                                                                                             08/25/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 25, 2020

                 SHASTA JACKSON v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                         No. 109248    G. Scott Green, Judge


                              No. E2019-01148-CCA-R3-PC


The Petitioner, Shasta Jackson, appeals as of right from the Knox County Criminal Court’s
denial of her petition for post-conviction relief. The Petitioner contends that she received
ineffective assistance of trial counsel when counsel advised her to testify at trial. 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 Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Shasta Jackson.

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant
Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

                                           I. Trial

       The Petitioner’s convictions arose from a September 1, 2012 shooting at The Grand,
a crowded Knoxville nightclub, which resulted in the death of innocent bystander Esley
Clemmons. State v. Shasta Jackson, No. E2014-01387-CCA-R3-CD, 2015 WL 6756318,
at *1 (Tenn. Crim. App. Nov. 5, 2015). The Petitioner and her co-defendant, Princestenia
Robinson,1 were charged with the felony murder of Mr. Clemmons, the attempted murder
of Shondia Williams and Britnie Davis, and multiple counts of employing a firearm during
the commission of a dangerous felony. Id.

       The shooting arose from a disagreement between two groups of women. Jackson,
2015 WL 6756318, at *1. The Petitioner, Ms. Robinson, and LeeKirdrah Haynes were
friends, and all of them were affiliated with the Westside 111 Neighborhood Crips group.2
Ms. Haynes testified at trial that the Petitioner and Ms. Robinson carried .380 semi-
automatic handguns and that the two women shared bullets. Id. at *2. Around 3:00 a.m.
on September 1, 2012, the Petitioner, Ms. Robinson, and Ms. Haynes drove past The
Grand; Ms. Davis, Ms. Williams, and other people were standing outside the nightclub
talking. Id. Ms. Davis testified that one of the women in the car called her a “b--ch”; the
witnesses differed on whether Ms. Davis or Ms. Williams then spat on the car. Id. In any
event, the Petitioner drove past the nightclub a second time, during which Ms. Robinson
held a gun outside the car’s window. Id. Ms. Davis and Ms. Williams did not feel
threatened by this act, and Ms. Davis walked back to her car before deciding to go back to
the nightclub and fight the Petitioner. Id.

       Ms. Davis testified that the Petitioner, Ms. Robinson, and Ms. Haynes walked up to
the nightclub wearing sneakers, which indicated that they were prepared for a fight.
Jackson, 2015 WL 6756318, at *2. According to Ms. Davis, both Ms. Robinson and the
Petitioner pointed guns at her; after “shots just started firin’[,]” Ms. Davis ran into the
woods behind the nightclub and did not return. Id. Although Ms. Davis did not see who
was shooting, Ms. Haynes testified that the Petitioner shot at the ground until her gun was
empty and that Ms. Robinson’s gun jammed before she could open fire. Id.

        After this incident, the Petitioner’s group left, met a male friend, and decided to
return to The Grand in the friend’s car. Jackson, 2015 WL 6756318, at *2. Ms. Haynes
testified that the Petitioner left her gun in her car because she had no additional bullets. Id.
at *3. When they arrived at The Grand, Ms. Williams was inside talking to Mr. Clemmons
and his girlfriend. Id. Ms. Williams stated that the Petitioner and Ms. Robinson entered
and made gestures indicating their desire to fight, and Ms. Williams threw a bottle toward
the other women. Ms. Haynes stated that after Ms. Williams threw the bottle, Ms. Haynes
ran toward her, that gunshots rang out, and that Ms. Haynes ran outside. Id.


1
 At the time of the direct appeal, Ms. Robinson had not been located by police. At the post-conviction
hearing, post-conviction counsel noted that Ms. Robinson ultimately pled guilty to “facilitation” of an
unspecified offense and was sentenced to eight years in confinement.
2
  In order to mitigate any prejudicial effect of gang-related evidence, the trial court ordered that the parties
refer to the gang as a “group.” Jackson, 2015 WL 6756318, at *2.

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        Ms. Williams testified that she saw the Petitioner pull a gun out from behind her
back and open fire. Jackson, 2015 WL 6756318, at *3. Mr. Clemmons was shot in the
chest by a .380-caliber bullet and later died from his injuries. Id. The Petitioner’s gun was
tested by a firearms examiner, who concluded that the gun was used to fire bullets outside
the nightclub. Id. The examiner could not conclude, however, whether the gun was used
to fire the bullets or shell casings recovered inside the nightclub or from Mr. Clemmons.
Id.

         Ms. Haynes identified both Ms. Robinson and the Petitioner as the shooter in two
conflicting police statements. Jackson, 2015 WL 6756318, at *3. At trial, Ms. Haynes
claimed that she did not see which woman fired the gun, but that she had asked both of
them who was responsible for the shooting and that Ms. Robinson said she “didn’t mean
for it to happen like that.” Id. The Petitioner’s police statement reflected that although she
admitted to firing her gun outside the nightclub, she maintained that Ms. Robinson shot the
gun inside the nightclub after concealing it in her clothing. Id.

       The defense proof included testimony from Arterius North, who was also inside The
Grand during the shooting and asserted that the Petitioner did not have a gun; his testimony
was stricken after he refused to answer questions on cross-examination. Jackson, 2015 WL
6756318, at *4-5. The Petitioner testified that Ms. Robinson was the one who fired the
gun inside The Grand. Id. at *5. The Petitioner also provided background information on
her conflict with Ms. Williams, Ms. Davis, and other women; the Petitioner characterized
the grudge as “girl drama” unrelated to her “group” membership. Id.

       The Petitioner testified consistently with the general description given by the State’s
witnesses of the incident outside The Grand, except that she claimed to have pointed her
gun at Ms. Williams instead of Ms. Davis. Jackson, 2015 WL 6756318, at *5. The
Petitioner averred that when she returned to the nightclub in her friend’s car, she left her
gun behind in her car. Id. Ms. Robinson, however, brought her gun to the nightclub. Id.
The Petitioner testified that inside the nightclub, she stepped between Mr. North and
another man to break up an argument, that someone threw a bottle, and that someone began
shooting. Id. The Petitioner stated that she left with Ms. Robinson, Ms. Haynes, and their
male friend. Id. When the Petitioner asked Ms. Robinson if she was the shooter, Ms.
Robinson responded that she “didn’t mean to do it.” Id.

       The jury convicted the Petitioner on the lesser-included offenses of two counts of
reckless endangerment and one count each of second-degree murder, attempted second-
degree murder, and possession of a firearm during the commission of a dangerous felony.
Jackson, 2015 WL 6756318, at *5. The jury acquitted the Petitioner of two counts of
employing a firearm during the commission of a dangerous felony. Id. The trial court
imposed an effective twenty-five-year sentence. Id.

                                             -3-
                                        II. Direct Appeal

       On direct appeal, the Petitioner challenged the exclusion of testimony by an expert
witness, the decision to strike Mr. North’s exculpatory testimony, the admission of
evidence related to gangs, the sufficiency of the evidence, and her sentence. This court
affirmed the convictions and sentence. Jackson, 2015 WL 6756318, at *6. Relevant to the
issue in this appeal, this court concluded that the evidence was sufficient to prove that the
Petitioner was criminally responsible for the shooting because the Petitioner went out with
Ms. Robinson looking for a fight, gave Ms. Robinson bullets, and stood near Ms. Robinson
as she shot the gun. Id. at *15-17. Although it was not articulated in the direct appeal
opinion, the trial record also reflects that the Petitioner acknowledged during her testimony
that she distracted a person at the nightclub door in order to facilitate Ms. Robinson’s
smuggling a gun into the building.


                               III. Post-Conviction Proceedings

       The Petitioner filed a November 3, 2016 pro se petition for post-conviction relief
raising the same issues as the direct appeal and alleging that she received the ineffective
assistance of trial counsel. The post-conviction court appointed counsel, who filed an
amended petition on May 11, 2018, alleging that trial counsel provided ineffective
assistance by advising the Petitioner to testify. The Petitioner argued that because her
police statement was consistent with her trial testimony, the testimony damaged her case
and “added no value to her defense theory” that Ms. Robinson was the shooter.
Specifically, the Petitioner alleged that prejudice occurred because of her
acknowledgement in front of the jury that she changed her shoes in preparation for a fight;
her testimony that she assisted Ms. Robinson with sneaking her handgun into The Grand
by distracting a person at the door, which the Petitioner had omitted from her police
statement; and the State’s rebuttal evidence, which would not have been admissible had
she declined to testify.

        At the March 28, 2019 post-conviction hearing, the Petitioner testified that trial
counsel was assisted by counsel’s father3 and that the Petitioner and counsel met before the
trial to discuss the defense strategy. Trial counsel and the Petitioner spoke about the
Petitioner’s police statement, the evidence at trial, and whether the Petitioner should testify.
Upon questioning by the post-conviction court, the State and post-conviction counsel



3
  Counsel’s father, an experienced criminal defense attorney, passed away in an October 14, 2014 car
accident.


                                                -4-
agreed that the trial court conducted a Momon4 colloquy in the Petitioner’s case. Post-
conviction counsel noted that the Petitioner was not alleging that she failed to understand
her right not to testify.

       The Petitioner affirmed that she understood her rights regarding testifying at trial
and that the decision was ultimately hers. The Petitioner claimed that trial counsel’s advice
was that “when people don’t testify they look guilty and . . . people w[ould] automatically
think that” the Petitioner was guilty if she chose not to testify. The Petitioner agreed that
she conveyed to counsel her belief that Ms. Robinson was the shooter. The Petitioner
stated that counsel warned her that she could be found guilty even if she testified. The
Petitioner did not recall whether counsel discussed with her how she would be cross-
examined. The Petitioner similarly did not remember whether they discussed the
Petitioner’s changing her shoes before the shooting. The Petitioner believed that she and
counsel discussed that the Petitioner was aware that Ms. Robinson had a gun and that the
Petitioner helped Ms. Robinson smuggle it into the nightclub. The Petitioner agreed that
she told counsel about giving Ms. Robinson bullets and about her statement to the police
that she had fired shots outside the nightclub.

       The Petitioner stated that she initially did not wish to testify because she had already
denied involvement in the shooting in her police statement. The Petitioner was also
concerned about “tell[ing] on” Ms. Robinson; although the Petitioner believed that counsel
told her something “to alleviate [her] concerns,” she did not recall what was said. The
Petitioner stated that she relied “all the way” on counsel’s advice and chose to testify
because she wanted the jury to hear her version of events.

        The Petitioner testified that she went to trial expecting to testify and that after the
State presented its evidence, counsel discussed the Petitioner’s testifying with her, but she
did not remember what was said. The Petitioner did not recall whether she understood that
she could change her mind at any time. The Petitioner stated that after the State showed a
recording of her police interview, she did not want to testify because “they already had
[her] saying . . . what [she] did and didn’t do.” The Petitioner acknowledged that she told
the trial court that she understood her rights and that she wished to testify. The Petitioner
recalled the State’s cross-examining her with statements she made “before” to the police
and the State’s calling Ms. Davis as a rebuttal witness. The Petitioner did not remember
whether counsel told her about the State’s ability to call rebuttal witnesses if she testified.


4
  Referring to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), where our supreme court outlined a
prophylactic procedure designed to insure that a defendant’s waiver of his right to testify is voluntary,
knowing, and intelligent. Although this procedure is not required when a criminal defendant elects to
testify, some trial courts choose to conduct the same colloquy in order to ensure that the defendant
understands his or her rights before testifying.

                                                  -5-
        On cross-examination, the Petitioner testified that before the trial, counsel, counsel’s
father, and an investigator met with her in jail. The Petitioner agreed that she reviewed
some of the police statements, although she could not recall whether she reviewed Ms.
Williams’s and Ms. Davis’s statements or photographs of the crime scene. The Petitioner
stated that she discussed testifying with both counsel and counsel’s father, who had also
advised her to testify, on separate occasions. The Petitioner acknowledged that she was
familiar with counsel’s father’s professional reputation and that she was comfortable with
him. The Petitioner recalled an incident during jury selection in which a prospective juror
had expressed an opinion about defendants who chose not to testify. After the incident,
counsel advised the Petitioner that the jurors might infer her guilt if she did not testify.

       The Petitioner testified that although she did not recall the trial court’s informing
her of her rights, she affirmed that she understood that testifying was her choice and that
she wanted the jury to hear what she had to say. She acknowledged that she was charged
with first degree murder but convicted of second degree murder, as a result of which she
received less than a life sentence; she opined that she “wouldn’t say that’s successful[.]”
The Petitioner agreed that she “got [her] story out there” and that her trial testimony was
truthful. The Petitioner noted that she had not spoken to the jurors and did not know the
basis for the verdicts.

        Trial counsel testified that she was appointed to represent the Petitioner, whom she
had represented in a previous case, and that they met prior to trial to discuss the discovery
materials, the evidence, and the defense strategy, which was to identify Ms. Robinson as
the shooter and emphasize the Petitioner’s lack of knowledge that Ms. Robinson “was
going to be shooting.” Counsel agreed that the Petitioner informed her that she shot her
gun outside the nightclub and that she gave Ms. Robinson bullets before they entered the
nightclub. The Petitioner also conveyed to counsel her inability to conceal a gun in her
tight clothing, which counsel argued at trial. Counsel did not recall whether she and the
Petitioner discussed the Petitioner’s helping Ms. Robinson by distracting a security guard;
however, counsel believed that this incident was included in the Petitioner’s police
statement. Counsel affirmed that the Petitioner informed her about having changed her
shoes before returning to the nightclub.

       Counsel testified that she advised the Petitioner to testify after conveying that it was
ultimately the Petitioner’s decision. Counsel stated that she based her advice upon Ms.
Robinson’s being “on the run” and the defense’s desire to blame Ms. Robinson for the
shooting. Counsel noted that one witness identified the Petitioner as the shooter and that
Ms. Haynes had provided conflicting accounts; in counsel’s opinion, it was unlikely that
the jury would accept that the Petitioner was not the shooter “after hearing from somebody
else who[ was] directly saying it.” Counsel stated that an expert witness in memory and
witness identification was not allowed to testify. Counsel noted her impression that the

                                              -6-
Petitioner was truthful and “very consistent” and her belief that the Petitioner would “come
across” to the jury in the same manner.

        Trial counsel testified that although she discussed accomplice liability with the
Petitioner, she did not focus on it “as much” because she was more concerned about
defending against the assertion that the Petitioner was the shooter. Counsel said that she
discussed with her father and the Petitioner that accomplice liability was a risk. Counsel
acknowledged that her explanation of accomplice liability was perhaps not as lengthy as it
“should have” been. Counsel agreed that she still advised the Petitioner to testify in spite
of the risk of the Petitioner’s being implicated as Ms. Robinson’s accomplice.

         Trial counsel testified that during the trial, the Petitioner was reluctant to testify;
counsel noted that her father was “very persuasive in this matter.” Counsel stated that
before the trial, the Petitioner was nervous about testifying in general and that they went
“back and forth” with her. Counsel stated the expert witness told her that he showed the
Petitioner’s recorded statement to a class he taught and that the class did not like the
Petitioner. Counsel stated that this information concerned her, but that she ultimately “cast
that concern aside.” Counsel said that after the expert witness’s testimony was excluded
at trial, she felt more strongly that the Petitioner should testify. Counsel acknowledged
that if the Petitioner had chosen not to testify, counsel’s cross-examination of Ms. Williams
would still have been the same. Counsel agreed that the Petitioner was very cooperative
and tried to do what counsel thought was best.

        On cross-examination, trial counsel testified that the Petitioner’s case was the first
murder trial she “was the lead on[.]” Counsel noted that she had assisted her father with
“a ton of” cases, that she had been a “gofer” in “quite a few murder trials,” and that she
had been practicing law for six years at the time of the Petitioner’s trial. Counsel had
represented clients in preliminary hearings on various felony charges and conducted
criminal trials. Counsel affirmed that her father was present for the entire trial. Counsel
was experienced in evaluating prospective cases and stated that although the Petitioner’s
case was not “different” from others on which counsel worked with her father, “it was a
weird case.” Counsel explained that it was unusual for a trial to occur when a co-defendant
was evading arrest and that this was the first case she had encountered in which the identity
of the shooter was at issue.

        Trial counsel testified that the Petitioner was aware of the discovery materials, the
witness statements, and the testimony at trial when the Petitioner decided to testify.
Counsel noted that the trial court reviewed the Petitioner’s rights with her before she
testified. Counsel agreed that her father was known for wanting his clients to testify and
that he had both “spectacular success” and “spectacular failure” with this approach.


                                              -7-
        On June 3, 2019, the post-conviction court issued a written order denying the
petition. The court noted that trial counsel had been assisted by counsel’s late father, an
attorney with “a vast and extensive range of experience” in criminal defense, including
trying multiple first degree murder cases. The court found that direct and circumstantial
evidence indicated that the Petitioner was the shooter, that counsel had advised the
Petitioner to testify, and that the Petitioner participated in a Momon colloquy before
testifying. The court further found that counsel’s advice was a reasonable and tactical
decision in light of a “Hobson’s choice” between exposing the Petitioner to cross-
examination and allowing the jury not to hear the Petitioner’s “sworn denial” that she was
the shooter. The court noted that counsel’s advocacy helped persuade the jury to acquit
the Petitioner of first degree murder. The Petitioner timely appealed.

                                        ANALYSIS

       The Petitioner contends that she received ineffective assistance of trial counsel as a
result of counsel’s advice that the Petitioner testify. The State responds that counsel’s
advice was tactical and that the Petitioner has not proven prejudice.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
On appeal, we are bound by the post-conviction 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). Additionally, “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 post-conviction court. Id. However, we review
the post-conviction court’s application of the law to its factual findings de novo with no
presumption of correctness. Id. at 457.

       Criminal defendants are constitutionally guaranteed the right to effective assistance
of counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v.
Fretwell, 506 U.S. 364, 368-72 (1993).

       Deficient performance requires a showing that “counsel’s representation fell below
an objective standard of reasonableness,” despite the fact that reviewing courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result

                                             -8-
of the proceeding would have been different.” Id. at 694. “Because 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.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). 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 this case, the record supports the post-conviction court’s finding that trial
counsel’s advice was a reasonable tactical decision. Counsel’s defense team included her
highly experienced father, and both attorneys advised the Petitioner to testify in the absence
of her co-defendant. Counsel knew the Petitioner from a previous representation and found
the Petitioner’s version of events believable. The Petitioner noted that a prospective juror
expressed an opinion at voir dire regarding a defendant’s not testifying, after which counsel
conveyed the possibility that the jury might infer guilt from the decision not to testify.
Counsel reviewed all the evidence with the Petitioner and informed her of her rights.
Counsel articulated that throughout the trial, she reassessed whether it was desirable for
the Petitioner to testify; after the expert witness and Mr. North were not permitted to
provide exculpatory evidence, counsel concluded that it was unlikely the jury would be
persuaded to acquit the Petitioner without hearing testimony to rebut Ms. William’s
positive identification of the Petitioner as the shooter. As the post-conviction court noted,
“significant direct and circumstantial evidence pointed to the [Petitioner] as the shooter[.]”
The Petitioner was the only person who could present an alternative narrative to the State’s
theory.

       Trial counsel was not deficient in making a judgment call based upon adequate
preparation and, from all accounts, a conscientious and flexible approach to difficult
circumstances at trial. We note that the Petitioner was questioned by the trial court and
affirmed that she was making a voluntary and knowing decision to testify. We further note
that counsel’s strategy was not wholly unsuccessful and that the Petitioner was convicted
of lesser-included offenses, resulting in a significantly reduced sentence. The Petitioner is
not entitled to relief on this basis.

                                      CONCLUSION

       Upon 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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