        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              February 15, 2011 Session

          CHARLES WADE MCGAHA v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Cocke County
                        No. 1300     Rex Henry Ogle, Judge




                 No. E2010-01926-CCA-R3-PC - Filed May 26, 2011


A Cocke County jury convicted the Petitioner, Charles Wade McGaha, of first degree murder
and aggravated assault. The Petitioner filed a petition for post-conviction relief, which
appointed counsel amended to allege the petitioner received the ineffective assistance of
counsel. After a hearing, the post-conviction court denied relief, and the Petitioner now
appeals. After a thorough review of the record and applicable law, we affirm the judgment
of the post-conviction court.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and T HOMAS T. W OODALL, JJ., joined.

Benjamin S. Burton, Sevierville, Tennessee, for the Appellant, Charles Wade McGaha.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James B. Dunn, District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION
                                        I. Facts
                                        A. Trial

      On direct appeal, this Court summarized the facts underlying this case as follows:

              Lisa Mathis testified that she lived in a mobile home located at 115
      Horn Way in Newport. Prior to the events of May 31, 2004, she did not know
      either the Defendant or co-defendant Daniels. However, that evening while
      Mathis was at her house with the homicide victim and Charles Adams, Daniels
arrived uninvited, came in the front door, looked at the homicide victim and
said, “We have a problem.” After picking up a baseball bat, Mathis told
Daniels to leave. As Daniels backed out the front door, he said, “I’ll be back
with something more than a stick.”

       At approximately 10:15 p.m. that night, Daniels returned to Mathis’s
house, and the Defendant was with him. At that time, there were five people
in the two-bedroom mobile home: Mathis was in the kitchen and Charles
Adams was in the living room, while the victim was in a back bedroom with
Michael Benson and David Shults. Mathis saw that Daniels had a handgun
when he got out of his car, and she called 9-1-1 as he entered and walked past
her through the living room toward the back of the mobile home.

        The Defendant-who was armed with a rifle-followed Daniels inside,
pointed the rifle at Mathis’s head and said, “Drop the phone.” The Defendant
then asked her “where the son of a bitch was,” and she assumed he meant the
victim. At that point, Mathis became “hysterical”: she dropped the telephone,
threw up her hands, got on her knees and started screaming. The Defendant
did not shoot at her, but he held the rifle “in [her] face” so close that she
“could have grabbed the barrel from where he was standing.” They heard a
gunshot from the rear of the house, and the Defendant ran to the bedroom
where the victim was located. Mathis then ran out of the house. As she fled
to her closest neighbor’s home, she heard a second gunshot, and testified that
it was “a different type shot.” When she arrived at her neighbor’s, she was still
“hysterical” and screaming that there were “people in [her] house with guns.”
Her neighbor called 9-1-1.

        The audiotape of Mathis’s initial 9-1-1 telephone call (placed from her
residence) was played for the jury. While listening to the recording, Mathis
identified her own voice and the voice of Michael Benson saying, “I just want
to leave.” She also identified the Defendant’s voice demanding, “[W]here’s
the son of a bitch at?” On cross-examination, Mathis stated that she thought
the four men in her house that day had been drinking, but that she was “not
sure”; however, she did not see anyone at her house using cocaine that day.

      Michael Benson testified that he was at Mathis’s house on May 31,
2004. He arrived there “between 8:00 and 9:00” p.m. with David Shults. At
some point, Shults and the victim took Mathis to a store where she purchased
beer. After bringing her back to the house, the two men again went out and
purchased drugs. After they returned, Benson went into a back bedroom with

                                       2
the victim, David Shults and Charles Adams. Benson said they “were getting
ready to use drugs,” when Daniels entered the bedroom “with a pistol and
pointed it at [the victim].” While Daniels was “waiving” the pistol at the
victim and yelling, Benson “hit the door a flying” and ran outside. Benson
passed the Defendant in the living room on his way out and said the Defendant
was holding a rifle. While hiding behind a tree, Benson heard two gunshots.
He then saw two cars leave and confirmed that one car belonged to David
Shults. The second car was a Subaru, but Benson did not know to whom it
belonged.

       Charles Adams testified that he knew the victim and that he had known
the Defendant and Daniels most of his life. On May 31, 2004, Adams went to
Mathis’s house with the victim. While they were at the mobile home that
evening, Daniels arrived, came inside and told the victim that “they had a
problem.” Mathis picked up a baseball bat and told him to leave, and as he
was leaving, Daniels said “he’d be back with more than a baseball bat.”

        According to Adams, after Daniels left he and Mathis watched
television in the living room and the victim went into a back bedroom with two
men Adams did not know. “A little later,” Daniels came back to the house and
the Defendant was with him. When he saw Daniels and the Defendant “on the
steps,” Adams went into the back bedroom to warn the victim that “they had
come back.” Daniels came inside the bedroom first, and he was armed with
a pistol. “He shot it and when he shot it him and [the victim] got into a quarrel
and started wrestling.” The Defendant then came into the bedroom armed with
an “assault rifle” outfitted with “two banana clips taped together.” Adams
testified that while in a “wrestling hold” with the victim, Daniels “said shoot
this S.O.B. and [the Defendant] shot him” with the rifle from a distance of
approximately four feet.

       Daniels then pointed his pistol at Adams and “acted like he pulled the
trigger,” then he told the Defendant to shoot Adams. The Defendant
responded that he would not shoot Adams because they were friends. As
Daniels and the Defendant left the bedroom, Daniels said, “Say it was self
defense.” Adams watched the Defendant and Daniels drive away in a Subaru.
Asked whether there was any doubt in his mind that the Defendant shot the
victim, Adams answered: “No, sir.”

     Eryn Wilds testified that she was working at a “BP” gas station in
Newport on the day of the incident. Daniels came to the gas station twice that

                                       3
day. On the second occasion, he arrived at approximately 10:15 p.m. driving
a Subaru and was acting “sort of hyper.” There was another white male in the
car with Daniels whom Wilds could not identify.

        Detective Derrick Woods of the Cocke County Sheriff's Department
testified that he led the investigation of the homicide. He arrived at Mathis’s
home at approximately 11:00 p.m. on May 31, 2004, and saw that the victim
was dead on the floor in a back bedroom with a single bullet exit wound on the
upper-right-side of his chest and blood spatter on his face. The bullet entry
wound was on the lower-left-side of the victim’s back. Based on where the
body was and the location of a bullet hole in the bedroom wall, Detective
Woods opined that the “shooter” would have been standing in the doorway
coming into the bedroom. There was also a bullet hole that went “through the
mattress, through a pillow,” and through the side of the trailer.

        Detective Woods informed that one cartridge casing from a rifle bullet
was found on the floor beside a night stand, and a handgun cartridge casing
was discovered on the bed. Detective Woods submitted both cartridges to the
Tennessee Bureau of Investigation Crime Laboratory for analysis. The crime
laboratory report confirmed that the cartridge casing recovered from the
bedroom floor was a “7.62 by 39 mm caliber rifle cartridge” casing and that
the cartridge casing recovered from the bed was from a “40 caliber” Smith and
Wesson cartridge. No fingerprints were recovered from either cartridge
casing. Because both bullets fired in the bedroom exited the trailer, neither
was recovered. No firearms were discovered at the crime scene, and the
murder weapon was never found. According to Detective Woods, the
Defendant and Daniels turned themselves in to authorities the day after the
shooting.

       The parties stipulated that the Tennessee Bureau of Investigation’s
examination of items removed from a 1985 Subaru “failed to indicate the
presence of blood.” Further, they stipulated that analysis of a vitreous sample
taken from the victim, as well as analysis of his blood and urine revealed that
he had a blood alcohol content between .19 and .25 percent when he died.
Additionally, the victim had marijuana and cocaine in his system.

       Kim Fine testified that she was the victim’s girlfriend. Approximately
two and a half to three years before she dated the victim, Fine had been
Daniels’s girlfriend. She lived with Daniels for eight months and explained
that on “several occasions,” Daniels would speak of the victim and say that if

                                      4
       he ever “ran into him one of the two of them would die.” The victim had
       informed Fine as to the nature of the dispute between him and Daniels, but this
       information was not disclosed during her testimony.

              Dr. Darinka Mileusnic-Polchan testified that she was a forensic
       pathologist, an Assistant Professor of Pathology at the University of Tennessee
       Medical Center and an Assistant Chief Medical Examiner for Knox County.
       Testifying as an expert in forensic pathology, she stated that she conducted an
       autopsy on the victim and opined that his cause of death was “a single gunshot
       wound to the back which perforated the left lung and tore the heart and exited
       the body on the front. It was a through and through gunshot wound of the back
       that involved the chest organs that caused internal bleeding.”              Dr.
       Mileusnic-Polchan also deduced that the victim was shot from a close range
       while he was “standing up and potentially slightly bent [over].”

State v. Charles Wade McGaha, No. E2006-01984-CCA-R3-CD, 2008 WL 148943, *1-4
(Tenn. Crim. App., at Knoxville, Jan. 16, 2008), perm. app. denied (Tenn. June 23, 2008).
Based on the evidence, the Cocke County jury convicted the Petitioner of first degree murder
of the victim and aggravated assault of Mathis. The trial court sentenced the [Petitioner] to
life for his first degree murder conviction and to ten years for his aggravated assault
conviction and ordered the sentences to be served concurrently. This Court affirmed the
Petitioner’s convictions and sentences on direct appeal. See id. at *6.

                                      B. Post-Conviction

        The Petitioner filed a timely petition for post-conviction relief, and the post-conviction
court appointed counsel, who amended the petition to allege that trial counsel was ineffective
because she failed to: (1) request a severance of the Petitioner’s and the co-defendant’s cases;
(2) interview witnesses; (3) investigate the case; (4) present the affirmative defense of alibi;
(5) object to gruesome photographs admitted into evidence; (6) present evidence at trial and
at the sentencing stage; and (7) hire or consult with expert witnesses.

        The post-conviction court held a hearing on the petition, wherein the Petitioner
presented the following evidence: Trial counsel for the Petitioner (“Counsel”) testified that
she was appointed to represent the Petitioner in this case. Though Counsel had participated
as co-counsel during jury trials, the Petitioner’s murder trial was her first solo jury trial. She
testified that, after the jury convicted the Petitioner, she filed the Petitioner’s direct appeal
and, when this Court affirmed his convictions, she applied for permission to appeal to the
Supreme Court.



                                                5
        Counsel confirmed that no bullets were found at the crime scene and that the State
attributed this to the Petitioner having used a long, high-powered rifle, which caused a
“through and through” bullet entry. Counsel recalled that a 9-1-1 tape obtained in this case
established that the murder occurred sometime after 10:00 p.m. because shots could be heard
in the background of the tape. Neither Counsel nor anyone she employed went to the scene
of the crime because photographs of the trailer were more than adequate, in Counsel’s
opinion, to convey an accurate understanding of the layout of the crime scene.

         Counsel testified that, although four to five people were inside the trailer at the time
of the shooting, she interviewed only Mathis and the man who was in the bedroom when the
Petitioner allegedly shot the victim. She explained that she did not interview the other people
present because they had fled the trailer when the shooting began. Counsel testified that an
investigator was unnecessary for this case based upon the Petitioner’s position that he was
not at the scene of the crime and because she herself was able to uncover the criminal
histories of each of the State’s witnesses. She confirmed that Mathis testified that a voice
heard shouting, “Where’s the son of a bitch?” in the background of the 9-1-1 tape belonged
to the Petitioner. Counsel testified that police found a “buffet” of drugs at the trailer and that
all its occupants appeared to have been “partying” that night. She confirmed that the victim’s
autopsy report revealed the presence of alcohol and marijuana in his system.

        Counsel confirmed that she did not move to sever the Petitioner and his co-
defendant’s trials but acknowledged that perhaps she “should have” done so if only to “cover
all bases.” She testified she believed severance was unnecessary because the Petitioner and
co-defendant were in the same room during the shooting. Counsel “felt certain that the court
would have one hundred percent not allowed [severance]” in this case. She testified that she
would not have changed anything about her trial strategy even if the trials had been severed.

        Counsel confirmed that the Petitioner’s chief defense at trial was to argue that he was
not present during the shooting. Counsel testified that the Petitioner had previously been
convicted of murdering his brother and that she did “everything in [her] power” at trial to
ensure that no witness testified that the Petitioner was a “peace-loving” man because such
testimony would open the door to introduction of the Petitioner’s prior conviction for
murdering his brother. She testified that she considered bringing an alibi defense based on
the Petitioner’s family members’ statements that they heard his voice in the background of
a telephone call placed to Davis’s home at approximately the same time of the shooting. She
recalled that she meticulously examined the time line, mapping out each party’s movement
minute by minute. Though she could not recall exactly how long it took to drive from
Davis’s house to the crime scene, she knew it took less than one hour. After Counsel spoke
with the Petitioner’s family members, however, she determined that “there was a huge gap
and . . . more than enough time” for him to be both in the background of the telephone call

                                                6
and, later, present at the crime scene during the murder. Therefore, she concluded that there
was “no way” she could establish an alibi defense. Counsel testified that she was also
hesitant to call the Petitioner’s family members to testify because she was afraid they would
testify that the Petitioner was a loving, “sweet” man and thereby allow the State to introduce
the Petitioner’s prior conviction for murdering his brother. As a result, Counsel did not
pursue an alibi defense.

        Counsel testified that she did not present evidence during the sentencing hearing in
this case. She explained that, rather than focus on the length of the Petitioner’s sentence, she
focused on avoiding consecutive sentencing. She recalled that she argued that, because co-
defendant Daniels received concurrent sentencing, the Petitioner also should receive
concurrent sentencing.

          Alma McGaha, the Petitioner’s sister, testified that at 10:25 p.m. on the day of the
shooting, she called her nephew, Ben Daniels, who earlier had asked to use her shower. She
called him to tell him to “hurry up” and come over to shower because she wanted to go to
bed. He replied that he could not come over immediately because, if he gathered up his
toiletries and clothing, he would wake up his uncle, the Petitioner. At this point, Alma heard
the Petitioner say in the background “I’ve been trying to sleep all evening and I can’t sleep
for the phone ringing.” Her nephew at this point told her that he would gather his things and
come over, and she heard the Petitioner say, “Next time the phone rings, I’m going to unplug
it, . . . because I got to get up in the morning and make John Dale some money.”

       Alma testified that, when she found out that the murder in this case, which took place
in Cosby, Tennessee, allegedly occurred at 10:16 p.m., she notified Counsel of this phone
call because “nobody [could] get there that quick.”

       On cross-examination, Alma said she knew it was the Petitioner in the background
and not her other brother Mark because she saw the Petitioner at Ben Daniels’s home earlier
in the day at 5:00 p.m. and because Mark was living in Carson Springs, Tennessee, at the
time.

        Joseph McGaha, Alma McGaha’s son and the Petitioner’s nephew, testified that
around 10:00 p.m. on the day of the shooting in this case, he took a shower. After he exited
the shower, he picked up the phone and overheard his mother speaking with his cousin Ben
Daniels. He testified that he heard his uncle, the Petitioner, “scream” in the background to
not call so late at night. He recalled that the Petitioner commonly drank a lot and sounded
like he may have been drinking. Joseph testified that he was certain that it was the voice of
the Petitioner and not that of his other uncle, Mark McGaha. On cross-examination, Joseph
testified that the Petitioner’s co-defendant James Daniels, was his cousin.

                                               7
        At the conclusion of the hearing, the post-conviction court found that the Petitioner
failed to prove by clear and convincing evidence that he received the ineffective assistance
of counsel, and it denied the Petitioner’s request for post-conviction relief. The court later
entered a written order reflecting its denial of the Petitioner’s petition. It is from this
judgment that the Petitioner now appeals.

                                          II. Analysis

        On appeal, the Petitioner claims that the post-conviction court’s order denying relief
forms an inadequate basis for our review because it does not address each of the claims of
ineffective assistance of counsel alleged within his petition for post-conviction relief. The
Petitioner also claims that the post-conviction court erred when it denied relief in this case
because Counsel was ineffective for: (a) failing to move to sever the Petitioner’s trial from
that of his co-defendant; (b) failing to present an alibi defense; (c) failing to present proof at
sentencing; and (d) failing to present proof of the Petitioner’s intoxication.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. §
40-30-110(f) (2006). Upon review, this Court will not re-weigh or re-evaluate the evidence
below; all questions concerning the credibility of witnesses, the weight and value to be given
their testimony and the factual issues raised by the evidence are to be resolved by the trial
judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

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

       First, the [petitioner] must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the [petitioner] by the Sixth

                                                8
       Amendment.         Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

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

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

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

       If the petitioner shows that counsel’s representation fell below a reasonable standard,

                                                9
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State,
90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994).

        Initially, the Petitioner contends the post-conviction court failed to address each issue
raised in his petition for post-conviction relief. Specifically, he contends the post-conviction
court failed to address whether Counsel was ineffective for failing to request a severance of
the Petitioner’s trial from that of his co-defendant and whether Counsel was ineffective for
failing to present evidence at sentencing.

         The State responds that, although the post-conviction court never specifically
addressed the Petitioner’s severance and sentencing claims, the post-conviction court’s oral
findings at the post-conviction hearing form an adequate basis for its denial of relief. It
points specifically to the post-conviction court’s statement that it was “very impressed with
Counsels’ recollection of the case” and that Counsel “did a fantastic job” and “connected .
. . well with the jury.” Moreover, the State argues, the Petitioner failed to offer evidence in
support of his ineffective assistance claims as to severance and sentencing at the post-
conviction hearing. It argues that, absent a specific showing that the Petitioner would have
been entitled to post-conviction relief on these issues, the lack of specific findings by the
post-conviction court is harmless.

         Tennessee Code Annotated section 40-30-111(b) provides, “Upon the final
disposition of every [post-conviction] petition, the court shall enter a final order, and except
where proceedings for delayed appeal are allowed, shall set forth in the order or a written
memorandum of the case all grounds presented, and shall state the findings of fact and
conclusions of law with regard to each ground.” (2009). This requirement is mandatory;
however, a post-conviction court’s failure to comply does not always require reversal of the
court’s judgment. State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984); see also
Michael H. Cammon v. State, No. M2006-01823-CCA-R3-PC, 2007 WL 2409568, at *7
(Tenn. Crim. App. at Nashville, Aug. 23, 2007). “The primary intent of the legislature
underlying this requirement is to facilitate appellate review of the lower court’s proceedings,
and the failure to meet the requirement neither constitutes constitutional abridgement nor
renders the conviction or sentence of the appellant void or voidable.” Swanson, 680 S.W.2d
at 489. Therefore, a post-conviction court’s failure to provide written findings of fact and
conclusions of law may be deemed harmless if the post-conviction court orally set forth
sufficient findings on the record. See State v. Higgins, 729 S.W.2d 288, 290-91 (Tenn. Crim.
App. 1987).


                                               10
        At the conclusion of the post-conviction hearing in this case, the post-conviction
court, who presided over the Petitioner’s trial, noted that Counsel did a “really good job with
the jury [and] connected . . . well with the jury,” noting she was “asking questions and doing
the things that I felt that she should have done.” The post-conviction court found especially
compelling the extra step Counsel took to appeal the Court of Criminal Appeals decision
affirming his convictions to the Supreme Court. The court stated that, “based upon [his]
observations of [Counsel] at the trial, [he] thought very few people could have done any
better.” It said, “I thought she did a fantastic job.” The post-conviction court also found that
“there [was] no showing of prejudice as it relates to the theories of the petition for post-
conviction relief and that [Counsel], in the Court’s opinion, magnificently complied with the
mandates of the Sixth Amendment in the Strickland case.”

       In its written order dismissing the petition for post-conviction relief in this case, the
post-conviction court specifically rejected the Petitioner’s claim regarding Counsel’s failure
to present an alibi defense and his claim regarding Counsel’s investigation of the case and
found generally that “the Petitioner failed to prove by a preponderance of the evidence any
of the other allegations of malfeasance or ineffective assistance of counsel raised in the
Original Petition and Amended Petition for Post-Conviction relief.

       In our view, the post-conviction court’s extensive factual findings at the post-
conviction hearing, in combination with its written finding that the Petitioner failed to prove
his “other allegations of malfeasance or ineffective assistance of counsel raised [in his
original and amended petitions],” form an adequate basis for our review. As such, we
conclude that the record is adequate for our review. We now turn to the merits of the
Petitioner’s post-conviction claims.

       A. Failure to Sever the Petitioner’s Trial from that of his Co-Defendant

       The Petitioner contends Counsel was ineffective because she failed to file a motion
to sever in this case. He argues that such a motion would have been successful because the
evidence showed that his co-defendant had a motive to kill the victim, whereas he himself
did not have such a motive. As proof that the co-defendant had a motive to kill the victim,
the Petitioner points to trial testimony that there was “bad blood” between his co-defendant
and the victim and to the fact that, a few hours before killing the victim, his co-defendant
warned the victim that he would be returning “with more than a stick.”

       The State responds that Counsel was not ineffective for failing to request a severance
because Counsel believed the trial court would not grant a severance because the evidence
against the Petitioner and his co-defendant was the same. The State argues that, because the
Petitioner failed to show how the evidence was different, he failed to show how Counsel’s


                                              11
decision in this regard was unreasonable. The State argues further that, because Counsel
testified she would not have altered her defense strategy if the Petitioner and his co-
defendant’s trials were severed, and the Petitioner failed otherwise to show how severance
would have affected the outcome of his trial, the Petitioner failed to show how counsel’s
decision prejudiced him.

        The question of severance is one addressed to the sound discretion of the trial judge.
The denial of a motion to sever will not be grounds for reversal unless it appears that the
defendants were prejudiced by the trial judge’s refusal to sever. State v. Coleman, 619
S.W.2d 112, 116 (Tenn. 1981). Defendants may be joined in the same indictment if the
various offenses were either “part of a common scheme or plan” or “were so closely
connected in respect to time, place, and occasion that it would be difficult to separate proof
of one charge from proof of the others.” Tenn. R. Crim. P. 8(c)(3)(i)(ii). A defendant is
entitled to a severance from other defendants if “it is deemed appropriate to promote a fair
determination of the guilt or innocence of one or more defendants.” Tenn. R. Crim. P.
14(c)(2)(i). If an out-of-court statement of a co-defendant makes reference to the defendant
but is not admissible against the defendant, then the trial court may grant a motion to sever
if the State intends to offer the statement in evidence at trial. Tenn. R. Crim. P. 14(c)(1).


       In this case, Counsel testified at the post-conviction hearing that, were she to try the
case again, she would move for a severance, but she explained she would do so only to
“cover all bases.” She stressed that a trial court would be extremely unlikely to grant a
severance in this case due to the similarity of the evidence that would be introduced in the
Petitioner and his co-defendant’s trials. Counsel testified that, even had the Petitioner and
his co-defendant been tried separately, she would not have altered her trial strategy.


       The post-conviction court did not specifically address the Petitioner’s claim that
Counsel was ineffective for failing to move for a severance. Instead, the court found
generally that Counsel did a “really good job with the jury [and] connected . . . well with the
jury” and said she was “asking questions and doing the things that I felt that she should have
done.” The post-conviction court also found that none of the grounds alleged as ineffective
assistance caused prejudice to the Petitioner.


       We conclude that the post-conviction court correctly denied relief based on this claim.
Given that “close connection” of the “time, place, and occasion” of the Petitioner and his co-
defendant’s crimes in this case, “it would be difficult to separate proof of one charge from
proof of the others.” See Tenn. R. Crim. P. 8(c)(3)(i)-(ii). The Petitioner did not present
evidence to establish either that being tried jointly with his co-defendant prevented him from


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presenting certain evidence or defenses or that being tried jointly led to introduction of
harmful evidence that would not otherwise have been admitted. Therefore, a motion by
Counsel for severance almost certainly would have been denied. Thus, Counsel’s decision
to forego a severance motion was objectively “reasonable.” See House, 44 S.W.3d at 515.
Finally, Counsel’s decision to forego a severance motion did not prejudice the Petitioner.
See Strickland, 466 U.S. at 694. Because the Petitioner failed to prove either that Counsel
was ineffective or that her actions prejudiced the outcome of his trial, he is not entitled to
relief on this issue.


                            B. Failure to Present Alibi Defense


        The Petitioner argues Counsel was ineffective for failing to present an alibi defense
on his behalf. Petitioner asserts that two family members could have testified that they heard
the Petitioner’s voice at Daniels’s home, in the background of a telephone call, at
approximately the time of the offense. He argues that Counsel’s explanation for why she did
not pursue an alibi defense was unreasonable. He argues that her time line which indicated
that the Petitioner could have been present at the murder scene and then later at Daniels’s
house during the phone call was unreasonable. The Petitioner points out that Counsel never
visited the crime scene and that his family members testified that they heard him in the
background of the phone call to Daniels’s home only ten minutes after the murder occurred.
The Petitioner contends that, because his family members’ testimony constituted “credible
evidence” that “fairly raised” an alibi defense, Counsel was ineffective for failing to present
an alibi defense.


        The State responds that, although the Petitioner attempted to show at the post-
conviction hearing that his family members would have provided him an alibi defense, the
trial court did not find his family members’ testimony credible, and his family members
failed to support their claims with phone records. The State argues that, given the
Petitioner’s failure to present “credible witnesses” who could corroborate his claim that he
was not at the scene of the crime, he failed to establish that an alibi defense would have been
successful if raised. The State argues that, notwithstanding the likely failure of an alibi
defense, Counsel’s decision to forego an alibi defense was reasonable given her fear that
such a defense would “open the door” to evidence of the Petitioner’s prior murder
conviction. Finally, the State argues that, even were Counsel’s decision unreasonable, it did
not change the outcome of the trial because an eyewitness identified the Petitioner as the
shooter.


       At the post-conviction hearing, Counsel testified that Alma and Joseph McGaha

                                              13
contacted her about an alibi for the Petitioner. They offered to testify that they saw the
Petitioner at Ben Daniels’s house shortly before the murder and that, thus, the Petitioner
would have had insufficient time to travel from this house to the murder scene to commit the
murder. Counsel testified that she thoroughly researched the time line surrounding the
murder and the distance between the Daniels house and the murder scene. Counsel
determined that Alma and Joseph McGaha’s statements would not actually constitute an alibi
because the Petitioner would have had “more than enough” time to travel from the Daniels
house to the murder scene. Thus, Counsel did not believe the testimony would be helpful in
providing a defense for her client. Furthermore, Counsel testified that she feared that, if
Alma or Joseph testified, one would mention that the Petitioner was a “good” or “peace-
loving” person, thereby opening the door to the Petitioner’s prior conviction for murdering
his brother. Based on these considerations, Counsel chose not to pursue an alibi defense.


       The post-conviction court found that Alma and Joseph McGaha’s testimony was not
credible. The post-conviction court instead credited Counsel’s testimony and found that
Counsel investigated the Petitioner’s potential alibi defense and made a strategic decision not
to use it. The evidence does not preponderate against these factual findings by the post-
conviction court. See Fields, 40 S.W.3d at 456-57.


        We agree with the post-conviction court that Counsel’s decision to not raise an alibi
defense was reasonable. Counsel investigated Alma and Joseph McGaha’s claims and
determined that their information did not exculpate the Petitioner. Counsel also feared that,
by allowing Alma or Joseph to testify, she could inadvertently open the door to the
introduction of the Petitioner’s prior conviction for murdering his brother. Given her
conclusion that Alma and Joseph’s testimony would be not only unhelpful but also
potentially disastrous, we conclude that Counsel’s decision to forego an alibi defense did not
fall below “an objective standard of reasonableness.” Strickland, 466 U.S. at 690; Mitchell,
753 S.W.2d at 149; House, 44 S.W.3d at 515. The Petitioner is not entitled to relief on this
issue.


                      C. Decision to Present no Proof at Sentencing


        The Petitioner contends Counsel was ineffective because, rather than present proof
at the sentencing hearing, she merely met with the State’s attorney and asked him to make
a sentencing offer. The State responds, because the Petitioner failed to either explain what
evidence Counsel should have presented, or present this evidence at his post-conviction
hearing, the Petitioner failed to show how Counsel’s inaction was unreasonable or how it
prejudiced him.

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       The post-conviction court did not specifically address the Petitioner’s claim that
Counsel should have presented evidence at sentencing. Instead, the court found generally
that Counsel did a “fantastic job” and that “very few people could have done any better.”
The post-conviction court also found that none of the grounds alleged as ineffective
assistance caused prejudice to the Petitioner.


       In this case, Counsel acknowledged that she focused on securing the State’s
agreement to concurrent sentencing rather than offering evidence in support of a shorter
sentence. The Petitioner did not identify any particular evidence that Counsel should have
introduced at sentencing that would have changed the outcome of his sentencing hearing.
Given this absence of proof, we are unable to determine how Counsel’s failure to present
evidence at sentencing prejudiced the Petitioner. Therefore, the Petitioner’s claim that
Counsel’s representation at sentencing was ineffective must fail. See Strickland, 466 U.S.
at 694. The Petitioner is not entitled to relief on this issue.


            D. Decision to Present no Proof of the Petitioner’s Intoxication


        The Petitioner contends that Counsel was ineffective for failing to offer the testimony
of Joseph McGaha that, when he spoke with the Petitioner shortly after the murder, the
Petitioner was intoxicated. He argues that, had Counsel presented such evidence, the jury
might have found that the Petitioner’s intoxication prevented him from forming the mens rea
necessary to commit first degree murder. The State responds that, because Joseph McGaha
testified at the post-conviction hearing only that it was “possible” that the Petitioner was
intoxicated, the Petitioner failed to show by clear and convincing evidence that this testimony
would have resulted in his acquittal of first degree murder.


        The post-conviction court did not specifically address the Petitioner’s claim that
Counsel should have presented more proof of the Petitioner’s intoxication at the time of the
murder in order to establish that the Petitioner lacked the necessary mens rea to commit first
degree murder. Instead, the post-conviction court found generally that Counsel did a
“fantastic job” and that “very few people could have done any better.” The post-conviction
court also found that none of the grounds alleged as ineffective assistance caused prejudice
to the Petitioner.


         At trial, the evidence established that several drugs were found at the murder scene
and that the victim was determined to have been under the influence of alcohol and marijuana
at the time of his death. At the post-conviction hearing, Counsel described the murder scene

                                              15
as containing a “buffet” of drugs and said that everyone present had been “partying.” At the
post-conviction hearing, Joseph McGaha testified that, when he heard the Petitioner in the
background of the phone call his mother placed to Ben Daniels’s home, he believed that,
because the Petitioner was yelling and angry, it was “possible” the Petitioner had been
drinking.


        We conclude that the Petitioner has presented insufficient proof to support his claim
that Counsel was ineffective for failing to present evidence of his intoxication at trial. None
of the evidence at trial established that the Petitioner was under the influence of alcohol or
drugs. Likewise, Joseph McGaha’s testimony at the post-conviction hearing was similarly
inconclusive as to the Petitioner’s mental state. Thus, the Petitioner has failed to present
“clear and convincing evidence” that proof existed that he was intoxicated at the time of the
murder, that Counsel was aware of this proof, and that such proof would have led the jury
to find he lacked the intent necessary to commit first degree murder. See T.C.A. §
40-30-110(f) (2006). Given these failings, we conclude that the Petitioner failed to establish
either that Counsel was “unreasonable” for not presenting evidence of intoxication or that,
had he presented such evidence, “the result of the proceeding would have been different” in
a way that “undermines confidence in the outcome” of the Petitioner’s trial. Strickland, 466
U.S. at 694; Nichols, 90 S.W.3d at 587. He is not entitled to relief on this issue.


                                       III. Conclusion


        Having reviewed the record and relevant authorities, we conclude that the Petitioner
failed to prove by clear and convincing evidence that he received the ineffective assistance
of counsel. Therefore, the post-conviction court did not err when it denied his claim for post-
conviction relief. As such, we affirm the post-conviction court’s judgment.


                                                   __________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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