           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   May 13, 2014 Session

             STEVEN JAMES McCAIN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 1998-D-2520    J. Randall Wyatt, Jr., Judge


                  No. M2013-00992-CCA-R3-PC - Filed July 23, 2014


The petitioner, Steven James McCain, appeals the denial of his petition for post-conviction
relief from his 1998 Davidson County Criminal Court jury convictions of two counts of first
degree premeditated murder, claiming that the State withheld material evidence at trial and
that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Steven James McCain.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Katrin Miller, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               A Davidson County Criminal Court jury convicted the petitioner of two counts
of first degree premeditated murder. The trial court imposed two consecutive life sentences,
and this court affirmed the judgments on direct appeal. See State v. Steven James McCain,
No. M2000-02989-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Nashville, May 22, 2002).

              In Steven James McCain, this court summarized the facts of the case as
follows:

                     At trial, the State presented proof that, on April 25, 1998,
              the [petitioner] met Phillip Leslie at the home of a mutual
acquaintance, Sally Ann Smith.          Leslie only knew the
[petitioner] as “Steve.” Leslie drank beer and played poker for
a little while and then decided to leave Smith’s residence. The
[petitioner] asked Leslie to give him a ride home and Leslie
agreed. On the way, Leslie stopped and purchased beer and
cigarettes at an Exxon station. Also during the ride, the
[petitioner] mentioned that he needed to use the telephone, so
they went to the nearby home of Leslie’s mother. While there,
the [petitioner] spent considerable time on the telephone. Some
time later, Leslie fell asleep. The [petitioner] revealed at trial
that, during the course of his telephone calls, he discovered that
a man named Reginald M. Conwell had taken some cocaine
from Tina Bryant, a woman who was selling the cocaine for the
[petitioner].

        The next morning, Leslie awoke and found the
[petitioner] asleep on the couch. He informed the [petitioner]
that it was time to leave. The [petitioner] asked Leslie to take
him to “see Fonzie,” directing Leslie to 2312 Shadow Lane in
Madison. Once they arrived at the residence, the [petitioner]
retrieved his jacket from the rear portion of the extended cab of
Leslie’s truck. Leslie noticed that the [petitioner] was hiding a
sawed-off .22 caliber rifle underneath the jacket. The
[petitioner] walked toward the residence and instructed Leslie
to follow him and to “watch his back.” Leslie complied because
“I’ve learnt that you don’t argue with a man with a gun.”

       Conwell answered the door of the residence in response
to the [petitioner]’s knock. The [petitioner] entered the
residence and asked Conwell, “How come you got my sh**?”
The two men started arguing. Leslie maintained at trial that
another man, Malbourne Angiers, also known as “Twango,” was
laying on the couch asleep during the altercation. Conwell told
the [petitioner], “Go ahead and pop a – pop a cap at me. I’m
ready to die.” After the statement, the [petitioner] shot Conwell
four times with the rifle.

      Leslie left the residence after the first shots were fired.
He walked back to his truck, and, on the way, he heard several
more shots fired. The [petitioner] exited the house and got in

                               -2-
              Leslie’s truck. Leslie asked the [petitioner] if he had killed
              anyone. The [petitioner] told Leslie that, “I had to kill – I killed
              them both. I had to.” The [petitioner] further ordered Leslie not
              to “snitch him out” or the [petitioner] would kill Leslie and burn
              his mother’s house.

                      The [petitioner] instructed Leslie to drop him off in front
              of a “large, white brick house” at 151 Oak Valley Drive. The
              [petitioner] exited the truck with the gun under his coat and
              walked toward the rear of the house. Leslie left and returned to
              his mother’s house. Over the course of the next one or two
              hours, he drank approximately twelve beers. However, Leslie
              asserted that he did not become intoxicated by the alcohol.
              Leslie then called the police and informed them that he may
              have witnessed a murder.

State v. Steven James McCain, slip op. at 1-2 (footnotes omitted).

              Melinda Daugherty testified at trial that she, along with three others, visited
2312 Shadow Lane on April 26, 1998 to “‘see who all was there and to use the phone.’” Id.
at 3. Shortly after entering the house, Ms. Daugherty contacted 9-1-1 and “notified the
authorities that Conwell was dead and Angiers needed medical attention. Angiers died
approximately twenty-one hours after the shooting.” Id.

               Metro Detective Brad Putnam testified that he interviewed Mr. Leslie and
recorded his statement. Id. Detective Putnam also provided Mr. Leslie with a photographic
lineup, “but Leslie was unable to identify anyone in that lineup as the perpetrator.” Id. Mr.
Leslie did, however, inform Detective Putnam that the petitioner had been in his vehicle
earlier that day, and fingerprints obtained from Mr. Leslie’s truck matched those of the
petitioner. Id. Law enforcement officers also spoke with Wanda Key, who resided at 151
Oak Valley Drive, and she told officers that her sons, one of whom was Jamal Cooper, had
a friend by the name of Steven McCain. Id. Using this information, Detective Putnam
compiled a new photographic lineup which included the petitioner’s photograph. Id. When
Detective Putnam showed the new lineup to Mr. Leslie, Mr. Leslie “‘almost immediately’
identified the [petitioner] as the perpetrator.” Id. The murder weapon was later discovered
in a crawl space behind Ms. Key’s residence at 151 Oak Valley Drive. Id.

                      The [petitioner] testified that at the time of the offense he
              was on parole for aggravated robbery. He admitted that, upon
              his release from incarceration, selling cocaine was his primary

                                               -3-
source of income. The [petitioner] claimed that, on April 25,
1998, he and Leslie were at Smith’s house. He asked Leslie to
drive him around to make drug sales, and in return the
[petitioner] promised to give Leslie cocaine. The [petitioner]
maintained that Leslie agreed and took the [petitioner] to several
addresses, including the house at 151 Oak Valley Drive. The
[petitioner] alleged that Leslie used cocaine on several occasions
that night. According to the [petitioner], he and Leslie went to
Leslie’s mother’s house so the [petitioner] could use the
telephone. The [petitioner] related that Bryant called and “told
me that Reggie Conwell has took the drugs that I had gave to her
. . . . I asked her why did he take it and where was he at?” Later
that night, Conwell talked to the [petitioner] and acknowledged
that the cocaine he had taken from Bryant belonged to the
[petitioner], stating that he would pay for the cocaine and buy
additional cocaine from the [petitioner] the next morning.

        According to the [petitioner], he and Leslie slept until
daybreak and then went to 2312 Shadow Lane. The [petitioner]
alleged that Conwell paid for the cocaine obtained the night
before and bought more cocaine from the [petitioner]. For no
apparent reason, Conwell then became enraged. The [petitioner]
noticed a sawed-off .22 caliber rifle on the loveseat in the living
room of Conwell’s house. The [petitioner] said that, when
Conwell moved toward the gun, the [petitioner] also moved for
the gun and grabbed it first. At this point, Leslie exited the
house, and the [petitioner] turned to see what was happening.
While his head was turned, Conwell lunged toward the
[petitioner], and, in reaction, the [petitioner] fired at Conwell.
The [petitioner] then dropped the gun and fled. The [petitioner]
admitted that he told Leslie that he had killed Conwell but
asserted at trial that he was not sure that Conwell was dead
when he left the residence. The [petitioner] denied that there
was anyone else in the house at the time of the shooting.

        The [petitioner] maintained that he instructed Leslie to
leave him near a bowling alley on Oak Valley Drive because he
did not want Leslie to know where he was going. The
[petitioner] walked to 151 Oak Valley Drive, woke Jamal
Cooper, and Cooper drove the [petitioner] to “Auntie’s.” From

                                -4-
                 there, the [petitioner] attended the funeral of a family member.
                 A few hours later, the [petitioner] learned that the police were
                 looking for him. He fled to Alabama where he was later
                 discovered by officers with the Athens, Alabama Police
                 Department. The [petitioner] gave a brief statement to the
                 Alabama police before being picked up by Metro officers.

                        In further support of his defense, the [petitioner] called
                 Chad Collins as a witness at trial. Collins maintained that, on a
                 night in May after the shooting, he was with Leslie in Leslie’s
                 truck. Collins alleged that Leslie became “teary-eyed” and
                 confessed to dropping off the [petitioner], returning to 2312
                 Shadow Lane for the cocaine, and therein killing the two men.
                 In rebuttal, the State presented a previously taped statement of
                 Collins in order to impeach parts of his testimony. The detective
                 who took Collins’ statement agreed that, at the time Collins
                 made the statement, Collins “was either really tired or on
                 something.”

Id. at 3-4.

               On May 20, 2003,1 the petitioner filed, pro se, his initial petition for post-
conviction relief. Over the following seven years, at least six attorneys were appointed to
represent the petitioner, and at least five of those attorneys moved the court to withdraw as
petitioner’s counsel. One of those attorneys filed an amended petition for post-conviction
relief two months before seeking to be relieved from the petitioner’s case. On July 16, 2012,
the petitioner filed, pro se, a supplemental amendment to his petition for post-conviction
relief. Following the apparent appointment of new counsel,2 the post-conviction court
conducted an evidentiary hearing on January 29, 2013.

                Officer Scott Murrell with the Metro Nashville Police Department (“Metro”)
testified that, on April 26, 1998, he responded to the crime scene and interviewed one of Mr.
Conwell’s neighbors, Elizabeth Feltz. The report Officer Murrell prepared on April 26


        1
          The file-stamp date on the petition for post-conviction relief is illegible. In its order denying post-
conviction relief, the post-conviction court states that the petition was filed on May 20, 2003, and we will
rely on that date.
        2
         The petitioner was represented by new counsel at the post-conviction hearing, although an order
appointing counsel does not appear in the record.

                                                      -5-
following his interview with Ms. Feltz was introduced into evidence and provided as follows:

                     Officer S. Murrell interviewed Mrs. Elizabeth Felts [sic]
              at 2310 Shadow Lane. Witness states that she heard a loud
              commotion around 0600 hrs. Witness states that she observed
              a female white outside the victim[’]s residence arguing with
              some subjects inside the residence. Witness also observed
              several vehicle[s] leave the residence after 0600 hrs. An older
              model Chevy truck DARK BLUE over light blue, a newer
              model Chevy truck tan in color with a black male and white
              male inside and TAN Chevy car.

                     Officer S. Murrell went to 1640 Neels [sic] Bend to
              check on a Lisa Long. A car belonging to this subject, gray
              Chevette, was found parked in the victim[’]s driveway. The
              residents at this address state that Lisa Long is their
              granddaughter but that she had not been home since yesterday
              afternoon. The grandparents, Mr. Beckrath agreed to let officers
              look through the house for Lisa Long. The subject could not be
              found at the residence.

             The petitioner introduced into evidence a supplemental report prepared by
Metro Detective Juan Borges, which provided as follows:

                     On 04/26/98 I was dispatched to 2312 Shadow Lane on
              a shooting that occurred at about 0600 hrs; Detective J.
              Lawrence and Detective F. Pierce also arrived at the scene.
              Upon arrival I went inside the house and saw a male black
              laying face down on the kitchen floor. There was blood on the
              couch, carpet, and kitchen area. Det Pierce notified the chain of
              command and the murder squad was called out. Det B Putnam
              arrived at the scene and took charge. I then went to 2310
              Shadow Lane and talked to Mr Bobby Feltz and his wife Ms
              Elizabeth Feltz. They stated that at about 0600 hrs; a female
              was bangin [sic] on the door at 2312 Shadow Lane and was
              saying “Give me my purse back.” When the people in the house
              did not let her back in, she went to the house across the street,
              but no one answer [sic] the door she then went back to the house
              and was trying to get inside. The witness lost sight of her and
              was unable to see were [sic] the female went to. At about 0700

                                             -6-
               hrs; a 1985 Chevy pulled in the drive way with one male black
               driving. He got out of the vehicle with what appeared to be
               grocery bags and went inside the house. At about 0730 hrs, a
               two tone blue Chevy pick up truck older model pulled in front
               of the house it also had a white top. The driver was a white
               male. Few minutes later a black male heavy set got inside the
               truck and, then drove off. A little later another car pulled in it
               was a small tan size vehicle. Inside that car was a white male
               and a white female few minutes later a white female got inside
               the car and drove off. About 20 minutes later a new pick up
               truck arrived at the scene a big white male was driving the truck
               and another white male with a green shirt was in the passenger
               side. The witness then did not pay much attention after that.

               The petitioner testified that “six or seven” attorneys had been appointed to
handle his case and that he rarely saw any of his attorneys. When asked if the decision to
testify at his own trial was a joint decision between the petitioner and trial counsel, the
petitioner responded that his “lawyer said [he] needed to testify.” The petitioner also stated
that trial counsel had advised him to admit, during the course of his trial testimony, that he
was a drug dealer and that he failed to aid Mr. Conwell after the shooting because the
petitioner was on parole at the time. The petitioner testified that he had requested that trial
counsel interview witnesses Jamal Cooper and Shannon Cagle. According to the petitioner,
Mr. Cagle would have testified that, when the petitioner arrived at Sally Smith’s house on
April 25, 1998, the petitioner had neither a gun nor a coat under which he could have
concealed such a weapon. The petitioner stated that Mr. Cagle had “patted [him] down”
upon entering Ms. Smith’s house and that Mr. Cagle would therefore have noticed a handgun
and a coat. The petitioner further stated that Mr. Cooper would have testified that, when he
dropped the petitioner off at Ms. Smith’s residence, the petitioner had neither a gun nor a
coat. The petitioner testified that the testimony of Mr. Cagle and Mr. Cooper would have
been important to his case because “it takes the murder weapon out of my hand, it at least
tends to lessen the charge.”

               With respect to the police reports prepared by Officer Murrell and Detective
Borges, the petitioner testified that “the significance . . . is that [the reports] . . . described
exactly who came, came and left.” In examining Officer Murrell’s report, the petitioner
explained its significance as follows:

               [I]t gives an order who came and gone and they describe a
               newer model truck, Chevy truck, tan in color with a black man
               and a white man inside, which would be me and Phillip Leslie.

                                                -7-
              . . . Then it states that a tan Chevy car came, then the second
              report states who was in this small tan Chevy car which was the
              husband, and the husband states that, uh, inside the car was a
              white male and a white female. A few minutes later the white
              female got inside the car and left. What the significance of that
              is, is that I’ve always said that Mr. Angiers was not in that house
              when I was in that house.

                     The next door neighbors say that me and Phillip Leslie
              was at this house, left, and then a tan car containing a white
              female and a man and then the female leaves which has to be
              [Mr. Angiers]. Then, 20 minutes later a new model pick-up
              truck arrived at the scene with a big white male driving and
              another white male with a green t-shirt on the passenger side,
              which would mean that Phillip Leslie came back to the scene of
              the crime without me.

The petitioner stated that these two police reports corroborated the trial testimony of Chad
Collins, who testified that Mr. Leslie admitted to returning to the Shadow Lane residence and
killing both Mr. Conwell and Mr. Angiers. The petitioner complained that neither of the
neighbors who provided the information contained in those police reports was called as a
witness at trial.

                 The petitioner also claimed that trial counsel failed to advance the argument
at trial that information contained within the autopsy report was inconsistent with the facts
as presented by the State. The petitioner testified that, according to the State, Mr. Conwell
had been shot in the back, but the crime scene photographs and the autopsy report indicated
that Mr. Conwell “was shot three different angles from three different places in the house.”

               On cross-examination, the petitioner acknowledged that he had admitted at trial
to shooting Mr. Conwell, although the petitioner denied killing Mr. Conwell. The petitioner
conceded that the sawed-off .22 caliber rifle he used to shoot Mr. Conwell was the same
weapon that was used to kill Mr. Angiers. With respect to the petitioner’s claim that his
occupation as a drug dealer was immaterial at trial, the petitioner admitted that the reason he
visited the Shadow Lane residence on April 26 was his concern that Mr. Conwell had stolen
some drugs that Ms. Bryant was selling at the petitioner’s behest. The petitioner insisted that
he asked trial counsel to interview witnesses Jamal Cooper and Shannon Cagle although he
did not know why trial counsel had failed to comply with his request.

              Trial Counsel One testified that, along with Trial Counsel Two and Trial

                                              -8-
Counsel Three, he was appointed to represent the petitioner at trial. Counsel One could not
specifically recall having previously seen the police reports of Officer Murrell and Detective
Borges. After reviewing those reports, Counsel One admitted that the testimony of Mr. and
Mrs. Feltz “would be certainly something that you would want to explore.” On cross-
examination, Counsel One testified that he and his co-counsel did their best in their
representation of the petitioner, and he could not recall anything that he would have done
differently. With respect to the defendant’s decision to testify at trial, Counsel One stated
that he and his co-counsel would “obviously give our professional opinion” but that “it is
very clear under the law that the decision whether a defendant testifies or not is the
defendant’s decision and we would cite that to the defendant in an almost, well, in every case
where it went to trial and that would be their decision.”

                Trial Counsel Two testified that she did not recall having seen the two police
reports at issue prior to trial, and she agreed that, in light of the testimony of Chad Collins,
the police reports “would have been helpful” and that Mr. and Mrs. Feltz “would have been
witnesses that we would have wanted to pursue, interview, and potentially call.” On cross-
examination, Counsel Two agreed that she was the attorney who conducted the petitioner’s
direct examination at trial, and, although she could not recall with any specificity, she
believed that she would have advised the petitioner to testify at trial so that he could get “his
defense out there.” Counsel Two denied that she would have told the petitioner what to say
at trial but stated that she would have advised him to tell the truth.

               Trial Counsel Three testified that she had no recollection of reviewing the
police reports at issue prior to trial. Counsel Three stated that she and Counsel Two had “a
reputation of turning over every stone,” so she believed they would have asked their
investigator to interview Mr. and Mrs. Feltz. She admitted that, after reviewing the
investigator’s file, nothing indicated that the Feltzes had ever been interviewed. Counsel
Three agreed that testimony “as far as other people coming and going [from the Shadow
Lane residence] after [the petitioner] had supposedly left, might have been helpful in creating
a reasonable doubt as to his guilt.” On cross-examination, Counsel Three identified for the
jury two motions for exculpatory evidence that she and her co-counsel filed on behalf of the
petitioner prior to trial.

                Jamal Cooper testified that he and the petitioner had been friends since
childhood. Mr. Cooper stated that he did not recall that anyone had ever contacted him or
interviewed him in connection with the petitioner’s trial. Mr. Cooper testified that he drove
the petitioner to Ms. Smith’s house on April 25 and that the petitioner was not wearing a coat
because it “was warm outside.” Mr. Cooper denied seeing the petitioner with a weapon of
any kind, and he confirmed that he had been willing to testify at the petitioner’s trial if he had
been asked. On cross-examination, Mr. Cooper admitted that he had a pending homicide

                                               -9-
charge at the time of the petitioner’s trial.

               Assistant District Attorney General Katrin Miller testified that nothing in her
files indicated that Mr. Collins had told investigators that Mr. Leslie had killed the two
victims. General Miller stated that the State had filed a discovery response prior to trial and
that the two police reports at issue were apparently included in that file although she could
not recall having seen the reports until the post-conviction hearing. She agreed, however,
that without the knowledge of Mr. Collins’ planned testimony, the reports would not have
appeared to have been exculpatory to the defendant.

              Court Clerk Barbara Wise testified that she had reviewed the court’s file which
contained the State’s discovery responses, but she did not find either of the police reports
included in that discovery.

                In the post-conviction court’s order denying post-conviction relief, the court
found that trial counsel’s failure to call Shannon Cagle and Jamal Cooper to testify at trial
did not constitute deficient performance and that, in any event, the petitioner failed to
establish prejudice. With respect to the petitioner’s claim that trial counsel rendered
ineffective assistance of counsel by advising the petitioner to admit being a drug dealer, the
post-conviction court was “not convinced that trial counsel rendered such advice” but found
that, even if counsel had so advised the petitioner, such advice “would have been well within
the range of competence demanded of attorneys in criminal cases.” In addition, the post-
conviction court again found that the petitioner had failed to demonstrate prejudice and found
that trial counsel “ultimately left the decision of whether and how to testify up to the
[p]etitioner.” Regarding the petitioner’s claim that trial counsel advised him to admit at trial
that he chose not to aid Mr. Conwell because the petitioner was on parole, the post-
conviction court found that “the proof failed to establish that trial counsel rendered such
advice and failed to establish the requisite prejudice.” With respect to the petitioner’s
contention that the State withheld two police reports, the post-conviction court stated,
“Assuming, without finding, that the [p]etitioner established the first three prerequisites [to
establish a Brady violation], the Court finds that the [p]etitioner failed to establish that the
police reports were material.”

               On appeal, the petitioner contends that the State withheld material evidence,
violating the tenets of Brady v. Maryland, 373 U.S. 83 (1963), and that he was denied the
effective assistance of counsel. We consider each claim in turn.

              We view the petitioner’s claims with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the

                                                -10-
Constitution of the United States.” T.C.A. § 40-30-103 (2006). A post-conviction petitioner
bears the burden of proving his or her factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                                      I. Brady Violations

                The petitioner first contends that the State violated the requirements of Brady
v. Maryland, 373 U.S. 83 (1963), when the State failed to provide the petitioner with copies
of two police reports which allegedly contained exculpatory information. The State submits
that the petitioner failed to demonstrate the materiality of the police reports, and, as such, the
defendant could not establish a Brady violation.

              The constitutional right to a fair trial imposes upon the State “duties consistent
with the[] sovereign obligation to ensure ‘that justice shall be done’ in all criminal
prosecutions.” Cone v. Bell, 556 U.S. 449, 451 (2009) (quoting United States v. Agurs, 427
U.S. 97, 111 (1976) (citation and internal quotation marks omitted)). In Brady, the United
States Supreme Court held that “suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. “Evidence ‘favorable to an accused’ includes evidence deemed to be exculpatory
in nature and evidence that could be used to impeach the [S]tate’s witnesses.” Johnson v.
State, 38 S.W.3d 52, 55-56 (Tenn. 2001) (citing State v. Walker, 910 S.W.2d 381, 389 (Tenn.
1995); State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998); United States v.
Bagley, 473 U.S. 667, 676 (1985)). The duty to disclose exculpatory evidence extends to all
“favorable information” irrespective of whether the evidence is admissible at trial. State v.
Robinson, 146 S.W.3d 469, 512 (Tenn. 2004) (appendix); Johnson, 38 S.W.3d at 56. Brady
and its progeny create in the “individual prosecutor . . . a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in the case.” Kyles v.
Whitley, 514 U.S. 419, 437 (1995).

               To prove a Brady violation, a defendant must demonstrate:

                (1) that he requested the information (unless the evidence is
                obviously exculpatory, in which case the [S]tate is bound to
                release the information whether requested or not),

                                               -11-
                (2) that the State suppressed the information,

                (3) that the information was favorable to the defendant, and

                (4) that the information was material.

Johnson, 38 S.W.3d at 56 (citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); Walker,
910 S.W.2d at 389); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (“There are
three components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.”). The evidence is deemed material if “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682.

               The question is not whether the defendant would more likely
               than not have received a different verdict with the evidence, but
               whether in its absence he received a fair trial, understood as a
               trial resulting in a verdict worthy of confidence. A “reasonable
               probability” of a different result is accordingly shown when the
               government’s evidentiary suppression “undermines confidence
               in the outcome of the trial.”

Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678). Plainly stated, establishing
materiality requires a “showing that the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the verdict.” Kyles,
514 U.S. at 435; see Johnson, 38 S.W.3d at 58.

               In the instant case, the petitioner’s claim fails the test of materiality. Although
the petitioner contends that the witness statements contained in the police reports support his
theory of the crime, we conclude that the police reports are neutral at best. Officer Murrell’s
report indicates that Mrs. Feltz heard “a loud commotion” at 6:00 a.m. and observed a white
female outside the victim’s house arguing with people inside the residence. Mrs. Feltz also
observed three vehicles leave the victim’s residence after 6:00 a.m.: an older dark blue over
light blue Chevrolet truck; a newer tan Chevrolet truck occupied by a black male and a white
male; and a tan Chevrolet car. Detective Borges’ report states that Mr. and Mrs. Feltz
observed a white female pounding on the door of the victim’s house at 6:00 a.m. and saying
“Give me my purse back.” When she was denied entry, the female proceeded to the house
across the street. When no one answered the door, the female returned to the victim’s house
and attempted to enter. The Feltzes then lost sight of the female. At approximately 7:00

                                              -12-
a.m., “a 1985 Chevy” driven by a black male arrived. The man walked into the victim’s
house carrying “what appeared to be grocery bags.” Thirty minutes later, a white man
driving a two-tone blue Chevrolet pick-up truck arrived, and, a few minutes later, a heavy-set
black male “got inside the truck” and the truck “drove off.” Shortly thereafter, a small tan
vehicle arrived with a white male and white female, and, a few minutes later, “a white female
got inside the car and drove off.” Approximately 20 minutes later, “a new pick up truck
arrived at the scene” driven by “a big white male” with “another white male with a green
shirt” in the passenger seat.

               At the post-conviction hearing, the petitioner claimed that the reports
“described exactly who came . . . and left.” We disagree. The petitioner contended that the
newer tan Chevrolet truck with a black male and a white male inside “would be me and
Phillip Leslie.” The petitioner opined that the small tan Chevrolet vehicle containing a white
man and a white woman with the white woman later driving away from the house somehow
proved the petitioner’s statement “that Mr. Angiers was not in that house when I was in that
house.” The petitioner then stated that the new pick-up truck that arrived on the scene with
two white males “would mean that Phillip Leslie came back to the scene of the crime without
me.” The statements contained in these police reports simply do not provide the proof that
the petitioner claims. From these reports, we cannot say how the comings and goings
described by the Feltzes relate to the time of death of the victims, nor do we know for certain
that the times described by the Feltzes are even accurate. Although the petitioner claims that
the descriptions of gender, race, and automobile type provided by the Feltzes match certain
key people and vehicles, we conclude that these vague descriptions offer little to advance the
petitioner’s theory. Moreover, this court in Steven James McCain noted, in assessing the
sufficiency of the convicting evidence, that the medical examiner had “explained that all of
the shots occurred within minutes.” Id., slip op. at 15. The petitioner admitted at trial that
he had shot Mr. Conwell and claimed that he then had Mr. Leslie drop him off at the Oak
Valley Drive residence. During the post-conviction hearing, the petitioner admitted that the
weapon he used to shoot Mr. Conwell was the same weapon used to kill Mr. Angiers. The
facts that all shots fired occurred within minutes, that all the shots came from the same
weapon, and that the murder weapon was discovered in the crawl space of the residence
where the petitioner asked Mr. Leslie to take him after the murders all drastically undermine
the petitioner’s theory that Mr. Leslie later returned to the crime scene and killed both men.

                In our view, the proof of the petitioner’s guilt was overwhelming, including,
most importantly, the petitioner’s own admission to shooting Mr. Conwell. Although each
member of the petitioner’s trial counsel team testified that the police reports contained
information that they would have been interested in pursuing, none of the three attorneys
expressed the belief that the statements of the Feltzes would have altered the outcome of the
trial. Even if the petitioner could prove the other prerequisites, he failed to establish that the

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police reports would have “undermine[d] confidence in the verdict.” Kyles, 514 U.S. at 435.
Because the petitioner did not prove materiality of the evidence, he has failed to establish a
Brady violation.

                             II. Ineffective Assistance of Counsel

               The petitioner next contends that trial counsel were ineffective because they
failed to interview Mr. and Mrs. Feltz, Shannon Cagle, and Jamal Cooper.

                To establish entitlement to relief via a claim of ineffective assistance of
counsel, the defendant must affirmatively establish first that “the advice given, or the services
rendered by the attorney, are [not] within the range of competence demanded of attorneys in
criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and second that his
counsel’s deficient performance “actually had an adverse effect on the defense,” Strickland
v. Washington, 466 U.S. 668, 693 (1984). In other words, the defendant “must show 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. Should the defendant fail to establish
either deficient performance or prejudice, he is not entitled to relief. Id. at 697; Goud v.
State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be
followed.” Strickland, 466 U.S. at 697.

              When reviewing a claim of ineffective assistance of counsel, we will not grant
the defendant the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               Claims of ineffective assistance of counsel are mixed questions of law and fact.
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67
(Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing the
application of law to the trial court’s factual findings, our review is de novo, and the trial
court’s conclusions of law are given no presumption of correctness. Fields, 40 S.W.3d at
457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In our view, the record supports the post-conviction court’s denial of relief.
With respect to counsel’s failure to interview the Feltzes, nothing in the record indicates that
trial counsel knew of the Feltzes’ statements contained in the police reports, as discussed

                                              -14-
previously in this opinion. Moreover, the petitioner has failed to show that he was prejudiced
by counsel’s alleged failure. The petitioner failed to present either of the Feltzes at the
evidentiary hearing. As such, we cannot speculate what either witness might have testified
to at trial. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“When a
petitioner contends that trial counsel failed to discover, interview, or present witnesses in
support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.”). Similarly, the petitioner did not call Shannon Cagle to testify at the
post-conviction hearing, and, again, we cannot speculate about the substance of Mr. Cagle’s
nonexistent testimony. See id.

               Furthermore, the petitioner failed to ask any of his three trial attorneys about
the failure to call either Mr. Cagle or Jamal Cooper. As this court has stated, “[w]ithout
counsel’s testimony on this issue, we would be forced to speculate about the reasoning
behind [counsel’s] decision and whether any prejudice resulted from [counsel’s] actions.”
State v. Charles Edward Wagner, No. E2012-01144-CCA-R3-CD, slip op. at 17 (Tenn.
Crim. App., Knoxville, Jan. 8, 2014); see also Fredrick Tucker v. State, No. M2007-00681-
CCA-R3-PC, slip op. at 5 (Tenn. Crim. App., Nashville, July 14, 2008) (stating that
petitioner’s failure to question trial counsel regarding alleged deficiencies in representation
resulted in a failure to establish deficient performance). In any event, the petitioner failed
to show that he was prejudiced by counsel’s failure to call Mr. Cooper as a witness at trial.
In his testimony at the post-conviction hearing, Mr. Cooper stated simply that the petitioner
was not wearing a coat and that he did not see the petitioner in possession of a weapon when
he left him at Ms. Smith’s house hours before the murders were committed. These
statements, even if true, in no way prove that the petitioner did not commit the crimes with
which he was charged. As such, we hold the petitioner has failed to prove by clear and
convincing evidence that trial counsel’s representation was deficient or prejudicial.

                                       III. Conclusion

               The petitioner failed to establish either a Brady violation or that he was denied
the effective assistance of counsel at trial. Accordingly, the judgment of the post-conviction
court is affirmed.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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