        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs March 2, 2010

                  MICHAEL DAVIS v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Shelby County
                        No. 03-04293     Paula Skahan, Judge


                  No. W2009-02111-CCA-R3-PC - Filed June 23, 2010


The petitioner, Michael Davis, appeals the denial of his petition for post-conviction relief
from his especially aggravated robbery conviction, arguing that the post-conviction court
erred in finding that he received effective assistance of counsel. Because we conclude that
trial counsel was deficient for failing to request a jury instruction on facilitation as a lesser-
included offense of especially aggravated robbery, and that there is a reasonable probability
that the outcome of the petitioner’s trial would have been different had counsel done so, we
reverse the judgment of the post-conviction court and remand for the granting of post-
conviction relief.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS,
J., joined. J OSEPH M. T IPTON, P.J., concurred in results only.

Vanessa Cross, Memphis, Tennessee, for the appellant, Michael Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Bryan Davis, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                            FACTS

       The petitioner was indicted by a Shelby County Grand Jury for one count of especially
aggravated kidnapping and one count of especially aggravated robbery based on the January
17, 2003 kidnapping and robbery of a Memphis laundromat attendant. Following a jury trial,
he was acquitted of the especially aggravated kidnapping count of the indictment but
convicted of the especially aggravated robbery count, for which he was sentenced to twenty-
five years as a Range II offender in the Department of Correction. We affirmed his
conviction on direct appeal, and our supreme court denied his application for permission to
appeal. See State v. Michael Davis, No. W2006-01151-CCA-R3-CD, 2007 WL 2247254,
at *1-2 (Tenn. Crim. App. Aug. 3, 2007), perm to appeal denied (Tenn. Jan. 28, 2008).

        Our direct appeal opinion provides the following summary of the evidence presented
at the petitioner’s trial:

               At approximately 7:00 a.m. on January 17, 2003, the victim, Tony
       Saulsberry, arrived at his family’s business, Ron’s Coin-op Laundry, located
       at Lamar and Sims in Memphis, where he worked as an attendant. Upon
       arrival, he parked his 1995 Crown Victoria near the door of the business and
       proceeded inside. While the victim was inside the office area, he noticed four
       or five men enter the building, each armed with a handgun and wearing a
       mask. As the men approached, the victim was ordered to get down on the
       floor. While on the floor, one of the men struck the victim in the head with a
       gun, causing a wound which later required six to ten stitches to close. The
       assailants then used duct tape to bind the victim’s arms behind his back and to
       blindfold him, and they removed his watch, ring, and necklace. The assailants
       proceeded to ask the victim about any surveillance cameras and cash in the
       store. The victim explained that there were no cameras in the store and that he
       had no money as he was just opening the laundromat. At this point, he was
       picked up off the floor by his assailants and escorted outside, where he was
       placed in the backseat of a pickup truck. At least two of the men entered the
       cab of the truck with the blindfolded victim.

               Once inside the truck, one of the men placed a pistol on the victim’s
       upper leg and shot him. The assailant then reached into the victim’s pockets
       and took his car keys, wallet, and approximately $600 in cash. After the
       shooting, one of the assailants told the victim that he should now know that
       they “ain’t playing.” The victim was also informed that they were going to
       kill him if he did not give them what they wanted. The truck made two stops
       while the victim was held captive, and, at each stop, the victim heard the two
       assailants in the truck speaking with others. On one occasion, he heard one of
       the men tell someone, “here are the car keys right here.” The second time the
       truck stopped, the victim was shoved out of the truck. Once outside, the victim
       was able to remove the tape from his eyes and arms. Although in pain, the
       victim “limped [and] crawled” to a nearby elementary school, where police

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       were called. The victim was unable to identify his assailants because, even
       prior to his being blindfolded, the assailants wore masks and used devices to
       disguise their voices.

               Prior to 8:30 a.m. on the day of the robbery, the victim’s brother,
       Ronald Saulsberry, stopped by the laundromat for a short visit. However,
       when he arrived, the only person present in the laundromat was a customer
       doing her laundry. Although the victim was not present, Saulsberry noticed
       that his car was still parked in the lot. He observed specks of blood on the
       floor of the laundromat and called his father, who called the police. After
       getting off the phone, Saulsberry looked out the laundromat window and
       observed the [petitioner] getting out of a Ford Taurus. Saulsberry was
       acquainted with the [petitioner] because they were from the same
       neighborhood and because Saulsberry had, in years prior, dated the
       [petitioner’s] sister. Saulsberry was unable to identify the driver of the Ford
       Taurus. Saulsberry observed that the [petitioner] had the victim’s car keys in
       his hand, and he watched as the [petitioner] unlocked the victim’s car, got
       inside, backed up, and drove off.

               Lt. William Woodard of the Memphis Police Department was assigned
       to the investigation of the laundromat crimes. The [petitioner] was developed
       as a suspect after Ronald Saulsberry informed police that the [petitioner] had
       taken the victim’s car. Saulsberry later identified the [petitioner] in a photo
       lineup as the person who had taken the car. Around the same time, Woodard
       was informed by the police auto theft bureau that a truck, stolen from
       Southhaven, Mississippi, had been recovered in south Memphis. Inside the
       cab, police found blood in the back seat, a ski mask, a bloody towel, and a
       Mississippi drive-out tag. Additionally, affixed to the rear of the truck was a
       Tennessee dealer’s license plate, which the owner of the truck stated was not
       with the truck when it was stolen. Woodard checked the dealer’s tag number
       and discovered that, although it was now expired, the [petitioner] had been
       issued a ticket in a vehicle while driving a white Mercury with the same
       dealer’s tag number in November of the previous year. Additionally,
       following DNA testing, it was determined that the blood on the towel found
       in the truck matched that of the victim’s.

Id. (footnote omitted).

       The petitioner filed a pro se petition for post-conviction relief on July 15, 2008, and,
following the appointment of counsel, an amended petition on October 15, 2008 in which he

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claimed that he was denied the effective assistance of counsel. Although the petitioner raised
a number of allegations of ineffective assistance in his petition and at the evidentiary hearing,
his argument on appeal is that trial counsel was ineffective for failing to request an
instruction on facilitation as a lesser-included offense to especially aggravated robbery and
for failing to investigate a potential conflict of interest created by counsel’s representation
of Eduardo White. The petitioner asserted that he informed counsel that White was a
possible participant in the crimes for which the petitioner was on trial, but counsel failed to
investigate the matter.

        We confine our summary of the evidentiary hearing proceedings to the testimony that
is relevant to the issues raised on appeal. Trial counsel testified that he had been practicing
law since 1974, had been licensed in Tennessee since 1984, and had been practicing criminal
law since 1985, with approximately seventy-five percent of his current practice devoted to
criminal defense work. He said that the petitioner’s family retained him to represent the
petitioner, whom he had represented on several previous matters, at the trial level and that
he was then appointed to represent the petitioner for the direct appeal. Trial counsel stated
that he spoke with the petitioner “on numerous occasions,” with their discussions including
the charges against the petitioner and the proof the State would introduce at trial. He said
that the petitioner maintained his innocence throughout, insisting that he had not been present
and had not participated in the crimes.

       Trial counsel could not recall whether he requested any lesser-included offense
instructions in the case and explained that his usual practice was to review the trial court’s
proposed instructions before determining whether any changes or special jury instructions
were warranted.

       Trial counsel acknowledged that he might have been representing Eduardo White on
a possession with intent case during the same time that he was representing the petitioner in
the case at bar. He said, however, that he had no recollection of the petitioner’s having ever
mentioned White or anyone else as someone he should investigate in connection with the
petitioner’s case. He testified:

               Ma’am, my recollection is [the petitioner] said he wasn’t there, didn’t
       do it, didn’t know who did. But I don’t have any recollection of any
       discussion of Eduardo White, regardless, ma’am. You know this - - this was
       a -- there were a lot of things going on in that community that was, if I recall
       correctly, was being investigated as gang activities. And there were a lot of
       names back and forth. I don’t have any present recollection of any discussion
       with [the petitioner] specifically regarding Eduardo White. . . . I’m not saying
       that we did not talk about Eduardo in some . . . form or another, but I don’t

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       have any recollection of it.

       Trial counsel testified that his trial defense strategy consisted of trying to discredit the
State’s witnesses and to show that the petitioner was not present and had no part in the
crimes. He further testified, however, that he argued in closing that if the petitioner was
guilty of anything, it was only theft or possession of stolen property:

       And I remember in our closing argument in that case, the argument was, you
       know, if he’s guilty of anything, it is theft of property or possession of stolen
       property and what have you, but there’s no direct evidence of him being
       involved in a kidnapping or a robbery. So we were trying to sell the theft
       conviction in exchange for reprieve on the . . . especially aggravated robbery
       and the especially aggravated kidnapping, which is what we thought the proof
       really supported.

       The petitioner testified that he told counsel that he had nothing to do with the crimes
and that Eduardo White “would be a person of more interest in this case than [he] would,”
but counsel was not enthusiastic about pursuing the matter and, to his knowledge, never
followed through on the information. He said he did not know whether White was a client
of counsel’s at the time, but he and several individuals with whom he was familiar, including
White, “all associated with [trial counsel] at one particular time or another.”

        On September 21, 2009, the post-conviction court entered a detailed written order
denying the petition. Among other things, the court found that there was insufficient
evidence to support the petitioner’s claim that counsel’s conduct regarding the jury
instructions did not fall “within the ‘wide range of reasonable professional assistance,’” or
that the inclusion of the lesser-included offense instructions would have changed the outcome
of the trial. The court further found that the petitioner failed to establish that counsel’s
representation of Eduardo White on an unrelated matter created any conflict of interest in his
representation of the petitioner.

                                          ANALYSIS

       The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State,
922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,
the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to

                                               -5-
the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland standard
is a two-prong test:

               First, the defendant 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 defendant by the
       Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975)). The prejudice prong of the test is satisfied by showing a reasonable
probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

                         A. Lesser-Included Offense Instruction

        Pointing out that the State relied on a theory of criminal responsibility to prove its
case, the petitioner argues on appeal that trial counsel was deficient for not requesting that
the jury be instructed on facilitation as a lesser-included offense of especially aggravated




                                              -6-
robbery and not raising the issue in a motion for new trial or on appeal.1 He further argues
that had such an instruction been given, there is a reasonable probability that the jury would
have convicted him of that lesser offense. The State argues that it was not unreasonable for
trial counsel to forego an instruction on facilitation in the context of his defense strategy of
attempting to show that the petitioner was not involved in the crimes. The State further
argues that the petitioner cannot establish prejudice, as “[n]o reasonable jury hearing the
evidence . . . could have believed that the petitioner was not a principle actor in the criminal
endeavor and that he only facilitated the others in robbing the victim.”

        The issue of lesser-included offenses is controlled by the prevailing law at the time
of the trial. Wiley v. State, 183 S.W.3d 317, 328 (Tenn. 2006). In trials that occurred before
January 1, 2002, it was the trial court’s duty to charge juries as to the law of each offense
included in an indictment whether or not a defendant requested such an instruction. See
Tenn. Code Ann. § 40-18-110(c) (1997); State v. Page, 184 S.W.3d 223, 229 (Tenn. 2006).
In 2001, however, Tennessee Code Annotated section 40-18-110 was amended to provide
that appellate review of jury instructions on lesser-included offenses is precluded if the issue
is not presented in writing to the trial court for determination prior to the trial court’s charge
to the jury. Tenn. Code Ann. § 40-18-110(c) (2006). The amendments govern all trials
conducted on or after January 1, 2002, and were therefore in effect at the time of the
petitioner’s 2006 trial. Id. § 40-18-110, Compiler’s Notes.

       When a court determines whether an instruction on a lesser-included offense is
warranted, it must first consider whether any evidence exists that reasonable minds could
accept in support of the lesser-included offense. See State v. Burns, 6 S.W.3d 453, 469
(Tenn. 1999). The court must then consider whether the evidence, viewed in the light most
favorable to the existence of the lesser-included offense, is legally sufficient to support a
conviction for the lesser-included offense. Id. In so doing, the court must consider the
evidence liberally, in a light most favorable to the existence of the lesser-included offense,
without making any judgments on the credibility of the evidence. State v. Ely, 48 S.W.3d
710, 722 (Tenn. 2001); Burns, 6 S.W.3d at 469. Moreover,“[r]easonable minds may accept
the same evidence as supporting the existence of both the greater offense and the lesser
offense.” State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002).

       A person is criminally responsible for the conduct of another if, “[a]cting with intent
to promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense, the person solicits, directs, aids, or attempts to aid another person to commit the


        1
          The petitioner did not include trial counsel’s failure to raise on direct appeal the lack of a jury
instruction on facilitation as an issue of ineffective assistance before the post-conviction court.
Consequently, the post-conviction court had no opportunity to address this claim.

                                                    -7-
offense.” Tenn. Code Ann. § 39-11-402(2). A person facilitates a felony if, “knowing that
another intends to commit a specific felony, but without the intent required for criminal
responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance
in the commission of the felony.” Tenn. Code Ann. § 39-11-403(a). Under this statute, a
defendant who has been “charged as a party may be found guilty of facilitation as a lesser
included offense if the defendant’s degree of complicity is insufficient to warrant conviction
as a party.” Tenn. Code Ann. § 39-11-403, Sentencing Comm’n Comments.

       Trial counsel had no specific memory of whether he requested any lesser-included
offense instructions at trial. He indicated, however, that he presumed that the trial court
would have automatically included any applicable lesser-included offenses, and he said that
he did not recall having any concerns about the instructions proposed by the court:

              But I would think that lesser includeds would have automatically been
       included, and the only way that I would have made a special request is that
       after reviewing the proposed jury instructions, if we felt like there was
       something that was missing or something that wasn’t supposed to be there, we
       have an opportunity, usually, to review those, before -- the Court will give
       them to us in advance and give us an opportunity to see if there’s something
       that we want to add or something that we have a problem with or need to
       discuss, and I don’t remember any issue in that regard coming up in this case.

        We conclude that trial counsel was deficient for failing to request an instruction on
facilitation under the facts in this case. At the time of the petitioner’s trial, our courts had
held “that facilitation of a felony is a lesser-included offense when a defendant is charged
with criminal responsibility for the conduct of another.” State v. Fowler, 23 S.W.3d 285, 288
(Tenn. 2000); see also State v. Lewis, 919 S.W.2d 62, 67 (Tenn. Crim. App. 1995)
(“[V]irtually every time one is charged with a felony by way of criminal responsibility for
the conduct of another, facilitation of the felony would be a lesser included offense.”),
overruled on other grounds by State v. Williams, 977 S.W.2d 101, 106 n.7 (Tenn. 1998).
Although trial counsel stated that his defense strategy consisted of attempting to prove that
the petitioner was not there and had nothing to do with the crime, he also said that he argued
in closing that the petitioner was at most guilty of possession of stolen property or theft.
Thus, the jury was not presented with the same type of “all or nothing” defense as in Ely, 48
S.W.3d at 724, in which our supreme court concluded that the trial court did not err when it
failed to instruct the jury on facilitation of felony murder because “Ely’s defense was that he
was not present; therefore, he was either guilty of some degree of homicide or wholly
innocent of any wrongdoing.”




                                              -8-
        We further conclude that trial counsel’s failure to request the facilitation instruction
prejudiced the petitioner’s case. When a lesser-included offense instruction is improperly
omitted from trial, constitutional harmless error analysis applies, which requires the State to
show that the error did not affect the outcome of the trial beyond a reasonable doubt. Ely,
48 S.W.3d at 725. The State’s proof connecting the petitioner to the crime consisted of the
petitioner’s possession of the victim’s car keys, his taking of the victim’s vehicle, and the fact
that he had been using, approximately two months earlier, the same dealer’s drive-out tag that
was affixed to the truck used in the robbery. In our direct appeal opinion, we summarized
the evidence linking the petitioner to the crime when addressing the issue of whether the trial
court properly instructed the jury on the petitioner’s criminal responsibility for the conduct
of another:

       It is abundantly clear that, during the course of the especially aggravated
       robbery, the [petitioner] had associated himself with those in the criminal
       venture because he was in possession of the recently stolen keys to the victim’s
       car and because he “benefit[ed] in the proceeds or results of the offense.” His
       association is further evidenced by the fact that the Tennessee dealer’s license
       plate affixed to the truck used in the commission of this crime was previously
       affixed to an automobile driven by the [petitioner] two months earlier.
       Contrary to the [petitioner’s ] argument, proof that the [petitioner] “planned or
       assisted in planning the robbery” is not required to establish criminal
       responsibility when based upon the conduct of another. Again, proof is
       required only to establish that the [petitioner] acted with intent to promote or
       assist the commission of the offenses or to benefit in the proceeds. The
       [petitioner’s] argument that the evidence fails to establish that he “personally
       participated in any facet” of the especially aggravated robbery is belied by the
       evidence in the record.

Michael Davis, 2007 WL 2247254, at *3.

       In our view, a reasonable jury, if given the option, could have accepted the above
evidence in support of the lesser-included offense of facilitation, finding that the petitioner
did not intend to benefit in the proceeds of the robbery but instead, knowing that others
intended to commit the crime, knowingly furnished substantial assistance in their endeavor.
Moreover, the evidence, while sufficient to sustain the conviction for especially aggravated
robbery, would have also been legally sufficient to sustain a conviction for facilitation of
especially aggravated robbery. We, therefore, reverse the judgment of the post-conviction
court and remand for the granting of post-conviction relief. However, because of the
possibility of further review, we will address the petitioner’s second allegation of ineffective
assistance.

                                               -9-
                                    B. Conflict of Interest

       The petitioner argues that trial counsel was deficient for not investigating whether his
representation of Eduardo White on a different matter created a conflict of interest in his
representation of the petitioner. He asserts that after he informed trial counsel of White’s
possible involvement, trial counsel had an affirmative duty to investigate whether an actual
conflict of interest existed and that counsel’s failure to do so should result in a presumption
of prejudice to the petitioner’s case.

        In denying relief on the basis of this claim, the post-conviction court found, inter alia,
that there was no evidence that counsel’s representation of Eduardo White “at or around the
time” of the petitioner’s trial affected his representation of the petitioner and no evidence that
White was connected to the incident that formed the basis for the petitioner’s charges. The
court, therefore, concluded that the petitioner failed to establish that trial counsel had a
conflict of interest that prejudiced the outcome of his trial.

        The record fully supports the findings and conclusions of the post-conviction court
on this claim. Prejudice is presumed in cases in which a petitioner can establish that his trial
counsel “‘actively represented conflicting interests’ and that ‘an actual conflict of interest
adversely affected [counsel’s] performance.’” Strickland, 466 U.S. at 692, 104 S. Ct. at 2067
(quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S. Ct. 1708 (1980)). Our supreme
court has explained that “an actual conflict of interest includes any circumstances in which
an attorney cannot exercise his or her independent professional judgment free of
‘compromising interests and loyalties.’” State v. White, 114 S.W.3d 469, 476 (Tenn. 2003)
(citing State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000) (quoting Tenn. Sup. Ct. R.
8, EC 5-1)). “The proper focus is solely upon whether counsel’s conflict affected counsel’s
actions.” Netters v. State, 957 S.W.2d 844, 848 (Tenn. Crim. App. 1997).

        At the evidentiary hearing, the petitioner testified that he told counsel that White
“would be a person of more interest in this case than” he was and that White was someone
“that could possibly help the prosecution with their case.” By contrast, trial counsel’s
testimony, which was obviously accredited by the post-conviction court, was that the
petitioner never mentioned White’s name to him as a possible participant and never raised
with him the issue of any potential conflict of interest. Moreover, as the post-conviction
court noted, there was no evidence presented to show that White was connected to the
robbery for which the petitioner was convicted. We conclude, therefore, that the petitioner
has failed to show that trial counsel was deficient for failing to investigate a possible conflict
of interest of which he was unaware, or that counsel’s possible representation of White on
an unrelated matter at the same time as the petitioner’s trial created any actual conflict of
interest from which prejudice to the petitioner’s case should be presumed.

                                              -10-
                                    CONCLUSION

       Based on our review, we conclude that trial counsel provided ineffective assistance
by not requesting a lesser-included offense instruction on facilitation. Accordingly, we
reverse the judgment of the post-conviction court and remand for the granting of post-
conviction relief.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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