        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 October 5, 2010 Session

                  JUSTIN MATHIS v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                   No. 04-06495    Carolyn Wade Blackett, Judge




                 No. W2010-00704-CCA-R3-PC - Filed May 11, 2011


A jury convicted the petitioner, Justin Mathis, of first degree murder. The trial court
sentenced him to life imprisonment. On direct appeal, this court upheld the petitioner’s
conviction and sentence. The petitioner filed a petition for post-conviction alleging
ineffective assistance of counsel. The post-conviction court denied relief, and the petitioner
now appeals. Following a review of the parties’ briefs, the record, and applicable law, we
affirm the denial of post-conviction relief.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE R.
M CM ULLEN, JJ., joined.

Robert Brooks, Memphis, Tennessee, for the appellant, Justin Mathis.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Brook Yelverton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        A Shelby County grand jury indicted the petitioner, Justin Mathis, for one count of
first degree murder. The trial court held a jury trial, and the evidence, as summarized in this
court’s opinion on direct appeal, was as follows:

             This case relates to the [petitioner]’s shooting seventeen-year-old
       Vernon Edwards on the night of Monday, April 5, 2004. Nineteen-year-old
       Chan Martin testified that the victim was his best friend. On April 5, 2004,
Martin got out of school about 1:30 p.m. and went to the victim’s house.
Martin and the victim worked at a Wendy’s restaurant, and Martin had to be
at work at 3:00 p.m., but the victim had the day off. After visiting with the
victim, Martin went to work. About 7:00 p.m., Martin took a thirty-minute
break and went to Shontae Handy’s house near Wendy’s. The victim and
some other friends were there, and Martin sat outside and talked with them.
Martin then drove back to Wendy’s in his Pontiac Grand Am and saw the
[petitioner] and a group of males sitting in the parking lot. Martin testified that
on the night of Saturday, April 3, 2004, he and some friends had gotten into a
fight with one of the [petitioner]’s friends. The next night, Sunday, April 4,
someone broke out the back window in Martin’s Grand Am, flattened his tires,
and tried to set his car on fire. When Martin saw the [petitioner] and the other
males at Wendy’s on April 5, he believed they were there to retaliate against
him for the fight. Martin left Wendy’s, telephoned the victim, and told the
victim about the [petitioner]’s being at the restaurant. While Martin was
driving around, he saw the [petitioner]’s green Mazda 626 traveling in the
opposite direction. Martin returned to Wendy’s, did not see the [petitioner] or
the other males, and went inside to work. Seconds later, the victim telephoned
the [petitioner] and said, “[T]hey out here.” The victim hung up the telephone,
and Martin heard gunshots a couple of seconds later. He looked out the
window and saw the victim walking in the parking lot and holding his chest.
Martin jumped over the restaurant counter, ran outside to the victim, and
caught the victim as he fell. The victim was bleeding and holding his chest,
and Martin lay down on the ground with him. He stated that he spoke with the
police after the shooting, that the police showed him a photographic array on
April 7, and that he identified the [petitioner] from the array as the driver of
the green Mazda.

        On cross-examination, Martin testified that on the night of April 3,
2004, he, Tommy Walker, and the victim fought the [petitioner]’s friend,
Karin. Martin acknowledged that Karin “got whooped pretty good.” No
weapons were involved in the fight, and although the [petitioner] was sitting
in his car during the fight, he did not participate. On Monday morning, April
5, Martin discovered the damage to his car. Martin stated that he did not know
the [petitioner] and had never had a conflict with him. However, Martin had
“seen [the petitioner] around” and had had previous conflicts with some of the
[petitioner]’s friends. At first, Martin testified that he did not remember telling
the police that Jeremy Love was in the Mazda with the [petitioner] on the night
of the shooting. However, he later acknowledged that he identified Love’s
picture from a photographic array and that he identified Love as being in the

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green Mazda. He stated that a third boy also was in the Mazda at the time of
the shooting. He said that he, the victim, and Walker were not members of a
gang. On redirect examination, Martin testified that he did not see the green
Mazda after the shooting but that he was focused on the victim and did not
look around.

        Andiea Walker testified that on the night of April 5, 2004, she was
working at Wendy’s with Chan Martin. While Martin was taking a break, six
males came into the restaurant looking for him, which Walker thought “was
kind of weird.” She stated that the [petitioner] and Jeremy Love were in the
group and that she telephoned Martin to warn him but that he did not answer
his telephone. As soon as Walker hung up her telephone, Martin came into the
restaurant, and Walker was relieved to see him. She stated that she started to
walk outside to her car and that she saw flashes, heard gunshots, and got down
on the ground. She ran outside into the parking lot and saw a dark-colored
four-door car pull away. She also saw the victim lying on the ground on his
stomach. Martin rolled the victim over, and Walker saw that the victim had
been shot in the chest. On cross-examination, Walker testified that the six
males in the group were all African-American[s] and that they wanted to know
where Martin and the victim were. She stated that at that time, she did not
know the [petitioner]’s and Jeremy Love’s names and that someone told her
their names after the shooting.

        Shaun Bullock testified that on the evening of April 5, he was at
Shontae Handy’s house with some of his friends, including the victim and
Dante Johnson. The victim and Johnson asked Bullock to drive them to
Wendy’s, so Bullock drove them and Eric Richmond to the restaurant in
Bullock’s white Nissan Maxima. When they pulled up to Wendy’s, Bullock
saw Chan Martin’s white Grand Am parked in the parking lot and saw a male
leaning into Martin’s car through the window. Johnson and the victim got out
of Bullock’s car and ran toward Martin’s car. Bullock heard them shouting,
“[W]hat you doing in my partner’s car[?]” A green Mazda 626 parked beside
Martin’s car started to pull away, and Bullock heard eight to ten gunshots. He
stated that he could not see who fired the gun but that the gunshots came from
the front of the Mazda. He stated that four or five people were in the Mazda.

       On cross-examination, Bullock testified that he was not present at the
fight on April 3 and did not know Chan Martin. On the night of the shooting,
the male leaning inside Martin’s car got into the Mazda just before the
shooting. The Mazda pulled away from Martin’s car, the victim ran toward the

                                     -3-
Mazda, and someone shot the victim. Bullock stated that the victim and
Johnson were unarmed. He said he did not remember testifying at the
preliminary hearing that he could not see the victim at the time of the shooting.
At first, Bullock thought the gunshots came from the Mazda’s passenger side.
However, he testified at trial that he could not be sure. He said that he did not
know how many people in the Mazda were firing guns and that he did not see
the victim get shot.

        Eighteen-year-old Dante Johnson testified that he was at Shontae
Handy’s house on the evening of April 5. Later that night, Shaun Bullock
drove Johnson, Eric Richmond, and the victim to Wendy’s. During the drive,
the victim received a telephone call from Chan Martin. When Bullock pulled
into the Wendy’s parking lot, Johnson saw a green Mazda 626 parked beside
Martin’s car and saw a male “messing with Chan’s car.” Johnson and the
victim got out of Bullock’s car and asked the male what he was doing.
Johnson stated that the victim said something like “what you doing in our
partner’s car[?]” He said that the male “hopped” into the Mazda and that the
Mazda pulled away. Johnson thought he heard the driver of the Mazda say,
“Get you one.” Johnson and the victim approached the Mazda, and six to nine
shots “rang out.” Johnson ducked behind a nearby building and saw the victim
standing up with his shirt covered in blood. The victim took a couple of steps
and dropped to the ground. Johnson ran to him, and the victim was gasping
for air. Johnson said the gun used to shoot the victim was black and looked
like a small, semi-automatic.

        On cross-examination, Johnson testified that as Bullock drove to
Wendy’s, Johnson was sitting in the rear passenger seat, Eric Richmond was
sitting in the front passenger seat, and the victim was sitting behind Bullock.
Bullock parked in the Dollar Store parking lot beside Wendy’s, and Johnson
and the victim walked, not ran, toward the Mazda. He said that he did not see
the victim get shot, that he was not a gang member, and that he did not know
if the victim was a gang member.

       Twenty-two-year-old Shontae Handy testified that on the evening of
April 5, she was outside her house with some friends. Handy and her friend
Tamara Burrows decided to go to Wendy’s to get something to eat, and Handy
drove Burrows and two other girls to Wendy’s in Handy’s green Mitsubishi
Montero. While they were turning in the parking lot, a green Mazda drove
beside them, and Handy heard some people in the Mazda say, “There they go.
There they go.” Handy looked to see who the people in the Mazda were

                                       -4-
talking about and saw the victim. She stated that the Mazda’s driver told the
victim, “Come get you one,” meaning a bullet. As the victim walked toward
the Mazda, the driver shot the victim and drove away. Handy stated that she
did not see anyone other than the driver with a weapon. On cross-examination,
Handy testified that she was a close friend of the victim but that she did not
know if the victim was a gang member. After Handy heard someone in the
Mazda say, “There they go,” Handy heard the victim say, “Here we go.”
Handy denied telling the police that she was inside Wendy’s at the time of the
shooting; denied telling anyone that she heard someone in the Mazda say,
“F[***] you. F[***] you.” just prior to the shooting; and denied telling anyone
that the shooting started from the Mazda’s front passenger seat.

        Scotty George testified that he was at Shontae Handy’s house on the
evening of April 5. Later that night, Marcus Smith drove George and Tommy
Walker to Wendy’s in Smith’s black Hyundai Scoupe. They went to the
restaurant because George had left his keys in Chan Martin’s car. George
went into the restaurant and heard gunshots. He looked outside and saw a
black Mazda 626 with fire coming out of the driver’s side window. George
was unable to see who was in the car but saw four heads. George did not
know the [petitioner] but had seen the [petitioner] in the Mazda the previous
night. After the shooting, George went into the parking lot and saw the Mazda
pulling out of the lot. He walked over to the victim and helped roll him over
onto his back. He stated that he saw only one person shooting the gun, and he
later testified that the Mazda was dark green. On cross-examination, George
testified that when he, Smith, and Walker arrived at Wendy’s, Smith dropped
George and Walker off at the restaurant. He said that he, the victim, Shaun
Bullock, Smith, and Dante Johnson did not belong to a gang. He said that
although he saw shots being fired from the driver’s side of the Mazda, he did
not see the shooter.

       Tommy Walker testified that he was the victim’s friend and was with
the victim at Shontae Handy’s house on April 5. At some point that evening,
Chan Martin telephoned the victim and told him that “some guys up here
trying to mess with me.” After the call, Marcus Smith drove Walker and
Scotty George to Wendy’s. Another group of males also left Handy’s house
and drove in a separate car to the restaurant. When Smith pulled into the
Wendy’s parking lot, Walker saw someone reaching into Martin’s car, saw the
victim run toward Martin’s car, and saw the [petitioner] start shooting. Walker
stated that he was sitting in the backseat of Smith’s car at the time of the
shooting, that George was sitting in front of him, and that George never went

                                      -5-
into Wendy’s. He stated that he was able to see the Mazda 626 by looking out
the back window of Smith’s car. He stated that he heard more than three
gunshots, that four or more people were in the Mazda, that Jeremy Love was
sitting in the Mazda’s front passenger seat, that the [petitioner] was sitting in
Mazda’s driver’s seat, and that he saw the gun “come out of the car.” He
stated that he, the victim, and Shaun Bullock did not belong to a gang and that
he had never had a confrontation with the [petitioner].

        Officer Leslie Lynn of the Memphis Police Department testified that he
responded to a “shots-fired call”at Wendy’s on April 5. When Officer Lynn
arrived, the victim was lying on his back and had a gunshot wound to the
chest. Officer Lynn secured the scene and put witnesses into the backseats of
patrol cars. Witnesses told Officer Lynn what had happened and who was
responsible for shooting the victim. The witnesses were upset, angry, and
screaming. Chan Martin told Officer Lynn that the [petitioner] shot the victim,
and a girl named Tammy told Officer Lynn that she saw the victim confront
the [petitioner] and saw shots fired. On cross-examination, Officer Lynn
testified that he could not remember Tammy’s last name.

       Memphis Police Officer Ricky Davison testified that he found spent
bullet casings in the Wendy’s parking lot, a bullet hole in the windshield of
Chan Martin’s Grand Am, bullet holes in the east wall of Wendy’s and in the
restaurant’s door, bullet fragments on the carpet in the restaurant, a key ring
with two keys in the parking lot, and a bloodstain on the west side of the
parking lot. Police officers found a total of eight spent shell casings in the
parking lot and in the parking lot exit.

       Dr. Thomas Deering testified that in April 2004, he was the interim
Chief Medical Examiner for Shelby County and performed the victim’s
autopsy. The victim had a gunshot wound to the left chest. The bullet traveled
through the victim’s heart and right lung and struck a rib. The bullet
perforated areas of the victim’s heart, and the victim had an extensive amount
of blood in his chest cavity. The victim tested negative for drugs and alcohol,
and the cause of death was a gunshot wound to the chest. Dr. Deering
recovered the bullet from the victim.

       Servera Brown, the victim’s mother, testified that the victim was not a
gang member. She acknowledged that the victim had some difficulties in
school and that he was expelled for one year for a fight. Brown stated that



                                       -6-
although school officials believed the fight was gang-related, the victim was
not a gang member.

       Shelby County Sheriff’s Department Officer Louis T. Hall, Jr., testified
that on April 6, 2004, he and Sergeant Mark Miller went to the [petitioner]’s
home to assist with a homicide investigation. At that time, the [petitioner] was
a suspect in the victim’s death. When the officers arrived, Officer Hall saw a
green vehicle in the garage and a black Nissan pickup truck parked on the
street. Officer Hall left the residence and went to a location on West
Thunderstone Circle to investigate a call that a suspicious vehicle was in the
area. When Officer Hall arrived at that location, someone told him that a black
Nissan truck with a bumper missing had pulled up to the curb and that
someone had dropped something into the storm drain. Officer Hall thought the
information was “peculiar,” looked into the drain, and found a plastic bag
containing a .9 millimeter holster and a Styrofoam bullet holder. Officer Hall
collected the evidence and turned it over to Sergeant Miller.                On
cross-examination, Officer Hall acknowledged that he could not say the holster
was purchased specifically to hold a .9 millimeter gun.

        Twenty-three-year-old Gregory Mathis, Jr., the [petitioner]’s older
brother, testified that on April 6, 2004, police officers came to his mother’s
home at 7616 Iron Cove, where the [petitioner] lived with their mother. The
[petitioner] was not home at the time, but Gregory Mathis was present. The
police were looking for the [petitioner] and towed a green Mazda 626 from the
property. Gregory Mathis’ black Nissan pickup truck was parked outside, but
he said nothing was wrong with the truck’s bumper. He stated that the
previous day, he had talked with the [petitioner] about the incident at Wendy’s.
He said that he did not remember the [petitioner]’s telling him to search the
[petitioner]’s bedroom. Mathis stated that he did not search the [petitioner]’s
bedroom but searched his mother’s home and found a notebook, a bandana, a
Styrofoam bullet container, and a plastic bag for a holster. Mathis
acknowledged that he waived his rights and gave a statement to police on April
6. At first, Mathis testified that he did not remember telling the police he
found the notebook, bandana, bullet container, and plastic bag in the
[petitioner]’s bedroom. However, he later admitted finding the items there.
Mathis said he put some of the items in a storm drain and that the police found
the notebook and the bandana in his truck.

       Gregory Mathis testified that he did not remember telling the police that
the notebook had gang letters in it. When asked if the [petitioner] was a

                                      -7-
member of a gang, Mathis said, “Not that I know of.” He denied telling the
police that he had heard the [petitioner] was a member of the Crips gang, but
he acknowledged that the blue bandana had gang writing on it. He said he put
some of the recovered items in the storm drain in order to help the [petitioner].
He said that he allowed the police to search his cellular telephone and that his
telephone had a picture of a handgun stored in it. He said he owned the
handgun.

        On cross-examination, Gregory Mathis testified that he tried to hide
some of the items in the storm drain because he was scared, confused, and
concerned for the [petitioner]. He stated that the picture of the handgun stored
in his cellular telephone was a picture of his gun, that it was a Smith and
Wesson .45 caliber, and that he had a license to carry the weapon. He stated
that he had no personal knowledge of the shooting on April 5, 2004, and that,
to his knowledge, the [petitioner] never possessed his gun.

        Officer Jimmy Chambers, who worked in the Gang Unit of the Shelby
County Sheriff’s Department, testified as an expert on gangs. He stated that
the color blue usually represented the Crips gang and that gang members often
wore bandanas in their pockets. He stated that the blue bandana found in this
case looked like a gang “flag,” that it had gang writing on it, and that he
thought the writing said, “Rollin 20’s Gangster Crip.” He said the notebook
police found also contained several pages of gang information. He said that
if a gang member got into a fight, members of the gang often would retaliate
against the other fighter. On cross-examination, Officer Chambers testified
that he did not know the [petitioner].

        Memphis Police Department Officer Stacy Milligan testified that he
took photographs of the Mazda 626 after the police confiscated it. He said that
bullet holes appeared to be in the vehicle and that the driver’s side mirror had
a bullet hole in it. Using a trajectory rod, the police concluded that the bullet
came from behind the mirror. On cross-examination, Officer Milligan
acknowledged that he was not a ballistics expert and that he did not know
when the mirror was damaged. However, on redirect examination, he stated
that the mirror’s damage looked fairly new.

        Special Agent Forensic Scientist Steve Scott with the Tennessee Bureau
of Investigation (TBI) Firearms Identification Unit testified as a firearms
expert that he tested bullet fragments recovered from the crime scene but could
not tell anything about them. He also inspected the bullet recovered from the

                                       -8-
victim and concluded that it was “consistent with being a .9 millimeter.”
However, he could not say conclusively that it was a .9 millimeter. He said he
microscopically inspected the eight spent shell casings recovered from the
crime scene and concluded that they were fired from the same gun.

        Sergeant Connie Justice of the Memphis Police Department testified
that she was called to Wendy’s on April 5, 2004, to investigate a shooting and
became the case coordinator. The next day, investigators went to the
[petitioner]’s home and saw a Mazda 626 in the garage. The [petitioner] was
at work, but officers spoke with the [petitioner]’s mother and confiscated the
car. The car had a bullet hole through the driver’s side mirror. The police had
received information that the shooting was the result of a fight that had
occurred one or two days earlier and was a retaliation for the fight. The
[petitioner] became a suspect from witness statements and photographic
identifications. The police eventually arrested the [petitioner] and charged him
with first degree murder. On cross-examination, Sergeant Justice testified that
she believed Tommy Walker identified the [petitioner] as the shooter and that
he was the only witness she spoke with who made that identification. On
redirect examination, she stated that she was aware other witnesses also had
identified the [petitioner] as the shooter.

       Memphis Police Officer T. Alexander testified for the [petitioner] that
he responded to the shooting at Wendy’s on April 5. According to a police
report filed in the case, Shontae Handy stated that she heard a black male in a
green Mazda say, “F[***] you. F[***] you.” Handy told police that the
shooting started from the Mazda’s front passenger seat. On cross-examination,
Officer Alexander acknowledged that he was not an investigator and did not
talk with Shontae Handy personally. He also stated that he did not know if
Handy’s statement in the report was her formal statement.

        Twenty-year-old Tamara Burrows testified that on the night of April 5,
she drove her girlfriends to Wendy’s in order to get something to eat.
Burrows’ car was near the parking lot exit between the restaurant and the
Goodyear building next door. Burrows heard some vulgar language and heard
gunshots. She said the shots came from the passenger seat of a green Mazda
626. Burrows saw the gun outside of the car and on top of the car’s roof. She
stated that she heard more than one shot and that the Mazda sped out of the
parking lot. The next morning, Burrows gave a statement to the police. The
police showed her a photographic array, but she could not identify anyone in
the Mazda.

                                      -9-
              On cross-examination, Burrows acknowledged that she did not say
       anything in her statement about someone shooting over the Mazda’s roof. She
       said she did not remember the color of the gun but acknowledged saying in her
       statement that the gun was black. She testified that the gun looked like a .9
       millimeter. She acknowledged that in her statement to police, she said the
       shots “appeared” to come from the passenger seat. However, she testified that
       she was not absolutely sure where the shots came from in the Mazda. The jury
       convicted the [petitioner] of first degree premeditated murder.

State v. Justin Mathis, W2005-02903-CCA-R3CD, 2007 WL 2120190, at *1-7 (Tenn. Crim.
App., at Jackson, July 20, 2007). The trial court sentenced the petitioner to life
imprisonment.

       On direct appeal, this court affirmed the judgment of the trial court. Id. at *1. On
December 29, 2008, the petitioner timely filed a petition for post-conviction relief alleging
ineffective assistance of counsel. On December 2 and 9, 2008, the post-conviction court held
a hearing on the petition , and the parties presented the following evidence.

        Eddie Heaston testified that he was a “9-1-1 police supervisor.” He gathered the 9-1-1
records for this case at the request of the petitioner’s post-conviction counsel. He stated that
the incident concerned “the shooting that occurred at the Wendy’s . . . on Shelby Drive.” The
caller told the 9-1-1 dispatcher that “someone had been shot at the Wendy’s and the victim
was a male that was still on the parking lot.” Heaston had a copy of the chronology, which
printed the calls 9-1-1 dispatchers received, for this incident. He stated that Loretha Thomas,
one of the petitioner’s witnesses gave him an address and phone number, and he matched the
information to a call on the chronology. The chronology listed Douglas Thomas as the
telephone account holder’s name and the phone number and address associated with the
account. He said that post-conviction counsel also requested the “conversation of the
telephone, radio transmission”; however, they expunged those records after eighteen months.

       According to Heaston, unless someone makes a special request, they destroy the
recording of the 9-1-1 phone call after eighteen months. He said that the recordings were
“freely available” to defense attorneys in a criminal trial and that it was “very common” for
defense attorneys to request the recordings. He also said that defense attorneys “fairly
frequently” retrieved the information about who called 9-1-1. Heaston was unsure whether
defense counsel in this case requested the audio recordings and said that no records showed
whether he did.




                                              -10-
        On cross-examination, Heaston testified that because no record showed whether trial
counsel requested the audio recording for this case, it was possible that they made copies of
the tape before they destroyed them. He further testified that there was no record of whether
trial counsel requested a transaction log.

         Loretha Thomas testified that she witnessed the April 5, 2004, shooting at Wendy’s
on East Shelby Drive. She stated that she and her husband were picking up her truck from
Goodyear, which was next to the Wendy’s. They were in separate vehicles, and she said that
as they “were getting ready to access . . . Shelby Drive, [they] saw some guys come out of
the Wendy’s and [she] didn’t know what was going on, but it didn’t look like it was going
to be good.” Loretha1 said that three or four young men came out of the Wendy’s like they
were going to have an altercation and approached a green vehicle. She thought that
something was going to happen because they were talking loudly in a confrontational manner
and because of their “hand motions.” Loretha further testified that the green vehicle “was
driving forward and as the car was driving forward . . . the guy that was on the passenger side
. . . reached a gun out and just started shooting.” She said that she honked her horn at her
husband and put her vehicle in reverse. However, “before [she] backed up [she] saw this guy
just fall. And [she] could tell that he had died, because he just fell lifeless.” She stated that
at the time of the shooting, the men whom she had seen coming out of the Wendy’s were
approximately twenty feet away from the green vehicle.

       Loretha said that she and her husband drove home and called 9-1-1 when they arrived.
She told the dispatcher that she thought she had witnessed a shooting, and she said that the
dispatcher told her that they had received several calls reporting the shooting. Loretha
verified the phone number and address from which she placed the 9-1-1 call, and she also
verified the person under whose name the phone number was registered.

        Loretha identified an overhead photograph of the Wendy’s where the shooting
occurred. She marked where her vehicle, her husband’s vehicle, and the shooter’s vehicle
were at the time of the shooting. She said that she had no doubt that the passenger fired the
gun because her “husband was right there and [she] was afraid that he could have gotten shot,
if [the shooter] shot any more wildly.” She said that she saw fire come from the nozzle of
the gun. She did not see anyone else with firearms nor did she see anyone else shooting.
Loretha stated, “[A]ll I can vividly remember is the passenger’s arm coming out of the
window.”




       1
          More than one witness has the last name Thomas. We will refer to them by their first names to
avoid confusion and do not intend any disrespect.

                                                 -11-
       Loretha and her husband moved to Cordova, Tennessee, the June after the shooting.
She said that they had their mail forwarded to her new address, and the utilities were in her
husband’s name, as they were at her previous address. She and her husband stayed at this
address for approximately one year until they moved again within Cordova. She said that
they again had their mail forwarded and the utilities transferred.

        Loretha stated that she would have testified at the petitioner’s trial if trial counsel had
asked her. She said that nothing “made it unusually difficult for somebody to locate [her],
or talk to [her].” She said that she found out about the petitioner’s case after she was talking
to a woman about why she had moved. She told the woman about shootings in the area. She
also told her that she had witnessed a shooting and no one had ever contacted her about it.
An investigator called Loretha because of that conversation, and she told him about the
incident. The investigator also called Loretha’s husband, Douglas, and spoke with him about
the incident.

        On cross-examination, Loretha testified that she spoke with the woman about
witnessing the shooting a little more than five years after it happened. She reviewed the
aerial photograph of Wendy’s and stated that the driver’s side of the green vehicle was facing
Wendy’s. She said that the person in the passenger side fired “back and over the car.” She
agreed that in order for the shot to have come from the passenger side “it had to be up in the
air, and over the hood, almost like [he was] stretching.”

         Loretha stated that it was dusk when the shooting occurred. She could hear the men
that came out of Wendy’s saying something, but she could not understand exactly what they
were saying. She said that she was sure that she called from her land-line telephone at home.
She said that she told the 9-1-1 operator that she “saw several subjects go to a green vehicle
. . . . Responsible subject was wearing a white sweater cap, but she only saw the back of the
subject’s head.” She agreed that she did not mention the passenger to the operator and “just
specified that [she] saw a shooting.”

       Loretha said that she and her husband kept the same landline telephone number when
they moved. A couple of months after the shooting, Loretha and her husband moved from
the home at which they were living during the shooting to a house in Cordova, from the
house in Cordova to an apartment, and from that apartment to her apartment at the time of
the hearing.

       On redirect examination, Loretha explained that the subject in the white hat was the
victim of the shooting. She further explained that when she said the shooter shot over the
hood of the vehicle, she meant the roof of the vehicle and not what covered the engine.



                                               -12-
       Douglas Thomas testified that on April 5, 2004, he took his wife to pick up her vehicle
from a repair shop next to Wendy’s on East Shelby Drive. He said that

       as [he] was coming out, there was another vehicle, [and he] could see some
       kids. [He saw] a car that was [going] to the exit too, as [he] was [going] there.
       [He] was right beside him and . . . saw some kids kind of walking, casually,
       towards the car. [He] could hear them screaming, but [he] couldn’t
       understand, or hear what they [were] saying[.] [They were] throwing signs and
       just acting aggressively.

He explained that the signs they threw were “the middle finger sign and stuff like that.”
Douglas was waiting for traffic to clear so he could exit the parking lot, and he said that,
while he was waiting, a man on the passenger side of the vehicle put his hand out of the
window and started shooting. He said that his wife had their children in her vehicle so they
“got out of there . . . because [he] didn’t know if anybody was going to . . . return[] the
shooting.” Douglas was four or five feet from the shooter but could not see the driver of the
vehicle. He did not see anyone else shooting or any other firearms.

        Douglas said that once him and his wife left the scene, he had his wife call 9-1-1 from
their home. He verified their home address and telephone number from which she made the
call. He said that he thought the phone number was in his name and said that their light, gas,
and water utility bill was in either his name or his wife’s. Douglas stated that he and his wife
moved to Cordova the June or July following the shooting and lived at the new home for a
year. He stated that they then lived in an apartment in Cordova for approximately one year,
and then moved to the apartment in which they were living during the hearing. They had
their mail forwarded and utilities transferred each time they moved.

       Douglas identified the aerial photograph of the Wendy’s and identified where his
vehicle, his wife’s vehicle, and the shooter’s vehicle were during the shooting. He said that
the shooter was in a green Toyota Camry, but he was unsure of the color because it was dark.

       On cross-examination, Douglas testified that he “saw an arm go up, out of the
window, over the top of the car and fire across the roof of the car.” He further testified that
the victim was going toward the driver’s side. He and his wife did not have any further
contact with the police after his wife called 9-1-1. On redirect examination, Douglas testified
that no one contacted him about the incident until a couple of months before the hearing.

       Clark Chapman testified that he had been a private investigator for approximately
eleven years. He primarily did work in Shelby County, Tennessee, for defense attorneys.
He had investigated more than 100 murder cases and worked with between 30 and 40

                                              -13-
attorneys. He stated that in murder cases he usually subpoenaed 9-1-1 recordings and call
logs. He listened to the recordings to compare what the witness told the operator and the
defendant’s version of events. He would also talk to the witness who called 9-1-1. He said
he found the witnesses who called 9-1-1 by retrieving their phone numbers from the 9-1-1
call log. If a witness did not answer, Chapman would subpoena their telephone provider for
their phone records or the application for telephone service, which contained the account
holder’s employment and other contact information. Likewise, he would subpoena Memphis
Light, Gas, and Water (MLGW) utility records to find witnesses. He stated that he would
subpoena MLGW’s resident utility connection, which included records of service transfers.
He said that he also used tax assessor’s records and other public records to find witnesses.

        On cross-examination, Chapman agreed that finding a witness would be more difficult
if the witness moved and established the utility service at the new address in their spouse’s
name rather than transfer the service with the previous account holder’s name. When asked
whether it would be even more difficult to find a witness who moved a second time,
Chapman answered that it depended on which database he used. He stated that utility records
contained the witnesses’ social security numbers and dates of birth, which allowed him to
find the witnesses through different avenues.

        On redirect examination, Chapman stated that if a witness moved and kept the same
utility account, finding the witness would not be hard. He further stated that although it
would be more difficult if a witness moved a couple of times and did not transfer his or her
utility service, he could still find the witness.

       Trial counsel testified that he had been a lawyer in Tennessee since 1973. He
primarily practiced in Shelby County and his cases were 85% criminal defense work. During
his career he tried between fifteen and twenty murder cases. He represented the petitioner
during his first degree murder trial and direct appeal. He tried to find the file from the
petitioner’s trial, but after “a thorough and exhaustive search” he was unable to find it.

        Trial counsel did not remember whether there were 9-1-1 calls, tapes, or logs, but he
said that he recalled that the police reports mentioned witnesses who made 9-1-1 calls. Trial
counsel said that he believed he and his co-counsel challenged the qualifications of the police
officer who testified as a gang expert. He denied that the gang expert testified specifically
that the petitioner was in a gang, but agreed that witnesses testified during the trial that the
petitioner was possibly in a gang and the shooting possibly being gang related. Trial counsel
recalled testimony about a bandana that was found either in the petitioner’s possession or in
his room. When asked why he did not object to the admission of the gang evidence based
on Rule 404 or 404 (b) of the Tennessee Rules of Evidence, trial counsel answered,



                                              -14-
       I don’t know if I thought at the time that is was necessary. We objected to it
       on the relevancy basis and I . . . probably thought that that was sufficient to
       make the record on this case at that time. In addition to that, . . . sometimes
       from a strategy point of view, you’re putting on all of this proof regarding
       gang activities and gang membership that I didn’t think was applicable to my
       client. And sometimes you want to argue that the State has put on all of this
       irrelevant information and testimony to try to make a case where none existed.
       So you have all of those things weighing in the balance as to whether it’s more
       effective to try to point out to the jury that they’re trying to create a case where
       none existed or objecting to it and realizing that they’re not mutually exclusive.
       I objected to it on the one hand and then made the argument on the other hand.

Trial counsel further stated that he did not believe that the state presented “strong evidence”
of the petitioner’s gang membership. Trial counsel raised the issue of 404(b) bad character
evidence in his brief, but did not present any argument “in the hopes of trying to get whatever
relief” he could for the petitioner.

        Trial counsel testified that he did not consider raising a self-defense argument or
asking for a self-defense instruction because he did not think a factual basis existed to
support a claim of self-defense. He stated that during deliberations, the jury submitted a
question to the court and, in response, the court reread portions of the instruction it had given
the jury. He stated that he did not ask the court to address the jury’s question further because
the jury instructions covered all of the elements along with definitions and pertinent terms.
He stated that “[f]rom a defense point of view, the time to raise the question regarding the
sufficiency of jury instructions is before the instructions are given.” Trial counsel further
stated that he did not see the need to ask for additional instructions.

        On cross-examination, trial counsel testified that without the benefit of the petitioner’s
file, he could not specifically recall every detail of the petitioner’s trial. He said that he
“strenuously” objected to Officer Chambers’ testimony concerning gangs under the relevancy
ground because he did not think that Officer Chambers “was qualified as an expert to give
his opinion regarding the testimony that he gave.” Trial counsel said that he not only
objected to Officer Chambers’ testimony “on specific occasions,” he also “asked for a
continuing objection to his testimony of the grounds of relevancy and lack of qualifications.”

       Trial counsel testified that he did not feel that there was a factual basis to pursue a
self-defense argument because

       [t]he testimony was that [the victim] came up. He was a passenger in a vehicle
       driven by someone else. He jumped out of the car and there was some

                                              -15-
       vandalism or damage that had been done to a parked car. He jumped out and
       ran toward [the petitioner’s] vehicle with his fist balled up yelling obscenities
       when the shooting took place.

Trial counsel recalled that between eight and twelve witnesses testified, and none of the
witnesses testified that the victim had a weapon.

        Trial counsel thought that he and his co-counsel did everything that they could for the
petitioner. Trial counsel recalled that there were discrepancies in the witnesses’ testimony
regarding from where the shooter fired the shots. He said that some witnesses testified that
there were two shooters, and he and his co-counsel “tried to persuade the jury that this
victim’s death could have been caused by the passenger as opposed to [the petitioner].” Trial
counsel stated that the state was “real strong on the criminal responsibility theory,” and the
trial judge instructed the jury on criminal responsibility. He said the state’s argument was
that “even if [the petitioner] was not the actual shooter responsible for the death, he was
acting in concert with everybody else that was in that vehicle and he was just as responsible
for what happened if he had in fact been the one who shot [the victim.]”

       After hearing the proof, the post-conviction court took the matter under advisement.
On February 24, 2010, the post-conviction court entered an order denying the petition for
post-conviction relief. In its order, the court found that the petitioner failed to prove by clear
and convincing evidence that trial counsel was ineffective and denied the petitioner post-
conviction relief. The petitioner appeals the court’s denial of post-conviction relief.

                                            Analysis

        In his petition for post-conviction relief, the petitioner argued that trial counsel was
ineffective for failing to: (1) make a proper objection, under Tennessee Rules of Evidence
403 and 404 (b), to the evidence regarding the petitioner’s gang affiliation; (2) properly raise
the issue of the petitioner’s gang membership on appeal; (3) object to the court’s rereading
the jury instructions; (4) make a proper investigation of the circumstances surrounding the
shooting of the victim; (5) present witnesses in support of a self-defense retaliation claim;
and (6) request a jury instruction on self-defense. However, on appeal, the petitioner only
argues the single issue of “[w]hether trial counsel was ineffective in failing to find and
interview two potential defense witnesses, who would have very credibly supported the
defense theory of the case, refuted the State’s theory of the case, and bolstered and argument
for self-defense.”

       In order for a petitioner to succeed on a post-conviction claim, the petitioner must
prove the allegations of fact set forth in his petition by clear and convincing evidence. Tenn.

                                              -16-
Code Ann. § 40–30–110(f). On appeal, this court is required to affirm the post-conviction
court’s findings unless the petitioner proves that the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction
court’s factual findings, such as findings concerning the credibility of witnesses and the
weight and value given their testimony, is de novo with a presumption that the findings are
correct. See id. Our review of the post-conviction court’s legal conclusions and application
of law to facts is de novo without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 457–58 (Tenn. 2001).

        To establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense rendering the outcome unreliable or fundamentally unfair. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d
784, 787 (Tenn. 2004). Deficient performance is shown if counsel’s conduct fell below an
objective standard of reasonableness under prevailing professional standards. Strickland, 466
U.S. at 688; see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that
representation should be within the range of competence demanded of attorneys in criminal
cases). A fair assessment of counsel’s 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; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).
Deference is made to trial strategy or tactical choices if they are informed ones based upon
adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a
particular strategy or tactical decision failed does not by itself establish ineffective assistance
of counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Prejudice is shown if, but for
counsel’s unprofessional errors, there is a reasonable probability that the outcome of the
proceeding would have been different. Strickland, 466 U.S. at 694. Both deficient
performance and prejudice must be established to prove ineffective assistance of counsel.
Id. at 697; see also Goad, 938 S.W.2d at 370. If either element of ineffective assistance of
counsel has not been established, a court need not address the other element. Strickland, 466
U.S. at 697.

       The petitioner contends that trial counsel should have investigated the 9-1-1 calls.
According to the petitioner, “such and investigation of even a perfunctory nature would have
led directly to the current phone number of two completely reliable and disinterested
witnesses who directly witnessed the crime at a closer distance than anyone else, and who
could [have] definitively answered what the Court of Criminal Appeals itself identified as
the main issue in the case, the shooter’s identity.” The petitioner asserts that because the
identity of the shooter was the main issue, counsel’s failure to investigate these witnesses
prejudiced him.

                                               -17-
        The post-conviction court found that the petitioner failed to show that trial counsel’s
failure to investigate the 9-1-1 records and trial counsel’s failure to discover Loretha and
Douglas Thomas as defense witnesses prejudiced him. The post-conviction court stated that
even if the jury had believed Loretha and Douglas Thomas’s testimony that they saw the
passenger shooting, “the [p]etitioner did not present evidence that the jury would have
discredited the criminal responsibility theory.” Regarding the petitioner’s claim of self-
defense, the post-conviction court found that the petitioner failed to demonstrate that Loretha
and Douglas Thomas’s testimony would have furthered his self-defense theory.

        We conclude that the evidence does not preponderate against the post-conviction
court’s findings. The evidence at the post-conviction hearing showed that Loretha and
Douglas Thomas saw the passenger shoot the victim. Although this testimony rebuts an
assertion that the petitioner was the shooter, it does not rebut the fact that the petitioner aided
the passenger’s shooting the victim and went to Wendy’s with the requisite intent to harm
the victim. Regarding the petitioner’s claim that the witnesses’ testimony would have
bolstered his self-defense theory, the witnesses testified that the only person shooting was
the passenger and no one else was armed. There was no evidence that the petitioner was
imminently threatened with force or actually attacked in support of his claim of self-defense.
Accordingly, we conclude that the petitioner has failed to show prejudice, thus he is not
entitled to post-conviction relief.

                                           Conclusion

       Based on the foregoing, we affirm the judgment of the post-conviction court.




                                                      ___________________________________
                                                      J.C. McLIN, JUDGE




                                               -18-
