                                                                                      10/16/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs July 11, 2017

                CARROLL CREWS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Dyer County
                    No. 14-CR-78       R. Lee Moore, Jr., Judge
                     ___________________________________

                          No. W2017-00578-CCA-R3-PC
                      ___________________________________


The Petitioner, Carroll Crews, appeals from the denial of post-conviction relief by the
Dyer County Circuit Court. In this appeal, she argues that she received ineffective
assistance of counsel. Upon our review, we affirm the judgment of the post-conviction
court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and D. KELLY THOMAS, JR., JJ., joined.

Danny H. Goodman, Jr., Tiptonville, Tennessee, for the Defendant-Appellant, Carroll
Crews.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Karen W. Burns, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                      OPINION

       The Petitioner was originally convicted by a jury of selling dihydrocodeinone, a
Class D felony, and was sentenced as a career offender to twelve years’ incarceration to
be served at sixty percent. This court affirmed her conviction and sentence on direct
appeal. State v. Carroll Renee Crews, No. W2015-01683-CCA-R3-CD, 2016 WL
3216046, at *1–2 (Tenn. Crim. App. June 2, 2016). The following proof was adduced at
trial:

      Officer Lynn Waller of the Dyersburg Police Department (DPD) testified
      that he was on patrol with another DPD officer, Charlie Cox, on September
28, 2013, when they drove by the H & S Market. As they were driving by,
Officer Waller saw the [Petitioner] “lean[ing] into the window” of a red
pickup truck and “talking to the driver of the pickup truck.” Officer Waller
drew Officer Cox’s attention to the truck. Officer Waller testified that he
saw what appeared to be a “hand to hand” drug transaction. Officer Cox
testified that he “saw money being transferred” from the [Petitioner] “back
and forth to the guy driving the truck.”

Officers Waller and Cox pulled into the store’s parking lot. As they did,
the [Petitioner] quickly walked away from the red truck and back to her car.
Officer Waller stopped the [Petitioner] as she got into her car and
confronted her with what he had seen. The [Petitioner] denied selling pills
to the driver of the pickup truck. The [Petitioner] told Officer Waller that
the driver was a family member whom she was giving “some Xanax” to
because a mutual relative had “just died.” However, Officer Waller
testified that the [Petitioner] was unable to tell him the name of the driver
of the truck. Officer Waller found an empty “pill bottle” with the
[Petitioner’s] “name on it” when he searched her.

Officer Waller then spoke to the occupants of the red pickup truck. The
driver was a man named Brandon Williams. The passenger was a man
named Kenneth Connell. Officer Waller testified that Mr. Williams was
“cooperative” and gave him “four [h]ydrocodone pills” from “[h]is pocket.”
(footnote omitted). Subsequent forensic testing by the Tennessee Bureau of
Investigation confirmed that the pills were dihydrocodeinone. Officer
Waller also found a twenty-dollar bill, two one-dollar bills, and eight
quarters in “[t]he pocket” of the driver’s side door of the pickup truck.
Officer Waller testified that he found a small amount of marijuana on the
persons of both Mr. Williams and Mr. Connell but that he let them “thr[o]w
[it] out” rather than charge them for simple possession.

Mr. Williams testified that he was giving a ride to “a friend” when he
stopped at the H & S Market to purchase some cigarettes. According to
Mr. Williams, the [Petitioner] approached him in the parking lot of the
store. Mr. Williams described the [Petitioner] as an “acquaintance” of his.
Mr. Williams testified that the [Petitioner] asked him if he wanted to buy
“some [h]ydros.” The [Petitioner] offered the pills to Mr. Williams for four
dollars per pill, sixteen dollars total. Mr. Williams claimed that he agreed
to buy the pills because the [Petitioner] had “said she needed some money.”
 Mr. Williams testified that he gave the [Petitioner] a twenty-dollar bill and
that she was in the process of giving him his change, two one-dollar bills
                                    -2-
      and eight quarters, when Officers Waller and Cox pulled up. When the
      officers pulled up, the [Petitioner] dropped all of the money and tried “to
      get back to her car.” Mr. Williams admitted that he had a small amount of
      marijuana on him that day. Mr. Williams testified that he was honest with
      Officer Waller and that he had testified truthfully about what had happened
      that day.

      Mr. Williams admitted that he had prior convictions for driving under the
      influence, driving with a revoked license, and simple possession of
      marijuana. On cross-examination, Mr. Williams further admitted that he
      had a recent conviction for misdemeanor theft, a prior conviction for
      criminal impersonation for giving a police officer a false name, and a prior
      charge of filing a false report for reporting his car stolen after he had
      wrecked it. Mr. Williams also admitted on cross-examination that Officer
      Waller had told him that day that he could have been charged with simple
      possession and that the truck he was driving could have been seized. Mr.
      Williams admitted that he “was truthful with” Officer Waller because he
      did not want to be charged with simple possession.

Crews, 2016 WL 3216046, at *1–2.

        At the October 31, 2016 post-conviction hearing, the Petitioner testified that she
initially filed her petition pro se, which was later amended by counsel. She then stated
that she advised trial counsel to call Charles and Barbara Upchurch, her employers at the
time of the offense, as witnesses, and he did not. She claimed they were important to her
case because she “was never out of their sight very much [at the time of the offense].”
She said Mr. Upchurch could have testified that the Petitioner “didn’t have no pills on
[her] and [she] wasn’t selling no pills and [she] wasn’t meeting anybody there.” She said
Mr. Upchurch attended every court date and was present at trial. The Petitioner said that
trial counsel did not call any witnesses on her behalf. The Petitioner further claimed that
there was a video of store surveillance which would have shown that she was not selling
drugs; that an unnamed clerk and unnamed “black guy” with Brandon Long would have
been helpful to her case; and that a motion to suppress should have been filed.1 The
Petitioner also testified that the other pill bottles found in her possession should have
been presented at trial. She reasoned, “why wouldn’t you charge me with Xanaxes too?”
A video from the trial showing parts of the offense was also introduced at the hearing.
The Petitioner complains that “the video cuts off four different times” during her cross-
examination and several inconsistencies were noted.


      1
          The trial court noted that Brandon Williams and Brandon Long are the same person.
                                                 -3-
        Trial counsel testified that he spoke with Mr. and Ms. Upchurch and determined
that neither was present at the time of the offense. He recalled, however, that Mr.
Upchurch advised him to “bribe certain individuals within the judicial system to make
these charges go away.” Trial counsel opined that their testimony may have been more
relevant for sentencing purposes. In regard to the store clerk, trial counsel’s investigator
initially contacted her. However, trial counsel advised that “[b]y the time [he was]
assigned the case,” the clerk “really didn’t remember anything” and advised him that “she
didn’t know why or for what reason or any of the people involved.” Trial counsel said
“there were no video cameras . . . no recordings to retrieve[.]” He could not recall
whether it was taped over or did not exist. In regard to the person in the car with Mr.
Williams, trial counsel said they searched for him but were unable to find him. He said
that “Mr. Connell would’ve simply affirmed Mr. Williams’ or [Mr.] Long’s story.”

       Regarding the video the Petitioner wanted admitted at trial, trial counsel testified
that he did not admit it as part of his trial strategy. He wanted the jury to believe that the
drug transaction was between Brandon Williams and Kenneth Connell, and when the
police became involved they “pointed the finger at [the Petitioner] because she was the
closest person.” He said playing the tape would have done more damage to the
Petitioner’s case because it would have made Williams a more credible witness. He
acknowledged that there were certain statements on the videotape he wanted the jury to
hear, including Mr. Williams asking the police officer, “Do you want me to say anything
else?” and Investigator Waller telling Mr. Williams’ mother, “We’re not going to charge
him today as long as he cooperates with us?” However, he could not introduce portions
of the tape without the State introducing the entire tape. He did explore these comments
on cross-examination.

       Trial counsel testified on cross-examination that he objected to the State’s
introduction of the pill bottle on hearsay grounds. He explained that his objection was
“hyper-technical” and based on the writing on the pill bottle. He further stated that he did
not believe introducing the other pill bottles or the Petitioner’s pharmacy records would
have “shored up [his] simple possession [defense].” Finally, trial counsel said that he had
two trial strategies: (1) not guilty based on the fact that this was a drug transaction
between Williams and Connell for which they blamed the Petitioner; and (2) this was a
case of simple possession because the Petitioner was giving Williams pills because
someone in his family had died. He confirmed that he cross-examined Williams
regarding his criminal history and his cooperation with the police. Trial counsel did not
believe there was a legal basis or “tactical necessity” to file a motion to suppress.

        Upon hearing the above proof, the post-conviction court determined that the
Petitioner failed to demonstrate deficient performance or prejudice. The Petitioner later
filed this timely appeal.
                                            -4-
                                            ANALYSIS

        The sole issue presented for our review is whether the post-conviction court erred
in denying post-conviction relief based on trial counsel’s failure to (1) call the
Upchurches as witnesses at trial; (2) investigate a store clerk; (3) introduce into evidence
at trial the other pill bottles recovered from the Petitioner and a video of the interaction
between police and Williams.2 The State contends, and we agree, that the post-
conviction court properly denied relief.

       In reaching our conclusion, we are guided by the following well-established law
pertaining to post-conviction relief. Post-conviction relief is only warranted when a
petitioner establishes that his or her conviction or sentence is void or voidable because of
an abridgement of a constitutional right. T.C.A. § 40–30–103. The Tennessee Supreme
Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless
       the evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of
       their testimony are matters for the trial court to resolve. The appellate
       court's review of a legal issue, or of a mixed question of law or fact such as
       a claim of ineffective assistance of counsel, is de novo with no presumption
       of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40–30–
110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293–94
(Tenn. 2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

      In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,

       2
          The Petitioner also alleged that trial counsel was ineffective based on his failure to file a
motion to suppress. However, this issue was not included in her brief in this appeal. Therefore,
it has been waived.
                                                 -5-
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “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; Baxter, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694). Moreover,

       [b]ecause a petitioner must establish both prongs of the test, a failure to
       prove either deficiency or prejudice provides a sufficient basis to deny
       relief on the ineffective assistance claim. Indeed, a court need not address
       the components in any particular order or even address both if the
       [petitioner] makes an insufficient showing of one component.

Id. at 370 (citing Strickland, 466 U.S. at 697).

In denying relief, the post-conviction court reasoned, in pertinent part, as follows:

               [The Petitioner] alleges that the Upchurches should have been called
       and they would have added something that . . . she cannot tell us what they
       would have added, and her lawyer indicates that they had nothing to add
       that would help in her defense. And of course, their way of handling this
       was to bribe someone in the justice system. She did not recall whether or
       not she actually told him to call the Upchurches as witnesses. But sounds
       like, even if they had been potential witnesses, there was not anything that
       they could add to the defense.

              The clerk was interviewed, that she said should have been called, she
       didn’t know her name - - she was interviewed by the public defender’s
       investigator and by [trial counsel] also and had no information that would
       help one way or the other.

              The video itself, the Court has listened to the video. The video is the
       video of the - - I guess Officer Waller’s interview with Brandon Williams,
       Brandon Long, one in the same person, who sets out very clearly that he
       bought hydrocodone from you, Ms. Crews, for the amount, and they got the
       change that he got back, the police department collected it at that time.



                                            -6-
               There was an African-American man who she - - and I suppose
       that’s the one that’s referred to as Connell, that no one seemed to be able to
       find at the time of the trial, but not - - was not because it was attempted,
       they didn’t attempt to find him; but the information they had from him was
       not something that would have been helpful.

       ....

              Now, the next issue is the prescription bottle. The State introduced
       the prescription bottle that showed a prescription for hydrocodone, it was in
       her name, and the issue she raises in post-conviction today is that they
       should’ve introduced the other bottles dealing with the other drugs that
       were in her purse, and the Court cannot see how that would have helped her
       defense at all.

       ....

               In this situation, the Court felt like the defense attorney did develop
       a trial strategy, that he did all that he could do under the circumstances to
       properly defend her, and the proof was overwhelming, the jury did not
       believe the defense that was raised, and the Court does not find that the
       attorney’s performance was deficient, nor does the Court find that there is
       any prejudice shown.

       Upon our review, the evidence in the record does not preponderate against the
judgment of the post-conviction court. The Upchurches were not presented as witnesses
at the post-conviction hearing, see Black v. State, 794 S.W.2d 753, 757 (Tenn. Crim.
App. 1990), and even if they had been, trial counsel testified that their testimony would
not have been relevant. Trial counsel further testified that he interviewed the store clerk,
and she did not remember anything about the offense. Trial counsel additionally
explained that he did not introduce the video of Williams’ interview with the police
because it would have bolstered Williams’ credibility, which was contrary to his trial
strategy. This court does not second-guess a reasonably based trial strategy. See Atkins
v. State, 911 S.W.2d 334, 347 (Tenn.1994). Finally, the Petitioner fails to explain, and
we fail to see, how the introduction of the other prescription pill bottles would have been
helpful to her case. Accordingly, the Petitioner has failed to establish deficient
performance or prejudice arising therefrom. She is not entitled to relief.

                                     CONCLUSION



                                            -7-
      Based upon the foregoing reasoning and analysis, the judgment of the post-
conviction court is affirmed.


                                    _______________________________________
                                    CAMILLE R. McMULLEN, JUDGE




                                      -8-
