         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 8, 2005

                 MICHAEL HOLMAN v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Marshall County
                               No. 16030   Charles Lee, Judge



                   No. M2004-02006-CCA-R3-PC - Filed February 28, 2005


The petitioner, Michael Holman, appeals the Marshall County Circuit Court’s denial of his petition
for post-conviction relief from his conviction of possession of one-half gram or more of cocaine with
intent to deliver and sentence of twenty years. This court affirmed the judgment of conviction. See
State v. Michael Andrae Holman, M2002-01471-CCA-R3-CD, Marshall County (Tenn. Crim. App.
July 23, 2003). The petitioner claims that he received the ineffective assistance of counsel because
his trial attorney failed (1) to interview and subpoena witnesses adequately; (2) to obtain phone
records and motel documents; (3) to contact witnesses who could provide the petitioner with an alibi
defense; (4) to cross-examine the informant and co-defendant thoroughly; (5) to argue sufficiently
that the petitioner could not have been in constructive possession of the drugs found; and (6) to
prepare adequately for trial. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J. C.
MCLIN , JJ., joined.

Karla D. Ogle, Fayetteville, Tennessee, for the appellant, Michael Holman.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       This court’s opinion in the petitioner’s appeal of his conviction states the following facts:

                       On April 18, 2001, Marshall County sheriff’s deputies, as a
               result of information provided by a confidential informant, arrested
               Defendant for possession of cocaine with intent to sell or deliver. The
               confidential informant, Sandra Little Sanders, testified at trial that she
saw Defendant on April 17, 2001, at approximately 7:30 p.m., at her
friend Trisha Johnson’s house. Defendant asked Ms. Sanders to
arrange buyers to whom he could sell some crack cocaine. She
contacted two or three people that night who bought crack cocaine
from Defendant. In exchange, Defendant gave her about $60 worth
of crack cocaine, which she smoked that night. Later that same night,
Ms. Sanders saw Defendant at Ricky Crutcher’s motel room at the
Celebration Inn in Lewisburg. Defendant told Ms. Sanders that he
was going to transport some crack cocaine from Nashville to
Lewisburg the following day, and she agreed to attempt to sell some
of it for him.

        At around 8:00 a.m. on the morning of April 18, 2001, Ms.
Sanders called Captain Norman Dalton of the Marshall County
Sheriff’s Department to inform him that Defendant was planning to
drive from Nashville to Lewisburg that day to sell crack cocaine.
Captain Dalton knew that Defendant drove a teal green 1994
Mustang. In response to Ms. Sanders’ telephone call, Captain Dalton
went to the Celebration Inn and verified that Ricky Crutcher had
stayed at the motel the previous night. Captain Dalton knew Mr.
Crutcher and knew that he lived in Lewisburg. Shortly before 11:00
a.m., Defendant called Ms. Sanders and said that he would be in
Lewisburg shortly. Ms. Sanders in turn called Captain Dalton.
Captain Dalton assigned officers to set up observation points on
Highways 50 and 431, two main routes into Lewisburg from
Nashville.

        Detective Kevin Clark of the Marshall County Sheriff’s
Department was assigned to watch for Defendant’s vehicle at the
Highway 50 exit ramp off Interstate 65. He observed two people in
a vehicle matching the description of Defendant’s vehicle. Detective
Clark radioed Captain Dalton, saying that he had spotted Defendant
exiting the interstate and there were two subjects in the car. Detective
Clark followed the vehicle along Highway 50 into Marshall County.
Detective Dalton saw Defendant as he approached the intersection of
Highways 50 and 431. He recognized Defendant as the driver and
advised Detective Clark and the other officers to stop the vehicle.

        The passenger and codefendant, Antione Bridges, [were]
searched, and the police found pills and two bags of cocaine in his
jacket pockets. One bag was larger than the other. Police officers
also seized two cellular phones and digital scales from the back floor
board of Defendant’s vehicle. They did not find any other drug


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                paraphernalia in the vehicle or on Defendant or Bridges. Defendant
                told the police that he was going to Lewisburg to pay a fine. Police
                officers did not find any money on Defendant. Defendant’s driver’s
                license had been issued that day.

                        ....

                        Mr. Bridges testified that he had known Defendant for about
                eleven years. On April 18, 2001, he rode with Defendant from
                Nashville to Lewisburg for the purpose of selling crack cocaine.
                They expected to make more money selling drugs in Lewisburg than
                in Nashville. Bridges gave a statement to the police, stating that he
                bought 5 grams of cocaine in Nashville, which he was taking to
                Lewisburg to sell. Bridges testified that before leaving Nashville,
                they stopped at Defendant’s apartment to get Defendant’s bag of
                cocaine, which was the larger of the two bags, weighing 22.91 grams.
                He also testified that the scales belonged to Defendant. When they
                left Nashville, Defendant had the larger bag of cocaine in his pocket.
                When they exited I-65 onto the highway, an unmarked police car
                pulled them over. Defendant handed the bag to Bridges and told him
                to hold it, explaining that Defendant had a valid driver’s license and
                they would not be searched. Bridges put the bag of cocaine in a
                different pocket from the one containing his bag.

Id. at 1-3. A jury convicted the petitioner of two counts of possession of one-half grams or more of
cocaine with intent to deliver. The trial court merged count two with count one and sentenced the
petitioner to twenty years as a Range II, multiple offender.

        At the post-conviction hearing, the petitioner’s trial attorney testified that he worked for the
Public Defender’s Office and that, at the time of the hearing, he had been employed in that position
for approximately eight years. He said that he provided the petitioner with copies of the records
relating to the petitioner’s case and that he received input from the petitioner from the beginning of
the case. He said that he sent his investigator to the motel to review the motel records but that no
copies of the records were made. He said the petitioner was present at all court proceedings.

       The attorney testified that the state presented its entire case at the suppression hearing, giving
him the benefit of having the witnesses’ sworn testimony in a transcript before trial. He said that he
performed a background check on the confidential informant and that he met with the co-defendant
following his plea acceptance hearing. He said that he did not subpoena Ricky Crutcher because he
would have testified that the petitioner was a drug dealer.

        The attorney testified that he gave the petitioner the best advice he had. He said he explained
to the petitioner the elements of the crime charged, any applicable lesser included offenses, and any


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sentencing enhancement factors that may have applied. He said that he explained to the petitioner
the choice to testify was his and that the petitioner chose not to testify. He said that he reviewed the
jury instructions before they were given to the jury and that, at his request, the trial court added
instructions regarding accomplice testimony and the lesser included offense of simple possession
or casual exchange.

        The petitioner testified that he had problems with his trial attorney because the attorney
would not address the issues he wanted addressed. The petitioner admitted, however, that he never
indicated to the court that he had a problem with the representation he was receiving from the
attorney. The petitioner also admitted understanding his case.

         On cross-examination, the petitioner testified that he wanted his probation officer to testify
at his trial because he could have corroborated the fact that the petitioner was not at the motel. He
said that the testimony of his cousin, Aaron Churchwell, would have allowed him to impeach his co-
defendant’s testimony.

        In its order denying post-conviction relief, the trial court addressed only the petitioner’s
claims that his attorney failed to interview or subpoena witnesses whose testimony would have been
beneficial to his case and failed to prepare adequately for trial. The trial court stated in its ruling that
the petitioner must present testimony which shows that “there was not a good tactical reason for not
calling that particular witness, or the witness had information that should have been known to
counsel that would have affected the outcome of the trial.” The petitioner presented no such
testimony. Regarding the petitioner’s claim that his attorney failed to prepare adequately, the trial
court accredited the attorney’s testimony that he put forward the best defense available at the time
and found that the petitioner received the effective assistance of counsel.

        In addition to his claim that his attorney was ineffective for failing to interview or subpoena
witnesses and prepare adequately for trial, the petitioner contends that his attorney should have
obtained phone records to show whether or not he made calls to the confidential informant and Ricky
Crutcher and motel documents to show who rented the motel room. He also claims that his attorney
failed to cross-examine the informant and co-defendant sufficiently. Finally, the petitioner claims
that his attorney failed to argue sufficiently that petitioner could not have been in constructive
possession of the drugs found. The state argues that the petitioner received the effective assistance
of counsel. We agree with the state.

        In a post-conviction case, the burden is on the petitioner to prove by clear and convincing
evidence his grounds for relief. T.C.A. § 40-30-110(f). 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). 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.




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        Under the Sixth Amendment, 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 in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). 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 Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. See DeCoster, 487
F.2d at 1201; Hellard, 629 S.W.2d at 9.

        With regard to petitioner’s claim that his attorney was ineffective for failing to prepare
adequately for trial, the attorney testified that he interviewed witnesses, investigated the case, met
with the petitioner and discussed the evidence against him. The petitioner testified that he
understood the case and understood the information provided to him by his attorney. The petitioner
has failed to show what more his attorney should have done or how he was prejudiced.

         The petitioner also claims that his attorney failed to interview or subpoena certain witnesses
to testify at his trial. However, the petitioner did not have these persons testify at the post-conviction
hearing. Without testimony from the potential witnesses, the petitioner cannot demonstrate that he
was prejudiced by his attorney’s failure to call them on his behalf. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990).

       As to the remaining issues, the petitioner failed to argue or present any evidence to support
them at the post-conviction hearing and the trial court did not address them in its ruling. Therefore,
we hold that these issues are waived. See Tenn. Ct. Crim. App. R. 10(b).

        Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.


                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE


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