        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 14, 2010

             DIMECOS ICHAD JONES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                       No. 04-03180 John P. Colton, Judge




                 No. W2009-02425-CCA-R3-PC - Filed March 9, 2011



The Petitioner, Dimecos Ichad Jones, appeals as of right from the Shelby County Criminal
Court’s denial of his petition for post-conviction relief, alleging that his trial and appellate
counsel were ineffective. Following our review, 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.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
J.C. M CL IN, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Dimecos Ichad Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant
Attorney General; William L. Gibbons, District Attorney General; and David Michael Zak,
Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       On direct appeal, the Petitioner challenged the sufficiency of the convicting evidence
and the trial court’s failure to provide a jury instruction on defense of another person; this
court affirmed the trial court’s ruling and the Petitioner’s convictions. State v. Dimecos
Jones, No. W2006-00237-CCA-R3-CD, 2007 WL 1946654 (Tenn. Crim. App. 2007), perm.
app. denied (Tenn. Nov. 19, 2007). Although the facts of the Petitioner’s case have already
been discussed in this court’s opinion affirming the Petitioner’s convictions on direct appeal,
we will provide the following factual summary to establish context for the Petitioner’s issues
before this court. See id.
       This case arose from the Petitioner’s involvement in a dispute over drug territory in
Memphis, Tennessee. Christen Williams sold drugs at the Corner Apartments, and she was
threatened by the victim, a member of the Gangster Disciples, because she was selling drugs
in what the victim considered to be his territory. Ms. Williams asked Mario Green, the
Petitioner’s cousin and roommate, to help her settle the dispute. Mr. Green, who was also
a member of the Gangster Disciples, gave the Petitioner a weapon and asked the Petitioner
to come with them as they attempted to resolve the dispute. Mr. Green instructed Ms.
Williams to wait at the back of the apartment complex while he and the Petitioner confronted
the victim.

        The Petitioner and Mr. Green approached the victim, who was in his car with Marcus
Tubbs. After some conversation, the Petitioner, while holding a 9 mm pistol, told the victim
to get out of the car and lie down on the ground; the victim complied. Mr. Green, who was
also armed with a handgun, instructed Mr. Tubbs to get out of the car and stand near the
passenger’s side of the car, and Mr. Tubbs complied. While the victim was on the ground,
the Petitioner removed the victim’s shoes and searched his pockets. After searching the
victim’s pockets, the Petitioner met with Mr. Green at the front of the car. According to Mr.
Tubbs, the Petitioner asked, “Should I do him? Should I do him?” while talking to Mr.
Green. Although Mr. Tubbs did not hear Mr. Green’s response, he saw the Petitioner walk
over to the victim and shoot him in the back of the head.

        In the Petitioner’s statement to police, the Petitioner admitted that he shot the victim
but stated that when he asked Mr. Green for instructions, Mr. Green handed him a .357
revolver and whispered, “Kill him.” The autopsy report indicated that the victim was killed
with a .357 revolver and that the victim also suffered “a second area of trauma to his skull,”
which occurred “prior to the gunshot wound.”

       After his convictions were affirmed on appeal, the Petitioner filed a timely petition
for post-conviction relief on June 24, 2008, in which he alleged that trial and appellate
counsel were ineffective. The post-conviction court appointed counsel, who did not file an
amended petition for post-conviction relief.

        The post-conviction evidentiary hearing was held on three separate days over the
course of three months. On the first day, June 11, 2009, the Petitioner testified that trial
counsel was appointed to represent him. He admitted that trial counsel filed a motion to
suppress and other “basic motions” on his behalf. The Petitioner stated that he met with trial
counsel on five occasions and that they discussed trial strategy on only one occasion. He
stated that trial counsel sought to challenge the element of premeditation for the first degree
murder charge by attempting to prove that the Petitioner was incapable of forming the
requisite mental state. Trial counsel sought to have the Petitioner evaluated by a mental

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health professional to lend support to this trial strategy. The trial court granted trial counsel’s
motion for funds to hire the expert; however, the trial court denied the motion to continue the
case in order to schedule the evaluation. The Petitioner stated that they discussed hiring a
mental health professional approximately 30 days before trial but that trial counsel filed the
motion to hire the professional “late.” The Petitioner stated that trial counsel also asked for
a continuance in order to hire a forensic pathologist to combat the State’s expert; however,
this motion was also denied. The Petitioner stated that trial counsel told him that he did not
know that the State was going to use an expert at trial; therefore, he did not seek to hire his
own expert until right before trial. The Petitioner admitted that at trial, trial counsel’s
objections to the State’s peremptory challenges of black jurors were overruled by the trial
court.

        The Petitioner stated that appellate counsel only raised two issues, the jury instructions
and the sufficiency of the evidence, on appeal. He stated that appellate counsel did not raise
the jury selection issue, the suppression issue, or the trial court’s denial of counsel’s motions
for a continuance on appeal. He also stated that in relation to the sufficiency of the evidence,
counsel did not argue on appeal that the Petitioner was unable to form the requisite mental
state in order to sustain a conviction of premeditated murder. He further stated that counsel
did not confer with him about the issues that were going to be raised on appeal.

       On cross-examination, the Petitioner admitted that counsel challenged the State’s
improper exercise of peremptory challenges and that the trial court denied counsel’s
objection. He insisted that he was pressured into shooting the victim and that he was unable
to form the requisite intent to sustain a conviction of premeditated murder.

         On the second day of the hearing, July 8, 2009, trial counsel testified that he had been
practicing criminal law for 12 years and that he had participated in 60 or 70 jury trials. He
stated that in his representation of the Petitioner, he reviewed the discovery materials with
the Petitioner, visited the crime scene, talked with witnesses, and discussed the State’s proof
with the Petitioner. He stated that they also developed and discussed a theory of defense
“with what little bit we had in the case.” Trial counsel stated that the Petitioner had admitted
that he shot the victim; therefore, they attempted to prove that the Petitioner was coerced and
under duress when he committed the crime. He said that they tried to convince the jury that
the Petitioner “would [have] been the one on the ground with the bullet in his head” if the
Petitioner had refused to shoot the victim because a Gangster Disciple “overseer” had
instructed the Petitioner to kill the victim. He admitted that duress was not an available
defense for murder, but he stated that the excuse of duress was all they had to support a
theory of self-defense. While he had discussed this theory with the Petitioner and based his
trial strategy on the Petitioner’s statements to him, the Petitioner’s testimony at trial belied
their theory of defense. When trial counsel asked the Petitioner if “he was scared or felt like

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he had to protect himself or anything like that from the overseer,” the Petitioner simply said,
“[A] little bit.” Trial counsel said that “[y]ou could almost watch the shades go down . . . in
the [jurors’] eyes as soon as that testimony came out.” He stated that he believed that “the
testimony from the [Petitioner] is what killed [the defense].”

        On cross-examination, trial counsel again stated that the Petitioner’s testimony was
inconsistent with “what he had told me in the jail.” Trial counsel stated that he filed a motion
to continue the case when he realized that the State was going to call an expert to testify. He
also stated that he sought to have Dr. Marsha Little-Hendren examine the Petitioner right
before trial because “at the last moment some things were said to [him] that made [him] think
maybe [he] should” have the Petitioner examined. He stated that a prior examination of the
Petitioner did not reveal any problems; therefore, he did not attempt to have any further
examinations performed at that time. He stated that the trial court granted his motion for
funds to hire Dr. Little-Hendren, but the Petitioner was never examined because they
“couldn’t get it done in time.” He stated that appellate counsel also helped at trial but that
appellate counsel was the only person who formally represented the Petitioner on appeal. He
stated that appellate counsel “made most of the decisions with me as to what was going to
be in the appeal,” but he did not “remember now what decisions were made or why [they]
made them.”

       On the third day of the hearing, August 13, 2009, the Petitioner testified that trial
counsel sought to have Dr. Little-Hendren examine him to rebut the State’s proof of
premeditation. He stated that trial counsel told him that they needed an expert to examine
the effect that ecstasy, marijuana, and liquor would have had on his mind at the time of the
crime. He stated that he asked post-conviction counsel to request the post-conviction court
to summon Dr. Little-Hendren to the post-conviction hearing.

       At the conclusion of the Petitioner’s testimony on that day, post-conviction counsel
requested permission to “prepare an ex parte order so [Dr. Little-Hendren] can get paid to do
the evaluation based upon the fact that she was appointed before.” Post-conviction counsel
admitted that Dr. Little-Hendren had never actually examined the Petitioner and stated that
he actually just wanted Dr. Little-Hendren to “make a proffer of proof [as to] what she might
have testified to” at trial. Following argument by defense counsel and the State, the post-
conviction court stated that he did not “see at this point where it would be proper to bring in
Dr. Little-Hendren or any other expert if it’s not been done already.”

       In a written order, filed on October 30, 2009, the post-conviction court denied the
petition for post-conviction relief. The post-conviction court’s findings on each issue will
be discussed as they arise in this opinion.



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                                         ANALYSIS

        The burden in a post-conviction proceeding is on the petitioner to prove the factual
allegation to support his grounds for relief by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). If the
petitioner proves his grounds by clear and convincing evidence, the trial court must then
determine whether trial counsel was ineffective according to Strickland v. Washington, 466
U.S. 668, 687 (1984). Dellinger, 279 S.W.3d at 293-94. On appeal, we are bound by the
trial court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they
relate to mixed questions of law and fact, we review the trial court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.


        Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,
466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). Failure to satisfy
either prong results in the denial of relief. Strickland, 466 U.S. at 697. In other words, a
showing that counsel’s performance falls below a reasonable standard is not enough; rather,
the petitioner must also show that “there is a reasonable probability” that but for the
substandard performance, “the result of the proceeding would have been different.” Id. at
694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. The Strickland standard has been applied to the right to counsel under article
I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).


        In determining whether trial counsel’s performance was deficient, this court has held
that a “petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful,
tactical decision made during the course of the proceedings.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994). “[D]eference to tactical choices only applies if the
choices are informed ones based upon adequate preparation.” Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992). An attorney’s performance must be measured against the
general standard of whether the services rendered were “within the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975).




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        In determining whether appellate counsel’s failure to raise an issue on appeal
constitutes ineffective assistance of counsel, our supreme court has held that “unless the
omitted issue has some merit, the petitioner suffers no prejudice from appellate counsel’s
failure to raise the issue on appeal. When an omitted issue is without merit, the petitioner
cannot prevail on an ineffective assistance of counsel claim.” Carpenter v. State, 126 S.W.3d
879, 887-88 (Tenn. 2004) (citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir.
1993)). “Generally, the determination of which issues to present on appeal is a matter which
addresses itself to the professional judgment and sound discretion of appellate counsel” as
these are “tactical and strategic choices,” which should not be second-guessed. Cooper v.
State, 849 S.W.2d 744, 747 (Tenn. 1993).


                      I. Inadequate Preparation and Jury Sequestration


        The Petitioner contends, in the post-conviction petition, that trial counsel failed to
interview and cross-examine the State’s witnesses, failed to “file any meaningful pretrial
motions,” failed to timely request funds to obtain an expert psychiatrist and forensic
pathologist, and failed to object to the trial court’s decision to allow the jurors to return home
following jury selection. The State responds that the Petitioner failed to present evidence to
support his arguments; therefore, the Petitioner failed to prove his factual allegations by clear
and convincing evidence. The State also responds that because the Petitioner failed to make
the trial transcript an exhibit at the post-conviction hearing, the Petitioner’s contention that
trial counsel failed to file motions cannot be reviewed.


       While this court may take judicial notice of an earlier direct appeal record when
reviewing the post-conviction court’s denial of a petition, State ex rel. Wilkerson v. Bomar,
376 S.W.2d 451, 453 (Tenn. 1964), we conclude that this issue is waived. Although the State
responded as if these issues were properly before this court, the Petitioner’s brief does not
discuss these issues. Indeed, Rule 10(b) of the Rules of the Court of Criminal Appeals of
Tennessee provides, “Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.”


        Moreover, the Petitioner failed to provide any evidence at the post-conviction hearing
in support of his assertions. The Petitioner and trial counsel were the only witnesses who
testified at the hearing. The Petitioner did not present testimony from the witnesses that he
alleged should have been cross-examined, and the Petitioner did not present testimony from
the psychiatrist or forensic pathologist that trial counsel sought to obtain. This court has long
held that “[w]hen a petitioner contends that trial counsel failed to discover, interview, or


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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). Additionally, the record reflects that the psychiatrist that trial counsel sought
to obtain never actually examined the Petitioner. In order to prove prejudice on this issue,
the Petitioner should have been examined prior to the hearing. See Black, 794 S.W.2d at
757. Relative to the jury sequestration issue, the Petitioner did not present any evidence that
the jurors were improperly influenced or that he was prejudiced by the trial court’s decision
to allow the jurors to go home. Accordingly, we also conclude that the Petitioner has failed
to prove these allegations by clear and convincing evidence.


                                  II. Motion for Continuance


        The Petitioner contends that trial counsel failed to file a timely motion for a
continuance when he was permitted to hire an expert psychiatrist to examine the Petitioner
and testify relative to the Petitioner’s state of mind and that appellate counsel was ineffective
for failing to preserve the trial court’s denial of the continuance as an issue on appeal. The
Petitioner asserts that the trial court granted trial counsel’s request to hire the psychiatrist on
October 14, 2005 but that trial counsel did not file a motion for a continuance until October
27, 2005. The State responds that trial counsel was not responsible for the trial court’s denial
of the motion to continue and that the record supports the post-conviction court’s finding that
the trial court did not abuse its discretion by not granting the motion for continuance.


       The direct appeal record reflects that trial counsel filed a motion for a continuance on
October 27, 2005, three days before trial. In the motion, counsel stated that while the trial
court granted the ex parte motion for appointment of Dr. Little-Hendren on October 14,
2005, he did not receive the “physical copy of said approved order until October 24, 2005”
and that Dr. Little-Hendren was not able to complete her examination prior to trial.


       Relative to the Petitioner’s contention that trial counsel failed to file a timely motion
for a continuance to have the Petitioner examined by the psychiatrist, the post-conviction
court found that “[t]rial [c]ounsel’s performance regarding the [m]otion for [c]ontinuance
was well within the range of competence demanded of attorneys in criminal matters.” The
post-conviction court erroneously treated this issue as if the Petitioner were alleging that trial
counsel was responsible for the trial court’s denial of the motion. While this could be an
interpretation of the Petitioner’s claim on appeal, a close reading of the petition reveals that
the Petitioner was asserting that trial counsel failed to file a timely motion and that appellate
counsel failed to raise the trial court’s denial of the motion on appeal.


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        As to the Petitioner’s contention that trial counsel failed to file a timely motion, we
do not agree with the post-conviction court that trial counsel’s delay was reasonable given
the circumstances of the case. The motion was granted on October 14, 2005, but trial counsel
failed to take any action on the grant of the motion until October 27, 2005. Trial counsel had
ample time to contact the expert and file a motion for a continuance before the start of the
trial. Instead, counsel waited until three days before trial to request a continuance. While
trial counsel’s delay was unreasonable, the Petitioner cannot establish prejudice because he
failed to establish what the examination would have revealed. See id.


        Relative to the Petitioner’s claim that the trial court abused its discretion in denying
counsel’s motion to continue and that appellate counsel was ineffective for failing to include
this issue on appeal, we acknowledge that the Tennessee Supreme Court has held that “[t]he
trial court’s denial of a continuance will be reversed only if it appears that the trial court
abused its discretion to the prejudice of the defendant.” State v. Odom, 137 S.W.3d 572, 589
(Tenn. 2004) (citing State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)). “An abuse of
discretion is demonstrated by showing that the failure to grant a continuance denied [the]
defendant a fair trial or that it could be reasonably concluded that a different result would
have followed had the continuance been granted.” Hines, 919 S.W.2d at 579 (citing State
v. Wooden, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). Again, without evidence of
what the examination would have revealed, the Petitioner cannot establish that a different
result would have followed. See Black, 794 S.W.2d at 757. Likewise, we are also unable
to determine whether appellate counsel was ineffective for failing to raise this issue on
appeal. Id. Accordingly, we conclude that the Petitioner has failed to prove his allegations
by clear and convincing evidence.


                                    III. Batson Challenges


        The Petitioner contends that the State utilized peremptory challenges to exclude
African-American jurors from the jury and that once the trial court recognized a pattern of
discrimination, the court “should have declared a mistrial and require[d] an entirely new jury
panel to be seated for the jury selection process.” See Batson v. Kentucky, 476 U.S. 79
(1986). The Petitioner further contends that appellate counsel was ineffective for failing to
raise this issue on appeal. The State responds that this issue should be waived because the
Petitioner did not include the transcript of the jury selection in the record on appeal. The
State further responds that appellate counsel’s decision to exclude the issue on appeal was
a strategic decision and that the Petitioner has not presented any evidence that he suffered
any prejudice as a result of this decision. The State asserts that the Petitioner did not call
appellate counsel as a witness at trial and that the Petitioner failed to prove his allegation by

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clear and convincing evidence. To prevail on this issue, the Petitioner must establish that the
trial court abused its discretion in denying counsel’s objections to the State’s peremptory
challenges and that appellate counsel erroneously failed to pursue this issue on appeal.


       A review of the direct appeal record reflects that citing Batson, trial counsel objected
to the State’s use of peremptory challenges on two separate occasions. On each occasion,
the State provided a race-neutral reason for excluding the jurors. Following the race-neutral
explanation, the trial court accepted the challenges and denied trial counsel’s objection.
While the trial court acknowledged that there was a pattern of discrimination in that several
black jurors were excluded, the trial court found that the State provided an adequate, race-
neutral reason for the exclusion of the jurors.


       While this issue was not included in trial counsel’s initial motion for new trial, it was
included in the amended motion for new trial. However, the issue was not raised on appeal.
In denying relief on this issue, the post-conviction court found that the Petitioner did not
“present any evidence to show that he ha[d] suffered prejudice” from appellate counsel’s
failure to raise the issue on appeal. The post-conviction court further found that had
appellate counsel raised the issue on appeal, the Petitioner “would likely not have been
afforded any relief.”


        In Batson, the Supreme Court held that the State’s exclusion of potential jurors solely
based upon race violates the Equal Protection Clause of the Fourteenth Amendment. Batson,
476 U.S. at 89. There are three prerequisites that must be met in order to establish a Batson
violation: (1) the Defendant must establish a prima facie case of purposeful discrimination;
(2) the State must be given the opportunity to rebut the prima facie case by offering a race-
neutral explanation for the exercise of the peremptory challenge; and (3) the trial court must
then determine whether the Defendant has established purposeful discrimination. Id. at 96-
98.


        Although the State’s race-neutral explanation must be reasonable and specific, there
is no requirement that it be persuasive. Purkett v. Elem, 514 U.S. 765, 767-68 (1995); see
also State v. Hugueley, 185 S.W.3d 356, 368 (Tenn. 2006). Essentially, “[u]nless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be
deemed race-neutral.” Elem, 514 U.S. at 768; see also Hugueley, 185 S.W.3d at 368.
However, the trial court must consider the explanation in light of all of the evidence to insure
that the explanation is not pretextual. Miller-El v. Dretke, 545 U.S. 231, 251-52 (2005);
Hugueley, 185 S.W.3d at 369. The trial court is in the position to judge the credibility of


                                              -9-
both the potential jurors and counsel because the trial court has the opportunity to observe
their demeanor. State v. Smith, 893 S.W.2d 908, 914 (Tenn.1994). Therefore, “[o]n appeal,
a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly
erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477 (2008); see also Hugueley, 185 S.W.3d
at 359.


       Despite a clear pattern of discrimination, the State was able to offer a race-neutral
explanation for the exclusion of the challenged jurors, which is all that is required under
Batson. The record supports the trial court’s decision to accept the State’s race-neutral
explanation for excluding the jurors. Accordingly, we conclude that the record supports the
post-conviction court’s finding that the Petitioner failed to establish that he suffered any
prejudice as a result of appellate counsel’s failure to raise this issue on appeal.


                                        CONCLUSION


      In consideration of the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.


                                                      ________________________________
                                                      D. KELLY THOMAS, JR., JUDGE




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