        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 16, 2013

            CHRISTOPHER TURNER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2006-C-2626     Steve R. Dozier, Judge


               No. M2012-00655-CCA-R3-PC - Filed February 27, 2013


The Petitioner, Christopher Turner, appeals the Davidson County Criminal Court’s denial of
post-conviction relief from his 2008 conviction for attempted aggravated robbery and his
effective nine-year sentence. On appeal, he contends that counsel provided the ineffective
assistance of counsel by failing to investigate and interview witnesses adequately and by
failing to request that his case be severed from his codefendant’s case. We affirm the
judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., J., and P AUL G. S UMMERS, S R. J., joined.

Manuel Benjamin Russ, Nashville, Tennessee, for the appellant, Christopher Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel Marie Sobrero,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

      This court summarized the facts of the case in the Petitioner’s appeal of his
conviction:
       On August 7, 2006, Sean Turner,1 the victim, went to visit a friend
named “Tree” in the Edgehill Homes area of Nashville. Sean Turner worked
with Tree and went to his house at around 9:00 p.m. to play video games and
gamble. Sometime after midnight, Sean Turner left his friend’s house and
walked toward his car. Sean Turner was leaving because he had to get up to
go to work the next day and wanted to get home to his fiancee. Sean Turner
was also out of money from gambling. He had approximately two dollars and
ten cents in his pocket.

       As he walked toward his car, he saw a group of young men standing
around. Sean Turner got into his car and started the engine. As he was
backing out of the parking space, he turned to look behind the car. At that
time, he saw a flash and then saw Appellant Lockridge standing over him.
Appellant Lockridge pointed a gun at Sean Turner and told him to “set it out,
drop it off.” The victim thought that Appellant Lockridge was robbing him
based on Lockridge’s statement. Appellant Lockridge ordered Sean Turner to
put his car into park. Sean Turner attempted to tell Appellant Lockridge that
he only had two dollars and ten cents in his pockets, but Appellant Lockridge
ordered Sean Turner to get out of the car. The victim refused to get out of the
car. Appellant Lockridge continued to point the gun at Sean Turner and
nudged him in the left side with the gun while continuing to order him out of
the car.

       Sean Turner begged Appellant Lockridge not to shoot him. Appellant
Lockridge insisted that the victim was lying about not having any money but
would not allow the victim to reach into his pockets to prove it. Appellant
Lockridge cursed at the victim and grabbed at the door handle. He was unable
to open the door. Suddenly, Appellant Lockridge looked up as if he had heard
something. Then, Appellant Lockridge stepped back and looked away. Sean
Turner saw that as an opportunity to drive away. The victim heard a gunshot
and immediately could not feel his legs. Sean Turner described his body as
feeling “rocky” and claimed that he could not breathe. Appellant Lockridge
disappeared.



1

       Because Sean Turner and Appellant Christopher Allen Turner have the
       same last name, we will refer to Sean Turner by his full name or “the
       victim.”


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              Sean Turner was scared. He tried to leave but was unable to put his
       foot on the accelerator to drive away. The victim tried to get out of the car but
       was unable to move so he opened the car door and fell out of the car,
       screaming for help.

              About ten minutes later, a man approached Sean Turner, who was still
       lying on the ground. The victim pleaded for help, but the man demanded to
       know what the victim was doing in the neighborhood. The man did not render
       assistance; he continued to talk to the victim and question him.

               Then, Appellant Turner walked up to the victim, kicked him, and spit
       on him. Appellant Turner produced a gun and told the victim that he “ought
       to finish [him] off.” Appellant Turner pulled the hammer of the gun back to
       shoot the victim. The other man that was present stopped Appellant Turner.
       Appellant Turner then went around to the passenger side of the victim’s car
       and searched inside. Appellant Turner returned to where the victim was lying
       in the street and searched the victim’s pockets. The two men then put Sean
       Turner back into his car. The victim promised not to come back. The victim
       somehow managed to press the accelerator with his hand, causing the car to
       roll into a fence. The victim fell out of the car again. Someone eventually saw
       that the victim was shot and injured and called the police.

               As a result of the incident, the victim is paralyzed from the waist down.
       Appellants Lockridge and Turner were indicted by the Davidson County Grand
       Jury in July of 2006 for one count of attempted especially aggravated robbery
       and one count of attempted first degree murder. The victim identified both
       Appellant Turner and Appellant Lockridge at trial.

              At the conclusion of a jury trial, . . . Appellant Turner was found guilty
       of attempted aggravated robbery and not guilty of attempted first degree
       murder. Appellant Turner was sentenced to nine years as a Range II, multiple
       offender.

State v. Darrell Tywon Lockridge and Christopher Allen Turner, No. M2008-01217-CCA-
R3-CD, slip op. at 2-3 (Tenn. Crim. App. Feb. 24, 2010), perm. app. denied (Tenn. Aug. 26,
2010).

       At the post-conviction hearing, the Petitioner testified that he was housed in the
Northwest correctional facility while his case was pending and that he was only able to speak
with counsel face-to-face on the days of his scheduled court appearances. He said he spoke

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to counsel approximately three times. He said that he told counsel he wanted to go to trial
and that he and counsel discussed the trial and the strategies they might employ. He said
counsel discussed with him the State’s theory of the case and the evidence the State would
present at the trial.

        The Petitioner testified that counsel did not discuss severing his case and denied
counsel’s discussing the advantages and disadvantages of severance. He thought severance
would have benefitted him at the trial and said, “the jury was listening to everything that was
going on with [his codefendant], and I think they found me guilty on the strength of what .
. . he said I did.” He said that had he known about the possibility of severing his case, he
would have wanted counsel to move for a severance.

        The Petitioner testified that he gave counsel the names of three potential witnesses,
that he wanted counsel to subpoena those witnesses to testify at the trial, and that counsel told
him they were not needed. He said he understood they were not necessary because his case
was strong and because the trial was going well. He said that one of the witnesses was in
confinement at the time and was easily located and that he provided counsel two addresses
for the other witnesses. He said the witnesses were present during the shooting. He did not
know if the police interviewed these witnesses but said he thought they would provide new
information. He said counsel did not talk to the witnesses, although he subpoenaed them.
He said that the witnesses were Michael and DeShawn Burleson and that he had forgotten
the female witness’s name. He said the female was the only witness who appeared in court
the day of the trial. He agreed no witnesses testified for the defense at the trial. The
Petitioner stated that counsel did not mention requesting funds for an investigator.

        The Petitioner testified that he told counsel the victim was in the neighborhood the
night of the shooting because of drugs and that the case was “a drug deal gone bad,” not a
robbery. He said the victim was there to buy drugs, though he did not know if the victim
used drugs. He said that he told counsel the victim carried a gun that night and that the “gun
got picked up” by someone at the scene. He denied knowing who picked up the gun and said
he left the scene to take his codefendant, who had been shot, to the hospital. He denied
counsel’s questioning the victim about these events at the trial.

       On cross-examination, the Petitioner testified that he and several other people saw the
shooting. He said he told counsel about the three witnesses one month before the trial and
before he received the State’s first plea offer. He said that when the female witness appeared
in court, he identified her to counsel. He did not recall whether he wrote counsel letters and
said the only time he spoke to counsel was when he came to court. He said counsel came to
see him in prison once.



                                               -4-
       The Petitioner testified that he told counsel twice that the prosecutor was asking
leading questions during her direct examination of the victim and that counsel needed to
object. He said he learned about leading questions from a previous case. He agreed that the
victim identified the Petitioner and that the victim said the Petitioner pointed a gun at him.
He said that although the victim testified that he was visiting a resident where the shooting
occurred, the victim was there only to buy drugs. The Petitioner admitted being at the scene
during the shooting but denied the victim’s seeing him. He denied talking to the victim. He
denied Michael and DeShawn Burleson were subpoenaed to testify at the post-conviction
hearing.

       Counsel testified that he had practiced law since 1997 and that approximately ninety-
five percent of his practice was criminal defense. He said he began his representation of the
Petitioner in 2007. Although he did not recall the number of times he spoke with the
Petitioner, he said that they “had a few discussion dates” and that he went to see the
Petitioner twice at Riverbend prison. He said their meetings lasted forty-five minutes to two
hours, depending on the issue being discussed. He said he reviewed the State’s discovery
package and discussed possible defenses with the Petitioner. He said the defense theory was
that although the Petitioner was present during the shooting, he did not participate or
conspire with the codefendant.

       Counsel testified that the Petitioner told him about a woman who was present during
the shooting, that the Petitioner did not know her name, and that there were “several different
variations” of her name. He said he unsuccessfully attempted to locate the woman. He said
he spoke with one of the Burleson brothers, though he did not recall which one or when he
spoke to him. He said that he did not recall Mr. Burleson’s providing helpful information
and that Mr. Burleson’s criminal history would have made the Petitioner’s “situation worse.”
He agreed that Donna Brook and Yolanda Daniels were subpoenaed and that the woman who
came to court was either Ms. Brook or Ms. Daniels, but that the woman did not provide any
helpful information that would have aided the defense. He said that had the woman and Mr.
Burleson had useful information, he would have called them to testify. He recalled using the
“person locator” feature on LexisNexis to locate these potential witnesses, which provided
detailed information about the person’s life.

        Counsel testified that he did not recall the Petitioner’s telling him to object to the
prosecutor’s leading questions at the trial. He said that the Petitioner may have been
referring to the prosecutor’s beginning a question with a “prepositional phrase,” which made
it sound like a leading question. He recalled the prosecutor’s beginning a question with
“before kicking him.” He said testimony regarding the Petitioner’s kicking the victim was
presented earlier in the trial through the victim’s testimony. He said that although the
question was “technically” leading, he believed the court would have overruled the objection

                                              -5-
on the ground that the Petitioner’s kicking the victim was previously presented during the
trial. He said he made a strategic decision not to object to the prosecutor’s question.

        Counsel testified that he considered filing a motion to sever the Petitioner’s case and
that he was concerned about the State’s presenting evidence that might raise a confrontation
issue. He said that he filed a motion to prevent the State from “bringing out any such issue
at the trial.” He said that with regard to severance, the Petitioner’s and the codefendant’s
alleged actions appeared to have occurred almost simultaneously. He said the events
involved the same victim and occurred at the same time and place. He said that the Petitioner
admitted being present in the general area at the time of the shooting and that he did not think
there was sufficient evidence that would have permitted the trial court to grant a severance.
He believed a motion to sever would have been denied and considered frivolous.

        On cross-examination, counsel testified that he did not request funds for an
investigator to locate the potential witnesses provided by the Petitioner. He said that
although he subpoenaed the potential witnesses for the July 2007 trial date, he determined
by the January 2008 trial that the witnesses did not have any beneficial information. He said
that before the trial, he told the Petitioner that the potential witness would not help the
defense.

       Counsel testified that the Petitioner told him the victim made the allegations against
the Petitioner because there was “bad blood” between them. He said, though, he did not find
any evidence of this. He said the victim testified at the trial that he did not know the
Petitioner. He said the Petitioner did not believe the victim’s story that the victim was
playing video games with a friend the night of the shooting and denied the Petitioner’s telling
him about a drug deal that went wrong. He said there was no evidence suggesting the victim
was doing anything other than playing video games at a friend’s home.

       Counsel testified that he did not believe severing the Petitioner’s case would have
benefitted the defense because the theory of the case and his line of questioning at the trial
was that the Petitioner’s codefendant was guilty of the offenses, not the Petitioner. He
recalled the victim’s testifying that he left his friend’s home and saw a group of men standing
near his car. Counsel said he wanted to show that during the confusion of being shot,
assaulted, and accosted by the codefendant, the victim confused the Petitioner with another
man. He said he was concerned about the “spillover effect” that might have occurred with
regard to the jury’s finding the Petitioner guilty after hearing evidence of the codefendant’s
actions. He said he made a strategic decision to allow the jury to hear evidence of what
happened to the victim to show the victim confused the Petitioner with another person. He
believed this was a better strategy compared to separating the two cases. He said the
Petitioner did not complain about not severing the cases.

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       Counsel testified that in preparing for the January 2008 trial, he spent approximately
two hours with the Petitioner the day before the trial and that he reviewed his notes, the
indictment, and the questions he planned to ask during the trial. He said he spent about nine
hours preparing for the trial. With regard to the July 2007 trial date, he spent approximately
three and one-half hours preparing for the trial. He said he spent about one and one-half
hours with the Petitioner and the remainder of the time reviewing his notes and preparing his
questions. He stated that he spent almost seven additional hours preparing the Petitioner’s
case. He said he met with the Petitioner at least three additional times, discussed the case
with the prosecutor, and continued preparing for the trial.

       The trial court denied post-conviction relief. The court concluded that counsel was
not ineffective by failing to request the Petitioner’s case be severed. The court found that
severance was not appropriate in this case because the charged offenses occurred within
minutes and the State’s theory of the case was that the Petitioner acted in concert with the
codefendant. With regard to counsel’s investigating potential witnesses, the court credited
counsel’s testimony. The court found that counsel spoke to the potential witnesses the
Petitioner wanted called as witnesses and made the tactical decision not to call them because
they did not help the Petitioner’s case. The court noted that the Petitioner presented no
evidence showing the witnesses would have provided beneficial information at the trial. This
appeal followed.

       As a preliminary matter, the State contends that the appeal should be dismissed
because the Petitioner failed to file a timely notice of appeal and that waiver is not in the
interest of justice. The Petitioner does not respond to this issue. Tennessee Rule of
Appellate Procedure 4(a) states,

       In an appeal as of right to the . . . Court of Criminal Appeals, the notice of
       appeal required by Rule 3 shall be filed with and received by the clerk of the
       trial court within 30 days after the date of entry of the judgment appealed from;
       however, in all criminal cases the “notice of appeal” document is not
       jurisdictional and the filing of such document may be waived in the interest of
       justice.

        The record shows that the order denying post-conviction relief was filed on February
6, 2012, and that the Petitioner’s notice of appeal was filed on March 22, 2012. Although
the Petitioner was represented by counsel, no explanation for the untimely notice of appeal
has been presented. Although we agree the notice of appeal was untimely, we will consider
the issues on the merits in the interest of justice.




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        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, there is “a reasonable
probability that . . . the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. The Strickland standard has been applied to the right to counsel under article
I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id.

        The Petitioner contends that counsel provided ineffective assistance by failing to
investigate and interview witnesses adequately. He argues that counsel’s failure to locate and
call as witnesses the Burleson brothers and Ms. Brook, who were material to his defense, was
ineffective assistance. The State responds that trial court properly denied relief. We agree
with the State.

       Counsel testified that he located two of the three potential witnesses the Petitioner
asked counsel to call as witnesses. He said he spoke with one of the Burleson brothers, who
did not have any helpful information. In addition, Mr. Burleson had a criminal history that

                                              -8-
led counsel to conclude Mr. Burleson’s testimony would have been harmful to the
Petitioner’s case. Counsel made the strategic decision not to call Mr. Burleson as a witness.
With regard to Ms. Brook, counsel testified that he spoke with Ms. Brook before the trial and
concluded that the she, too, did not have any helpful information. Counsel made a strategic
decision not to call her as a witness. Counsel investigated and made tactical and strategic
decisions based on his communications with the Petitioner and potential witnesses. See
Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991) (concluding that
“[a]llegations of ineffective assistance of counsel relating to matters of trial strategy or tactics
do not provide a basis for post-conviction relief”).

        We note that at the post-conviction hearing, the Petitioner failed to call as witnesses
Ms. Brook and the Burleson brothers. There is no evidence suggesting that any of the
potential witnesses had favorable or material information to the Petitioner’s defense. The
failure to present the witnesses at the hearing prevents post-conviction relief. See Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (concluding that a claim of ineffective
assistance of counsel based on counsel’s failure to present a witness at the trial requires the
petitioner to present the witness’s testimony at the post-conviction hearing). The Petitioner
is not entitled to relief.

       The Petitioner also contends that counsel provided ineffective assistance by failing
to request that his case be severed from his codefendant’s case. He argues that counsel’s
“failure to file the severance, to at least attempt to give [him] some options when planning
his defense, whether ultimately successful or not, constituted ineffective assistance. . . .” The
State responds that counsel was not deficient. We agree with the State.

       Counsel’s testified that he considered filing a motion to sever the Petitioner’s case but
concluded that the motion would be denied and would not be beneficial. Based on the facts
of the case, counsel concluded that the Petitioner’s and the codefendant’s alleged actions
occurred almost simultaneously. The events involved the same victim and occurred at the
same time and place. The State’s theory was that the Petitioner and his codefendant acted
in concert the night of the shooting, and the Petitioner admitted being present at the time of
the shooting. Counsel concluded that there was insufficient evidence to support a trial
court’s granting a severance motion.

       Tennessee Rule of Criminal Procedure 8(c)(1) permits the joinder of defendants “if
each of the defendants is charged with accountability for each offense included.” Rule
8(c)(3) permits joinder of defendants when conspiracy is not an alleged offense but when the
offenses charged are “so closely connected in time, place, and occasion that it would be
difficult to separate proof of one charge from proof of the others.” Rule 14(c)(2), though,
provides, in relevant part, that “on motion of . . . the defendant . . . the court shall grant a

                                                -9-
severance of defendants if before trial, the court finds a severance is . . . appropriate to
promote a fair determination of the guilt or innocence of one or more defendants . . . .” This
court has concluded that a joint trial of multiple defendants charged with assault and battery
with the intent to commit rape was proper when the offenses were committed at the same
place and upon the same victim. Franks v. State, 541 S.W.2d 955 (Tenn. Crim. App. 1976).
We conclude that counsel was not deficient by failing to file a motion to sever the
Petitioner’s case.

       Additionally, counsel made a strategic decision not to file a severance motion because
he believed trying the cases together might benefit the Petitioner. The Petitioner’s theory
was that although the Petitioner was present in the general vicinity of the shooting, the
violent acts of the codefendant confused the victim, causing him to identify the Petitioner
erroneously. Counsel made a strategic decision to allow the jury to hear evidence of the
codefendant’s shooting and assaulting the victim to show the victim confused the Petitioner
with another person. He believed this was a better strategy compared to separating the two
cases. We cannot conclude that counsel was deficient by failing to file a motion to sever the
Petitioner’s case.

       The Petitioner has failed to establish his claim by clear and convincing evidence and
is not entitled to relief. In consideration of the foregoing and the record as a whole, the
judgment of the trial court is affirmed.




                                              _____________________________________
                                              JOSEPH M. TIPTON, PRESIDING JUDGE




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