        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs March 5, 2014

                    LACEY JONES v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                      No. 03-02148     W. Otis Higgs, Jr., Judge




                 No. W2013-00483-CCA-R3-PC - Filed April 15, 2014


A Shelby County jury convicted the Petitioner, Lacey Jones, of four counts of especially
aggravated kidnapping, one count of aggravated burglary, and two counts of aggravated
robbery. The trial court merged the aggravated robbery convictions into the convictions for
especially aggravated kidnapping and ordered the Petitioner to serve an effective sentence
of forty-two years. The Petitioner appealed, and this Court affirmed the judgments of the
trial court. State v. Lacey Jones, No. W2004-01628-CCA-R3-CD, 2005 WL 1848476, at *6
(Tenn. Crim. App., at Jackson, Aug. 4, 2005), perm. app. denied (Tenn. Dec. 19, 2005). The
Petitioner filed a petition for post-conviction relief, in which he alleged that his trial counsel
was ineffective. The post-conviction court dismissed the petition after a hearing. After a
thorough review of the record and applicable law, we affirm the post-conviction court’s
judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J AMES C URWOOD W ITT, J R., JJ., joined.

Paul K. Guibao, Memphis, Tennessee, for the appellant, Lacey Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Amy P. Weirich, District Attorney General; David Zak, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                           OPINION



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                                          I. Facts
                                          A. Trial

       This case arises from a home invasion robbery at the residence of the victims,
Anthony and Trina Boyce. A Shelby County grand jury indicted the Petitioner for multiple
offenses related to this robbery. On direct appeal, this Court summarized the underlying facts
of the case as follows:

               At approximately 3:30 a.m. on October 16, 2002, while Anthony Boyce
       was away on business, four masked men, who were armed with guns and
       wearing dark clothing, used a crowbar to break in the front door of the
       residence and announced that they were the police. Although Ms. Boyce had
       locked herself in her bedroom with two of her young children, ages three and
       five, the intruders kicked in the bedroom door. When one of them shouted,
       “[B]* *ch, where’s your husband . . . [w]e going to kill your . . . f* *king
       husband,” Ms. Boyce recognized the voice as that of a co-defendant, Bobby
       Harris, who had grown up with her husband. After handcuffing Ms. Boyce
       and ordering her to lie on her bed, the men ransacked the house. One of the
       assailants, who remained in the bedroom, placed his hands inside Ms. Boyce’s
       underwear and penetrated her vagina with his fingers. While downstairs, the
       intruders located and handcuffed two of Ms. Boyce’s teenage sons and her
       adult brother. The third son, upon hearing the forced entry, had fled to a
       neighbor’s residence and telephoned the police. When the police arrived, they
       found the [Petitioner], who was dressed in black and had an injured ankle,
       lying in a neighbor's yard. He told the officers that he had been considering
       a purchase of the house next door when he was overtaken by the men running
       from the Boyce residence. The [Petitioner] was soaking wet. There were
       footprints leading from the lake behind the residence to where he was found
       by the police. Ms. Boyce’s checkbook, driver’s license, and billfold contents
       were on the ground some two feet away.

Jones, 2005 WL 1848476, at *1. The jury convicted the Petitioner of four counts of
especially aggravated kidnapping, one count of aggravated burglary, and two counts of
aggravated robbery. The trial court merged the aggravated robbery convictions into the
convictions for especially aggravated kidnapping and ordered a concurrent sentence of
thirty-five years for each of the four counts. The trial court ordered the aggravated burglary
sentence of seven years to be served consecutively, for an effective sentence of forty-two
years. Jones, 2005 WL 1848476, at *1.

                               B. Post-Conviction Hearing

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        The Petitioner filed a petition for post-conviction relief, claiming that he received the
ineffective assistance of counsel on multiple grounds. The post-conviction court held an
evidentiary hearing, where the parties presented the following evidence: Officer Jeffrey
Jordan testified that he worked for the Memphis Police Department and that he investigated
the home invasion in this matter. He was one of the first officers at the scene of the crime,
and he conducted the “preliminary” investigation. He testified that, when he and his partner
arrived at the scene, they saw a Chevy van parked in the driveway of the home with its motor
running. Officer Jordan recalled that they turned off the vehicle and began checking the
sides and backyard of the home. He testified that there was a covered pool in the back yard
upon which two handguns were found. Officer Jordan testified that there was a lake in the
back yard with a dock. When Officer Jordan checked the dock, he found wet footprints on
it. Officer Jordan then saw “one of the suspects laying on the ground,” whom he later
identified as the Petitioner. A “couple of feet” from where the Petitioner was lying, Officer
Jordan found a checkbook and a photo identification for one of the victims.

        On cross-examination, Officer Jordan testified that the Petitioner told him repeatedly
that he was in the home’s backyard because he was interested in buying the house next door.
The Petitioner also told him that when he saw a group of masked men run out of the victims’
home, he got “all scared” and took off and jumped over the fence and hurt his leg.

        The Petitioner testified that he was represented in this matter by Leslie Ballin in
General Sessions Court during preliminary proceedings. The Petitioner testified that he later
retained his trial counsel (“Counsel”) to represent him at trial. The Petitioner recalled that
he hired Counsel in the summer of 2003 and went to trial on this matter in March 2004. The
Petitioner stated that he met with Counsel several times before October 2003 when the judge
set a trial date. The Petitioner first met with Counsel in “lockup” where they discussed the
case. The Petitioner informed Counsel that he understood the biggest challenge relative to
his case would be the testimony of the police officers who responded to the scene.

      The Petitioner testified that, after his trial date was set in October 2003, he did not see
Counsel again until three days before his trial. The Petitioner testified he sent letters to
Counsel because he “couldn’t get in touch with him.” The Petitioner stated:

       I was calling but I couldn’t get through. And I could never – every time I’d
       call no one would answer the phone or they would say [Counsel] was out of
       the office. And so I was trying to figure out what was going on. But I
       couldn’t get a response, so I sent a letter to the Board of Professional
       Responsibility. And I requested at that time where he can respond back to me,
       trying to get the preliminary hearing transcripts and other things I was looking
       for.

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The Petitioner said that he got a response back from the Board of Professional Responsibility
but that there was no communication between he and Counsel. The Petitioner testified that
he then received three letters from Counsel, dated November 25, December 5, and December
31, 2003. The letters were entered into the record as exhibits. The Petitioner testified that
he then met with Counsel three days before trial, in March 2004.

        The Petitioner testified that, when he met with Counsel before trial, the Petitioner
wanted to know why Counsel had not communicated with him by telephone, particularly
because the Petitioner had already paid him. The Petitioner reiterated that, in the six months
between when his trial date was set and the actual trial, he and Counsel only “really had a
chance to sit back and talk” three days before trial, as far as discussing where witnesses were
located and how to get them to court. The Petitioner stated that, on the day of trial, he asked
the trial court to appoint a new attorney to his case. The Petitioner recalled that he made “a
statement on the record” about the lack of communication between Counsel and himself.

       The Petitioner stated that he had wanted to call two witnesses at trial, Mr. Boyce and
the Petitioner’s girlfriend, Ms. Brown. The Petitioner stated that he asked Counsel to file a
motion to suppress the police officers’ statements, but Counsel did not do so. The Petitioner
also requested that an investigator be employed to work on the case, but Counsel did not do
so until the week prior to the trial.

       The Petitioner stated that, at trial, Counsel did not throughly cross-examine the police
officers about the discrepancies in their statements and testimony. The Petitioner said that
his lack of communication with Counsel hampered the Petitioner’s ability to prepare for his
trial.

       On cross-examination, the Petitioner agreed that he told the trial court that he did not
want to testify and that he was satisfied with Counsel’s representation.

        Counsel testified that he had been an attorney since 1983 and had practiced criminal
and civil law, including personal injury and divorce cases. He testified that he had tried
approximately twelve to fifteen criminal cases since 1989. Counsel stated that he met with
the Petitioner, who told him that he had been at the scene of the crime looking at real estate
next door when a group of men ran out of the victims’ house and injured the Petitioner.
Counsel testified that the Petitioner told him that Ms. Brown would corroborate his story.
Counsel testified that he paid an investigator two different times to try and locate Ms. Brown,
and, when she could not be found, Counsel requested a continuance and a new trial date until
she could be located. Counsel stated that the trial court told him that “he would make sure
we got [Ms. Brown] in there if we needed her[,]” meaning the trial court would subpoena
her, so Counsel stopped looking for her.

                                              4
        Counsel testified that he did visit the Petitioner during the period of time when it was
alleged they had no communication. He stated that the Petitioner called him about seeking
a continuance in order to find the witness. Counsel stated he was “pretty sure” that he went
and saw the Petitioner in jail, but he could not remember for certain because it had all
happened nine years prior. Counsel testified that the letters he sent to the Petitioner saying
that all communication needed to be in writing “didn’t mean” that Counsel was not going to
visit the Petitioner but simply meant that Counsel wanted a record of what he communicated
to the Petitioner because of the Petitioner’s complaint to the Board of Professional
Responsibility about Counsel’s representation. Counsel stated that he was not sure whether
there was a long period of time when he did not see the Petitioner. Counsel also stated he
did not remember the Petitioner’s asking him to subpoena Mr. Boyce to testify. Counsel
testified that he went to the house where the crime occurred and took pictures.

       Counsel testified that the Petitioner only gave him Ms. Brown’s name and no other
information about how to find her. He recalled that, when the trial judge indicated he could
find Ms. Brown himself, the Petitioner communicated to Counsel not to continue looking for
her because she was married.

        On cross-examination, Counsel testified that the Petitioner maintained he had not
committed the crime, but he also stated that he would take a “twelve year offer” from the
State. Counsel testified that he made contact with the Petitioner at least eight to twelve times
and that he “thought they met enough.” Counsel testified that, during that time, the Petitioner
told him his own theory of defense, which was that Ms. Brown had taken him to look at the
house next door to the crime scene “for some reason[.]” Counsel recalled that he was able
to elicit the Petitioner’s defense theory through the police officers’ testimony. Counsel also
stated that one police officer had made a statement that he did not recognize the Petitioner.
Counsel testified that, for those reasons, he did not file a motion to suppress the officers’
statements.

        Counsel testified that he discussed the Petitioner’s decision to testify with him, and
he told the Petitioner that a hearing would be held about the admissibility of his prior history
of similar crimes. He said the Petitioner decided not to testify. He also stated that everything
the Petitioner would have testified to was brought up in police officers’ testimony and that,
as a result, he did not think the Petitioner should testify. Counsel testified that, in terms of
investigation, he did “everything [he] could.” He stated that the State had a very strong case
because the Petitioner was found at the scene.




                                               5
         Based upon this testimony, the post-conviction court denied post-conviction relief.1
It is from this judgment that the Petitioner now appeals.

                                                II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred when it
dismissed his petition because Counsel’s representation fell outside the standard proscribed
in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). He contends that Counsel did not conduct
a “reasonable investigation” into the facts of his case and failed to communicate with the
Petitioner about a trial strategy. The Petitioner contends that Counsel’s failure to investigate
the case lead to insufficient cross-examination of the police officers about the inconsistencies
in their testimony. The State responds that the Petitioner has not shown in what ways
Counsel’s investigation was unreasonable and that the Petitioner has failed to demonstrate
how such deficiency prejudiced him at trial. We agree with the State.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and
weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless
we conclude that the evidence contained in the record preponderates against the judgment
entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,
this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony and the factual
issues raised by the evidence are to be resolved by the trial court judge, not the appellate
courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to
a purely de novo review by this Court, with no presumption of correctness. Fields v. State,
40 S.W.3d 450, 457 (Tenn. 2001).

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:


        1
         The post-convictions court’s order addressed multiple arguments laid out by the Petitioner in his
petition; on appeal, the Petitioner assigns error only to Counsel’s alleged failure to investigate the case and
alleged lack of communication with the Petitioner. Thus, we will only address those portions of the order.

                                                      6
       First, the [petitioner] must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the [petitioner] by the Sixth
       Amendment.         Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect representation,
only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical choices
applies only if the choices are informed ones based upon adequate preparation.” House, 44
S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

                                                7
       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

        In its order denying the Petitioner relief on this issue, the post-conviction court found
that Counsel’s investigation was not unreasonable, noting that Counsel had made “serious”
efforts to find the potential witness, Ms. Brown, and that, with no more information than her
name, “little more could be expected of [Counsel] in locating a witness.” Further, the post-
conviction court found that Counsel sufficiently communicated with the Petitioner
throughout the period before his trial and that Counsel’s reasons for not communicating by
telephone were legitimate, given that the Petitioner had filed an ethics claim against him.

        The evidence in this case does not preponderate against the post-conviction court’s
findings on this matter. We agree that Counsel was not deficient in his attempt to locate Ms.
Brown. Counsel tried to find the witness Ms. Brown on two different occasions, even hiring
a private investigator to try and locate her. The Petitioner, however, had only provided her
name, and, thus, she could not be located. Further, the Petitioner did not present Ms. Brown
as a witness at the post-conviction hearing. This is required for him to show Counsel’s
representation prejudiced him, as “this is the only way the [P]etitioner can establish that . .
. the failure to have a known witness present or call the witness to the stand resulted in the
denial of critical evidence which inured to the prejudice of the [P]etitioner.” Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

        We conclude that Counsel adequately investigated the Petitioner’s case. Counsel did
“everything” he could, in light of the weight of the evidence against the Petitioner. A police
officer who responded to the scene testified that he found the Petitioner lying on the ground
outside the victim’s house, with the victim’s belongings on the ground a few feet away. The
Petitioner’s explanation to police officers that he was looking at nearby real estate was not
plausible. Counsel further investigated this case by going to the victims’ house and taking
pictures of the surrounding area.

        We further agree with the post-conviction court that Counsel adequately
communicated with the Petitioner. While Counsel had trouble recalling the events nine years
prior, he was “pretty sure” that he visited the Petitioner in jail. Counsel communicated with
the Petitioner via written letter, which he found necessary based upon the Petitioner’s

                                               8
complaints, but the two also met in person.

        The Petitioner has not shown by clear and convincing evidence that Counsel failed
to look for the witness, that Counsel’s investigation was insufficient, or that his
communication with Petitioner was inadequate to constitute representation that falls below
the standard of reasonableness. Accordingly, we do not conclude that Counsel’s
representation fell below an objective standard of reasonableness. Thus, the Petitioner is not
entitled to relief.

                                      III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied relief. Accordingly, we affirm the judgment of the
post-conviction court.




                                                   _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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