him,
just as it was during the post-conviction hearing, thus making his testimony
unreliable and unbelievable. In addition to reliability issues, Mr. Adair
could have faced aggravated perjury charges as a result of such testimony.
It is also worth noting the possible ethical issues with calling Adair as a
witness to testify that the Petitioner had nothing to do with the crime, as the
Petitioner had made statements before indicating his desires to plead guilty
to his involvement. [Trial counsel] testified that she did not call any
witnesses because no one was willing to step forward. Petitioner provided
[trial counsel] with various conflicting accounts of what happened during
the night of the crime, and [trial counsel] was fully prepared to pursue
whatever defense would best fit the evidence that the state presented. Such
tactical and strategic choices by [trial counsel] were not unreasonable,
therefore Petitioner has failed to show counsel rendered deficient
performance. Additionally, Petitioner was not prejudiced by [trial
counsel]‟s strategic choice to not present such witnesses on his behalf.
Petitioner is not entitled to relief on this issue.

With regard to his claim, petitioner specifically argues that trial counsel “failed to
investigate and interview relevant witnesses who were willing to provide information and
testimony essential to [his] defense” and that her “failure resulted in the denial of critical,
exculpatory evidence [that] gravely prejudiced [him].” He also asserts that trial counsel
failed to hire an investigator to assist her and that she failed to investigate this or any
other theory of the case.

Petitioner gave trial counsel a list containing five potential witnesses, two of
whom were fact witnesses – Bryant Adair and Jocelyn Parker. Mr. Adair testified at the
evidentiary hearing that petitioner was not involved in the planning or execution of the
offenses and that he was at the scene by happenstance. Trial counsel stated that calling
Mr. Adair as a witness would have been a “silly” strategic decision because he would
have been “badly” impeached by the statement that he gave to police. The decision of
whether to call a witness is a strategic decision that we will not second-guess. See Felts,
354 S.W.3d at 277. Moreover, any attempt to call Mr. Adair as a witness was thwarted
by his defense attorney. We note that hiring an investigator would not have changed this
outcome.

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 As to Jocelyn Parker, trial counsel stated that petitioner gave her a name but no
other contact information. All efforts to find the witness were unsuccessful. When a
post-conviction petitioner claims that trial counsel erred by failing to discover, interview
or present a potential witness, petitioner should present said witness(es) at the post-
conviction evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990). Petitioner has failed to do so. We cannot attribute error to trial counsel for failing
to present a witness who petitioner himself did not present. There has been no showing
that an investigator would have been successful in this regard.

We agree with the post-conviction court‟s assessment that trial counsel did not
render ineffective assistance in this regard. In addition, petitioner has failed to establish
that he suffered prejudice as a result of trial counsel‟s representation. Petitioner is not
entitled to relief on this claim of error.

2. Failure to File a Motion to Sever

Petitioner asserts that trial counsel should have filed a motion to sever petitioner‟s
case from that of his codefendants upon receipt of letters from the codefendants
professing petitioner‟s innocence. Accordingly, argues petitioner, he did not receive a
fair trial because he could not utilize their exculpatory testimony.

Petitioner stated that he proceeded to trial with two codefendants and that two
codefendants entered guilty pleas prior to trial. He said that Mario Morris wanted to
testify on his behalf but that he could not because it was a joint trial. He alleged that Mr.
Morris executed an affidavit on his behalf but that it could not be introduced because they
were tried together. Accordingly, petitioner asserted that his trial should have been
severed from the others.

Trial counsel explained that she did not move to sever petitioner‟s case because
“there was no reason to sever. He said he was never there; and then he said he was
kidnapped and forced to be there. Between all there was – I had no reason to sever.” She
recalled receiving a statement purporting to be signed by Mario Morris that read, “I
wasn‟t there on New Year‟s Eve.” It further claimed that petitioner was not there, either.
Trial counsel spoke to Mr. Adair‟s attorney and Mr. Morris‟s attorney about their
testifying for petitioner, but “they laughed” at the proposition. Mr. Adair‟s attorney
indicated that he was unwilling to bring Mr. Adair from the penitentiary to testify.

Ms. McEndree confirmed that all of the codefendants with the exception of
Montreal Lyons gave statements about the offenses.

In denying relief, the post-conviction court concluded:

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 Here, Petitioner asserts that if trial counsel filed a motion to sever
the defendants, Petitioner would not have been prejudiced by the other two
codefendants that he was tried with. Petitioner argues that because there
was no severance, Petitioner could not pursue the defense that cleared him
of involvement. Trial counsel made a strategic decision not a file a motion
to sever the trial of the Petitioner and the co-defendants. [Trial counsel]
testified during the post-conviction hearing that “[t]here was no reason to
sever” because the Petitioner had offered conflicting accounts of his
involvement. Petitioner first told [trial counsel] he was never at the scene of
the crime, but later switched his story alleging that he was kidnapped and
forced to participate. This case involved multiple defendants, three of
[whom] went to trial together. There were numerous statements given to the
police by the defendants, with several statements implicating the Petitioner
in the crime. These statements were not introduced at trial, because the
defendants were tried jointly. However, if trial counsel would have filed a
motion to sever defendants, there is a possibility that some of these
statements could have been used at trial, which would have been direct
evidence implicating the Petitioner in the crime. Trial counsel made a
sound strategic decision to not file a motion to sever and rather have the
defendants tried together in order to avoid the introduction of such
statements into evidence. Severance was not necessary to achieve a fair
determination of the guilt or innocence of the Petitioner, nor was severance
necessary to protect the Petitioner‟s right to a speedy trial. Petitioner has
not demonstrated that [trial counsel]‟s performance was deficient.
Additionally, Petitioner was certainly not prejudiced by the failure, as the
decision not to sever was potentially helpful to Petitioner‟s case.
Accordingly, Petitioner is not entitled to relief on this issue.

The record does not preponderate against the post-conviction court‟s findings.
Indeed, one or more of the codefendants‟ statements potentially could have been used
against petitioner had he stood trial individually. Moreover, as noted above, defense
attorneys for both Mr. Adair and Mr. Morris declined to allow their clients to testify for
petitioner; in fact, both attorneys “laughed” at the proposition. There has been no
showing that they would have permitted their clients to testify in an individual trial had
petitioner‟s case been severed from the others. Petitioner is not entitled to relief on this
claim.

3. Failure to Have Petitioner Sentenced Under the Pre-2005 Sentencing Act

Petitioner claims that trial counsel rendered ineffective assistance by failing to
have him execute an ex post facto waiver to be sentenced under the 2005 amendments to
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the Sentencing Act or, in the alternative, to secure his sentencing under the pre-2005
amendments. He fails to allege any error, aside from positing that the issue shows the
“gross carelessness of trial counsel.” He does not assert that the result would have been
different or that he was prejudiced by trial counsel‟s oversight.

At the evidentiary hearing, petitioner alleged that trial counsel argued the wrong
sentencing statute. He claimed that on direct appeal, this court acknowledged that the
wrong statute had been applied but that trial counsel failed to preserve the issue and it did
not merit plain error relief. He compared his direct appeal with that of Mario Morris,
whom he claimed received appellate relief on the same issue. Trial counsel
acknowledged that there was a change in the sentencing statute from the time that
petitioner was sentenced to the time that his codefendants were sentenced.

The post-conviction relief court concluded that the issue had been previously
determined:

Petitioner claims that [trial counsel] was ineffective for failing to
execute an ex post facto waiver to have him sentenced under the 2005
amendments to the sentencing act or in the alternative to have him
sentenced under the pre-2005 amendments. Any constitutional issue that
has been previously determined against the petitioner by another court in a
prior proceeding cannot be raised in a general post-conviction proceeding.
A ground for relief is said to be previously determined if it was addressed
on the merits by a court of competent jurisdiction after a full and fair
hearing, at which the petitioner was afforded the opportunity to call
witnesses and present evidence . . . . The Petitioner need not have actually
presented evidence at the prior hearing; it is sufficient if he was afforded
the forum . . . . [Trial counsel] testified that this issue was argued on direct
appeal to the Criminal Court of Appeals because there was a change in the
sentencing laws between the time the Petitioner was sentenced and the time
his co-defendants were sentenced. The [Court of Criminal Appeals]
addressed this issue and affirmed the decision of the trial court, stating:

In the present appeal, the defendant‟s argument in his
reply brief, as we have set out, is that since he committed his
crimes before the enactment of the 2005 amendments to the
sentencing law, was sentenced after that date, and the record
on appeal does not contain a waiver of his ex post facto rights,
he must be resentenced. The defendant does not argue that
we should make a plain error review of his sentencing. It is
clear that, even if this court makes a plain error review of the
defendant‟s sentencing, he is not entitled to relief. One of the
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 enhancement factors applied by the trial court was the fact
that the defendant had a previous history of criminal
convictions in addition to those necessary to establish the
appropriate range. Thus, since this enhancement factor is
applicable both before and after the amendment to the 1989
Sentencing Act and the defendant does not claim that it was
inapplicable, it is not necessary that we consider the
defendant‟s claims in this regard to do substantial justice, and
a plain error review is not appropriate . . . .

[Khalfani Marion, 2008 WL 2262317, at *9.] This ground for relief was
previously determined and the Petitioner is not entitled to relief on this
issue.

The record supports the post-conviction court‟s findings. “A ground for relief is
said to have been „previously determined‟ when „a court of competent jurisdiction has
ruled on the merits [of the grounds] after a full and fair hearing.‟” Tenn. Code Ann. § 40-
30-112(a). Not only was the issue previously determined, see Caruthers v. State, 814
S.W.2d 64, 70 (Tenn. Crim. App. 1991) (citing Tenn. Code Ann. § 40-30-112(a)), it is
also meritless, as concluded by this court on direct appeal, Khalfani Marion, 2008 WL
2262317, at *9. Petitioner cannot obtain relief on this claim.

4. Failure to Object to Trial Court‟s Refusal to Charge Facilitation
as a Lesser-Included Offense

Petitioner posits that trial counsel had a duty to object to the trial court‟s refusal to
charge facilitation, even if it would have been overruled, and the failure to do so
corresponds with a “failure to advocate” for him. In addition, he contends that trial
counsel was ineffective for requesting a jury instruction on criminal responsibility but
failing to request a jury instruction on facilitation. The State responds that petitioner is
“incorrect in his insistence that defense counsel was deficient for failing to make a
meritless objection.”

At the evidentiary hearing, petitioner maintained that trial counsel improperly
asked the trial court to instruct the jury as to criminal responsibility, which, he opined,
was “a defense for the State.” Petitioner stated that trial counsel erred by failing to
request an instruction on facilitation as a lesser-included offense, given that criminal
responsibility was also charged. Trial counsel recalled that criminal responsibility was
charged to the jury but she did not recall whether the judge considered charging
facilitation as a lesser-included offense.

The post-conviction court concluded that
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 [t]he trial judge is under a mandatory duty, without request, to give
the jury proper instructions on the law applicable to the evidence adduced
during the course of the trial. However, this mandatory duty does not
require that the trial judge give more than basic, fundamental instructions.
If a party is dissatisfied with the instructions proposed or given by the trial
judge, Tennessee law provides a mechanism by which attorneys can request
the judge to charge additional or different jury instructions. The trial judge
should refuse to give any special request which is not applicable to any
theory of the case developed by the evidence.

While the trial court transcript is admittedly confusing with regard to
whom initially requested the instruction for criminal responsibility, it is
immaterial as to who requested the instruction, as the trial judge was under
a duty to give the instruction as it was applicable to the evidence adduced
during the course of the trial. During the second discussion of the charges,
however, it was the prosecutor, Stacy McEndree that requested
confirmation that the court was going to instruct on criminal responsibility.
The Petitioner was not prejudiced on this issue because the jury would have
heard the instruction regardless of which attorney requested it.

Next, Petitioner contends that [trial counsel] was ineffective because
she failed to object to the trial court‟s failure to instruct the jury on the
offense of facilitation, which is a lesser-included offense of criminal
responsibility. With regard to the facilitation charge, the trial court clearly
stated[:]

For the record, with regard to that, there is case law
that says when the Court charges criminal responsibility, then
[the] Court should charge facilitation. After a review of the
proof that the Court has heard, it‟s the opinion of the Court
that no reasonable jury could find that based upon the
testimony that there was anybody, of the three, that was guilty
of the offense of facilitation. In which specifically says that
they‟re conscious and aware that a crime is occurring but
without any desire or intent to participate, give aid or
assistance. And based upon the testimony that the Court has
heard, I think the jury could find each of the defendants guilty
as charged of each of the offenses, either under the theory of
criminal responsibility or under the theory of being directly
involved. However, I don‟t see any proof whatsoever that
would lead a reasonable jury to find a verdict of facilitation
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 under the law as this Court understands facilitation to be.
And, in fact, if a jury were to return a verdict of facilitation,
I‟m not sure that is could stand based upon the proof.
Therefore, the Court is of the opinion to the extent that it will
not charge facilitation, because I do not believe that a
reasonable jury could return a verdict of that offense that
would stand under the proof if it were to find somebody
guilty of that. So, therefore, I will not charge facilitation.

Petitioner has not shown that [trial counsel] was deficient, as any
objection by [trial counsel] clearly would have been overruled by the trial
court due to the court‟s certainty that no reasonable jury could find that
based upon the testimony that there was anybody, of the three, that was
guilty of the offense of facilitation. Petitioner was therefore not prejudiced
and is not entitled to relief on this issue.

The evidence does not preponderate against the post-conviction court‟s findings.
Petitioner was questioned about an excerpt of the trial transcript that indicated that trial
counsel either suggested or acquiesced in the trial court‟s decision to charge criminal
responsibility. However, from that excerpt it is impossible to know the context
surrounding trial counsel‟s statement, i.e., whether it was a request or an indication of
agreement. This court will not presume error from a silent record. As the post-
conviction court noted, while the circumstances surrounding trial counsel‟s statement was
unclear, it is of no consequence because during the second charge conference, the
prosecutor requested the jury charge on criminal responsibility.

Moreover, the post-conviction court properly concluded that petitioner cannot
establish prejudice because based upon the trial court‟s ruling, any objection to the
exclusion of a jury charge on facilitation as a lesser-included offense would have been
futile. When no evidentiary basis supports a facilitation conviction, trial counsel‟s failure
to request the instruction will not be deemed deficient performance. Bryant v. State, 460
S.W.3d 513, 525 (Tenn. 2015). Petitioner is not entitled to relief on this claim.

5. Failure to Introduce Evidence of Petitioner‟s Mental Health History and
and Alleged Incompetence to Stand Trial

Petitioner argues that trial counsel rendered ineffective assistance by failing to
introduce evidence that he was incompetent to stand trial because, even after he wrote to
her explaining his previous mental health hospitalizations, she did not secure for him a
mental health evaluation or request copies of his records.

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 At the evidentiary hearing, petitioner claimed that trial counsel failed to file
necessary motions in his case. He maintained that he was not competent to stand trial
and that he wanted trial counsel to introduce records from his two previous
hospitalizations at MMHI. She declined to do so. He stated that trial counsel was aware
that he was taking prescription medications but that she failed to utilize that information.
He testified, “She got put in a bind because she figured that she had it all figured out
through her husband, so she didn‟t have to put in no work. So when that trial transferred
to Division X, it was so less of time [sic] for her to do some work that she couldn‟t get to
it.”

Petitioner clarified that he was hospitalized at MMHI for paranoid schizophrenia
three times and that each one lasted approximately two months. He said that he suffered
from that condition even when he was not at MMHI. His symptoms included
hallucinations, talking to himself, and “basically talking to God in a normal fashion.”

The post-conviction court denied relief, stating:

Petitioner contends that trial counsel was ineffective for failing to
offer evidence that the petitioner was incompetent to stand trial. Petitioner
testified that he wrote [trial counsel] a letter stating that he was not
competent to stand trial and that he had been hospitalized twice for his
mental state. Petitioner alleges that [trial counsel] did not present such
evidence because she did not prepare to offer it due to her reliance on her
husband getting petitioner off on a deal. A mental health evaluation was
conducted on the petitioner in March of 2005 and he was deemed
competent to proceed with the disposition of his charges. The only other
history the petitioner had was a substance abuse problem, which potentially
could have been damaging evidence if presented to the jury. Petitioner has
not demonstrated that trial counsel was deficient or that he was prejudiced.
Petitioner is not entitled to relief on this issue.

We agree with the trial court. Petitioner underwent a mental health examination that
established his competence to stand trial. With regard to trial counsel‟s alleged
malfeasance in failing to procure and introduce petitioner‟s mental health records from
his previous hospitalizations, we cannot attribute error to trial counsel. The record from
the post-conviction hearing is silent as to trial counsel‟s investigatory actions pertaining
to said records; however, petitioner failed to present his mental health records and/or a
mental health expert to testify about the significance thereof. See Black, 794 S.W.2d at
757. Petitioner is without relief.

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 6. Failure to Advise Petitioner of the State‟s Plea Offer
and His Potential Sentence Exposure

Petitioner avers that trial counsel failed to inform him of the State‟s plea offer and
did not advise him of his potential sentence exposure in the event of a conviction.

At the evidentiary hearing, petitioner denied that trial counsel explained his
criminal exposure prior to trial. Petitioner “believed” that he was offered a plea, but he
was at MMHI when it was extended. He said that he was away during “basically” every
court date, so he did not know what was transpiring in his case. He claimed that in 2005,
he heard through his family and a codefendant that he was offered a thirteen-year plea but
that trial counsel never communicated it to him. However, he did not ask trial counsel
about it, either.

Trial counsel stated that a plea offer was made in petitioner‟s case and that she
communicated the offer to petitioner “every time” they were in court. She recalled that
the plea was “thirteen, thirteen[point]-five.” She explained petitioner‟s sentence
exposure to him and encouraged petitioner to take the plea offer because “unless
everything he told [her] was just an outright lie, they were going to find him guilty, and if
they found him guilty . . . then it would be greater exposure.” However, petitioner
insisted upon going to trial because “[h]e kept saying everybody would say he wasn‟t
there.” She advised petitioner that if the State‟s witnesses appeared and testified
consistently with their statements, “there was nothing that [they] could do.”

Pertinent to the defense strategy at trial, counsel posited that she “went to trial
with several defenses. None of them were defensible.” She recalled that petitioner gave
“a couple of conflicting theories, which could not all be true.” First, he maintained that
he was not there and that he had no involvement with the offenses. Next, he told her that
no one at the scene could identify him. Finally, petitioner told trial counsel that he had
been kidnapped and coerced into participating but that when he was there, he did not do
anything.

The post-conviction court heard the testimony of witnesses and obviously credited
the testimony of trial counsel, ruling:

Petitioner alleges that trial counsel did not inform him of any offer
from the state and did not discuss his potential exposure if he pursued a trial
rather than take the deal. Petitioner testified that [trial counsel] only
informed Petitioner‟s family and never directly told Petitioner of any offer
from the state. Petitioner stated that he learned of the offer from his parents
and co-defendants. Additionally, Petitioner testified that [trial counsel] did
not inform Petitioner that he could face up to thirty-eight years if he went to
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 trial. [Trial counsel], however, testified that she did in fact inform
Petitioner about the offer. [Trial counsel] testified that she informed
Petitioner of the offer “several times” and encouraged him to take the deal
because of what his exposure could be if he went to trial. [Trial counsel]
stated that the Petitioner had provided her with several conflicting accounts
of what happened on the night of the crime, and the plea deal was the better
option in her opinion because of the weakness of the Petitioner‟s defenses.
[Trial counsel] testified that it was the Petitioner‟s decision to go to trial
because he was confident that the victims would not identify him. Petitioner
has merely made accusations and presented no evidence of deficiency on
part of [trial counsel]. Petitioner is not entitled to relief on this issue.

On appeal, we will not reassess the post-conviction court‟s determination of the
credibility of witnesses, which is a matter entrusted to the post-conviction court judge as
the trier of fact. Dellinger, 279 S.W.3d at 292; R.D.S., 245 S.W.3d at 362 (citation
omitted). The post-conviction court made a credibility judgment based on the testimony
of petitioner and trial counsel. Absent evidence to the contrary, we will not disturb this
judgment. Petitioner‟s claim must fail.

7. Failure to Impeach the State‟s Witnesses on Their Identification of Petitioner

While acknowledging that trial counsel challenged both victims, on cross-
examination, about their ability to identify petitioner, he nonetheless claims that trial
counsel was ineffective because she failed to “offer up any contradictory accounts made
by the alleged victim.”

At the evidentiary hearing, trial counsel said that after the victims testified, the
only remaining viable defense theory – of the myriad theories petitioner supplied – was
that the witnesses could not identify him in court because, as petitioner said, “they were
crack whores.” However, trial counsel stated that when the witnesses appeared in court,
“they were fine . . . . [T]hey were as upstanding as anybody [she had] seen in a
courtroom.” Both witnesses identified petitioner in court and both testified that “they
begged [petitioner] to take them outside before they killed them so the children wouldn‟t
hear.” With that testimony, trial counsel opined that their case was “shot dead right
there.”

When asked about the State‟s witnesses at trial, trial counsel said:

I remember the two women who were held to the ground with guns
at their heads. I remember them very well, and I remember having been
promised, by my client, that they were, as I said, essentially crack whores.
They didn‟t come in looking like that; and in my entire career, I‟ve never
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 had a witness bring their own protection to court; but these women did.
They were that scared.

Trial counsel recalled that during her opening statement, her position was that the
State could not establish petitioner‟s guilt because it could not prove identity. However,
she said, “[T]hat kind of went to hell.” She “leaned on” one of the witness‟s
identification of petitioner that said the picture “resembled” him. She cross-examined
one of the victims with her own statement, but trial counsel said the witness was
“extremely consistent.” Trial counsel described, “She was stalwart on the witness stand,
and she made a lot more sense than people in most serious cases have made . . . . This
one was not going to go down.”

Ms. McEndree opined that during trial counsel‟s closing argument, she pursued
the best defense Ms. McEndree thought petitioner had, which was challenging the
victims‟ identification of him. She said that trial counsel attempted to “shed doubt” on
one identification based on the fact that one of the victims circled petitioner‟s photograph
on the array and wrote that he “resembled” one of the perpetrators. She characterized the
defense that trial counsel mounted as “just one defense, start to finish, by questioning
whether or not [petitioner] was really involved in any way at all.”

Ms. McEndree stated that both witnesses were “adamant” in their identification of
petitioner at trial. Both witnesses made clear that petitioner was a “very active
participant” in the offenses at both victims‟ houses. She said, “He wasn‟t taking orders
from the others.”

The post-conviction court discounted this claim, holding:

Petitioner claims that [trial counsel]‟s representation of Petitioner
was deficient because she failed to impeach the State‟s witnesses regarding
their identification of the Petitioner with their prior statements to police.
Both victims identified the Petitioner at trial and specifically recalled his
participation in the crime. On cross-examination, [trial counsel] did in fact
challenge the first victim, Elisha Wilkins, about her ability to identify the
Petitioner. [Trial counsel] also challenged the second victim, Latonya
Cooper, on cross-examination about her statement that the Petitioner
merely “resembled” one of the men that came into her home that night.
Petitioner has not demonstrated that [trial counsel]‟s performance was
deficient, nor has the Petitioner shown that he was prejudiced. Again, both
victims pointed to Petitioner and were extremely confident with their
recollection of the specific acts that the Petitioner participated in on the
night of the crime. Petitioner is not entitled to relief on this issue.

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 We agree with the post-conviction court. Trial counsel ably cross-examined the
witnesses, but as she said, one of the witnesses was “stalwart” in her testimony, and both
witnesses appeared to be “as upstanding as anybody” she had seen, not the “crack
whores” that petitioner made them out to be. Moreover, petitioner has failed to produce
the “contradictory accounts” for which he faults trial counsel for not utilizing. He is not
entitled to relief.

8. Failure to Present Mitigating Evidence at the Sentencing Hearing.

In general terms, petitioner maintains that trial counsel erred in failing to present
mitigating evidence at his sentencing hearing. He claims that his family members were
present and would have testified on his behalf about his mental health issues and past
drug abuse.

Petitioner recalled that at his sentencing hearing, his entire family was present in
addition to another witness. He said that trial counsel offered no proof, no mitigating
evidence, and none of his mental health records. He had undergone several mental health
hospitalizations and claimed to have had letters from the hospitals to introduce as
evidence. Petitioner said that he had used illegal drugs and wanted that fact introduced in
support of his mental condition. On cross-examination, petitioner acknowledged that his
codefendants received a longer sentence than he had. He admitted that he had a prior
criminal record.

Trial counsel stated that she did not call any witnesses at petitioner‟s sentencing
hearing. She said that his parents were perhaps present to testify but that their testimony
would have been “to no avail.” She confirmed that prior to trial, she sought a mental
health evaluation for petitioner and that the results were that he was competent to stand
trial. She requested the evaluation because petitioner‟s parents had asked for it. She
denied that petitioner requested that she obtain hospitalization records from MMHI.

Trial counsel explained that the “only mitigating thing” that was presented at trial
was that one of petitioner‟s codefendants instructed him to kill a little boy but instead,
petitioner returned the child to his room.

Petitioner also called Henry Archer, petitioner‟s step-father, as a witness at the
evidentiary hearing. He said that he had advised trial counsel about petitioner‟s drug and
alcohol problems. He confirmed that he was present at petitioner‟s sentencing hearing
and was willing to testify.

The post-conviction court noted petitioner‟s failure to establish prejudice in this
regard:

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 Petitioner argues that trial counsel‟s representation was deficient
because she did not offer any mitigating evidence at the sentencing hearing.
Petitioner contends that members of his family were present and ready to
testify on his behalf at the sentencing hearing. Petitioner stated that his
family would have testified to his mental issues and past drug abuse.
However, Petitioner was deemed competent to go to trial, and any
information presented by his family members could potentially open the
door to damaging testimony on cross-examination. Additionally, testimony
about his history of drug abuse could have been another aggravating
circumstance, rather than mitigating. Petitioner has not shown he was
prejudiced and is not entitled to relief on this issue.

The evidence does not preponderate against the post-conviction court‟s findings. Again,
petitioner has failed to present evidence and/or testimony, aside from Mr. Archer,
regarding his mental health issues or drug problems. As the post-conviction court noted,
evidence of petitioner‟s drug use could have easily been more damaging than helpful at
sentencing. While Mr. Archer testified in vague terms about petitioner‟s mental health
issues, without more, we agree with trial counsel that calling him as a trial witness would
have been futile. Petitioner cannot succeed on this claim of error.

CONCLUSION

Upon our review of the record, the briefs of the parties, arguments of counsel, and
applicable legal authorities, we affirm the judgment of the post-conviction court.

_________________________________
ROGER A. PAGE, JUDGE

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