         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs January 6, 2009

                   TONY JAMERSON v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                             No. P-26216    W. Fred Axley, Judge



                       No. W2007-01451-CCA-R3-PC - Filed June 8, 2009


The petitioner, Tony Jamerson, appeals the judgment of the Shelby County Criminal Court denying
post-conviction relief. The petitioner was convicted of first degree premeditated murder and
sentenced to life imprisonment without the possibility of parole. On appeal, the petitioner argues
that: (1) his trial counsel was ineffective in failing to fully investigate police techniques used in
obtaining the petitioner’s confession, and (2) the trial court and counsel failed to ensure proper jury
instruction. The petitioner also asserts in brief that he is entitled to relief based on cumulative error.
After review, the judgment of the court denying post-conviction relief is affirmed.

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

J.C. MCLIN , J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE R.
MCMULLEN , JJ., joined.

Paul K. Guibao, Memphis, Tennessee, for the appellant, Tony Jamerson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Alexia Fulgham, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

                                           BACKGROUND

        In 1999, the petitioner was convicted of first degree premeditated murder and sentenced to
life imprisonment without the possibility of parole. On appeal, this court affirmed the petitioner’s
conviction and sentence. State v. Tony Jamerson, No. W1999-00935-CCA-R3-CD, 2000 WL
1224764 (Tenn. Crim. App., at Jackson, Aug. 28, 2000), perm. app. denied (Tenn. Mar. 12, 2001).
The following is a recitation of the convicting evidence set forth in this court’s opinion on direct
appeal:
In the light most favorable to the state, the evidence at trial demonstrated that Tony
Jamerson was living as a roomer with the victim, Ernest Goodwin. On the afternoon
and evening of January 7, 1998, Jamerson drank beer and smoked crack cocaine.
Around 9:00 p.m., Jamerson called his aunt and asked her for $20.00 for his
granddaughter’s daycare. The aunt told him she did not have cash but would write
him a check. Jamerson inquired where he might cash a check, and he never went to
the aunt’s house to get the check.

Jamerson arrived at the home he shared with the victim at about 10:45 p.m. He
talked with the victim and asked her to loan him $20.00. The victim told him she did
not have $20.00. Jamerson thought the victim was lying to him. Around 11:00 to
11:30 p.m., Jamerson again called his aunt’s house to inquire about a $20.00 loan.
This time he spoke with his uncle, who told him he did not have $20.00 in cash. The
defendant inquired where he might cash a check at that hour, and his uncle told him
he did not know.

Sometime before about midnight, the victim retired to her bedroom. Jamerson went
to the kitchen and retrieved a bottle of wine. He then went into the victim’s
bedroom. The victim was resting on her bed. Jamerson struck her at least five times
on the head with the bottle of wine.

After inflicting the blows, Jamerson washed his hands and the bottle of wine. He
changed his clothes, putting his soiled clothing and the bottle of wine into a garbage
bag. He moved the victim’s body to a closet and covered it with sofa pillows. He
retrieved the victim’s keys and pulled her car to a convenient location. He took a
bank containing change from the victim’s room and loaded a 30-inch television set,
a vacuum cleaner, and a telephone into the car.

Jamerson drove away and disposed of the garbage bag containing his clothing and
the murder weapon. He then traded the television, vacuum cleaner and telephone for
ten $15.00 rocks of crack cocaine. He used the cocaine. After staying with the
victim’s car until it ran out of gas, Jamerson eventually wound up at his cousin’s
house, where he was apprehended in the early evening hours of January 9.

On January 8, the morning following the murder of the victim, she did not show up
for work at 5:00 a.m., and her granddaughter was unable to reach her by telephone
at 6:00 a.m. The victim’s employer and his wife, the victim’s granddaughter and the
police went to the victim’s apartment later in the morning of January 8 and
discovered the victim’s body in the closet. The victim’s granddaughter observed that
the victim’s identification and other belongings were strewn about the apartment.
According to this witness, her grandmother always wore a small pouch around her
neck which contained her identification and money.

Jamerson was detained overnight and questioned the following afternoon by two
detectives, Sergeants James Fitzpatrick and A.J. Christian. In pre-trial proceedings,

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        Jamerson challenged the admissibility of the statement he gave the officers, claiming
        the statement had not been voluntarily given. In part, the defendant claimed he had
        been promised a reduced charge of second degree murder in exchange for a
        confession and that the state had reneged on the deal after he gave his statement. The
        trial court discredited the defendant’s evidence and denied the motion to suppress.

Id. at *1-2.

         The petitioner timely filed a pro se petition for post-conviction relief. Thereafter,
post-conviction counsel was appointed, the petition was amended, and an evidentiary hearing was
held. At the hearing, the petitioner testified, in pertinent part, that he was arrested on January 9,
1998, and he was detained for three days by the Memphis police without charge as part of a
technique known as “on the hook.” The petitioner stated that he learned of this technique in a
newspaper story wherein the technique was thought to be illegal because the police were holding
suspects beyond the 48-hour limit without a finding of probable cause. The petitioner asserted that
he brought the story to the attention of counsel prior to the filing of the motion to suppress. The
petitioner said that prior to the hearing on the motion to suppress, he had only met with counsel three
or four times. The petitioner recalled that he was detained on a Friday and charged on Monday. The
petitioner admitted, however, that he was only in custody for 24 hours prior to giving his confession.
The petitioner claimed that counsel did not mention the “on the hook” technique at the suppression
hearing.

       With regard to jury instruction, the petitioner admitted that counsel requested that lesser-
included offenses be charged but the trial court only charged second degree murder. The petitioner
complained that counsel did not object to the court’s failure to include additional lesser-included
offenses. The petitioner also complained that counsel did not investigate whether first and second
degree murder were result-of-conduct offenses. The petitioner acknowledged that he killed the
victim but said he did so under the influence of alcohol and drugs. He further asserted that he was
under the influence of alcohol and drugs when he gave his confession.

        On cross-examination, the petitioner stated that counsel reviewed the information in the
newspaper article but did not raise the “on the hook” issue at the suppression hearing. The petitioner
asserted that because his confession was not suppressed, the defense strategy was limited to arguing
that the petitioner did not have the requisite mental state to commit premeditated murder. The
petitioner acknowledged that counsel argued to the jury that the petitioner should only be convicted
of second degree murder. The petitioner submitted that counsel requested instructions on reckless
homicide and criminally negligent homicide but the court did not grant the request.

        The petitioner’s trial counsel testified that he was assigned to the petitioner’s case after the
state dropped its demand for the death penalty. Counsel recalled that he met with the petitioner in
jail four times, averaging two hours per visit. He also met with the petitioner a number of times
prior to and during court dates. Counsel stated that he researched the information regarding the “on
the hook” issue prior to the suppression hearing. However, he determined that argument on this
issue was not the strongest argument because the petitioner gave his statement within 24 hours of
being detained by police. Counsel noted that he made this determination based on the decision of

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State v. Huddleston, 924 S.W.2d 666, 675 (Tenn. 1996), wherein the Tennessee Supreme Court
noted in its analysis of whether a Fourth Amendment violation occurred that “[o]bviously, if the
statement was given prior to the time the detention ripened into a constitutional violation, it is not
the product of the illegality and should not be suppressed.” Counsel recalled that he discussed the
Huddleson case with the petitioner, and they tried to suppress the statement on a variety of other
grounds, including the voluntariness of the confession. Counsel also noted that the time frame
between the petitioner’s arrest and arraignment was brought to light at the suppression hearing, but
the court found the temporal proximity between the arrest and confession to be “okay.” Counsel
recalled that after the court denied the suppression motion, the petitioner agreed that the best strategy
was to use the confession to support an intoxication defense.

       Counsel testified that he requested a lesser-included offense instruction on second degree
murder, reckless homicide, and criminally negligent homicide, but the trial court only charged
second degree murder. Counsel recalled that he raised the jury instruction issue in the motion for
a new trial.

        By order entered May 24, 2007, the post-conviction court denied relief, finding that the
petitioner failed to prove his factual allegations by clear and convincing evidence and failed to
demonstrate he received the ineffective assistance of counsel.

                                             ANALYSIS

        A post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. Nichols v. State, 90 S.W.3d 576, 586 (Tenn. 2002). “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.” Id.; see also Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Appellate
review of the post-conviction court’s legal conclusions and application of law to facts is de novo
without a presumption of correctness. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

         To establish the ineffective assistance of counsel, the petitioner bears the burden of proving
that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington, 466
U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient
performance is shown if counsel’s conduct fell below an objective standard of reasonableness under
prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975) (establishing that representation should be within the range of competence
demanded of attorneys in criminal cases). A fair assessment of counsel’s performance “requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Nichols, 90 S.W.3d at 587. Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The fact that a particular strategy or tactical decision failed does not by
itself establish ineffective assistance of counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).
Once the petitioner proves that counsel’s representation fell below a reasonable standard, the

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petitioner must also prove prejudice. Prejudice is shown if, but for counsel’s unprofessional errors,
there is a reasonable probability that the outcome of the proceeding would have been different.
Strickland, 466 U.S. at 694. Both deficient performance and prejudice must be established to prove
ineffective assistance of counsel. Id. at 697. If either element of ineffective assistance of counsel
has not been established, a court need not address the other element. Id.

                                                   I.

        On appeal, the petitioner first contends that counsel was deficient in failing to pursue the “on
the hook” issue at the suppression hearing because the petitioner was held in custody longer than 48
hours without being charged which constituted a violation of the Fourth Amendment. Addressing
the petitioner’s complaint, the post-conviction court noted:

       [Counsel] testified that he did not neglect the claim because the original motion to
       suppress was filed . . . which included the Petitioner’s claim of the Fourth Amendment
       violation. [Counsel] further testified that although he felt that it was not a viable
       claim, he still raised the issue because Petitioner wanted him to pursue it. Finally,
       [counsel] testified that based on his research there was no constitutional violation in
       regards to the detention of Petitioner. [Counsel’s] research revealed that a
       constitutional violation occurs anywhere after an arrestee has been detained for at least
       48 hours before he confesses. In this case, Petitioner confessed within 24 hours of
       being detained. The judge ruled that the time frame was in fact reasonable and that
       Petitioner was allowed to go to the bathroom and have food at that time. [Counsel]
       appropriately researched the issue and argued it before the judge. The judge denied
       it.

               Petitioner has failed to demonstrate the particular acts or omissions by counsel
       that amount to ineffective assistance of counsel, thus failing to meet the first prong of
       the Strickland test.

The record does not preponderate against the post-conviction court’s findings. The record clearly
demonstrates that counsel researched the “on the hook” issue and determined that argument on this
issue was not the strongest argument because the petitioner gave his statement prior to the time the
detention ripened into a Fourth Amendment violation. Accordingly, counsel attempted to suppress
the statement on a variety of other constitutional grounds. To reiterate, deference is made to trial
strategy or tactical choices if they are informed ones based upon adequate preparation. Like the
post-conviction court, we conclude that the petitioner failed to establish that counsel’s conduct fell
below an objective standard of reasonableness for criminal attorneys. Therefore, the petitioner is
not entitled to relief on this issue.

                                                  II.

        The petitioner next complains that both the trial court and trial counsel failed to ensure proper
jury instructions. Citing State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002), the petitioner first


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submits that the trial court failed to properly instruct the jury that second degree murder was a result-
of-conduct offense.

        Upon review, we initially note that petitioner has waived this issue for failing to raise it on
direct appeal as required by the Post Conviction Procedure Act. See Tenn. Code Ann. § 40-30-
106(g). Further, the plain error doctrine has no application in post-conviction proceedings. State
v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000). We would also point out that the petitioner did not
put on proof that his trial counsel was deficient in raising the issue on direct appeal. Indeed, State
v. Page was decided two years after the petitioner’s trial and direct appeal. As such, counsel cannot
be held ineffective for failing to anticipate the holding in Page with regard to jury instruction on the
mens rea of “knowingly.” Finally, we note that the jury’s first degree murder verdict renders this
claim moot. See, e.g., Rickey Williams v. State, No. W2006-00605-CCA-R3-PC, 2007 WL 2120174,
at *8 (Tenn. Crim. App., at Jackson, July 24, 2007). The petitioner is not entitled to relief.

        The petitioner next submits that both the trial court and counsel failed to ensure proper jury
instruction on the lesser-included offenses, in particular, the offenses of reckless homicide and
criminally negligent homicide. With regard to the petitioner’s complaint involving the trial court’s
duty to instruct the jury on lesser-included offenses, we conclude that the issue is waived as the issue
was not raised on direct appeal. Tenn. Code Ann. § 40-30-106(g).

        With regard to the petitioner’s complaint involving trial counsel, we note that at the time of
the petitioner’s trial in 1999, it was the “the duty of all judges . . . to charge the jury as to all of the
law of each offense included in the indictment, without any request on the part of the defendant to
do so.” Tenn. Code Ann. § 40-18-110(a)(1979); see also State v. Page, 184 S.W.3d 223, 229 (Tenn.
2006) (comparing the prior version of section 40-18-110 with the current version effective in 2002).
Because the trial court had a mandatory duty to instruct the jury regardless of a request to do so, this
court has held that trial counsel was not ineffective for failing to request an instruction on a particular
lesser-included offense. See, e.g., Larry Johnson v. State, No. W2006-00345-CCA-R3-PC, 2007
WL 2120184 (Tenn. Crim. App., at Jackson, July 24, 2007), perm. app. denied (Tenn. Dec. 26,
2007); Jerome Sawyer v. State, No. W2005-01813-CCA-R3-PC, 2007 WL 778828 (Tenn. Crim.
App., at Jackson, Mar. 15, 2007), perm. app. denied (Tenn. Aug. 13, 2007); Chivous Robinson v.
State, No. E2005-01036-CCA-R3-PC, 2006 WL 1381511 (Tenn. Crim. App., at Knoxville, May,
19, 2006), perm. app. denied (Tenn. Oct. 2, 2006); Jeffery Lee Miller v. State, No.
M2003-02841-CCA-R3-PC, 2005 WL 901130 (Tenn. Crim. App., at Nashville, Apr. 19, 2005),
perm. app. denied (Tenn. Oct. 17, 2005). Also, contrary to the petitioner’s claim, the record in this
case indicates that trial counsel requested lesser-included offenses but the request was denied by the
court.

       Moreover, to obtain relief on the basis of ineffective assistance of counsel, the petitioner must
also demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. As noted by this court on direct appeal:

        Jamerson was laboring under a drug addiction and had used crack cocaine and
        alcohol on the day of the crime. He made two telephone calls to relatives in
        unsuccessful attempts to borrow money. These calls were made around 9:00 p.m.

                                                    -6-
       and 11:00 to 11:30 p.m. Around 10:45 p.m., the defendant arrived at the home where
       he lived as a roomer with the victim and asked her for some money. The victim
       responded that she had no money, and the defendant thought she was lying. After
       the victim retired to her bedroom for the evening, the defendant procured a weapon
       by going into the kitchen and retrieving a bottle of wine. Jamerson went into the
       victim’s bedroom around midnight and repeatedly struck the unarmed victim in the
       head with the bottle of wine as she lay resting in her bed. He had time during the
       interval between his request for money from the victim and the crime to premeditate
       the murder. Although the defendant claims that he was high on crack cocaine when
       he committed the crime and that he panicked and fled the apartment, the undisputed
       evidence is that he had the presence of mind to change his clothes, wash the victim’s
       blood off his hands and the bottle of wine with which he struck the fatal blows, move
       the victim’s body to a closet and cover it with pillows, take a bank containing the
       victim’s spare change and several large household items with him when he left the
       apartment, and dispose of the wine bottle and his clothing in another location. There
       is also evidence that he went through the money pouch the victim kept on her person,
       scattering its contents throughout the apartment. By his own admission, he killed the
       victim around midnight and did not depart the victim’s home until an hour to an hour
       and a half later.

Jamerson, No. W1999-00935-CCA-R3-CD, 2000 WL 1224764, at *3. Based on this evidence, the
jury found the petitioner guilty of first degree premeditated murder despite being instructed on
second degree murder. “Failure to instruct is not error where the record clearly shows that the
defendant was guilty of the greater offense and the record is devoid of any evidence permitting an
inference of guilt of the lesser offense.” State v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999); see
also State v. Williams, 977 S.W.2d 101, 106-08 (Tenn. 1998) (noting that jury’s verdict of guilt on
greater offense of first degree murder and disinclination to consider the lesser-included offense of
second degree murder demonstrated that it would not have returned a verdict on other lesser-included
offenses). Consequently, the petitioner has not demonstrated that (1) counsel’s conduct fell outside
the wide range of reasonable professional conduct for attorneys at the time of trial and appeal; or (2)
a reasonable probability that the outcome of the proceedings would have been different had the jury
been instructed on reckless homicide and criminally negligent homicide. The petitioner is not
entitled to relief on this issue.


                                                 III.

        The petitioner also contends that the post-conviction court failed to address all claims raised
in the petitioner’s post-conviction petition. It is not clear which claims the petitioner submits the
court failed to address. As to the aforementioned claims argued in brief, the record was sufficient
for meaningful appellate review. See State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App.
1984). In all other respects, the petitioner has waived appellate review by his failure to present and
prove the factual allegations underlying these claims by clear and convincing evidence at the
evidentiary hearing, and by not providing argument, citation to authority, and references to the
record in support of his claims. Tenn. Ct. Crim. App. R. 10(b). Finally, the petitioner contends that

                                                 -7-
the cumulative effect of the errors entitles him to post-conviction relief. Based on the foregoing
review, we respectfully disagree.

                                         CONCLUSION

        Based on the aforementioned reasoning and authorities, we conclude that the petitioner failed
to prove his factual allegations by clear and convincing evidence and failed to demonstrate that he
received the ineffective assistance of counsel. Therefore, we affirm the denial of post-conviction
relief.



                                                      ___________________________________
                                                      J.C. McLIN, JUDGE




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