        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 10, 2016

      LAVONTA LAVER CHURCHWELL v. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Davidson County
                      No. 2009-A-260    Seth Norman, Judge



              No. M2015-01567-CCA-R3-PC – Filed September 21, 2016



The Petitioner, Lavonta Laver Churchwell, appeals the Davidson County Criminal
Court‟s denial of his petition for post-conviction relief from his convictions of two counts
of first degree felony murder, two counts of especially aggravated robbery, and two
counts of criminally negligent homicide and resulting effective sentence of life in
confinement. On appeal, the Petitioner contends that he received the ineffective
assistance of trial counsel. Based upon the record and the parties‟ briefs, we affirm the
judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Lavonta Laver Churchwell.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Glenn R. Funk, District Attorney General; and Dan Hamm, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

      On August 26, 2008, the appellant and two other men entered the East Nashville
home of Dr. Pierre Robert Colas, an assistant professor of anthropology at Vanderbilt
University. State v. Lavonta Laver Churchwell, No. M2011-00950-CCA-R3-CD, 2013
WL 430118, at *1 (Tenn. Crim. App. at Nashville, Feb. 4, 2013), perm. to appeal denied,
(Tenn. 2013). The men shot and robbed Dr. Colas and his sister Marie Colas, who was
visiting her brother from Germany. Id. Dr. Colas died at the scene, and Ms. Colas died
five days later. Id. at *2. In January 2009, the Davidson County Grand Jury indicted the
Petitioner for two counts of first degree premeditated murder, two counts of first degree
felony murder, and two counts of especially aggravated robbery.

       At trial, the Petitioner testified that “he was not involved in the murders and
denied having told [any fellow jail inmates] that he was involved.” Id. at *4. The jury
convicted him of two counts of felony murder, two counts of especially aggravated
robbery, and two counts of criminally negligent homicide as a lesser-included offense of
first degree premeditated murder. The trial court merged the criminally negligent
homicide convictions into the first degree felony murder convictions, and the Petitioner
received concurrent sentences of life for the murder convictions and twenty years for the
especially aggravated robbery convictions. Id. at *1.

       The Petitioner appealed his convictions to this court. In concluding that the
evidence was sufficient to support the convictions, this court summarized the evidence
against him as follows:

                    Viewed in the light most favorable to the State, the
             evidence showed that the victims both died of gunshot
             wounds to the head, and the victims‟ credit cards were taken
             from them. Two inmates testified that, while incarcerated
             with Defendant, Defendant confessed that he and two others
             shot the victims and stole their credit cards. The jury
             accredited those witnesses.      In recounting Defendant‟s
             confession, both witnesses were able to provide information
             that the police had not released to the media or the public.
             Defendant‟s cell phone records showed that Defendant was in
             the area where the murders occurred. George Cody, who
             Defendant stated was involved in the murders, left DNA at
             the scene and on the murder weapon. The murder weapon
             and the victim‟s credit cards and IDs were recovered from
             Cody‟s home. Forensic testing showed that the .380 semi-
             automatic handgun taken from Cody‟s home was consistent
             with the weapon that fired the projectiles recovered from the
             victims‟ bodies. Defendant told detectives that he was in
             Antioch at the time of the murders, but Defendant‟s cell
             phone records showed that he was in the area of the murders
             when the murders occurred. We conclude that the evidence
             was sufficient to support Defendant‟s convictions.
                                          -2-
Id. at *6.

       After our supreme court denied the Petitioner‟s application for permission to
appeal, he filed a timely petition for post-conviction relief, alleging that he received the
ineffective assistance of counsel. The post-conviction court appointed counsel, and
counsel filed an amended petition, claiming that trial counsel was ineffective for failing
to present a credible defense to the jury; failing to object to the admission of evidence
derived from a search warrant issued for one of the Petitioner‟s telephones; and failing to
communicate with him, discuss his case adequately with him, and prepare for trial.

        At the 2015 evidentiary hearing, the Petitioner testified that his family retained
trial counsel to represent him. The Petitioner was in jail for more than one year while
awaiting trial, but counsel met with him in jail only one time two or three days before
trial. Counsel also never met with him when he appeared in court. Counsel never came
to court for the Petitioner‟s hearings, and the Petitioner did not know if counsel filed any
pretrial motions.1 The Petitioner could not telephone counsel from jail and could not
write letters to him because the Petitioner did not have his address. The Petitioner‟s
family telephoned counsel, but counsel did not respond, and counsel did not give any
discovery materials to the Petitioner before trial. At the time of the killings, the
Petitioner had four cellular telephones. After trial, he received discovery and learned that
the police had obtained a search warrant for only one of the telephones. He explained,
“They had a search warrant for a phone that they said that was used that night, but once
they seen I never used that phone that night they went and looked at another phone that .
. . they didn‟t have a search warrant for.”

        The Petitioner testified that counsel did not use an investigator and that the
Petitioner did not know the defense strategy for his case. Counsel told him that it would
be in the Petitioner‟s best interests to testify because the Petitioner knew what did and did
not happen on the night of the crimes and because the Petitioner did not have any
witnesses. At trial, the Petitioner testified that he was somewhere else at the time of the
killings. The Petitioner said that counsel should have questioned the people the Petitioner
was with on the night of the murders and “looked more into [the] case.” Counsel also
should have talked with the Petitioner face to face. The Petitioner said that on the night
of August 26, 2008, he and Raymond Wilson were in the back yard of Nathan Carson‟s
home. Carson was the Petitioner‟s cousin and codefendant. Wilson would have provided


        1
           Our review of the trial record reflects that counsel filed four motions in limine: a motion to
exclude evidence not provided in discovery, a “Jencks” motion, a motion to exclude witnesses from
testifying pursuant to Tennessee Rule of Evidence 615, and a motion to exclude character and prior bad
act evidence pursuant to Tennessee Rule of Evidence 404.
                                                    -3-
the Petitioner with an alibi, and the Petitioner told counsel at trial that he wanted to
present an alibi witness.

        On cross-examination, the Petitioner testified that the home actually belonged to
Carson‟s girlfriend, not Carson, and was “[a]round the corner” from Dr. Colas‟s house in
East Nashville. He said that Wilson was his friend and that Wilson was incarcerated at
the time of the evidentiary hearing. The Petitioner stated that when he spoke with
counsel two or three days before trial, counsel “was telling me like that we were going to
go to trial, he asked me . . . what I had to offer, then he was telling me we were gonna
testify and things like that.” The Petitioner thought counsel should have tried to suppress
the cellular telephone records received by the police. Counsel also should have used
cellular telephone records to show that the Petitioner was talking on one of his telephones
at the time of the killings. He stated, “[H]ow could I have been on the phone during the
murder if I‟m committing the murder?”

       Trial counsel testified that at the time of the evidentiary hearing, he had been
practicing law almost twenty years and that most of his practice involved criminal
defense. The defense‟s strategy was that the Petitioner was in a car in someone‟s
backyard when Pierre and Marie Colas were killed. A friend was with him, and they
were listening to music and talking. Jailhouse informants testified against the Petitioner,
and counsel “thought [the Petitioner] had a good chance of explaining away some of the
things that the State was trying to put forward against him.” The Petitioner talked with
two defense investigators before trial. Counsel stated that the Petitioner “came across
when we were talking in our discussions, and when he talked to my investigator, as
credible about what happened.” Thus, counsel had the Petitioner testify at trial because
the Petitioner needed to tell the jury his whereabouts on the night of the crimes. Counsel
visited with the Petitioner “on some” occasions when the Petitioner came to court. The
Petitioner was “very interactive with his family,” and his family came to counsel‟s office
on Sundays and e-mailed counsel‟s assistant. The Petitioner never raised an issue
regarding a lack of communication with counsel.

       Counsel testified that he usually did not give discovery to a client in jail “for the
exact reason as what transpired, where other people start getting information to try to
help their cases out.” However, counsel shared information with the Petitioner, and they
“went through the timeline of things that had happened and what the State was trying to
say was going to happen.” Counsel did not speak with the Petitioner every time the
Petitioner came to court because sometimes there was nothing new to discuss. Most of
the time, though, counsel “would let him know what was going on.” Counsel did not
have a problem with the Petitioner, and the Petitioner did not have a problem with
counsel.

                                            -4-
        On cross-examination, trial counsel testified that the Petitioner maintained that he
was not at the scene of the crimes and that someone was sitting in the car with him at the
time of the killings. Counsel never spoke with Wilson and could not recall if the
Petitioner mentioned that specific name to him. Counsel did not think he filed a notice of
alibi, and he acknowledged that he always had 100 to 200 cases pending at any given
time. Counsel met with the Petitioner in jail but did not keep a log of jail visits. He
spoke with the Petitioner‟s family by telephone and text messages.

        In a written order, the post-conviction court denied the petition for post-conviction
relief. As to the Petitioner‟s claim that counsel was ineffective for failing to investigate
his case and prepare for trial adequately, the court specifically accredited counsel‟s
testimony that he discussed the issues of the case with the Petitioner, that he
communicated with the Petitioner‟s family, that he worked with investigators, and that
the investigators spoke with the Petitioner before trial. As to the Petitioner‟s claim that
counsel was ineffective for failing to subpoena a witness to testify at trial, the court noted
that the Petitioner failed to present the witness at the evidentiary hearing. Finally, as to
the Petitioner‟s claim that counsel was ineffective with regard to cellular telephone
records, the court found,

              By asserting that counsel was deficient both by failing to
              move to suppress phone records and by failing to utilize those
              same phone records to support an alibi, Petitioner has failed
              to establish that counsel was deficient or that failure to move
              for suppression of the phone records prejudiced the defense.

Thus, the court concluded that the Petitioner was not entitled to relief.

                                        II. Analysis

        The Petitioner contends that the post-conviction court erred by denying his
petition for post-conviction relief because trial counsel failed to communicate with him
adequately; failed to provide him with discovery until after the trial; “utterly left him in
the dark until two or three days prior to trial” due to counsel‟s “massive case load of 200
or more pending criminal cases at the time of trial”; and failed to interview a key alibi
witness. The State claims that the Petitioner has failed to show that he is entitled to
relief. We agree with the State.

       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
                                             -5-
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
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. Generally,

              [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).

        As to the Petitioner‟s claim that counsel failed to communicate with him about his
case, counsel testified that he met with the Petitioner in jail and during court hearings and
that the Petitioner spoke with two defense investigators before trial. He also testified that
he talked with the Petitioner about the State‟s timeline of the crimes and what the State
was going to allege at trial. Although the Petitioner testified that he did not even see
                                            -6-
counsel until two or three days before trial, the post-conviction court specifically
accredited counsel‟s testimony over that of the Petitioner.

        As to the Petitioner‟s claim that counsel failed to provide him with discovery until
after the trial, counsel stated that he usually did not provide clients with discovery in jail
but that he shared information about the case with the Petitioner. The Petitioner claimed
at the evidentiary hearing that he did not learn until after trial that the police had obtained
information from a cellular telephone for which they did not have a warrant and that
counsel should have moved to suppress the evidence. However, he did not present any
evidence of that claim at the hearing. We note that our review of the trial record shows
that the State did not introduce any search warrants or telephone records into evidence at
trial.

       Lastly, as to the Petitioner‟s claim that counsel was ineffective for failing to have
alibi witness Wilson testify at trial, the Petitioner failed to present Wilson‟s proposed
testimony at the evidentiary 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 Wilson may have offered to the Petitioner‟s case. Id. Accordingly, the Petitioner
has failed to demonstrate that he received the ineffective assistance of counsel.

                                      III. Conclusion

      Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.

                                                   _________________________________
                                                   NORMA MCGEE OGLE, JUDGE




                                             -7-
