        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                    July 21, 2009 Session

             RAYMOND O. LONG, JR. v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2004-B-1804     Steve Dozier, Judge


                  No. M2008-01820-CCA-R3-PC - Filed April 19, 2010


Petitioner, Raymond Long, Jr., appeals the dismissal of his petition for post-conviction relief
in which he alleged that he received ineffective assistance of counsel at trial. Specifically,
Petitioner challenges trial counsel’s failure to call certain witnesses to testify at trial on his
behalf. After a thorough review of the record, we conclude that Petitioner has failed to show
that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of
the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Jeremy W. Parham, Nashville, Tennessee, for the appellant, Raymond O. Long, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Katrin Miller,
Assistant District Attorney General, for the appellee, the State of Tennessee.

                                           OPINION

I. Background

       Following a jury trial, Petitioner was convicted of the second degree murder of
Terrance Scruggs and the first degree premeditated murder of Falon Glaze. The trial court
sentenced Petitioner to life imprisonment for his first degree murder conviction. The trial
court sentenced Petitioner as a Range II, multiple offender, to thirty-two years for his second
degree murder conviction, and ordered Petitioner to serve this sentence consecutively to his
life sentence. Petitioner’s convictions and sentences were upheld on appeal. State v.
Raymond O. Long, Jr., No. M2005-02960-CCA-R3-CD, 2007 WL 551306 (Tenn. Crim.
App., at Nashville, Feb. 23, 2007), perm. to appeal denied (Tenn. May 14, 2007).

       The facts supporting Petitioner’s convictions were summarized by this Court on
appeal as follows. (Because the victim, Falon Glaze, had the same last name as Magan
Glaze, one of the witnesses at trial, both women were referred to by first name only in the
opinion).

              Etasha Ford, Falon’s cousin and good friend, testified that the defendant
       and Falon were in a dating relationship for approximately five years before
       Falon broke up with the defendant in October 2003 and started dating Mr.
       Scruggs. On the night of December 23, 2003, Ms. Ford was supposed to take
       Falon to Wal-Mart because Falon’s car tires were flat. Ms. Ford called Falon
       at 11:30 p.m. and told Falon to be waiting for her. Mr. Scruggs was at Falon’s
       apartment at the time. Ms. Ford arrived at Falon’s apartment at midnight and
       “[p]olice and ambulance and fire department [were] everywhere. And ... they
       were bringing Terrance [Scruggs] out on a stretcher.”

                Ms. Ford recalled an incident in April 2003 when Falon called her
       frantically screaming that the defendant had just tried to kill her by running her
       car off the road. Ms. Ford later saw Falon’s car and noted that the car looked
       like it had been sideswiped on the driver’s side. Ms. Ford also recalled an
       incident that occurred about a week before Falon’s death when Falon called
       Ms. Ford and told her that the defendant had “just tried to kill [her]. He just
       put a knife up to [her] neck and said that [he was] gonna kill [her], Terrance,
       and ... everybody that’s [at her grandmother’s house].” On cross-examination,
       Ms. Ford could not recall whether she told the officers at the scene about the
       two incidents involving the defendant because she was hysterical at the time.
       Ms. Ford admitted that she was not present when either of the alleged incidents
       occurred.

             Officer Matthew Atnip with the Metropolitan Nashville Police
       Department testified that he arrived at Falon’s apartment and noticed that the
       door had been “busted” off the jamb. Officer Atnip saw an unconscious
       female lying on the floor in the den and a wounded, but conscious male in the
       bedroom. Officer Atnip interviewed the residents of nearby apartments, but
       no one saw what happened.

              On cross-examination, Officer Atnip noted that the female victim was
       lying on the floor with her feet facing the door, but she was far enough away


                                              -2-
from the door for the door to open and close. Officer Atnip stated that the
apartment door was closed when he arrived, so he had to open it before he
could enter the apartment. Officer Atnip recalled that the male victim was still
on the phone with 911 when he arrived, but he did not know whether anyone
questioned the male victim about who had shot him. When shown a
photograph of the doorway into the apartment, Officer Atnip identified a shell
casing in the middle of the door frame. Officer Atnip recalled that the
neighbor across the hall from Falon reported seeing or hearing “one person
running down the steps.” Officer Atnip stated that he was called to the scene
right before midnight.

       Metropolitan Nashville Police Officer Burl Eddy Johnson, Jr., testified
that he received a call to report to Falon’s apartment at 11:48 p.m. When he
arrived, several officers were already on the scene, and he noted that the
apartment door appeared to have been forced open or kicked in and pieces of
the door jamb were on the living room floor. Officer Johnson identified a
picture of a shell casing standing on end in the doorway, and another picture
of a shell casing found outside of the apartment to the left of the doorway.
Officer Johnson was sure the casings were not disturbed prior to being
photographed. On cross-examination, Officer Johnson noted that when an
automatic weapon is fired the shell will eject straight down or behind the
shooter.

       Calvin Miles testified that on December 23, 2003, the defendant and
Joseph Whitfield, as well as some other friends, were at his house playing
video games. The defendant arrived around 10:00 p.m. and had been drinking.
Mr. Miles recalled seeing the defendant talk to Mr. Whitfield and Darian
Spencer at some point that night. The defendant left around 11:00 p.m.
followed by Mr. Whitfield about ten minutes later. Mr. Miles said that the
defendant called around 10:00 the next morning looking for Mr. Whitfield, but
he said that he did not know Mr. Whitfield’s whereabouts.

       Mr. Miles stated that he did not know Falon Glaze, but he knew that the
defendant had a girlfriend with whom he was having problems. One time in
the past, Mr. Miles witnessed a telephone argument between the defendant and
Falon, but the defendant “took the conversation on the porch” because he was
being loud. On cross-examination, Mr. Miles stated that he had no
independent knowledge of what happened at Falon’s apartment the night of
December 23, 2003.



                                      -3-
         Joseph Whitfield testified that he knew the defendant for a couple of
months prior to the incident in this case. Mr. Whitfield saw the defendant on
December 23, 2003, at Mr. Miles’ house, and the defendant “was asking
everybody would we go somewhere with him.” Mr. Whitfield eventually
agreed to go with the defendant, but the defendant did not tell him where they
were going. They left Mr. Miles’ house sometime late in the evening and
drove on Interstate-24 until they parked on the side of the interstate behind
Murfreesboro Road. The defendant led the way through a hole in a fence, up
a hill, and across a parking lot into an apartment complex.

       Mr. Whitfield testified that the defendant led the way to a third-floor
apartment, had Mr. Whitfield knock on the door, and when no one answered,
the defendant “made his way in.” Mr. Whitfield explained that the defendant
broke the apartment door open with his body. Once the defendant was inside
the apartment, Mr. Whitfield heard a shot, a pause, and then another shot. Mr.
Whitfield remembered hearing a female yell. Mr. Whitfield took off running
because he “didn’t wanna be in the way of what was coming out that door.”
As he was running, Mr. Whitfield noticed that the defendant was not far
behind him, and they left the apartment complex the same way they entered.
The defendant drove Mr. Whitfield back to Mr. Miles’ house.

        Mr. Whitfield testified that he asked the defendant what had happened,
but the defendant did not say anything. Mr. Whitfield did not see the
defendant with a gun until they were running from the apartment. The next
day, Mr. Whitfield and his girlfriend went to Memphis for the holidays. While
in Memphis, Mr. Whitfield saw on the news that two people had been shot and
killed in a Nashville apartment. Mr. Whitfield said that he did not call the
police because he was scared that he might get charged along with the
defendant.

        Mr. Whitfield stated that Mr. Miles called him to say that the defendant
was looking for him, but Mr. Miles did not give the defendant Mr. Whitfield’s
phone number. Mr. Whitfield was contacted by the police through his ex-
girlfriend, and he gave a statement on January 30, 2004. In his first interview,
Mr. Whitfield told the detective that he “didn’t want no part of it.” Mr.
Whitfield talked to the detective again the next day and admitted that he was
present, but did not tell the detective about the gun. Mr. Whitfield admitted
that he testified at a hearing and did not mention seeing the defendant with a
gun. Mr. Whitfield acknowledged that he had two prior felony drug
convictions.


                                      -4-
       On cross-examination, Mr. Whitfield said that prior to this incident he
did not hang out with the defendant. Mr. Whitfield stated that he never
showed the police the hole in the fence he and the defendant went through the
night of the incident. Mr. Whitfield admitted again that he initially told the
police that he did not go with the defendant to Falon’s apartment. Mr.
Whitfield also admitted that during the second interview he did not mention
seeing the defendant with a gun. Mr. Whitfield did not remember telling the
police in his second interview that he went to his girlfriend’s house and then
met the defendant at a grocery store before heading to Falon’s apartment.

       When asked to recall his testimony at the preliminary hearing, Mr.
Whitfield said that he was asked at what point he saw the defendant with a
gun, and he responded, “[a]fter we left. After we struck out running.” Mr.
Whitfield was shown a transcript of his preliminary hearing testimony where
he said that he never saw the defendant with a gun, even after he came out of
the apartment. Mr. Whitfield admitted that he did not tell the truth during his
two interviews with police or at the preliminary hearing.

         Magan Glaze, Falon’s sister, testified that the defendant and her sister
dated for five years and then broke up in November 2003. Falon became
involved with Terrance Scruggs while Falon was still dating the defendant.
Magan talked to her sister on the phone between 10:30 and 11:00 p.m. the
night she was killed. Magan said that while she was on the phone with her
sister, she received a call from the defendant and a man named Joe who were
looking for her sister. Magan recalled an incident about a week before Falon’s
murder when Falon showed up at her house and said that the defendant had
just put a knife to her throat and threatened to kill her, her family, and her new
boyfriend. On cross-examination, Magan admitted that she was not present
when the defendant threatened Falon.

       John Bostic testified that he lived in an apartment across the hall from
Falon. Mr. Bostic noticed that Falon had a regular male visitor and then in
December 2003 started having another male visitor. Mr. Bostic noted that he
would still see the first male hanging around the parking lot of the apartment
complex. Mr. Bostic recalled that around 11:00 p.m. on December 23, 2003,
he heard a loud bang like something getting kicked in, and then a shot and
muffled scream. Mr. Bostic then heard a second shot, another muffled scream,
and footsteps running down the steps. On cross-examination, Mr. Bostic
admitted that he never saw who was involved in the altercation across the hall.



                                       -5-
Mr. Bostic also admitted that he told Detective Freeman that he thought he
heard a car squealing as it pulled away.

      Glenn Carter, owner of Carter’s Family Florist, testified that the
defendant ordered a half-dozen roses around Christmas 2003. The defendant
told Mr. Carter that he had messed up and was trying to get his girl back. The
defendant later called Mr. Carter and told him that he did not think the flowers
had worked. On cross-examination, Mr. Carter acknowledged that it was not
unusual for a man to send flowers to his girlfriend.

       Medical Examiner, Dr. Tom Deering, testified that he performed the
autopsies on the victims and determined that Falon died from a gunshot wound
to the chest and Mr. Scruggs died from a gunshot wound to the back. Dr.
Deering determined that Falon died within minutes of being shot, but Mr.
Scruggs would have survived longer. On cross-examination, Dr. Deering
stated that he could not determine which victim was shot first, nor could he
determine how close the shooter was to either victim.

       Metropolitan Nashville Police Detective Charles Freeman testified that
Falon’s family pointed to the defendant as a suspect from the beginning. On
December 24, 2003, Detective Freeman went to the defendant’s house and
asked him to come to the police station. The defendant told Detective
Freeman that the previous night he had been in class until 8:00 p.m. and rode
the bus home where he was the rest of the night. Later, the defendant told
Detective Freeman that he had actually received a ride home from a girl in
another class. When asked a third time, the defendant said that he had driven
home from class but did not want to tell because he was not supposed to be
driving. Detective Freeman recalled that he received information from a Mr.
Grimes that caused him to question the defendant again. This time the
defendant stated that he went to Mr. Grimes’ house around 12:30 a.m. the
morning of December 24th, and then Mr. Grimes gave him a ride home.

       Detective Freeman testified that he received information from Mr.
Whitfield about how he and the defendant got into the apartment complex, and
he located and videotaped the path they had taken. Detective Freeman noted
that there was a hole in the fence through which one could enter into the
apartment complex. Detective Freeman said that he never located any suspects
other than the defendant.




                                      -6-
              On cross-examination, Detective Freeman stated that he never asked
       Mr. Whitfield to accompany him to the scene of the crime and show him the
       route they took that night. Detective Freeman also stated that he went to the
       scene and looked for the hole in the fence shortly after interviewing Mr.
       Whitfield, but was unable to locate the hole. Detective Freeman said that he
       was able to find the hole in the fence in September 2005 when he went to
       make the videotape. Detective Freeman admitted that no physical evidence
       was collected that would place the defendant at the scene of the shootings.
       Detective Freeman acknowledged that if a person went into an apartment,
       closed the door, and fired a pistol, the shell casings would not have been
       outside the door and in the door frame.

Raymond O. Long, Jr., 2007 WL 551306, at *1-5.

II. Post-Conviction Hearing

         Petitioner’s trial counsel testified that he met with Petitioner at least twelve times prior
to trial. Trial counsel stated that he discussed a potential alibi defense with both Petitioner
and his mother, Carolyn Long. Trial counsel said that he did not recollect either Petitioner
or Ms. Long telling him that Petitioner was at home with his parents on the night of the
murders. If Petitioner had told him that and the alibi could have been verified, trial counsel
stated that he would have submitted the evidence. However, the information provided by
Petitioner during these pre-trial discussions about his activities on December 23, 2003, was
difficult to reconcile with the evidence the State would present during its case-in-chief. Trial
counsel stated, “[I]t did not seem like something that I could put before the Court.”

        Trial counsel acknowledged that there was no physical evidence linking Petitioner
with the commission of the offenses. Trial counsel said that he was aware before trial that
the murder weapon had been found in the possession of Terrio Williams approximately nine
months after the commission of the offenses. Trial counsel said that he made several
attempts to interview Mr. Williams, but Mr. Williams refused to talk to him. Trial counsel
stated, “[I] did not want to put somebody on the stand that I didn’t know what he was going
to say.” Trial counsel believed, however, that Mr. Williams’ possession of the murder
weapon was brought out during the cross-examination of one of the State’s witnesses. Trial
counsel acknowledged that he did not attempt to interview Anne Michelle Williams who was
with Mr. Williams when Mr. Williams was arrested because she was not charged with any
crime.

       On cross-examination, trial counsel stated that he had been a police officer for sixteen
years prior to obtaining his law degree. Trial counsel said that at the time of Petitioner’s trial,


                                                 -7-
he had been practicing law for approximately ten years in the field of criminal law. Trial
counsel reiterated that he investigated Petitioner’s alibi evidence and believed that
presentation of the evidence would not be beneficial to Petitioner.

        Petitioner testified that he met with trial counsel between three and six times prior to
trial. Petitioner said that he learned about Ms. Glaze’s death from his mother the day after
the murders. Petitioner stated that on December 23, 2003, he attended a drug class from 6:00
p.m. until 8:00 p.m., and then returned home because the terms of his probation imposed an
8:00 p.m. curfew. Petitioner said that he did not leave his parent’s house again until
approximately 8:00 a.m. the following day when he went to Mr. Grimes’ house. Petitioner
denied that he told the investigating officers that he went to a party at Mr. Grimes’ house at
approximately 12:30 a.m. on December 24, 2003, and insisted that other aspects of his
written statement were inaccurate as well.

        Petitioner contended that trial counsel’s assistance was deficient because he did not
challenge Detective Freeman’s testimony on direct examination that there were no other
suspects in the case. Petitioner submitted that Mr. Williams’ possession of the murder
weapon clearly made him a suspect in the case. Petitioner stated that trial counsel refused
to call his alibi witnesses because trial counsel believed the State’s case was “weak.”

       Carolyn Long, Petitioner’s mother, testified that she arrived home on December 23,
2003, at approximately 5:00 p.m., and Petitioner arrived home at approximately 8:00 p.m.
Ms. Long stated that Petitioner helped her set up a Play Station II at approximately 11:00
p.m. Ms. Long then went to bed around 11:40 p.m. Ms. Long heard Petitioner coughing
about ten minutes later, and then she fell asleep again. Ms. Long stated that it took between
twenty and twenty-five minutes to drive from her house to Ms. Glaze’s apartment.

        Raymond Long, Sr., Petitioner’s father, testified that Petitioner arrived home on
December 23, 2003, at approximately 8:00 p.m. Mr. Long said that Petitioner helped him
fix a television set until approximately 10:30 p.m. Mr. Long stated that the evening news
was just concluding when he turned the television set on. Mr. Long fell asleep around 11:00
p.m. Mr. Long said that he did not hear any noises in the house after that time.

III. Standard of Review

       A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. T.C.A. § 40-30-210(f). 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).
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


                                              -8-
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, we accord these factual findings a presumption of correctness,
which can be overcome only when a preponderance of the evidence is contrary to the post-
conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
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, 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 (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 at Trial

                      A. Terrio Williams and Anne Michele Williams

        Petitioner argues that trial counsel’s assistance was ineffective because he failed to
call these witnesses to testify at trial. Petitioner submits that there was no physical evidence
placing him in the victim’s apartment at the time of the murders, and Mr. Williams’
possession of the murder weapon after the commission of the offenses made him a suspect
in the case.

       Approximately nine months after the commission of the offenses, a search warrant,
arising out of an unrelated matter, was executed on Mr. Williams’ vehicle. During the
search, a gun was found, and Mr. Williams was charged with possession of a weapon by a
convicted felon. Subsequent testing revealed that the gun found in Mr. Williams’ vehicle

                                              -9-
was the gun used to commit the murders of Ms. Glaze and Mr. Scruggs. Ms. Williams, who
was with Mr. Williams when the vehicle was searched, was not charged with any offense.
Trial counsel testified that he was aware of this information prior to trial. He attempted to
interview Mr. Williams’ on several occasions, but Mr. Williams refused to talk to him. Trial
counsel, therefore, decided not to call Mr. Williams as a witness because he did not know
what Mr. Williams would say at trial. Trial counsel stated that he did not interview Ms.
Williams because she was not charged with any offense.

       Although trial counsel testified at the post-conviction hearing that he believed that he
had brought out the circumstances surrounding the discovery of the murder weapon at trial,
the post-conviction court noted that its review of the record revealed that the issue was not
raised at trial during the cross-examination of the State’s witnesses. Nonetheless, the post-
conviction court found that Petitioner had failed to show that he was prejudiced by trial
counsel’s decision not to call Mr. Williams as a defense witness at trial.

        “Defense counsel must investigate all apparently substantial defenses available to the
defendant and must assert them in a proper and timely manner.” Baxter, 523 S.W.3d at 935.
“And if counsel’s choices not to raise substantial defenses are professionally unreasonable
‘considering all the circumstances,’ counsel’s performance is deficient.” Pylant v. State, 263
S.W.3d 854, 868 (Tenn. 2008) (citing Strickland, 466 U.S. at 688, 104 S. Ct. 2052). In the
instant case, trial counsel attempted to interview Mr. Williams, but Mr. Williams refused to
talk to him. Without knowing what Mr. Williams would have disclosed at trial, trial counsel
made a strategic decision not to call him to testify, which decision, under the circumstances
presented, did not fall below the standard of reasonableness demanded of defense counsel.

       Nonetheless, even if trial counsel’s assistance in this regard was deficient, Petitioner
did not call either Terrio Williams or Anne Michele Williams to testify at the post-conviction
hearing. Whether their testimony would have been favorable to Petitioner, therefore, is
merely speculation. Although Petitioner insists that Mr. Williams’ possession of the weapon
made him a viable suspect, it is just as possible that exploring the weapon’s chain of custody
might have led back to Petitioner. As for Ms. Williams, without her testimony at the post-
conviction hearing, Petitioner has failed to show that she had any relevant evidence
concerning the gun or that she even knew anything about the weapon.

          “To succeed on a claim of ineffective assistance of counsel for failure to call a witness
at trial, a post-conviction petitioner should present that witness at the post-conviction
hearing.” Pylant, 263 S.W.3d at 869 (citing Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990)). “As a general rule, this is the only way the petitioner can establish that
. . . the failure to have a known witness present or call the witness to the stand resulted in the
denial of critical evidence which inured to the prejudice of the petitioner.” Black, 794


                                               -10-
S.W.2d at 757); William R. Stevens v. State, No. M2005-00096-CCA-R3-PD, 2006 WL
3831264, at *28 (Tenn. Crim. App., at Nashville, Dec. 29, 2006), perm. to appeal denied
(Tenn. May 21, 2007).

         Petitioner also challenges trial counsel’s failure to cross-examine Detective Freeman
at trial about the circumstances surrounding the discovery of the murder weapon. The extent
of either trial counsel’s or the State’s investigation of Mr. Williams was not developed at the
post-conviction hearing. The record, however, contains a brief exchange of e-mails between
the prosecutor and Petitioner’s first appointed counsel which were attached to Petitioner’s
post-conviction petition as an exhibit. The e-mails indicate that Detective Freeman
interviewed Mr. Williams who stated that Sergio Aquila put the gun in Mr. Williams’
vehicle, and that Mr. Aquila denied doing so. Based on this information, the State informed
Petitioner’s counsel that it did not intend calling Mr. Williams as a witness. Petitioner,
however, did not call Detective Freeman as a witness at the post-conviction hearing to
demonstrate whether any further delving into the chain of custody of the murder weapon
would have produced evidence favorable to Petitioner. See Black, 794 S.W.2d at 757.

       Based on our review, we conclude that even if trial counsel’s assistance in regard to
Mr. Williams’ possession of the murder weapon some nine months after the murders was
deficient, the evidence does not preponderate against the post-conviction court’s finding that
Petitioner has failed to establish prejudice. Accordingly, Petitioner is not entitled to relief
on this issue.

                          B. Carolyn Long and Raymond Long, Sr.

        Petitioner argues that trial counsel’s assistance was ineffective because he failed to
call his parents to testify at trial as alibi witnesses. Petitioner submits that the importance of
this testimony is increased by the fact that only Mr. Whitfield’s testimony placed him at the
scene of the crimes.

       “When a petitioner presents at the post-conviction hearing a witness he claims should
have been called at trial, the post-conviction court must determine whether the testimony
would have been (1) admissible at trial and (2) material to the defense.” Pylant, 263 S.W.3d
at 869 (citations omitted). Ms. Long’s and Mr. Long’s post-conviction testimony that
Petitioner was at home with them at the time of the commission of the offenses would have
been both admissible and material at trial. However, in addition to admissibility and
materiality, the post-conviction court must also assess the witnesses’ credibility when
reviewing counsel’s decision not to present the proffered testimony under an ineffective
assistance of counsel challenge. Id. at 869-70 (citations omitted); Vaughn v. State, 202
S.W.3d 106, 123 (Tenn. 2006).


                                               -11-
       At the post-conviction hearing, trial counsel testified that he had several discussions
with Petitioner and Ms. Long concerning a possible alibi offense. Trial counsel did not
recollect either Ms. Long or Petitioner telling him that Petitioner was at home from 8:00 p.m.
until nearly midnight on December 23, 2003. Trial counsel explored an alibi defense but
ultimately concluded that he did not possess credible evidence to present to the jury
concerning Petitioner’s whereabouts on the night of the murders. The post-conviction court
found:

       it [is] highly suspect and nearly implausible that a criminal defense attorney
       with ten years trial experience when presented with a credible alibi would
       choose not to present it at trial. Rather, more likely as the petitioner said in his
       statement to the police, he had left the apartment in the early morning hours of
       the incident. Additionally, two independent witnesses placed the petitioner at
       a party, leaving and going with one of those witnesses to the scene of the
       homicides. The Court accredits the testimony of trial counsel that he was not
       presented with credible alibi witnesses and the alibi did not fit the time line of
       other evidence.

        “Great weight is given to a trial court’s assessment of credibility.” Vaughan, 202
S.W.3d at 123 (citing Burns, 6 S.W.3d at 461). Based on our review, we conclude that the
evidence does not preponderate against the post-conviction court’s finding that Petitioner
failed to prove by clear and convincing evidence that trial counsel’s assistance in this regard
was deficient. Petitioner is not entitled to relief on this issue.

V. Cumulative Effect of Errors

        Petitioner argues that the cumulative effect of the errors raised in his appeal “is
sufficient to warrant a new trial, even if any of these errors, standing alone, would be
insufficient grounds for a new trial.” However, because we conclude that Petitioner has
failed to establish that his trial counsel’s assistance was deficient or that he was prejudiced
by trial counsel’s assistance, Petitioner is not entitled to relief on this issue.

                                       CONCLUSION

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

                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




                                              -12-
