        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs March 6, 2012

                 MARIO BATEMAN v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                         No. 05-01008 Paula Skahan, Judge




                  No. W2011-01178-CCA-R3-PC - Filed July 12, 2012


The Petitioner, Mario Bateman, appeals from the Shelby County Criminal Court’s denial of
post-conviction relief from his conviction for first degree murder and resulting life sentence.
On appeal, the Petitioner contends that he did not receive the effective assistance of counsel.
We affirm the judgment of the trial court.

            Tenn. R. App. P. 3; 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., and A LAN E. G LENN, JJ., joined.

Taurece A. Riley, Memphis, Tennessee, for the appellant, Mario Bateman.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Amy Weirich, District Attorney General; and Betsy Carnesale, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       The Petitioner’s conviction resulted from the shooting death of Cornelius Muhahmed.
Although mortally wounded, the victim identified the Petitioner as the person who shot him.
Evidence of the victim’s dying declaration was admitted at the trial. The Petitioner
unsuccessfully challenged the trial court’s admission of the evidence in his direct appeal.
State v. Mario Bateman a.k.a. Mario Woods, No. W2007-00571-CCA-R3-CD, Shelby
County (Tenn. Crim. App. Oct. 28, 2008), perm. app. denied (Tenn. Mar. 23, 2009).

       The Petitioner filed a pro se post-conviction petition alleging the ineffective assistance
of counsel and prosecutorial misconduct. Appointed counsel amended the petition to include
allegations of the ineffective assistance of counsel. At the post-conviction hearing, the
Petitioner pursued only the ineffective assistance of counsel claim. He claimed that trial
counsel was ineffective in failing to file a motion to suppress the victim’s dying declarations,
failing to raise an issue about the victim’s consciousness, awareness, and sanity at the time
of the declarations, and failing to object or raise an issue in the motion for new trial about the
prosecutor’s comment in closing argument about the Petitioner’s right to remain silent. On
appeal, the Petitioner has challenged only trial counsel’s failure to cross-examine two of the
State’s witnesses effectively about the victim’s mental state and awareness when he
identified the Petitioner as the shooter. The witnesses were Abraham Smith and the medical
examiner.

        Relevant to the issue raised on appeal, trial counsel testified at the post-conviction
hearing that he did not think it was “relevant and necessary” to cross-examine the medical
examiner about the effect of the gunshot wounds on the victim’s consciousness. Counsel
agreed that Abraham Smith testified that the victim faded in and out of consciousness and
vomited before the police arrived. Counsel said he would “take [it] as a true statement” that
it would have been prudent to ask the pathologist about the effect of low blood pressure on
the victim’s ability to think, respond to questions, and understand questions. He said that he
considered hiring an independent investigator or forensic pathologist to testify about the
effect a gunshot would have on a person’s mental clarity but that he did not think it was
necessary or would have changed the course of the trial testimony.

       Trial counsel testified that in addition to the victim’s identification of the Petitioner,
Michael Watkins was in the car with the victim and identified the Petitioner by his voice and
silhouette. He said the Petitioner wanted the defense theory to be that he did not commit the
crimes. Counsel said that in his opinion, the better course was to present a voluntary
manslaughter defense. He noted the history of animosity between the Petitioner and the
victim, including a recent incident that required the Petitioner to get stitches. He said he and
the Petitioner “came to loggerheads” over the Petitioner’s proposed defense.

       The transcript of the Petitioner’s trial was received as an exhibit. It reflects Abraham
Smith’s testimony that the victim came to his home after being shot. He said the victim was
standing and talking and was alert at first. He said the victim stated that he did not want to
die but did not identify the shooter. He said that the victim lay on the ground, that the
victim’s eyes were “rolling,” and that the victim vomited. He said that the police talked to
the victim but that they pushed him away when they arrived. On cross-examination, trial
counsel elicited from Mr. Smith that the victim became less coherent and more lethargic over
time and that the victim was on the ground before the police arrived. Counsel did not cross-
examine the medical examiner about the effects of gunshot wounds on a victim’s alertness
and cognitive ability.

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        In a written order, the trial court denied relief. Relevant to the issue raised in this
appeal, the court found that the admissibility of the dying declaration was raised by trial
counsel and litigated in the trial court and on appeal of the conviction. The court concluded
that the Petitioner failed to prove his claim that trial counsel was ineffective with regard to
evidence of the victim’s alertness and cognitive ability when he made the dying declaration
identifying the Petitioner.

        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) (2006). 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 (2006).

       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, “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 the 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.

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were
“within the range of competence demanded of attorneys in criminal cases.” Further, the court

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stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974), and United States v. DeCoster,
487 F.2d 1197, 1202–04 (D.C. Cir. 1973). Baxter, 523 S.W.2d at 936. Also, in reviewing
counsel’s conduct, a “fair assessment of attorney 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 Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not,
alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they are
informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201; Hellard,
629 S.W.2d at 9.

        The Petitioner argues that trial counsel should have cross-examined Mr. Smith and
the pathologist in order to discredit the “only” evidence linking the Petitioner to the crime.
Contrary to the Petitioner’s assertion, the victim’s identification was not the only evidence
linking him to the crime. Michael Watkins identified the Petitioner by his voice heard after
the first shot was fired and his silhouette as he fled the scene. State v. Mario Bateman, slip
op. at 2. The transcript of the Petitioner’s trial reflects that counsel elicited evidence from
Mr. Smith about the victim’s diminishing coherence and increasing lethargy. The Petitioner
did not call Mr. Smith, the medical examiner, or offer any expert proof at the post-conviction
hearing about the effect of gunshot wounds on a person’s awareness and cognitive abilities.
The Petitioner had the burden to prove his claim by clear and convincing evidence. T.C.A.
§ 40-30-110(f). This court cannot speculate what testimony might have been elicited by
cross-examination of the witnesses or how the accuracy of the victim’s identification of the
Petitioner may have been compromised by the victim’s injuries. See State v. Black, 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.”). The trial court did not err
in concluding that the Petitioner failed to prove that counsel’s performance was deficient or
that he was prejudiced by counsel’s performance. The Petitioner 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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