        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 1, 2012

               DEMARIO JOHNSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 06-05748     J. Robert Carter, Jr., Judge


               No. W2011-02123-CCA-R3-PC - Filed February 27, 2013


Post-conviction petitioner, Demario Johnson, challenges his 2008 conviction of first degree
murder and resulting sentence of life imprisonment. On appeal, he alleges the following
claims of ineffective assistance of counsel: (1) failure to investigate and present evidence of
his mental health history; and (2) failure to challenge the medical examiner’s opinion
regarding the victim’s cause of death. Discerning no error, we affirm the judgment of the
post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P. J., and
N ORMA M CG EE O GLE, J., joined.

James P. DeRossitt, IV, Memphis, Tennessee, for the appellant, Demario Johnson.

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

                                         OPINION

                              I. Facts and Procedural History

                                     A. Facts from Trial

        Prior to its full recitation of the facts, this court summarized the evidence presented
at petitioner’s trial as follows:
        This case involves the shooting death of an innocent bystander when
        [petitioner] fired shots into an apartment where he intended to shoot his
        roommate. The day before the shooting, [petitioner] and his roommate fought
        over money, resulting in the roommate beating [petitioner] unconscious. The
        roommate called the police, and [petitioner] was taken to the hospital where
        he was treated and released. After [petitioner] was released from the hospital,
        he filed a police report, obtained a handgun, and proceeded to an apartment
        where his roommate was helping some friends move. Upon arriving,
        [petitioner] fired multiple shots into the apartment and wounded four people,
        including the roommate and the victim, who died four months later of
        complications from the gunshot wound.

State v. Demario Johnson, No. W2008-01665-CCA-R3-CD, 2009 WL 3489841, at *1 (Tenn.
Crim. App. Oct. 29, 2009), perm. app. denied (Tenn. April 16, 2010).

                                         B. Procedural History

       Following petitioner’s unsuccessful direct appeal, he filed a petition for post-
conviction relief on February 16, 2011. As grounds, petitioner alleged the following
instances of ineffective assistance of counsel: (1) failure to investigate and present evidence
concerning petitioner’s mental health issues; (2) failure to interview the medical examiner
prior to trial; (3) failure to interview the victim’s treating physicians; and (4) failure to
ascertain from the medical examiner whether the hospital could have contributed to the
victim’s death. The post-conviction court appointed counsel on February 25, 2011, and held
an evidentiary hearing on July 6, 2011.

                       C. Facts from Post-Conviction Evidentiary Hearing

        Petitioner1 testified that he had been incarcerated at West Tennessee State Penitentiary
in Henning, Tennessee, since 2008. He testified that when he was indicted, the trial court
appointed two attorneys to represent him in the event the State pursued the death penalty.
When the State determined it would not ask for the death penalty, trial counsel became his
sole attorney. He confirmed that the trial court appointed a different attorney to represent
him at the hearing on the motion for new trial, but his petition for post-conviction relief
pertained only to trial counsel.



        1
           Before the evidentiary hearing began, post-conviction counsel informed the court that petitioner
actually answered to the name of Leo Scott. Therefore, the record reflects that post-conviction counsel called
“Demario Johnson” as his first witness, but the witness answered that his name was “Leo Rashawn Scott.”

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       Petitioner explained that on the day prior to the offense date, he was robbed and
assaulted by Kevin Johnson and three other men. One of them struck him with the stock of
a shotgun, rendering him unconscious. An ambulance transported him to a hospital, where
he awakened as medical personnel were performing a CT scan on him. He was released from
the hospital the following day. When he arrived at home, he contacted the police to make
a report of the robbery and assault.

       Petitioner later saw the granddaughter of the victim, Delano Bonds, Sr., exiting a
store. He explained to her that her brother may have been involved in the robbery and
assault. The woman asked petitioner to come over to her home, and he agreed. When
petitioner arrived and knocked on the door, Kevin Johnson answered. He allegedly told
petitioner, “[D]idn’t I tell you that the next time, that if I saw you, I was going to kill you[?]”
Petitioner testified that Mr. Johnson then walked toward him while appearing to reach for
a weapon. Petitioner became frightened, so he grabbed his own firearm and shot at Mr.
Johnson several times. Not knowing whether he had wounded Mr. Johnson, petitioner left
the scene and turned himself in to authorities two days later. Authorities arrested him on four
counts of aggravated assault. He remained in jail until the preliminary hearing date. On the
date scheduled for the hearing, the State dismissed the charges. Petitioner testified that the
charges were dismissed because witnesses failed to appear.

        After his release, petitioner secured a job at a Family Dollar store. Approximately two
months after his release, he called his father, Leo Womack, who told petitioner that
investigators had telephoned Mr. Womack and informed him that petitioner needed to turn
himself in because there had been a development in the case. He turned himself in and was
charged with the first degree murder of Delano Bonds, Sr. Petitioner learned that when he
fired his weapon at Mr. Johnson several times, a bullet struck the victim in the chest. The
trial court appointed trial counsel to represent him.

       Petitioner testified that trial counsel did not allow him to assist in preparing his
defense. Petitioner had no idea what trial counsel’s theory of the defense would be at trial.
He believed that trial counsel could have used his history of mental health issues as a
defense. He also informed trial counsel that he had been diagnosed with bipolar disorder,
oppositional defiance disorder (ODD), and attention deficit/hyperactivity disorder (ADHD)
as a child and was prescribed Depacote, Ritalin, and Seraquil for those conditions. He had
been treated as an outpatient at St. Joseph’s Children’s Hospital from age eight through
eleven for psychological and psychiatric problems. From age eleven through seventeen, he
was treated at Whitehaven Mental Health Institute for depression and bipolar disorder. He
also experienced violent outbursts and hyperactivity. Later, he was treated as an inpatient
at Lakeside Hospital for a suicide attempt. Petitioner testified that trial counsel failed to
investigate any of the grounds in support of a mental health defense. He stated that when he

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addressed his history with trial counsel, she told him she would investigate it, but she did not.
His mental health history was not mentioned at trial. In fact, he stated that trial counsel put
forth no proof whatsoever.

       Petitioner testified that the only time he met with trial counsel was when they were
in court. They did not discuss trial strategy; they merely discussed the next court date. She
never visited him in jail. Petitioner provided trial counsel with photographs taken after he
was assaulted and the police report he filed after the robbery and assault. He believed that
the only thing trial counsel did to advance his defense was to argue against premeditation by
highlighting in her statements to the jury that he was afraid Mr. Johnson was going to shoot
him.

       In support of the petition for post-conviction relief, counsel entered medical records
from Whitehaven Southwest Mental Health Institute from 1999 and 2000. Petitioner
believed that because of a mix-up with his given name, more records may have existed at
other facilities.

       Petitioner asserted that trial counsel should have interviewed the medical examiner
to ascertain the relationship between the injury petitioner inflicted on the victim and his
ultimate death as a result of pneumonia months later. He claimed that had trial counsel
discovered that the victim had a history of emphysema, pneumonia, or cardiopulmonary
disease, she could have cast reasonable doubt on whether the gunshot wound was the
eventual cause of death. Petitioner discussed this concern with trial counsel when they would
meet in the holding cell outside of the courtroom.

       Petitioner also claimed that trial counsel should have interviewed the victim’s treating
physician. An interview with the doctor could have resulted in more information about the
victim’s health at the time he was shot. Petitioner said that the medical examiner did not
know that the victim had been shot previously and that he determined the cause of the
victim’s death was bronchial pneumonia. Petitioner never received the medical examiner’s
report or any other discovery materials.

       On cross-examination, petitioner would not admit that ADHD and bipolar disorder
were somewhat common disorders. He maintained that the jury might not have found him
guilty of first degree murder if it had known about his conditions. He acknowledged that
a doctor testified at trial that it was more likely for a person who could not walk to develop
pneumonia. He did not admit, however, that the victim was paralyzed due to being shot by
petitioner. Petitioner agreed that the trial transcript reflected that the medical examiner
reported the victim’s cause of death as “bronchial pneumonia as a complication of gunshot
wound.”

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        Petitioner further stated that it was trial counsel’s responsibility to ask him about his
aliases for the purpose of obtaining medical records and that it was not incumbent upon him
to volunteer the information to her. On redirect examination, petitioner explained that Leo
Scott is the name given to him by his parents. He was indicted under an alias, Demario
Johnson. His father’s name is Leo Womack, Sr. Petitioner’s medical records were kept
under the name of Leo Womack. He stated that he used his mother’s last name when he was
in school but that he also used his father’s last name.

        Petitioner’s father testified at the evidentiary hearing. He testified that he was active
in petitioner’s life as he grew up and that at some point, he successfully petitioned the court
for custody of petitioner. He stated that petitioner had mental problems and had been treated
in various facilities. He recalled that petitioner attempted to kill himself in the living room,
so Mr. Womack called an ambulance to take him to a psychiatric facility. Mr. Womack
stated that petitioner was very moody growing up and was overactive.

        Mr. Womack attended each day of petitioner’s trial in this case. He believed that
petitioner’s mental health history would have been relevant to his defense. Mr. Womack
stated that he took the photographs of petitioner’s injuries following the robbery and assault.
He did not personally tell trial counsel about petitioner’s mental health history and did not
recall whether he personally gave her the photographs of petitioner’s injuries. Mr. Womack
still had a copy of the photographs. He did not bring them to the evidentiary hearing, but the
post-conviction court granted leave to supplement the record should post-conviction counsel
receive the photographs.

       The State called trial counsel to testify. At the time of the evidentiary hearing, she had
been an attorney with the Shelby County Public Defender’s office for twenty-one years and
had handled capital murder cases exclusively for the previous six years. When she received
petitioner’s file, she obtained information about petitioner’s mental health history. An intake
form indicated that an attorney with the public defender’s office asked petitioner if he was
taking any medication, to which he answered, “No.” The form further posited, “Should you
be?” Petitioner again answered, “No.” He informed the intake attorney that he had taken
Depacote and Ritalin as a child but that he had “grown out” of that stage. Petitioner never
informed any attorney of his mental health issues. He only asked trial counsel to obtain the
hospital records from the robbery/assault incident. Trial counsel stated that she relied upon
her clients to inform her about mental health issues. She estimated that she met with
petitioner five to six times in jail.

      Trial counsel testified that she categorized mental health evidence into three areas:
competence to stand trial; insanity; and diminished capacity. She did not think that
depression, ADHD, or bipolar disorder would be relevant to a cognitive issue, unlike

                                               -5-
schizophrenia. Trial counsel stated that petitioner’s cognitive level was much higher than
that of many of her clients. She did not request a competency evaluation of petitioner. She
recalled that he could discuss facts, understood lesser-included offenses, and possessed a
good understanding of the law. Trial counsel did not believe that ADHD justified her
requesting a competency evaluation. She also did not believe that his prior injury warranted
an evaluation because he was released from the hospital within hours of being assaulted, he
stood unassisted when the photographs were taken, and he had a clear recollection of the
offense. Trial counsel did not believe that the injuries petitioner sustained during the
robbery/assault were relevant to his actions in shooting at Mr. Johnson. During the intake
interview, petitioner did not allege a connection between his injuries and his actions. Trial
counsel personally listened to a tape-recording of the intake interview; she did not simply
rely on other people’s notes. Trial counsel made the decision regarding mental health issues
based upon her personal experience.

         Because this was a murder case, trial counsel believed that the difference between
intent to commit aggravated assault and the intent to commit murder was important. Thus,
the distinction between whether the victim died immediately or whether there was an
intervening period was relevant. She recalled that the medical examiner testified that the
victim died of pneumonia and that he found no significant scarring in the victim’s lungs from
the gunshot wound. However, the injury left the victim paralyzed, and because of his
paralysis, he contracted pneumonia. She also recalled that there was no indication that the
victim had “bad lungs” prior to his being shot. Trial counsel reviewed the autopsy report
before the trial began. She did not request medical records from the nursing home in which
the victim resided. She did not recall whether she interviewed the medical examiner prior
to trial, although it was her usual practice to do so. Regardless, she felt prepared to cross-
examine the medical examiner. The medical aspect of the case was straightforward and not
overly complicated. In addition, there were several eyewitnesses to the shooting.

       Trial counsel reviewed the discovery packet and sent a copy of it to petitioner in jail.
She testified that if a client lost his discovery information, she would send it again. She
reviewed the discovery with petitioner. Another attorney in her office and their investigator
would have reviewed their preliminary information with petitioner, as well.

        Trial counsel knew about the robbery/assault incident in which petitioner had been a
victim. She obtained the medical records from his treatment, had copies of photographs
depicting his injuries, and reviewed the police report petitioner filed. Trial counsel was
aware that Mr. Johnson’s sister had summoned petitioner to their home and that petitioner
had intended to shoot Mr. Johnson, the victim’s grandson. She said that the State viewed the
prior robbery as motive for petitioner to commit the crimes. Trial counsel did not think that



                                              -6-
highlighting the robbery was very helpful because it was “obviously damaging” to their case
in that it supplied a motive.

       At trial, counsel argued against transferred intent by advancing the theory that
petitioner did not intend to kill Mr. Johnson and that petitioner acted in self-defense. She
further stated that had petitioner wanted to kill Mr. Johnson, he would have done so
immediately upon his release from jail. She testified that she entered into discussions with
the State regarding reducing the offense to second degree murder, but the State would not
agree to reduce the charge.

        On cross-examination, trial counsel confirmed that she did not recall how many times
she met with petitioner in jail, and her file did not reflect that information. She testified that
when she is assigned a new case, her “norm” is to visit with the client in jail, introduce
herself, send the client discovery through the mail, and return to the jail to review the
discovery with her client. She also clarified that appellant’s case had ten or eleven court
dates, so she would have met with him on each of those occasions.

       The post-conviction court sought clarification from trial counsel regarding her
investigation into possible mental health issues. In response to the court’s questions, trial
counsel reiterated that one of the first things she considered in preparing a case was whether
there was a mental health issue that did not “quite rise” to the level of competency or
insanity. She relied upon her client’s speech patterns and behavior as well as their self-
reports. If she had any suspicion whatsoever regarding a client’s mental health, she would
seek an evaluation of the client. In petitioner’s case, she did not request a mental health
evaluation because she simply did not believe it was justified. Trial counsel stated that
petitioner always presented himself well and spoke well. He was never withdrawn, was
always animated, and was very clear in his communications with her.

       The post-conviction court allowed petitioner to reopen the proof on a later date, and
he presented his mother, Virginia Ann Scott, as a witness. She testified that petitioner was
suicidal as a child and attempted to take his own life on four separate occasions. She also
indicated that he was overly active and had to “stay moving.” Ms. Scott stated that she was
never contacted by trial counsel even though she was present at petitioner’s trial.

       Emerald Scott, petitioner’s sister, testified that petitioner suffered from hallucinations,
including auditory hallucinations. His behavior caused her to be afraid to be around him and
play with him. She confirmed that petitioner attempted suicide at least three separate times.




                                               -7-
                                        II. Analysis

        On appeal, petitioner claims that the post-conviction court erred in failing to grant
relief based upon the following claims of ineffective assistance of counsel: (1) failure to
investigate and present evidence of petitioner’s mental health history and emotional
disturbances; and (2) failure to aggressively challenge the victim’s cause of death.

                                  A. Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103 (2012). A post-conviction petitioner bears the burden of proving his
or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2012). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S, 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

       The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. 2004) (citing Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975)).
When a petitioner claims that he received ineffective assistance of counsel, he must
demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citations omitted). It follows that if this court holds that

                                             -8-
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court has previously held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter v. Rose, 523 S.W.2d 934-35 (Tenn. 1975)). On appellate
review of trial counsel’s performance, this court “must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).

         To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

                                    B. Petitioner’s Claims

         1. Failure to Investigate and Present Evidence of Mental Health History

       In its order denying relief on this claim, the post-conviction court stated:

              In this case[,] there is no proof of deficient performance. This Court
       finds that petitioner did not inform[ ] his trial attorney of what he now



                                               -9-
       maintains are serious mental health matters. The trial strategy was to attack
       the mens rea issue and to show reasons that this was not a premeditated killing.

              The fact that the strategy was not successful does not support a claim
       for Post-Conviction Relief. This is a case where petitioner and his family
       minimized any mental health issues until this hearing. After the first strategy
       was unsuccessful, petitioner now maintains that his attorney was at fault.

              Trial counsel could not have known about any of these matters without
       Petitioner telling her. Even if counsel had been made aware, a review of the
       exhibits to the hearing does not demonstrate any material that would call into
       question Petitioner’s competence or establish an affirmative defense. . . .

        A brief review of the proof presented at the evidentiary hearing establishes that
petitioner suffered from ADHD, ODD, bipolar disorder, and suicidal tendencies as an
adolescent. He was prescribed medication for his mental health issues. Petitioner claimed
that he informed trial counsel of his mental health history, that she agreed to investigate the
matter, and that she failed to do so. Trial counsel maintained that petitioner downplayed his
mental health history during the intake interview by stating that he had been prescribed
Depacote and Ritalin as a child but that he had “grown out” of that stage.

        Petitioner failed to establish that trial counsel’s performance was deficient. In
addition to relying on the information petitioner supplied during the intake interview, trial
counsel also relied upon her interactions with petitioner in determining there was no need for
a mental health evaluation. Moreover, petitioner failed to present the testimony of an expert
at the evidentiary hearing to explain what, if any, mental health evidence trial counsel should
have advanced at trial. See James E. Jackson, No. M2001-02005-CCA-R3-PC, 2002 WL
31757477, at *8 (Tenn. Crim. App. Dec. 6, 2002) (concluding that when petitioner did not
present mental health experts at the evidentiary hearing, he failed to provide evidence of trial
counsel’s deficient performance in not pursuing a mental health defense); see also Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (stating that in general, the only way
a petitioner can establish that trial counsel’s failure to interview or present a witness in
support of his defense at trial inured to his prejudice is to present the witness at the
evidentiary hearing). We agree with the post-conviction court’s determination that petitioner
failed to carry his burden with regard to this claim of error.

            2. Failure to Aggressively Challenge the Victim’s Cause of Death

       In denying relief, the post-conviction court did not address this claim of ineffective
assistance of counsel. Although not specifically addressed in the order denying relief, we

                                              -10-
note that in the concluding paragraph of the order, the post-conviction court determined that
petitioner failed to carry his burden of proof. See Kardius Wilkes, No. W2009-1476-CCA-
R3-PC, 2010 WL 3293726, at *5 (Tenn. Crim. App. Aug. 18, 2010) (affirming post-
conviction court’s denial of relief even though it did not specifically address each issue in
its order but found that petitioner failed to prove his factual claims by clear and convincing
evidence). We note that the trial court is required to address every claim raised by petitioner.
Tenn. Code Ann. § 40-30-111(b) (2012).

        With regard to this issue, trial counsel testified that although she did not recall
whether she interviewed the medical examiner as was her usual practice, she reviewed the
autopsy report prior to trial and felt comfortable cross-examining him. She noted no
indication that the victim had any lung-related health problem prior to his being shot and that
he contracted pneumonia as a result of being left paralyzed. Petitioner failed to present the
testimony of an expert at the evidentiary hearing to counter the medical examiner’s opinion
as to the victim’s cause of death. See James E. Jackson, 2002 WL 31757477, at *8; see also
Black, 794 S.W.2d at 757. Petitioner failed to demonstrate either deficient performance of
trial counsel or prejudice ensuing therefrom. He is not entitled to relief on this claim.

                                       CONCLUSION

       After a thorough review of the record, the parties’ briefs, and the applicable law, we
affirm the judgment of the post-conviction court.

                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




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