         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 12, 2006

                  ANTONIUS HARRIS v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Gibson County
                          No. H6962    James L. Weatherford, Judge



                    No. W2006-00175-CCA-R3-PC - Filed January 4, 2007


Petitioner, Antonius Harris, appeals the dismissal of his petition for post-conviction relief which
alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner
contends that trial counsel’s assistance was ineffective for failure to call certain witnesses at trial.
Petitioner also contends that the trial court erred in failing to instruct the jury on self-defense as an
affirmative defense and in imposing consecutive sentencing. After a thorough review of the record,
we conclude that Petitioner has failed to show any deficiencies in his counsel’s assistance or
prejudice for failing to call Petitioner’s suggested witnesses. Petitioner’s challenges to the trial
court’s jury instructions and the imposition of consecutive sentencing were raised in Petitioner’s
direct appeal and thus have been previously determined. Accordingly, we affirm the judgment of
the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH , JJ., joined.

Harold R. Gunn, Humboldt, Tennessee, for the appellant, Antonius Harris.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Garry
G. Brown, District Attorney General; and Elaine Gwinn Todd, Assistant District Attorney General,
for the appellee, the State of Tennessee.

                                              OPINION

I. Background

        Following a jury trial, Petitioner was convicted of two counts of especially aggravated
kidnapping, one count of attempted second degree murder, two counts of aggravated assault, and one
count of felony reckless endangerment. The trial court sentenced Petitioner to twenty years for each
of his especially aggravated kidnapping convictions, eight years for his attempted second degree
murder conviction, three years for each aggravated assault conviction, and eighteen months for his
felony reckless endangerment conviction. The trial court ordered Defendant to serve his sentences
in count one, especially aggravated kidnapping, count three, attempted second degree murder, and
count five, aggravated assault, consecutively, and all other sentences concurrently to count one, for
an effective sentence of thirty-one years. The facts surrounding Petitioner’s convictions were
summarized by this Court in the direct appeal as follows:

       Angela Barnett, her boyfriend Derrick Harris, a friend Darnell Thomas, her eight-
       year-old daughter Essence Harris, and her four-year-old son Isaiah Harris lived in a
       mobile home park in Humboldt, Tennessee. Angela Barnett testified that she was
       home alone with her son on January 7, 2000, when the defendant, Essence Harris'
       father, arrived at approximately 10:00 a.m. with presents for their daughter. The
       presents were in Wal-Mart sacks. Barnett and Thomas testified they later found a
       receipt in the Wal-Mart sacks for rope and duct tape purchased at 9:32 that morning.

       Barnett stated the defendant went out to his car and later returned. She said that after
       a few seconds, defendant's wife, co-defendant Claudia Harris, who was waiting in the
       car, also came inside. Barnett testified the defendant then pulled out a revolver.
       According to Barnett, the defendant indicated someone had stolen $48,000 from him,
       and that he heard Derrick Harris was involved in the theft. Barnett stated the
       defendant questioned her about Mark Cunningham, an alleged acquaintance of
       Barnett and Derrick Harris, whom the defendant believed was also involved in the
       alleged theft. Barnett said the defendant asked about Derrick Harris, and she replied
       he was in Trenton. Barnett testified she complied with the defendant's command that
       she page Derrick Harris, but that he did not return the phone call.

       According to Barnett, the defendant instructed her to change clothes because she was
       “fixing to take [him] to Trenton.” Barnett stated the defendant asked her if she knew
       someone who could watch her son; when she replied that she did not, he and the co-
       defendant decided they would take the child to the defendant's mother. Barnett said
       the defendant followed her outside. Co-defendant Claudia Harris carried the child
       and put him in the back seat of the car next to the defendant, who was seated behind
       Barnett. Barnett testified she could not see if the defendant was still holding the gun,
       but she heard her son ask the defendant, “What is that?” Derrick Harris and Darnell
       Thomas testified they returned home with Essence Harris at about 10:00 a.m. and
       found the house empty.

       Barnett stated they drove to the home of the defendant's mother in Trenton, where the
       co-defendant took the child inside while the defendant and Barnett remained in the
       car. Barnett said the defendant still had the gun drawn and kept saying he had to find
       the stolen money. Barnett testified that after the co-defendant returned to the car,
       they drove around Trenton looking for Derrick Harris, but were unable to find him.
       Barnett stated the co-defendant told her they would not hurt her if she would help


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them. They then returned to Barnett's home in Humboldt, where they found Derrick
Harris.

Angela Barnett said the co-defendant stated, “Well, we're just gonna have to pull up
there and do this” when Barnett advised them that Essence Harris was also in the
house. Barnett testified she approached the house with the defendant walking behind
her holding the gun; she said he threatened her if she tried anything.

Derrick Harris and Angela Barnett testified Derrick Harris opened the door after
Barnett knocked; they said Barnett immediately grabbed her daughter and ran to her
daughter's room. Essence Harris testified she was standing near Derrick Harris as he
opened the door, and the defendant, who had a gun, grabbed Derrick Harris and
pushed him against the wall. Derrick Harris stated the defendant followed Barnett
into the house and sprayed him with mace. Angela Barnett said the defendant
grabbed Derrick Harris and she heard them scuffling. Darnell Thomas testified he
was in his room and heard tussling after Derrick Harris answered the door.

According to Derrick Harris, he fell into the bathroom and tried to shut the door, but
the defendant stuck the gun barrel into the door to prevent it from closing. Darnell
Thomas testified he looked out of his room and saw the defendant trying to force his
way into the bathroom by banging the door with his shoulder while “aiming his gun
around.” Thomas stated he retreated into his room and jumped out of the window.
Derrick Harris said he opened the bathroom door because the defendant threatened
to shoot everybody and was “waving the gun around.”

Derrick Harris testified the defendant then grabbed him by the neck, pointed the gun
to his head, and threw him against the wall. Essence Harris also testified she
observed the defendant grab Derrick Harris and push him against the wall. Derrick
Harris stated the defendant questioned him about Mark Cunningham and said
Cunningham had taken $50,000 relating to drugs. He said the defendant threatened
him if he did not take the defendant to Cunningham. Derrick Harris further testified
the co-defendant threatened they would shoot everyone in the house unless he
complied, and they “weren't gonna leave no witnesses.” He stated he initially
resisted their efforts to take him out of the house, but he agreed to go outside because
he feared for the safety of Barnett and her daughter if the defendant were to shoot
him in the house. Barnett and Essence Harris stated the defendant escorted Derrick
Harris outside at gunpoint.

Darnell Thomas testified he went to the nearby home of William Gaines to seek help.
Gaines testified he went to assist Derrick Harris and saw the defendant walk down
the steps behind Derrick Harris with his arm around Derrick Harris' neck and a gun
pointed to his head. Derrick Harris said the defendant and co-defendant attempted to



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       force him into their car, and he resisted their efforts. Darnell Thomas testified he saw
       the defendant with a revolver trying to force Derrick Harris into the car.

       Gaines testified he was speaking with the co-defendant, two feet away from her, in
       an effort to assess the situation when the defendant told Gaines to keep his hands off
       of her; Gaines said he remained where he was. Derrick Harris stated he told Gaines
       to grab her and “break her neck,” but before Gaines could move towards her, the
       defendant pointed the gun at Gaines and told Gaines to step back. Derrick Harris
       said Gaines complied. Gaines confirmed he made no effort to grab the co-defendant.

       Barnett said she took her gun, a nine millimeter, from her bedroom; went to the door;
       said, “Let him go;” fired her gun once; and shot the defendant. Gaines stated the shot
       struck the defendant in the back. Then, according to the witnesses, the defendant
       turned and pointed his gun at Barnett, who quickly ducked inside the house. Essence
       Harris testified she was standing near her mother when her mother shot the
       defendant.

       Derrick Harris and William Gaines stated the co-defendant ran away after Barnett
       shot the defendant. Derrick Harris said the defendant shot him as he tried to run.
       Essence Harris, Angela Barnett, and Darnell Thomas also testified they saw the
       defendant shoot Derrick Harris.

       William Gaines testified the defendant fired four shots at him, and one of the shots
       passed through the sweater he was wearing. Derrick Harris testified he heard the
       defendant fire the four shots at Gaines. Barnett and Thomas also stated they saw the
       defendant firing shots toward Gaines before getting in his car.

       Detective Dennis Wright of the Humboldt Police Department testified the defendant
       was apprehended two months later in California; the defendant's mother had
       previously told Detective Wright the defendant was dead.

State v. Antonius Harris, No. W2001-02617-CCA-R3-CD, 2002 WL 31654814, at *1-3 (Tenn.
Crim. App., at Jackson, Nov. 7, 2002), perm. to appeal denied (Tenn. Mar. 17, 2003).

        On appeal, Petitioner’s conviction of the aggravated assault of Derrick Harris was merged
with his conviction of attempted second degree murder under double jeopardy principles.
Petitioner’s convictions were otherwise affirmed, including the trial court’s finding that the proof
did not establish that Petitioner was entitled to a self-defense instruction to the jury and the
imposition of consecutive sentencing.




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II. Post-Conviction Hearing

        Defendant’s counsel has practiced law since 1984, with a significant portion of his practice
devoted to criminal cases. Counsel testified that he filed a motion for discovery and then a motion
to compel discovery, which was granted by the trial court. Counsel acknowledged that Petitioner
had requested that he obtain the prior criminal and medical records of the victims, and he did not
receive any information from the State concerning these requests. Counsel stated, however, that as
of the day of trial, he believed that he had all of the discovery material, and no evidence was
admitted at trial that counsel had not seen and reviewed.

        Counsel stated that he did not have a personal recollection of requesting a reduction in bond
or a change of venue. Counsel said that the amount of Petitioner’s bond reflected his flight from
Tennessee after the commissions of the offenses, and the fact that before Petitioner’s apprehension
in California, a letter was sent to the investigating officers stating that Petitioner was deceased.
Counsel said that Petitioner’s trial occurred approximately eighteen months after the offenses, and
he did not believe that pre-trial publicity was an issue. The prospective jurors were polled as to their
familiarity with the facts surrounding the case. One juror indicated that she had heard some publicity
about the case, and she was excused. None of the other jurors indicated any familiarity with the case.

         Counsel said that Petitioner told him prior to trial that he believed that Derrick Harris had
abused his daughter, Essence Harris, prior to the offenses. Petitioner discovered this information
while his daughter was visiting with Petitioner in Arizona. Petitioner asked counsel to call a
physician and a social worker from Arizona to testify to that fact. Petitioner was tried on the charge
of the first degree premeditated attempted murder of Mr. Harris, however, and counsel believed that
the information concerning the alleged abuse would have provided both a motive for the shooting
of Mr. Harris and support for a finding of premeditation.

        Counsel stated that he believed that the evidence introduced at trial supported a jury charge
on self-defense based on the fact that Angela Barnett fired the first shot, wounding Petitioner, and
Petitioner responded by firing his own weapon. Counsel said he appealed, without success, the trial
court’s failure to provide such an instruction. Counsel said that he appealed the trial court’s
imposition of consecutive sentencing, but was also unsuccessful on this issue.

        Petitioner testified that he wanted the Arizona physician and social worker to testify about
the possible abuse of his daughter because he believed that the jury would have been inclined to feel
sympathetic toward his conduct. Petitioner acknowledged that it was possible that such information
could have strengthened the State’s case on the first degree premeditated attempted murder charge.

        Petitioner said that he also asked counsel to obtain Derrick Harris’ medical records because
he did not believe that Mr. Harris was as severely injured as his use of a wheelchair at trial indicated.
Petitioner said that he wanted counsel to obtain the victim’s prior convictions because he believed
the information would have supported his defense of self-defense. Petitioner acknowledged that he
did not know whether any of the victims had a prior criminal history.


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        Petitioner stated that the trial court had commented to Claudia Harris, Petitioner’s wife and
co-defendant, that Petitioner was “facing thirty or forty years.” Petitioner acknowledged that neither
he nor counsel were present when this remark was made, and the comment occurred apparently
during a pre-trial hearing for the co-defendant. Petitioner insisted, however, that the comment
reflected that the trial court was not impartial during sentencing, especially in the imposition of
consecutive sentencing.

III. Standard of Review

        A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. T. C. A. § 40-30-110(f). However, the trial court’s application of the law to
the facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed question of fact
and law and therefore also subject to de novo review. Id.; State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must establish that counsel’s performance fell below “the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In
addition, he must show that counsel’s ineffective performance actually adversely impacted his
defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674
(1984). In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this
Court will not second-guess counsel’s decisions regarding trial strategies and tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a
particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged
from counsel’s perspective at the point of time they were made in light of all the facts and
circumstances at that time. Id. at 690, 104 S. Ct. at 2066.

        A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on
a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
That is, a petitioner must not only show that his counsel’s performance fell below acceptable
standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either
prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the
components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at
2069.

IV. Failure to Call Witnesses

       Petitioner argues that his counsel’s assistance was ineffective because he failed to call as
witnesses at trial the physician and social worker from Arizona who had examined Petitioner’s
daughter, Essence Harris. Petitioner submitted that these witnesses would have testified that his
daughter was abused by the victim, Derek Harris. Petitioner surmised at the post-conviction hearing


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that such testimony would have made the jury sympathetic toward him. In his brief, Petitioner also
submits that the testimony would have supported his contention that he went to Ms. Barnett’s house,
not to confront Mr. Harris, but to confront Ms. Barnett.

        The post-conviction court found no deficient conduct on the part of counsel in this regard.
The post-conviction court found that counsel’s conduct was based on a reasonable tactical decision
not to raise the issue of Mr. Harris’ possible abuse of Petitioner’s daughter because such evidence
“would have supplied the State with a motive for Petitioner’s crimes and helped to prove the charge
of attempted first degree murder.” Based on our review of the record, we conclude that the evidence
does not preponderate against the post-conviction court’s finding.

        Moreover, although Petitioner challenged counsel's failure to call these witnesses at trial, he
did not produce either witness to testify at his 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 these witnesses might have offered to Petitioner's case. Id. Accordingly, Petitioner has failed
to demonstrate prejudice in this regard.

V. Previously Determined Issues

        In his post-conviction petition and in this appeal, Petitioner challenges the trial court’s failure
to instruct the jury on self-defense and the imposition of consecutive sentencing. Both issues were
raised in Petitioner’s direct appeal and addressed by this Court. Antonius Harris, 2002 WL
31654814, *9-10, 14-15. Issues which have been previously determined may not be raised through
a post-conviction challenge. T.C.A. § 40-30-106(h). An issue is “previously determined when a
court of competent jurisdiction has ruled on the issue’s merits after a full and fair hearing.” Id.
Accordingly, Petitioner is not entitled to relief on these issues.

                                            CONCLUSION

        After review, we affirm the judgment of the post-conviction court.


                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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