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

                       TRENT STARKS v. STATE OF TENNESSEE

                          Appeal from the Criminal Court for Shelby County
                               No. 01-02374    Paula Skahan, Judge



                      No. W2005-02478-CCA-R3-PC - Filed November 2, 2006


Following a jury trial, the Petitioner, Trent Starks, was convicted of first degree murder. The State
sought to impose the death penalty, but the jury sentenced the Petitioner to life in prison without the
possibility of parole. The Petitioner’s convictions were affirmed on direct appeal. In this appeal
from the denial of post-conviction relief, the Petitioner argues that (1) his trial co-counsel was
inadequate under the Sixth and Fourteenth Amendments, (2) his lead trial counsel failed to meet and
communicate with him adequately in violation of the Sixth Amendment, (3) his lead trial counsel
did not adequately advise him on whether to testify in violation of the Sixth Amendment, and (4) his
lead trial counsel did not adequately investigate his alibi witness in violation of the Sixth
Amendment.1 We affirm the judgment of the trial court.

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

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

Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Trent Starks.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney
General, for the appellee, State of Tennessee.




         1
           This Court has addressed the issues under each constitutional provision independently. Thus, the ordering of
the issues differs slightly from the parties’ briefs.
                                               OPINION


                                             Background

        The Petitioner was convicted by a jury of first degree murder in the shooting death of Darrel
Smith. He was sentenced to life in prison without the possibility of parole. This court affirmed the
Petitioner’s conviction on direct appeal. See State v. Trent Stark, No. W2002-03078-CCA-R3-CD,
2003 WL 22888912 (Tenn. Crim. App., Jackson, Dec. 5, 2003). The Tennessee Supreme Court
denied the Petitioner’s request for permission to appeal on May 10, 2004. The Petitioner filed a
timely petition for post-conviction relief. The Petitioner was appointed post-conviction counsel, who
filed an amended petition for post-conviction relief.

         At the post-conviction hearing, the Petitioner testified that he “wanted to testify” at trial but
that his attorney “just said don’t testify period.” The Petitioner said that his attorney told him there
“wouldn’t have been enough time” to “prepare” him to testify. The Petitioner said that, when asked
in court whether he would waive his right to testify, he stated that he did not want to testify because
his attorney convinced him not to. The Petitioner said that his attorney advised him that he was
“going to get the death penalty” if the jury believed he was lying and had “no remorse.” The
Petitioner said that, if he had testified, the outcome of his trial would have been different because
he would have explained to the jury that the State’s witnesses were not credible and that he would
have mentioned his alibi witness that would confirm he could not have been at the crime scene at
the time of the shooting.

        The Petitioner also stated that his lead trial counsel did not communicate with him adequately
and that his attorney primarily worked on his robbery trial and did not discuss the capital murder
case. The Petitioner stated that he could not recall how many times his attorney visited him in jail
but that he did not feel it was sufficient for a death-penalty case.

         With regard to the alibi witness, the Petitioner stated that he provided his attorney with the
name and address of Mr. Hollywood Henderson. The Petitioner claimed that Mr. Henderson would
have testified that the Petitioner was walking from his girlfriend’s house to his mother’s house at the
time the shooting took place. The Petitioner claimed that Mr. Henderson would have testified that
the Petitioner could not have reached his mother’s house near the crime scene until at least twenty
minutes after the murder occurred. The Petitioner said that he did not know for a fact that his
attorney failed to investigate Mr. Henderson’s whereabouts, but the Petitioner stated that Mr.
Henderson did not testify at his trial. Thus, the Petitioner assumed that his attorney did not pursue
the alibi information. The Petitioner said that he called people to try to get Hollywood Henderson
to testify at the post-conviction hearing but that attempts to locate Mr. Henderson were unsuccessful
because he was “running from the law.”

       With regard to his appellate counsel, the Petitioner testified that she should have raised
additional issues on direct appeal. Specifically, the Petitioner stated that he wanted his appellate


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counsel to raise the issue of the detective’s inconsistent statements from the suppression hearing and
the trial, the curious initials “T.R.” on the confession statement,2 the admission of the confession,
and the fact that “there were two jurors crying during [his] trial.” The Petitioner stated that appellate
counsel never met with him before filing the appellate brief to consult with him about potential
issues on appeal. The Petitioner alleged that the outcome of his appeal would have been different
because the appellate court would be able to review all the issues that he wished to raise.

        The lead trial counsel also testified at the post-conviction hearing, stating that he visited the
Petitioner “a couple of times at most,” between the initial interview and the preliminary hearing. The
lead trial counsel testified that he represented the Petitioner for approximately two years in the
capital murder case and a robbery case that was being used as an aggravating factor for the first
degree murder charge.

        The lead trial counsel testified that the Petitioner’s co-counsel participated in his
representation. Lead counsel stated that he “discussed the facts,” “discussed [the] investigation,”
and “discussed the theories of the case.” The lead trial counsel stated that he did “a whole lot of
talking” to his co-counsel in preparing for the capital murder case and also discussed the matter with
the entire capital team of the Public Defender’s Office.

         The lead trial counsel testified that he presented a claim of self-defense at trial at the
Petitioner’s request, even though he was leery of doing so because the victim was “shot in the back
of the head.” With regards to the Petitioner’s alibi witness investigation, lead trial counsel testified
that he and the capital case investigator searched for Mr. Henderson to no avail because the address
the Petitioner provided was a “vacant lot.” Lead trial counsel also subpoenaed Mr. Henderson, but
the investigator was unable to serve the subpoena because he could not locate Mr. Henderson. Lead
trial counsel further testified that, even if he had been able to locate Mr. Henderson, the alibi defense
was “totally inconsistent” with the Petitioner’s signed confession, which stated that he shot the
victim in self-defense.

        The lead trial counsel stated that he advises any accused that he has the right to testify and
that “[n]obody can take that right away.” Further, he stated that he will provide his opinion on
whether a defendant should testify but reminds him that he does not “have to follow it.” Lead trial
counsel stated that he performed a voir dire examination of the Petitioner in open court and asked
the “whole litany” of questions about “whether or not you’re going to testify” and whether the
decision is of “[his] own free will.” The lead counsel testified that the Petitioner then answered that
he chose not to testify on his own behalf. In conclusion, the lead trial counsel was asked whether



         2
            The confession states that the accused is the Petitioner, Trent Starks. The confession is also signed legibly
with the full name of T rent Starks. However, in five places throughout the confession, the initials “T.R.” are signed,
which are inconsistent with the Petitioner’s initials. On cross-examination of the Petitioner at the post-conviction
hearing, the prosecutor asked the Petitioner if he also went by the name “Trent Robinson” because Robinson was his
mother’s maiden name. The Petitioner replied that he was unable to remember if he went by that name at some time in
the past because of his extensive drug use.

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the outcome of the case would have been different had the Petitioner testified. Lead trial counsel
opined that “[h]e probably would have been sitting on death row.”

         Trial co-counsel testified that she assisted the lead co-counsel in the Petitioner’s case by
being present at the initial intake, by discussing the case at the monthly meetings, and by sitting in
at trial. Trial co-counsel said that she “discuss[ed] the facts of the case, the investigation, [and the]
trial strategies” with lead counsel. Trial co-counsel testified that the lead counsel was ultimately the
decision-maker but that he had any assistance he needed from co-counsel and the public defender
capital attorneys. Trial lead counsel stated that this was crucial in preventing the Petitioner from
receiving the death penalty.

        The appellate counsel testified that she notified the Petitioner of the process of direct appeal
and explained that she could raise issues from the motion for a new trial, issues of sentencing, and
issues amounting to plain error. The Petitioner did not respond with any specific contentions or
issues he wished to raise. The appellate counsel said that she then prepared and filed the brief and
sent a copy to the Petitioner. The appellate counsel said that she chose to only present one issue on
appeal—the sufficiency of the evidence—because she did not believe the other issues were
meritorious.

                                         Standard of Review
        To sustain a petition for post-conviction relief, a Petitioner must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

                                           I. DUE PROCESS
       First, the Petitioner asserts that his two appointed trial attorneys did not assist him sufficiently
to comply with Rule 13 of the Rules of the Tennessee Supreme Court, thereby depriving him of his
Fourteenth Amendment right to due process. We conclude that the Petitioner’s representation was
adequate under the due process requirement of the Fourteenth Amendment.

        In Powell v. Alabama, 287 U.S. 45 (1932), the United States Supreme Court held that trial
counsel must be appointed in a capital case to comply with the Fourteenth Amendment’s due process
protection. Id. at 71; McKeldin v. State, 516 S.W.2d 82, 26 (Tenn. 1974). “The Constitution’s
guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” Avery v.
Alabama, 308 U.S. 444, 446 (1940). However, the Sixth Amendment requirements are satisfied if
counsel advocates in a “zealous and earnest” manner and actively participates in representing the


                                                   -4-
accused. Id. Furthermore, the Sixth Amendment criteria are met so long as counsel is given
adequate time and notice to have a genuine opportunity to prepare the Petitioner’s case. Powell, 287
U.S. at 71.

       Rule 13 of the Rules of the Tennessee Supreme Court requires that the trial court “appoint
two attorneys to represent a Petitioner in a capital case. . . . The counsel appointed shall be
designated ‘lead counsel’ and ‘co-counsel.’” Tenn. Sup. Ct. R. 13 § 3(a). The Tennessee Supreme
Court’s qualifications for lead counsel and co-counsel in a death-penalty trial are set forth in the rule.
See Tenn. Sup. Ct. R. 13 § 3(c)-(d).

        In this case, the Petitioner was not denied his Fourteenth Amendment right to due process
of law because he was appointed competent counsel to represent him in his capital murder trial.
There is no proof in the record which shows that the appointed attorneys were not given ample time
and opportunity to prepare the Petitioner’s case for trial. Further, the record shows that the trial
attorneys advocated earnestly on the Petitioner’s behalf, including successfully convincing the jury
not to impose the death penalty. Although the trial court did not make specific conclusions of law
regarding the Petitioner’s due process claim, the record shows no constitutional deficiency of trial
counsel.

         With regard to the Petitioner’s assertion that the two appointed trial attorneys did not comply
with Rule 13 of the Rules of the Tennessee Supreme Court, the Petitioner cites no authority, and we
are aware of none, setting forth that the heightened standards of Rule 13 are constitutionally
mandated. The Fourteenth Amendment guidelines simply require the appointment of an attorney
to a capital Petitioner. While the Tennessee Supreme Court has put into place heightened
requirements in Rule 13, including the requirements of two attorneys that meet certain specific
eligibility criteria, the attorneys need not meet these stringent standards to pass constitutional muster.
Therefore, we conclude that the Petitioner has not shown by clear and convincing evidence that his
conviction offended the Fourteenth Amendment.
II. EQUAL PROTECTION
         Next, the Petitioner asserts that he was denied his Fourteenth Amendment right to equal
protection under the United States Constitution. Specifically, the Petitioner alleges that his trial co-
counsel’s failure to be involved in his defense deprived him of his equal protection guarantee. We
conclude this issue does not have merit.

        The Appellant relies on Douglas v. California, 372 U.S. 353 (1963), for the proposition that
the United States Supreme Court has found a right to counsel on direct appeal under the equal
protection clause of the Fourteenth Amendment. Id. While the Petitioner has accurately stated the
constitutional requirements for appellate counsel, the Petitioner has not alleged any inadequate
performance of appellate counsel. Therefore, we conclude that the Petitioner has waived this issue
by failing to provide the court with factual support for the claim that appellate counsel was not
constitutionally sufficient. See Tenn. Code Ann. § 40-30-106(d); Tenn. R. App. P. 10(b).




                                                   -5-
III. THE INEFFECTIVE ASSISTANCE OF COUNSEL
         Finally, the Petitioner asserts that he received the ineffective assistance of counsel as required
by the Sixth Amendment to the United States Constitution. Specifically, the Petitioner alleges he
was deprived of this right in four ways: (1) the failure of co-counsel to “actively participate in the
defense”; (2) the failure to adequately “meet with and communicate” with the Petitioner; (3) the
failure to “properly advise” the Petitioner in making his decision on whether to testify; and (4) the
failure to “consider, investigate, and present alibi witnesses.” We conclude that the Petitioner’s
claims are without merit.

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal Petitioner the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the Petitioner’s lawyer and actual prejudice to the defense
caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The Petitioner bears
the burden of establishing both of these components by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The Petitioner’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component
is modified such that the Petitioner “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).



                                                   -6-
         A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of
law—such as whether counsel’s performance was deficient or whether that deficiency was
prejudicial—are reviewed under a purely de novo standard, with no presumption of correctness given
to the trial court’s conclusions.” Id.

       (1) Lead Trial Counsel’s Failure to Meet and Properly Advise
       First, the Petitioner alleges that trial counsel failed to adequately meet with and communicate
with him. We conclude that the Petitioner did not prove his factual assertions by clear and
convincing evidence.

        The record establishes that trial counsel performed an initial intake interview, met with the
Petitioner at the jail throughout the representation, and conducted the trial. The Petitioner’s only
assertion of deficient performance is that lead trial counsel did not aid him in preparing to testify on
his own behalf. The Petitioner alleges that his lead trial counsel did not have “enough time” to assist
the Petitioner sufficiently so that he would be a beneficial witness. The State points out that the lead
counsel thought that the Petitioner showed combative, angry, and aggressive tendencies which the
jury likely would have seen from his testimony. The lead trial counsel explained at the post-
conviction hearing that, in his opinion, the Petitioner should not have testified at trial because his
violent demeanor may give the jury the impression that he was guilty and had no remorse. Lead
counsel further explained his decision to advise the Petitioner not to testify by opining that, if the
Petitioner had chosen to do so, “[h]e would probably be sitting on death row.”

          The Petitioner has not proven by clear and convincing evidence that the lead trial counsel’s
performance was constitutionally deficient. It is clear from the record that lead trial counsel made
a tactical decision to discourage the Petitioner from testifying because he believed the Petitioner
would be a poor witness. Further, the Petitioner personally waived his right to testify at trial after
lead trial counsel informed him of his rights during the voir dire procedure. Thus, we conclude that
the Petitioner has not presented clear and convincing evidence that his attorney was ineffective by
advising him not to testify.

       (2) Lead Trial Counsel’s Failure to Consider, Investigate, and Present Alibi Witnesses
       Next, the Petitioner alleges that lead counsel failed to investigate and present his alibi
witness, Hollywood Henderson. We conclude that this issue is without merit because counsel’s
performance was not deficient. We also note that the witness did not testify at the post-conviction
hearing.

       The record of the post-conviction hearing reflects that trial counsel instructed the public
defender’s capital case investigator to look for the address of Hollywood Henderson. Further,
counsel testified that he subpoenaed Hollywood Henderson but that the process server found only


                                                  -7-
a vacant lot at the address that the Petitioner had provided. Furthermore, lead trial counsel testified
at the post-conviction hearing that the alibi defense was irreconcilably inconsistent with the
Petitioner’s confession that he committed the shooting in self-defense. Therefore, even if trial
counsel had been able to locate the alibi witness, the record reflects that alibi testimony could have
been harmful to the Petitioner’s case. Therefore, we conclude that the Petitioner did not present clear
and convincing evidence that trial counsel’s performance was deficient.

         In addition, “[w]hen a petitioner contends that trial counsel failed to discover, interview, or
present witnesses . . . , these witnesses should be presented by the [post-conviction] petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). If he fails to
do so, he generally fails to establish ineffective assistance of counsel. Id. The post-conviction court
may not speculate “on the question of . . . what a witness’s testimony might have been if introduced”
at trial. Id.; see also Wade v. State, 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995). Because the
alleged alibi witness did not testify at the post-conviction hearing, the Petitioner did not demonstrate
he was prejudiced by the witness’s failure to testify at the trial.

        (3) Trial Co-Counsel’s Representation
        Finally, the Petitioner alleges that he received the ineffective assistance of counsel because
his appointed co-counsel did not sufficiently participate in his case. We conclude that this issue does
not gain the Petitioner relief because the quality of lead counsel’s representation alone is
constitutionally sufficient.

        The Petitioner cites no authority, and we are aware of none, that the Sixth Amendment
requires multiple attorneys for the representation of a capital Petitioner to be constitutionally
sufficient. In this case, the Petitioner received the effective assistance of counsel by the diligent
performance of his lead counsel alone. The Petitioner also had the benefit of having the assistance
of an experienced co-counsel to further aid him during his trial. Therefore, we conclude that the
Petitioner did not prove by clear and convincing evidence that he suffered a Sixth Amendment
violation. The record supports the trial court’s conclusion that the Petitioner received the effective
assistance of counsel.

                                           Conclusion
        Based on the foregoing authorities and reasoning, this Court affirms the judgment of the
trial court.


                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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