Felton Jackson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 19, 2016

FELTON JACKSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Wilson County
No. 2009-CR-416 Brody Kane, Judge
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No. M2016-00490-CCA-R3-PC – Filed May 15, 2017
___________________________________

The Petitioner, Felton Jackson, filed a petition in the Wilson County Criminal Court,
seeking post-conviction relief from his conviction of especially aggravated robbery. The
Petitioner alleged that his trial counsel was ineffective by failing to call alibi witnesses,
coercing the Petitioner not to testify, and failing to investigate or present proof regarding
the Petitioner’s “social, medical and mental health.” The post-conviction court denied
relief, and the Petitioner appealed. Upon review, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Donna G. Wagner, Mt. Juliet, Tennessee, for the Appellant, Felton Jackson.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Tom P. Thompson, Jr., District Attorney General; and Howard L. Chambers, Assistant
District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background

On direct appeal, this court summarized the facts adduced at trial as follows:

Officer [Joshua] Lewis testified that he was an officer with
the City of Lebanon Police Department. He and a fellow
officer were dispatched to the Plaza Motel on December 23,
2008, at approximately 4:45 a.m., to respond to a 9-1-1 call.
When they arrived, they were unable to enter the victim’s
room, so they obtained a master key from hotel personnel.
Upon entering the room, Officer Lewis observed that the
room “was in shambles.” Personal belongings were strewn
about the room, and the mattress had been removed from the
bed and was lying in front of the doorway. He and Officer
Stone began to “clear” the room to ensure that the room was
safe before allowing emergency personnel to enter the room,
during which time Officer Lewis saw the victim lying on the
box springs of the bed. He testified that there was “blood
everywhere,” including the floor, the mattress, the box
springs, the ceiling, and the walls. After notifying medical
personnel that the room was “clear,” Officer Lewis
approached the victim and asked him what had happened.
The victim stated that “he was laying [sic] in bed . . . [and] . .
. awaken[ed] to a big black guy beating him with a pipe.”
Officer Lewis assisted emergency personnel in loading the
victim into the ambulance and secured the room.

On cross-examination, Officer Lewis confirmed that
the victim’s hotel room door was locked when they arrived
and that he did not observe any signs of forced entry. He
stated that the victim was conscious but lying on the box
springs of the bed, covered in blood.

....

. . . Officer Lewis, . . . clarified that the victim actually made
two statements to him. One statement occurred in the hotel
room during the initial contact. After Officer Lewis had
secured the room and the victim was in the ambulance,
Officer Lewis approached the victim and inquired as to the
identity of the assailant. During that statement, the victim
indicated that the black male “lived down the way.” Officer
Lewis recognized the seriousness of the victim’s injuries and
attempted to gather additional information, including perhaps
a dying declaration, before the victim was transported. . . .

....

The next witness was John Wayne Engle, who lived in
close proximity to the Plaza Motel. On the morning of
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December 23, 2008, he was walking his dog between 6:00
and 6:30 a.m. when he discovered checkbooks lying on the
ground between his residence and the residence next door to
him. He noticed several police officers in the vicinity and
turned the checkbooks in to an officer.

Officer Matthew Dedman, an officer with the City of
Lebanon Police Department, testified that he was working on
December 23, 2008. His responsibility that day was to secure
the crime scene van. When he was on duty, someone
approached him and handed him some checkbooks. He
turned the checkbooks over to Detective Massey.

The State next called Shirley Bogle, who resided in the
Plaza Trailer Park, which was located directly behind the
Plaza Motel. She testified that she placed a 9-1-1 call around
4:30 a.m. on December 23, 2008. The call was precipitated
by [the Petitioner’s] arguing with a pregnant female. Ms.
Bogle asked [the Petitioner] and the female to move because
they were standing very close to her dog, who was chained,
and she feared that the dog might bite one of them. She
observed [the Petitioner] holding what appeared to be an
umbrella and something “hanging[,] like a purse or
something. . . .” Ms. Bogle indicated that she called 9-1-1
because [the Petitioner] and the female were in a “fight or a
fuss,” and because the female was pregnant, Ms. Bogle was
concerned that [the Petitioner] might harm her. In her call,
she asked the police to patrol the area; she did not ask them to
investigate or take any other action. She identified [the
Petitioner] in court.

On cross-examination, Ms. Bogle stated she was
positive that the female was pregnant because she had seen
her previously but did not know her personally. She
acknowledged that what she thought was an umbrella could
have been a flashlight. She confirmed that [the Petitioner]
lived in the same community, and she pointed out his
residence on a map.

The State’s next witness was Tabitha Donnelly. She
pleaded guilty to criminal charges arising from this incident
and received a sentence of fifteen years, to be served at 100%
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release eligibility. On the day in question, she had borrowed
the victim’s Jeep. Around 4:00 a.m., she was visiting an
acquaintance and “was getting high” when [the Petitioner]
knocked on the back door. The owner of the home instructed
Ms. Donnelly to open the door for him. Once inside, [the
Petitioner] asked Ms. Donnelly what she was about to do, and
she told him that she was going to return the victim’s Jeep.
[The Petitioner] asked Ms. Donnelly if the victim usually had
money in his possession, and she responded affirmatively.
She asked [the Petitioner], “Why, do you want to rob him?
Don’t hurt him, just scare him.” [The Petitioner] responded,
“S**t, it’s Christmastime. I ain’t got no more dope. My
pockets is [sic] empty. I’m down with whatever.”

Ms. Donnelly and [the Petitioner] then left, and she
drove [the Petitioner] to the Plaza Motel at the entrance of the
parking lot. She continued through the parking lot and parked
outside of the victim’s room. She entered the victim’s room
and sat down in a chair. The victim asked Ms. Donnelly if
she had locked the Jeep. She answered that she had not, and
she walked outside to do so. At that point, [the Petitioner]
walked into the room. [The Petitioner] approached the
victim, who was in bed, and asked for all of his money. Ms.
Donnelly opined that the victim was aware of [the
Petitioner’s] intentions and leaned back so that he could kick
[the Petitioner], but [the Petitioner] produced a steering wheel
lock and struck the victim.

Ms. Donnelly stated that she stood in the doorway in
shock, saying, “Please quit hitting him.” [The Petitioner] did
not stop the attack. As the victim and [the Petitioner] fought,
[the Petitioner] pulled the victim’s foot and dragged the
victim and the mattress upon which he was lying onto the
floor. [The Petitioner] ordered Ms. Donnelly to take the
victim’s money, so she stepped across the mattress and box
springs to look for his wallet, which she assumed was under
the bed. When she found nothing there, Ms. Donnelly fled
from the room followed by [the Petitioner]. She noted that
when [the Petitioner] left, he had taken the victim’s wallet,
some checkbooks, a bowl of coins, and the weapon he used in
the attack. They ran into the Plaza Trailer Park. They
stopped in front of a trailer where a pit bull was chained
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outside. They began to argue, and the owner of the trailer, a
female, came outside and asked them to move away from her
trailer. Ms. Donnelly was arrested ten minutes later. Later
that day, Detective Massey interviewed her, and she gave a
statement recounting the events. Ms. Donnelly identified [the
Petitioner] at trial.

On cross-examination, Ms. Donnelly admitted that the
victim was “a trick” to her, meaning that she would “do
things . . . for money.” She acknowledged that she was not
pregnant on the date in question. She further admitted that
her intention was to assist [the Petitioner] in robbing the
victim but not hurting him. Ms. Donnelly stated that she did
not touch the steering wheel lock but that [the Petitioner]
must have retrieved it from the victim’s Jeep.

Ms. Donnelly agreed that she had the victim’s blood
on her shoes and a “splatter of blood” on her pants when she
was arrested. She confirmed that she stayed in the victim’s
room on the inside of the door during the attack, that she
entered the room briefly in an attempt to retrieve the victim’s
wallet, and that she never touched the victim. She did not
remove any of the victim’s belongings. Ms. Donnelly stated
that after her interview with Detective Massey, he drove her
to the Plaza Trailer Park to assist him in retrieving the
weapon. Although she believed she knew where the weapon
was located, they were unsuccessful in recovering it.

Ms. Donnelly identified a photograph of an item that
bore the word “club” on it. She did not recall having seen the
item in the victim’s Jeep or touching the item while she was
in the Jeep. She admitted having received narcotics from [the
Petitioner] on occasion. Had she received any proceeds from
the robbery of the victim, she intended to use the money “to
get high.”

The State called the victim as its next witness. He was
sixty-three years old at the time of trial. At the time of the
incident, he had resided at the Plaza Inn Motel for eight to ten
years. The victim testified that he suffered injuries to his
skull and a finger as a result of the attack on him. However,
he did not recall how the attack occurred and did not
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remember anything about the events of the day in question.
His first memory thereafter was waking up in the
rehabilitation area of Vanderbilt Hospital. He did not know
who attacked him. The victim did not remember Tabitha
Donnelly, either.

The State’s next witness was Detective Scott Massey
with the Lebanon Police Department. He responded to the
Plaza Motel around 5:30 a.m. on December 23, 2008. When
he arrived, Officers Lewis and Stone were on the scene, and
the ambulance was en route to the hospital. When Detective
Massey saw the size of the room, he requested assistance
from the Crime Scene Team because it was larger than he
could process by himself. He recalled receiving the victim’s
checkbooks from Officer Dedman. He left the motel around
7:00 a.m. to return to the police department. He developed an
idea, based on items he observed in the hotel room, that a
female had been there, so he checked to see if any female
with whom law enforcement was familiar had been arrested.
He learned that Tabitha Donnelly had, in fact, been arrested
that morning in close proximity to the crime scene. He asked
that Ms. Donnelly be brought from the jail so he could speak
with her and also requested to examine the clothing she had
been wearing. He noticed blood on Ms. Donnelly’s shoes and
also noted that Ms. Donnelly had been wearing a very large,
dark-colored “hoodie” style sweatshirt and sweat pants. He
forwarded Ms. Donelly’s clothing to the crime laboratory.
Ms. Donnelly gave Detective Massey a statement implicating
[the Petitioner] then accompanied him to the hotel around
9:30 or 9:40 a.m. on December 23 to direct officers to the
assault weapon. However, their attempt to locate the weapon
was unsuccessful.

Through the course of the investigation, Detective
Massey learned where [the Petitioner] resided. He returned to
the trailer park during the morning of December 23 and
knocked on the door. [The Petitioner] opened it, turned
around, and walked to the sofa, where he sat down. He
looked as though he had been asleep. He was wearing boxer
shorts and had a piece of toilet paper inside his nose with
dried blood on it. [The Petitioner] explained that he was
trying to stop a nose bleed. From the door, Detective Massey
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asked [the Petitioner] what time he arrived at his home the
previous night. [The Petitioner] responded that he had been
at home all night. Detective Massey requested that [the
Petitioner] get dressed and accompany him to the police
department.

Later in the day, Detective Massey obtained a search
warrant for [the Petitioner’s] trailer. He also requested
assistance from the Crime Scene Team in searching the area
surrounding [the Petitioner’s] trailer. During that search,
Detective Massey noticed that the underpinning of a
neighboring trailer had been pulled back. He looked under
the trailer and observed a bed sheet located approximately in
the middle of the area under the trailer. He crawled into the
space and pulled the sheet back, revealing a towel and the
club that had been described by Ms. Donnelly as the weapon
used by [the Petitioner]. Detective Massey later found the
other half of the club’s mechanism behind the passenger seat
of the victim’s Jeep.

On cross-examination, Detective Massey stated that as
part of the investigation, he obtained buccal swabs from the
victim, Ms. Donnelly, and [the Petitioner]. At trial, he
identified photographs of shoe prints that were left on the
victim’s mattress and on a piece of paper. He also testified
that witnesses whom they interviewed indicated that a
pregnant female and a white male had attempted to “jimmy”
the lock of the victim’s door a few days prior to the assault.
The witnesses indicated that the female they had previously
seen was not Ms. Donnelly, saying, “[N]o, its not the
pregnant female that we seen [sic] tonight. It’s a different
girl.”

Detective Massey discussed another case in the area
involving Ms. Donnelly but stated that she was not a suspect
in the case. Rather, she was with the victim at the time when
a slightly-built black male entered that victim’s home and
tried to steal his wallet. Detective Massey confirmed that no
identifiable latent fingerprints were obtained from the crime
scene. He also acknowledged that no physical evidence from
the crime scene implicated [the Petitioner] and that the search
of [the Petitioner’s] trailer rendered no incriminating
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 evidence. [The Petitioner] declined to make a statement to
Detective Massey.

Dr. Jarod McKinney testified that he was a professor
of emergency medicine at Vanderbilt University and that he
also worked in the emergency department of Vanderbilt
Hospital. The trial court accepted Dr. McKinney as an expert
in the field of medicine. Dr. McKinney treated the victim
when he was admitted into the emergency department. The
victim suffered multiple skull fractures, facial fractures, and
intracranial bleeding. He described the intracranial bleeding
as being potentially life-threatening. He stated that it would
have taken four to six weeks for [the victim’s] fractures to
heal. Although [the victim] presented in a conscious state, he
experienced a seizure after the CAT scan and awakened later.

Special Agent Forensic Scientist Mark Dunlap with the
Tennessee Bureau of Investigation next testified as an expert
in the fields of serology and DNA analysis. He testified that
exhibit 22, which contained the bed sheet, towel, and club,
contained the victim’s DNA. A blood stain on Ms.
Donnelly’s sweatshirt could not be tested further for DNA
because the blood was likely transferred there by being
packaged together with the sweat pants. The blood stain on
her pants contained DNA from the victim as the major
contributor. Some of the areas indicated that Ms. Donnelly
was the minor contributor, but other stains contained DNA
from a minor contributor that was insufficient for further
testing. Special Agent Dunlap obtained the victim’s DNA
from Ms. Donnelly’s shoes. The victim’s checkbooks were
tested and contained DNA from the victim as a minor
contributor and from [the Petitioner] as a major contributor.
No DNA was obtained from blood stains on the doorframe of
the victim’s room, the scrapings from [the Petitioner]
fingernails, or blood stains around the victim’s bathroom. A
knife found in the victim’s room tested positive for the
presence of his own DNA.

State v. Felton Neville Jackson, No. M2012-00828-CCA-R3-CD, 2013 WL 5675466, at
*1-6 (Tenn. Crim. App. at Nashville, Oct. 17, 2013) (footnote omitted).

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 At the conclusion of the trial, the Petitioner was convicted of especially
aggravated robbery, for which he received a sentence of twenty-five years, and
aggravated assault, for which he received a sentence of six years. Id. at *1. The trial
court ordered the sentences to be served concurrently. Id. On appeal, this court affirmed
the convictions but remanded the case to the trial court for entry of a judgment reflecting
that the aggravated assault conviction merged into the especially aggravated robbery
conviction. Id.

Thereafter, the Petitioner, acting pro se, filed a petition for post-conviction relief
and an amended petition for post-conviction relief. Counsel was appointed and filed an
amended petition for post-conviction relief. The petitions alleged, in pertinent part, that
the Petitioner’s trial counsel was ineffective by failing to call alibi witnesses, coercing the
Petitioner not to testify, and failing to investigate or present proof regarding the
Petitioner’s “social, medical and mental health.”

At the post-conviction hearing, the Petitioner testified that trial counsel should
have subpoenaed his mother and his wife to testify as alibi witnesses.1 The Petitioner
said that he told trial counsel each of the women would testify that he was at home at the
time the victim was attacked. Trial counsel told the Petitioner that the women should not
testify but did not explain his reasoning.

The Petitioner said that he was in jail from December 23, 2008, to September 2009
when he was released on bond. Trial counsel visited the Petitioner in jail “two or three
times every other month,” and they met once or twice a month after the Petitioner was
released. During the meetings, the Petitioner and trial counsel discussed the case.
Nevertheless, the Petitioner thought trial counsel did not spend enough time with the
Petitioner to prepare for trial. When the Petitioner told trial counsel that he wanted to see
trial counsel more frequently, trial counsel responded that he would try but that he had
other cases.

The Petitioner said that he “somewhat” understood that he could either go to trial
or plead guilty. As the trial date approached, the Petitioner and trial counsel began to
discuss trial strategy. The Petitioner did not feel that he understood what was happening
with his case, but he acknowledged that he knew what the trial “process looked like, who
would testify, who the witnesses would be, [and] what the evidence would be.”

The Petitioner said that during Ms. Bogle’s testimony, he became concerned about
her credibility. The Petitioner told trial counsel about his concerns, but trial counsel did
not cross-examine Ms. Bogle adequately. Although the Petitioner asked trial counsel to
question the DNA expert about “how the DNA was presented on the checkbook,” trial

1
The Petitioner and his wife were married after his trial.
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counsel did not pursue that line of questioning. The Petitioner noted that the police had
taken one sample of his DNA on the day he was arrested and had taken another sample
three or four months later. After the second DNA sample was taken, the Petitioner’s
DNA was found on the victim’s checkbook. The Petitioner asked trial counsel to
investigate why the DNA was not discovered until after the second DNA sample was
taken, but counsel never investigated.

The Petitioner said that trial counsel advised him not to testify at trial. The
Petitioner did not understand that he could have insisted upon testifying; therefore, he
followed trial counsel’s advice.

The Petitioner said that he had a history of mental illness but that he did not have a
mental evaluation prior to trial. He explained that in 2001, he was diagnosed with
depression and stayed in a mental institution for approximately one month. While in jail,
the Petitioner saw a psychiatrist each month. Prior to and during trial, the Petitioner was
taking medication for depression. The Petitioner was still on medication at the time of
the post-conviction hearing. Additionally, he was diagnosed with bipolar disorder and
anxiety, for which he took medication.

The Petitioner said that trial counsel did not hire an investigator and that no one
was interviewed about the Petitioner’s upbringing or social history. The Petitioner
thought that his mental illness might have affected his “state of mind during all this
time.”

On cross-examination, the Petitioner said that he did not recall the trial court’s
advising him of his right to testify. The Petitioner said that he went to jail on December
23, 2008, and that he was required to submit the first DNA sample in order to be released
on bond. While on bond, the Petitioner failed to appear for a court date; therefore, he was
returned to jail to await his trial, which occurred in 2011. The Petitioner agreed to give a
second DNA sample three to four months after he agreed to give the first sample.

The Petitioner acknowledged that trial counsel did not threaten him or coerce him
not to testify; counsel merely advised him against testifying. The Petitioner said that he
would have testified that he was at home at the time of the offense. The Petitioner said
that he had been playing basketball earlier that night and denied handing his wife bloody
clothes to wash.

The Petitioner said that he had been depressed since 2001. He agreed that his
depression did not make him incompetent to testify. The Petitioner did not know that
trial counsel had filed an alibi notice prior to trial.

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 The Petitioner said that after Ms. Donnelly testified that she was not pregnant at
the time of the offense, he asked trial counsel “to get Shirley Bogle back on the stand.”
He explained that he wanted trial counsel “to get [Ms. Bogle] to where she said [the
Petitioner] was arguing with a pregnant woman. And at the time, the only woman that
was pregnant was [the Petitioner’s] wife.”

The Petitioner said that he also requested that trial counsel ask the DNA expert if
he could determine how the Petitioner’s DNA got on the checkbook. The Petitioner
thought questioning Ms. Bogle and the DNA expert might have made a difference in the
jury’s verdict.

Trial counsel testified that he began representing the Petitioner shortly after his
arrest. Initially, trial counsel and the Petitioner met several times a week at the jail;
thereafter, they began meeting once or twice a month.

Trial counsel said the possibility that one of the DNA samples the Petitioner gave
“could have been used to transfer DNA to an item to be used at a later date” was a
“substantial” issue. Trial counsel said that he was prepared to cross-examine the TBI’s
expert witness and that the cross-examination “was pretty extensive.” Trial counsel did
not, however, have any evidence that the DNA samples were used to put the Petitioner’s
DNA on the checkbook.

Trial counsel acknowledged that he knew the Petitioner’s mother and wife were
potential alibi witnesses. When trial counsel interviewed the Petitioner’s mother, she
indicated that the Petitioner was in the house when she went to bed and was there when
she woke the next morning. She stated, however, that “she thought he’d gone out
somewhere in the middle of the night and didn’t know when he had returned.” The
Petitioner’s wife said that when the Petitioner came into the house, he handed his clothes
to her and told her to wash them. Trial counsel decided not to call the women as
witnesses. Trial counsel noted that if the Petitioner’s wife, who “was the mother of his
multiple children,” had testified, it “could have caused legal problems for” her.

Trial counsel said that during trial preparation, the Petitioner never asked to testify
and that the Petitioner’s testifying was never considered to be an option. Trial counsel
said that he had represented the Petitioner in the past and knew that the Petitioner had “a
couple of things on his previous record” that could be used for impeachment if he
testified. Trial counsel also said that the Petitioner “had made certain disclosures that
would prevent me from ethically putting him on the stand to testify that he wasn’t there.”
Trial counsel said that the trial court advised the Petitioner of his right to testify.

Trial counsel said that he did not observe anything that raised concerns about the
Petitioner’s mental health or made him think the Petitioner should be evaluated. The
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Petitioner always responded appropriately to trial counsel’s questions. Trial counsel
opined that he represented the Petitioner well at trial and at sentencing and that he could
think of nothing he could have done to change the outcome.

On cross-examination, trial counsel maintained that he would not have refused to
let the Petitioner testify but that he advised the Petitioner not to testify. Trial counsel said
that he “believe[d] it [was] still correct advice. [The Petitioner] should not have taken the
stand to testify on his behalf.”

Trial counsel said that he reviewed the discovery materials with the Petitioner.
Trial counsel was confident that the Petitioner “fully understood the pros and cons of this
case, the evidence against him, the counter theories, the whole nine yards.” Trial counsel
stated that they discussed the case “in explicit detail because there were several different
factors that came up that could have been used as potential arguments at trial, and were
raised in our defense of the case.”

Trial counsel said that the Petitioner was aware of his mother’s and wife’s
statements to counsel regarding the Petitioner’s actions on the night of the offense,
namely that he left the house and that he handed his wife bloody clothes to wash when he
returned. Trial counsel explained to the Petitioner why having the women testify was
“risky.” Trial counsel said that he and the Petitioner never discussed the Petitioner’s
mental health and that the first time he heard of any potential mental health problems was
during the post-conviction hearing. Trial counsel did not think anything about the
Petitioner’s mental health history would have helped the Petitioner at trial or sentencing.

The post-conviction court denied relief, finding that the Petitioner had failed to
establish that counsel was ineffective. On appeal, the Petitioner challenges the ruling of
the trial court.

II. Analysis

To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
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those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,

[b]ecause a petitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice provides
a sufficient basis to deny relief on the ineffective assistance
claim. Indeed, a court need not address the components in
any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

On appeal, the Petitioner contends that trial counsel was ineffective by failing to
call the Petitioner’s wife and mother who would testify that he was at home on the night
of the offense. However, the post-conviction court accredited trial counsel’s testimony
that he told the Petitioner his mother would have testified that he left the house during the
night and that his wife would have testified that he handed her bloody clothes to wash.
Specifically, the post-conviction court found that trial counsel’s testimony was “a more
reasonable, credible and believable explanation as to why the two witnesses were not
called to support an alibi defense.” Moreover, the Petitioner failed to call the witnesses
to testify at the post-conviction hearing. Generally, “[w]hen a petitioner contends that
trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented by the petitioner at the evidentiary hearing.” Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not speculate on what
benefit the witnesses might have offered to the Petitioner’s case. Id. Accordingly, the
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Petitioner has failed to demonstrate prejudice in this regard.

The Petitioner further contends that he was coerced by trial counsel not to testify
at trial. The post-conviction court noted that the trial court advised the Petitioner of his
right to testify. The Petitioner acknowledged that he made the choice not to testify upon
the advice of counsel.

Finally, the Petitioner contends that trial counsel was ineffective by failing to
investigate the Petitioner’s social, medical, and mental health history and to present proof
that he was “suffering from a mental or physical condition that reduced his culpability.”
The post-conviction court found that the Petitioner did not inform trial counsel about any
potential mental health issues. Moreover, trial counsel testified that he did not observe
anything concerning about the Petitioner’s mental or physical health. Further, the
Petitioner did not testify that any of his mental or physical conditions affected the
outcome and did not have an expert witness to testify at the post-conviction hearing
regarding his mental health.

In sum, the post-conviction court ruled that the Petitioner failed to prove that trial
counsel was ineffective. Based upon the foregoing, we agree with the post-conviction
court and conclude that the Petitioner is not entitled to relief.

III. Conclusion

Finding no error, we affirm the judgment of the post-conviction court.

_________________________________
NORMA MCGEE OGLE, JUDGE

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