         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 5, 2003

           JAMES LARRY CONRAD, SR. v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                         No. P-24789    James C. Beasley, Jr., Judge



                   No. W2002-01678-CCA-R3-PC - Filed February 3, 2004


The petitioner, James Larry Conrad, Sr., appeals from the denial of his petition for post-conviction
relief. Following an evidentiary hearing, the post-conviction court dismissed the petition. The
petitioner timely appealed, alleging prosecutorial misconduct, that the trial court erred in an
evidentiary ruling, and that trial counsel was ineffective. Upon review of the record and the parties’
briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
ROBERT W. WEDEMEYER , JJ., joined.

Matthew John, Memphis, Tennessee (at trial), for the appellant, and James Larry Conrad, Sr.,
Whiteville, Tennessee (on appeal), Pro se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

        The petitioner was convicted by a Shelby County jury of extortion, a Class D felony, and he
was sentenced to twelve years in confinement. His conviction was affirmed on direct appeal. See
State v. James Conrad, No. W1999-00650-CCA-R3-CD, 2000 WL 33288751, at *1 (Tenn. Crim.
App. at Jackson, June 28, 2000).

       The following facts are taken from this court’s opinion in the petitioner’s direct appeal:
             [O]n October 1, 1996 [the petitioner] came to the residence of Stanley
             Grove to get Grove to help him locate and apprehend Vincent Shelby.
             Grove characterized himself and [the petitioner] as “free lance”
             bounty hunters. Shelby, twenty-nine years of age, had been released
             in May 1996 on a $10,000 bail bond to answer to a charge of motor
             vehicle habitual offending. Grove testified that [the petitioner] told
             him that a capias had been issued for Shelby’s apprehension, and as
             an accommodation to his friend Conrad, Grove accompanied [the
             petitioner] to Shelby’s place of employment.

             After arriving at Shelby’s job site, [the petitioner], who was armed
             with a nine millimeter pistol, accosted Shelby and informed him that
             the men were taking him into custody on the capias. The bounty
             hunters hand-cuffed Shelby and put him in the back seat of [the
             petitioner]’s car. Shelby testified that [the petitioner] asked him if he
             could raise any money for the purpose of paying [the petitioner] to
             release him. Shelby indicated that he could ask his mother, Mary
             Wright, the victim in the case. Shelby testified that Grove and [the
             petitioner] left him in the car while they dined at a Krystal’s
             restaurant for about an hour. Then, they drove Shelby to his and his
             mother’s residence.

             . . . . Ultimately, [the petitioner], Grove, and Shelby, who remained
             handcuffed, entered the residence where [the petitioner] and the
             victim fell into a heated discussion after [the petitioner] proposed that
             he would release Shelby if the victim would pay him $200 for his
             “expenses.” The victim testified that she did not wish to pay any
             money to have Shelby released because “it wasn’t like my son wasn’t
             going nowhere he hadn’t been before.” . . . [The victim] succumbed
             to the demand for payment of $200 and wrote a check in that amount
             payable to James Conrad. . . . At some point, Grove gave the victim
             a receipt for $200, upon which he signed his name fictitiously as
             Stanley Granderson. . . .

             At [the petitioner’s] trial, the state introduced a letter addressed to
             Grove which, by handwriting analysis, the state proved had been
             written by [the petitioner]. In it, [the petitioner] pleaded with Grove
             to “exonerate” [the petitioner] from the charges. Grove, who also had
             charges pending against him from the October 1 incident, testified as
             a state witness.

Id. at *1.



                                               -2-
                                                 Post-Conviction

        After this court affirmed his conviction on direct appeal, the petitioner timely filed for post-
conviction relief. In his petition for post-conviction relief, the petitioner alleged that (1) “[t]he
prosecutor acted in bad faith by use of false testimony of co-defendant [Stanley Grove]; (2) “[t]he
trial court erred by not granting [p]etitioner’s request to introduce into evidence an affidavit signed
before a notary public for the state of Tennessee by the co-defendant, Stanley Grove”; and (3) the
“[p]etitioner was denied his right to effective assistance of counsel.”

        The petitioner’s complaints of prosecutorial misconduct center around the affidavit of a co-
defendant, Stanley Grove. At the post-conviction hearing, the petitioner testified that prior to
Grove’s arrest for his involvement in the extortion of the victim, Grove voluntarily went to the office
of the petitioner’s then counsel, Robert Brannon, and executed an affidavit.1 In his affidavit, Grove
stated that he went to the victim’s home on the day of the offense and attempted to take the victim’s
son into custody. Grove further stated that the petitioner did not participate in these events.

        The petitioner alleged that following Grove’s arrest some two years later, Grove agreed to
testify for the State at the petitioner’s trial. The petitioner stated that Grove reneged on the
statements in the affidavit by testifying at trial that the petitioner accompanied him to the victim’s
home and participated in the offense. The petitioner claimed that the prosecutor, Assistant District
Attorney General Lee Coffee, was aware that Grove’s trial testimony was contrary to the statements
in the affidavit. The petitioner further claimed that Coffee knew that Grove’s trial testimony was
false and did nothing to correct it.

         Additionally, the petitioner contended that Grove told the petitioner that Grove agreed to
testify for the State in exchange for the State allowing him to plead to a misdemeanor. The petitioner
testified that Grove told him, “Man the State wants me to testify against you, they done made me a
deal for eleven-twenty nine.” The petitioner insisted that Coffee’s conduct constituted prosecutorial
misconduct, and, therefore, he should be granted a new trial.

        Next, the petitioner alleged that the trial court erroneously ruled that if Grove’s affidavit were
admitted as substantive evidence, the State would be allowed to introduce evidence of the
petitioner’s criminal history. The petitioner contended that despite the trial court’s ruling, his trial
counsel should have introduced the affidavit as substantive evidence. The petitioner explained that,
“As far as my criminal record, Mr. Coffee explored that anyway.” He maintained that if trial counsel
had introduced the affidavit, “I would say in my opinion, that it would have been reasonable,
certainly the outcome would have been very different.”

       The petitioner acknowledged that trial counsel was concerned about the trial court’s ruling
regarding the use of the affidavit. The petitioner testified that trial counsel advised him that if the


         1
          Brannon withdrew as counsel for petitioner prior to trial. Trial counsel was app ointed following Branno n’s
withdrawal.

                                                         -3-
affidavit were used as substantive evidence and if he chose to testify at trial, his criminal history
could be exposed. The petitioner admitted that he had four prior convictions of aggravated
kidnapping, six prior convictions of aggravated robbery, a “Federal conviction,” an attempted
burglary conviction, and a petit larceny conviction. The petitioner also admitted that trial counsel
used the affidavit to impeach Grove, showing Grove’s prior inconsistent statement

         Finally, the petitioner alleged that trial counsel was ineffective in failing to file several
pretrial motions. The petitioner testified that Brannon, who withdrew prior to trial, filed several
pretrial motions. However, trial counsel failed to file additional motions. Specifically, the petitioner
maintained that trial counsel should have filed a motion to suppress a letter written by the petitioner
to Grove while the petitioner was in jail awaiting trial, a motion for production of preliminary
hearing tapes, a motion to require the State to provide the petitioner with the investigative notes of
the District Attorney’s office, and a motion for production of documents. The petitioner also
complained that trial counsel should have notified the State of the petitioner’s intent to rely on an
affirmative defense and more carefully prepared the witnesses to testify at trial.

         The petitioner’s trial counsel testified at the post-conviction hearing that she was appointed
to represent the petitioner after his former attorney, Robert Brannon, withdrew due to a conflict
involving the affidavit. Trial counsel maintained that she filed twenty-five to thirty motions on the
petitioner’s behalf and that she filed all motions that should have been filed. Trial counsel further
stated that she and the petitioner discussed the letter written by the petitioner to Grove, but she did
not file a motion to suppress the letter because there was no basis to suppress it.

        Additionally, trial counsel had a discussion with the petitioner regarding the affidavit
executed by Grove. Trial counsel explained that she did not introduce the affidavit as substantive
evidence at trial because “Judge Dailey, basically, held that if I could use the affidavit to impeach
Mr. Grove, then Mr. Coffee could get into the motivation for Mr. Conrad coercing Stanley Grove
into giving a false affidavit. . . . In other words, that Mr. Conrad had prior criminal convictions.”
Due to her concern that she would “open the door” to evidence of the petitioner’s prior criminal
history, trial counsel made a strategic decision to use the affidavit only to impeach Grove with his
prior inconsistent statement.

       Trial counsel stated that the petitioner never told her that he was aware of any agreement
between Grove and the State. Trial counsel asserted that if she had been aware of an agreement, she
would have cross-examined Grove on the issue. In fact, she was told that the State had refused to
make any deals with Grove.

        Trial counsel testified that the State had open file discovery and that she reviewed the file.
She stated that she contacted the petitioner’s common law wife and his aunt, both of whom the
petitioner claimed would provide an alibi for him. Trial counsel maintained that although these
witnesses testified at trial, they were not helpful to the petitioner’s alibi claim.




                                                  -4-
         Assistant District Attorney Lee Coffee testified at the post-conviction hearing that he did not
make any offers to Grove. Specifically, he stated, “There were no formal deals. There were no
secret deals. There were no implied deals.” As to the allegation that he allowed Grove to testify
falsely, Coffee explained that Grove “had an explanation as to why he submitted the affidavit to Mr.
Conrad. His explanation was that he gave the affidavit to Mr. Conrad under some duress and Mr.
Conrad had told him to say those things in an affidavit.”

        At the conclusion of the hearing, the post-conviction court dismissed the petitioner’s
complaint, accrediting the testimony of trial counsel. The post-conviction court found that, contrary
to the petitioner’s claim, the trial court did not rule that the affidavit could not be introduced as
substantive evidence. The post-conviction court stated that trial counsel was advised that she would
be allowed to question Grove regarding his prior inconsistent statement, but “if she referenced the
fact that it was a sworn affidavit the State would be allowed to get into the fact that the petitioner had
coerced the co-defendant to give such an affidavit to prevent Petitioner from going back to jail for
parole violations on numerous charges.” The post-conviction court determined that “[i]n light of the
parameters placed on the use of the affidavit . . . [trial] counsel did in fact make a trial strategy
decision about its use and she did utilize it the best she could.” Accordingly, the post-conviction
court found that trial counsel’s decision to use the affidavit solely for impeachment purposes was
a strategic decision.

        The post-conviction court further found that trial counsel was given open file discovery by
the State and that she met with petitioner numerous times. The post-conviction court noted that trial
counsel argued extensive motions and “vigorously pursued” the petitioner’s defense As to
petitioner’s claim of prosecutorial misconduct, the post-conviction court found that there was no
basis for the claim. Specifically, the post-conviction court noted that “the Petitioner believes that
because he said he was not guilty and the co-defendant had given an affidavit that exonerated him
the prosecutor was unethical in going forward with the case. The court finds no merit to this
argument.”

                                                  II. Analysis

        In a post-conviction proceeding, the petitioner bears the burden of proving the grounds raised
in the petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997).2
“Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998). Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved by the
post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).
Therefore, we afford the post-conviction court’s findings of fact the weight of a jury verdict, with



        2
           Since the post-conviction hearing in the instant case, this provision has been codified at Tennessee Code
Annotated section 40-30-110(f) (2003).

                                                        -5-
such findings being conclusive on appeal absent a showing that the evidence in the record
preponderates against those findings. Id. at 578.

        On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and
fact subject to a de novo review. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As such, the
post-conviction court’s findings of fact are entitled to a presumption of correctness unless the
evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001). However, a post-conviction court’s conclusions of law, such as whether counsel’s
performance was deficient or whether that deficiency was prejudicial, are subject to a purely de novo
review with no presumption of correctness. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). Because a
petitioner must establish both prongs of the test, a failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not
address the components in any particular order or even address both if the petitioner makes a
sufficient showing of one component. Id. at 370.

        To establish constitutionally deficient performance, the petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness. See Strickland, 466
U.S. at 687-688, 104 S. Ct. at 2064; Burns, 6 S.W.3d at 462. Specifically, the petitioner must show
that counsel’s performance was not within “the range of competence demanded of attorneys in
criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S. Ct. at 2068; see also Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

        As we have noted, the post-conviction court accredited the testimony of trial counsel. The
post-conviction court found that, contrary to the petitioner’s claim, the trial court did not rule that
the affidavit was inadmissible. Rather, trial counsel’s decision regarding the use of the affidavit was
a strategic decision based partially upon the trial court’s decision that introduction of the affidavit
could “open the door” to evidence of the petitioner’s criminal history. On appeal, this court may not
second-guess the tactical or strategic choices of counsel unless those choices are based upon
inadequate preparation, nor may we measure counsel’s behavior by “20-20 hindsight.” See State v.
Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). Moreover, we note that the petitioner could have raised this
issue on direct appeal. He failed to do so, thereby waiving the issue. See Tenn. Code Ann. § 40-30-
206(g) (1997); Forrest v. State, 535 S.W.2d 166, 167 (Tenn. Crim. App. 1976).

       Additionally, the post-conviction court correctly determined that the petitioner had failed to
show that an agreement was made between Grove and the State and that there was no evidence of


                                                  -6-
prosecutorial misconduct. As the evidence does not preponderate against this finding, we will not
overturn the post-conviction court’s determination. See Fields, 40 S.W.3d at 458.

        Finally, we turn to the issues the petitioner raises for the first time on appeal. First, the
petitioner alleges that the post-conviction court failed to properly state its findings of fact and
conclusions of law. We disagree. The record reflects that the post-conviction court entered a
detailed order making specific findings regarding the petitioner’s claims. Next, the petitioner claims
that the evidence at the post-conviction hearing was “not sufficient” to support a denial of relief.
Again, we note that the petitioner bore the burden of establishing his post-conviction claims by clear
and convincing evidence. See Tenn. Code Ann. § 40-35-210(f). The post-conviction court
determined that the petitioner failed to meet this burden. We agree. As we earlier observed, the
evidence does not preponderate against the findings of the post-conviction court. These issues are
without merit.

                                          III. Conclusion

       Accordingly, we affirm the judgment of the post-conviction court.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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