        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 9, 2013

              CHARLES WILLIAMS VS. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 0704461    J. Robert Carter, Jr., Judge




        No. W2012-00635-CCA-MR3-PC - Filed September 30, 2013



On August 4, 2008, a Shelby County jury convicted Petitioner, Charles Williams, of first
degree murder and especially aggravated robbery. State v. Charles Williams, No.
W2008-02211-CCA-R3-CD, 2010 WL1930965, at *1 (Tenn. Crim. App., at Jackson, May
13, 2010), perm. app. denied, (Tenn. Apr. 12, 2011). Petitioner was sentenced as a Range
I, standard offender to consecutive sentences of life and fifteen years. In 2011, Petitioner
filed a timely pro se petition for post-conviction relief, arguing that he received ineffective
assistance of counsel at trial. The post-conviction court denied Petitioner relief. On appeal,
Petitioner contends that the trial court erred in denying his petition. After a thorough review
of the record, we affirm the trial court’s denial of post-conviction relief.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

J. Jeffrey Lee, Memphis, Tennessee, for appellant, Charles Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Betsy Weintraub, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       On the morning of Sunday, March 11, 2007, Percell Duckett discovered the body of
the victim, Chris Smith, on a trail near his home in Shelby County. Charles Williams, 2010
WL 1930965, at *1. There was a gun laying near the victim’s body. After he was arrested,
Petitioner gave a statement in which he stated that he went to Terrance Rose’s house the
night in question. Co-defendant Rose invited Petitioner to accompany him to buy marijuana
from the victim, despite the fact that he did not have enough money. Id. at *3. Co-defendant
Rose gave Petitioner a gun. During negotiations, the victim became angry and turned his
back on Co-defendant Rose and Petitioner. When the victim turned around, he was pointing
a gun at Co-defendant Rose and Petitioner. The victim demanded that they empty their
pockets. Petitioner stated that he fired the gun, which Co-defendant Rose had given him, at
the victim. The victim returned fire. In a second statement Petitioner stated that before
leaving, Co-defendant Rose showed him a gun and said “it will be easy.” Id. Petitioner
noted that the plan was to take the marijuana by force. In this second statement, Petitioner
claimed that upon informing the victim that they were not going to pay, the victim showed
them his gun. Petitioner began firing his gun as he and Mr. Rose ran away. Id.

        After a jury trial, Petitioner was convicted of first degree murder and especially
aggravated robbery. The trial court sentenced Petitioner to consecutive sentences of life and
fifteen years as a Range I, standard offender to be served at 100 percent. Id. at *1. This
Court affirmed the trial court’s decision on direct appeal. Id.

       On June 16, 2011, Petitioner filed a timely pro se petition for post-conviction relief,
in which he argued that he received ineffective assistance of counsel at trial. An evidentiary
hearing was held on November 21, 2011. On December 9, 2011, the post-conviction court
entered an order denying the petition. On May 25, 2012, Petitioner filed an untimely notice
of appeal. This Court waived the untimely filing of Petitioner’s notice of appeal.

                                  Post-conviction Hearing

         On November 21, 2011, the post-conviction court held an evidentiary hearing on the
petition. Trial counsel testified that she was one of two attorneys who represented Petitioner
at trial. She testified that she visited Petitioner both before and after the trial. According to
trial counsel, during these visits, she and Petitioner discussed legal strategy, potential
witnesses, and whether Petitioner should testify. Trial counsel testified that the indictment
incorrectly charged Petitioner with felony murder because it stated that Petitioner acted with
the intent to commit first degree murder during the perpetration of especially aggravated
robbery. Trial counsel stated that she consulted with an appellate attorney and made the
strategic decision to challenge the indictment in the motion for judgment of acquittal rather
than pretrial. She based this decision, in part, on the content of the Rules of Criminal
Procedure as to when an indictment may be amended. Trial counsel testified “[I]f I’d raised
it sooner before the trial before the jury was sworn, the State could have potentially have had



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the opportunity to amend the indictment and correct that wording and we would have lost the
issue.”

        Trial counsel also testified that she recalled that one of the State’s witnesses
recognized a juror. This did not come to the trial court’s attention until after the jury was
selected. The juror never stated that she recognized any of the witnesses when the names of
the trial witnesses were read, and the juror remained on the jury. At the post-conviction
hearing, trial counsel recalled that the issue was raised after jury selection, and the trial court
noted that little could be done at that particular point in the trial.

        Trial counsel did not recall the State's characterizing the case as a gang-related
homicide. She stated that there was evidence presented at trial that Co-defendant Rose had
a gang manual in his bedroom. At trial, Sergeant Kevin Helms testified to the following,
“[W]e help investigate crimes with the drug or gang nexus . . . . [A]ny crime that has gang
activity or drug activity that’s involved in it, they bring us in and we work it.” Sergeant
Helms later testified that he retrieved the murder weapon, “some clothes[,] and a gang
manual.” The trial court stated its concern about turning the case into a gang-related
homicide and made the following suggestion to both sides:


               We have initially noted this is not a gang-related homicide. Yet, we’re
       verging on getting evidence in here. And some of these witnesses are
       discussing these things. You need to talk to your witnesses before they come
       in if that’s the State’s position because we’re hearing evidence here. It’s
       almost verging on gang-related activity. And that’s a little bit disturbing.

               If the respective counsel can instruct their witnesses to try to stay away
       from that area, I think this case would go a little bit smoother with the injection
       of that issue in the trial itself.


Trial counsel further testified that she did not move to strike the comments of Sergeant
Helms because she did not think it damaged Petitioner’s case.

       Regarding Petitioner’s argument that trial counsel should have called his aunt,
Vanessa White, to testify, trial counsel testified that Petitioner had a previous criminal record
of which Ms. White was aware. Trial counsel stated that Ms. White likely would have been
questioned during trial about Petitioner’s criminal record. Trial counsel testified that it was
her belief that Vanessa White’s testimony would have negatively impacted Petitioner’s case.
However, Ms. White did submit a letter to the Court regarding the character of Petitioner.

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Trial counsel also testified that the investigator who was hired to locate Mr. Marquavious
Hobbs, another potential witness, was unable to do so after several attempts.

       At the post-conviction hearing, Petitioner testified that he met with trial counsel
multiple times and was advised not to testify at trial. Petitioner testified that he wanted trial
counsel to call Ms. White and Mr. Hobbs as witnesses, but neither was contacted. Petitioner
acknowledged that his aunt was unfamiliar with the facts of his case but that she would have
been appropriate as a character witness for sentencing. Petitioner testified that Mr. Hobbs
was with him on the night of the incident, but he was not present at the crime scene.
Petitioner stated that he was aware of trial counsel’s efforts through an investigator to get in
touch with Mr. Hobbs.

        Petitioner testified that he was aware that trial counsel attempted to get his case
dismissed by attacking his arrest. Petitioner stated that his preference was to play the entire
audio recording of his statement to the police for the jury, rather than playing only portions.
Petitioner additionally stated that the transcript of his statement that was presented to the jury
contained “dots” for inaudible statements. Petitioner stated that had he testified at trial he
would have admitted to the jury that he was present at the scene of the crimes but that he did
not actually shoot the victim or carry a gun. Petitioner acknowledged that he gave a number
of statements to the police, in which he admitted shooting the victim, and these statements
were admitted at trial.

        On December 9, 2011, the post-conviction court entered an order denying Petitioner
relief for ineffective assistance of counsel. In the order, the post-conviction court stated that
the evidence clearly showed that Petitioner’s attorney was thoroughly prepared and fully
engaged in his defense. The post-conviction court further stated that Petitioner failed to
show that trial counsel’s strategy was based on inadequate preparation or was deficient, or
prejudicial. Petitioner appeals the denial of his petition.

                                          ANALYSIS

       On appeal, Petitioner argues that the post-conviction court erred in determining that
trial counsel’s representation met the minimum standards to constitute effective
representation. Further, Petitioner argues that he was afforded ineffective assistance of
counsel when: (1) trial counsel failed to object to the State’s faulty indictment until after the
conclusion of the State’s evidence; (2) trial counsel failed to object when a potential juror,
who later became a final juror, stated that he/she was familiar with an investigating officer
involved in the prosecution of Petitioner; (3) trial counsel failed to object to numerous
statements regarding prejudicial gang involvement despite no prior ruling from the court that
said evidence should be admitted; (4) trial counsel failed to object to the admission of a

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police-generated transcript of the confessions, rather than requiring the best evidence, an
audio recording; and (5) trial counsel failed to call a crucial witness with personal knowledge
of the case.

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.2d 450,
458 (Tenn. 2001).

                             Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) counsel’s deficient performance prejudiced the outcome of
the case. See Powers v. State, 942 S.W.2d 551 (Tenn. Crim. App. 1996). In order to
demonstrate deficient performance, a petitioner must show that trial counsel’s services or
advice was below the range of competence demanded of attorneys in criminal cases. Baxter
v. Rose, 523 S.W.2d. 930, 936 (Tenn. 1975). To demonstrate prejudice, the petitioner must
show there is reasonable probability that, but for counsel’s deficient performance, the result
of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,
694 (1984). “Because a petitioner must establish both prongs of the test to prevail on a claim
of ineffective assistance of counsel, failure to prove either deficient performance or resulting
prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580
(Tenn. 1997).

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).



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                               Failure to Object to Indictment

        Petitioner contends that trial counsel provided ineffective assistance when she failed
to object to the State’s faulty indictment until after the conclusion of the State’s evidence.
The indictment in this case alleges that Petitioner “did unlawfully and with the intent to
commit First Degree Murder kill CHRISTOPHER SMITH during the perpetration of
Especially Aggravated Robbery, in violation of T.C.A. 39-13-202 against the peace and
dignity of the State of Tennessee.” Charles Williams, 2010 WL 1930965, at *11. “At the
time of the offense, first degree murder was defined as ‘[a] killing of another committed in
the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson,
rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect
or aircraft piracy’ with the intent to commit the enumerated offense.” Id.; see also T.C.A.
§ 39-13-202(2)(b). Petitioner alleges that it was the State’s burden to prove that Petitioner
intended to commit a robbery and, thus, robbery should have been listed in the indictment
where first degree murder appears. Furthermore, Petitioner alleges that objecting to the
faulty indictment in a pretrial motion would have yielded a different result.

        Trial counsel testified at the post-conviction hearing that she consulted with her
co-counsel and an appellate attorney in her office regarding her decision to challenge the
indictment in the motion for judgment of acquittal rather than pretrial. Trial counsel further
noted that it was her calculated belief that this strategy would result in a judgment of
acquittal. Further, had the inconsistencies between the indictment and the proof at trial been
raised by trial counsel pretrial, the indictment would have been amended and the case would
have proceeded accordingly. Trial counsel consulted with an appellate attorney and made
a strategic decision after adequate preparation.

        Based on the evidence presented at the post-conviction hearing, Petitioner has failed
to demonstrate that trial counsel provided deficient representation by moving for judgment
of acquittal based on inconsistencies between the indictment and proof presented at trial after
the State presented its proof, rather than raising the issue pretrial. As stated above, Petitioner
is not entitled to the benefit of hindsight and this Court will not second-guess a reasonably
based trial strategy. We conclude that trial counsel’s decision was a sound, but unsuccessful,
tactical decision made during the course of the proceedings.

       Furthermore, Petitioner failed to provide evidence that this decision prejudiced the
outcome of the case. Rather, the Petitioner has not shown that, but for the failure of trial
counsel to object to the faulty indictment in a pretrial motion, the outcome of the case might
have been otherwise. On direct appeal, this Court concluded that “the indictment described
a crime under Tennessee law in that it referenced the appropriate statute for first degree
felony murder and provided Petitioner with sufficient notice to prepare for trial” and to

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prepare an adequate defense. Charles Williams, 2010 WL 1930965, at *12. Because this
Court determined on appeal that there was no error, Petitioner cannot now prove that trial
counsel’s failure to object pre-trial prejudiced his case or that a pre-trial objection would
have resulted in a different result.

       Petitioner has failed to establish either prong of the requisite test for ineffective
assistance of counsel under Strickland. Therefore, Petitioner is not entitled to relief on this
issue.

                         Failure to Object to a Member of the Jury

       Petitioner’s second allegation is that trial counsel’s performance was deficient when
she failed to object to a potential juror who was recognized by an investigating officer
involved with the prosecution. The juror in question remained as a final juror. One of the
State’s witnesses thought he recognized a juror as being the wife of someone he knew.
However, the State’s witness was not certain it was her, did not know her name, and stated
that he had not seen her in five to six years.

        Trial counsel testified that she did not object to the juror because there was no
indication that the juror knew the officer. When the investigating officer’s name was read
during voir dire, the juror was not seated in the jury box but was seated in the gallery. The
juror was not questioned regarding whether she recognized the officer and did not indicate
that she recognized the officer. Petitioner did not submit evidence during the post-conviction
hearing demonstrating that the juror recognized the State’s witness and this somehow
rendered her unable to carry out her duties impartially.

        Petitioner has not demonstrated that trial counsel’s performance was deficient and has
failed to provide evidence that this decision prejudiced the outcome of the case. Therefore,
Petitioner is not entitled to relief on this issue based on the two-pronged analysis in
Strickland. See 466 U.S. at 687.

                   Failure to Object to Statements of Gang Involvement

       Petitioner also argues that the trial court abused its discretion in holding that trial
counsel provided effective assistance when she failed to object to numerous statements
regarding gang involvement. There had been no prior ruling allowing the admittance of such
evidence. At the post-conviction hearing, trial counsel testified that at the time the
statements regarding gang involvement were made, she did not move to strike the comments
because she did not believe the statements damaged Petitioner’s defense. Trial counsel
further stated that the decision not to move to strike the comments was a strategic decision

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and that she believed the content regarding gang involvement was a general description of
Sergeant Helms’s duties, rather than an allegation towards Petitioner. The post-conviction
court did not address this issue specifically.

       This Court agrees with the State that the references to gangs were minimal. The
references were limited to Sergeant Helms’s description of his duties and the discovery of
a gang manual at the co-defendant's residence. Trial counsel did not object to these
statements as part of the defense strategy. It also appears from the record that trial counsel
was adequately prepared. As stated above, this Court may not second-guess a strategic
decision made by trial. Petitioner is not entitled to relief on this issue.

                     Failing to Object to the Use of a Transcript at Trial

        Petitioner’s next contention is that the trial court abused its discretion when it held that
trial counsel provided effective assistance when she did not object to the admission of a
written transcript of Petitioner’s confessions, as opposed to requesting that an audio
recording of the confessions be played for the jury. Petitioner, however, did not include the
audio recording of his statements at trial in the record for the post-conviction court’s
examination. Trial counsel was not questioned about her decision to use the transcript and
portions of the audio recordings instead of the entire audio recording. Petitioner testified that
his preference was that the audio recording be played in its entirety because of missing
portions of his statements to the police on the transcript. Petitioner did not, however,
demonstrate how the missing portions of the transcript prejudiced his case, or how he might
have been better served had the entire audio recording been played. Therefore, Petitioner has
not proven trial counsel’s failure to object amounts to deficient performance and that this
failure to object prejudiced Petitioner’s case. Petitioner is not entitled to relief on this issue.

                             Failure to Present Crucial Witnesses

       Petitioner argues that the trial court abused its discretion in holding that trial counsel
provided effective assistance when failing to call two crucial witnesses. Specifically,
Petitioner alleges that trial counsel’s failure to present Ms. White as a witness hindered his
case. Petitioner’s assertion is that his aunt could have testified to his character and, thus,
provided background information that may have persuaded the jury in his favor. Likewise,
Petitioner argues that trial counsel’s failure to call Mr. Hobbs as a witness prejudiced his
case.

       Petitioner failed to produce either witness at the post-conviction hearing. “When a
[post-conviction] petitioner contends that trial counsel failed to discover, interview, or
present witnesses in support of his defense, these witnesses should be presented by the

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petitioner a the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990). Generally, presenting such witnesses is the only way a petitioner can establish that
“the failure to discover or interview a witness inured to his prejudice . . . or . . . the failure
to have a known witness present or call the witness to the stand resulted in the denial of
critical evidence.” Id. Accordingly, even a petitioner who establishes that trial counsel
deficiently performed by failing to investigate or call witnesses is entitled to no relief “unless
he can produce a material witness who (a) could have been found by a reasonable
investigation and (b) would have testified favorably in support of his defense if called.” Id.
at 757-58.

        Petitioner failed to produce Ms. White or Mr. Hobbs as witnesses at the post-
conviction hearing. Therefore, Petitioner cannot prove that he was prejudiced by the absence
of these witnesses at trial. See id. at 757. Petitioner cannot meet both prongs set out in
Strickland and, for this reason, cannot be successful on this issue. See Strickland, 466 U.S.
at 687.

         Failure to Offer Proof as to the Distance Between Petitioner and Victim

        Petitioner also contends that the post-conviction court erred in finding that counsel
was not deficient when she failed to present proof as to the distance between Petitioner and
the victim at the shooting. Petitioner contends that this information would have aided trial
counsel’s strategy for self-defense and argues that this evidence addresses the question of
whether Petitioner could have seen if the victim was armed. However, Petitioner failed to
raise these claims in his initial or amended petition for post-conviction relief, and the
post-conviction court did not address these issues in its order. The State asserts that this
issue is waived.

        Ineffective assistance of counsel is a single claim for relief under the Post-Conviction
Procedure Act even though the violation may be proved by multiple acts or omissions on the
part of counsel. Erika Louise Bunkley Patrick v. State, No. W2004-02217-CCA-R3-PC,
2006 WL 211824, at *10 (Tenn. Crim. App., at Jackson, Jan. 24, 2006) (citing Thompson v.
State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997); see also Cone v. State, 927 S.W.2d
579, 581-82 (Tenn. Crim. App. 1995)). Thus, all factual allegations must be presented in one
claim. See T.C.A. § 40-30-106(d). A petitioner may not relitigate a claim of ineffective
assistance of counsel “by presenting new and different factual allegations” on appeal. Erika
Louise Bunkley Patrick, 2006 WL 211824, at *10 (citing Thompson, 958 S.W.2d at 161;
Roger Clayton Davis v. State, No. 03C01-9902-CR-00076, 2000 WL 21307 (Tenn. Crim.
App., at Knoxville, Jan. 14, 2000), perm. app. denied, (Tenn. Sept. 5, 2000)); see also Melvin
Cofer v. State, No. W2006-00631-CCA-R3-PC, 2007 WL 2781718, at *10 (Tenn. Crim.
App., at Jackson, Sept. 25, 2007), perm. app. denied, (Tenn. Feb. 4, 2008). It appears that

                                               -9-
Petitioner’s additional factual allegation supporting his claim of ineffective assistance of
counsel was not raised in his petition for post-conviction relief. Instead, this claim is now
made in response to testimony from Petitioner given at the evidentiary hearing. However,
the post-conviction court did not make any findings of fact on the factual allegations
Petitioner now raises. Erika Louise Bunkley Patrick, 2006 WL 211824, at *10 (citing Tenn.
R. App. P. 36(a) and holding that no “relief may be granted in contravention of the province
of the trier of fact”). Consequently, this issue has been waived. See Cone, 747 S.W.2d at
357.

                                      CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition.




                                           _________________________________
                                           JERRY L. SMITH, JUDGE




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