         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 27, 2004

                  DEJUAN J. SCOTT v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                        No. 97-C-1791    Cheryl Blackburn, Judge



                     No. M2003-00197-CCA-R3-PC - Filed March 2, 2004


The petitioner appeals the dismissal of his petition for post-conviction relief from his second degree
murder conviction, arguing that the post-conviction court erred in finding that he received the
effective assistance of trial counsel. Based on our review of the record, we conclude the petitioner
failed to meet his burden of demonstrating by clear and convincing evidence that he was denied the
effective assistance of counsel. Accordingly, we affirm the post-conviction court’s dismissal of the
petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

Patrick T. McNally, Nashville, Tennessee, for the appellant, Dejuan J. Scott.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        The petitioner, Dejuan J. Scott, was charged by the Davidson County Grand Jury in a two-
count indictment with first degree murder and especially aggravated robbery. The trial court severed
the counts, and the petitioner was convicted in separate trials of especially aggravated robbery and
second degree murder. The petitioner’s second degree murder conviction was affirmed by this court
on direct appeal, and the supreme court denied application for permission to appeal. See State v.
Dejuan J. Scott, No. M1999-00764-CCA-R3-CD, 2000 WL 1208310 at *1 (Tenn. Crim. App. Aug.
23, 2000), perm. to appeal denied (Tenn. Feb. 26, 2001).
         The petitioner filed a petition for post-conviction relief from his second degree murder
conviction on February 26, 2002, followed by an amended petition on May 1, 2002. He alleged trial
counsel provided ineffective assistance by, among other things, failing to adequately confer and
consult with him about his case, failing to adequately investigate the case, failing to challenge the
State’s evidence presented at trial through pretrial motions to suppress or motions in limine, and
failing to develop a consistent theory of defense.

          At the November 13, 2002, post-conviction hearing, the petitioner testified trial counsel
represented him in both his especially aggravated robbery case, which went to trial first and resulted
in a conviction for that offense, and in his murder case, which went to trial in June 1999. The
petitioner claimed trial counsel failed to consult with him about the murder case until the first day
of trial, when he discussed the plea bargain offered by the State, which was twenty years at 85% for
second degree murder. He rejected that offer and was ultimately convicted of second degree murder
and sentenced to twenty-five years at 100%, to be served consecutively to the twenty-five-year
sentence he had received in his especially aggravated robbery case.

        The petitioner testified trial counsel discussed with him on the first day of trial whether he
should testify in his own defense and recommended that he not testify because his prior robbery
conviction could be introduced by the State. He complained trial counsel failed to discuss his
defense strategy prior to trial, to go over his trial testimony to determine how it related to the theory
of defense, and to discuss how the State’s evidence might be inconsistent with his testimony. The
petitioner testified the only potential witness trial counsel discussed calling on his behalf was Eric
Brown, who did, in fact, testify at trial. He said his brother also testified, but trial counsel did not
discuss his testimony with the petitioner beforehand. The petitioner testified he and trial counsel did
not discuss any other potential witnesses, although there were others who could have offered
testimony on his behalf. He estimated trial counsel spent only “[a] couple of minutes” discussing
his murder case with him each time he came to court for a hearing on the case.

        On cross-examination, the petitioner testified trial counsel came to see him once during the
time between his especially aggravated robbery conviction and his murder trial. He conceded trial
counsel talked to him about how his testimony in the especially aggravated robbery case had not
gone well and suggested he not testify in the murder case, but he had chosen to take the stand in spite
of counsel’s advice. The petitioner acknowledged he had been able to bring out at trial that the
victim was a dangerous person and a drug dealer and that his brother had testified that he had
previously been robbed by the victim. In response to questioning by the trial court, the petitioner
acknowledged his trial testimony, in which he described how the victim had held a gun on him and
he had then shot the victim four times with his own gun after the victim turned his back to him, was
the truth.

        Leonardo Garrett, who lived in the same Nashville neighborhood as the victim, testified he
was familiar with both the victim and the petitioner. He said he was driving down Foster Avenue
between 10:00 and 10:15 a.m. on the day of the shooting when he saw the victim holding a gun to
the petitioner’s back and marching him down the sidewalk on Settle Court Drive. Garrett testified


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he did not report what he saw to the police because he was “strung out” on “dope” during that period
of his life. On cross-examination, he acknowledged he did not contact the petitioner’s family or
friends either, despite having heard that the petitioner was being charged with the victim’s murder.
When asked by the court how the petitioner’s post-conviction counsel had known to subpoena him,
Garrett suggested that someone in a group of individuals with whom he had drunk beer and
discussed the victim’s killing might have reported that he had information about the case.
.
         Albert Gaines testified he was a former resident of the Nashville neighborhood in which the
shooting occurred but was currently serving a thirteen-year prison sentence at Hardeman County
Correctional Facility. He said he was acquainted with the petitioner and familiar with the victim,
who had a reputation for violence and was known in the community for terrorizing people. Gaines
testified he was robbed and shot at by the victim one to two weeks before the victim was killed. He
said he had also heard that the victim robbed and shot at a cab driver the next morning.

        Gaines testified he was coming out of a house on Settle Court Drive at about lunch time on
the day that the victim was killed when he saw the victim holding a revolver at the petitioner’s back
and heard him telling the petitioner, “[C]ome on, let’s go.” He said the petitioner and the victim
walked up one sidewalk, and he went down the other sidewalk. He did not telephone the police
because he had an outstanding warrant for a probation violation at the time. Gaines testified he later
related what he saw to a friend, who in turn contacted the petitioner’s family. On cross-
examination, he testified he did not report to the police that the victim had robbed him and did not
tell anyone at the time about the incident he witnessed between the petitioner and the victim. In
response to questioning by the post-conviction court, Gaines testified that his conversation with his
friend about the incident occurred approximately a month prior to the post-conviction hearing.

        Trial counsel testified he had been licensed to practice law since September 30, 1978, and
that his practice consisted primarily of criminal defense work. At the time he was appointed to
represent the petitioner, he had previously represented many criminal defendants, including ones
charged with Class A felonies. Trial counsel said the petitioner was represented at the preliminary
hearing by other counsel, but he obtained and reviewed a copy of the preliminary hearing tape and
transcript and discovery from the State. He also met with the petitioner and felt that he and the
petitioner established a working attorney/client relationship.

       Trial counsel testified he strongly advised the petitioner not to testify at his murder trial and
explained his reasons:

                       Well, there were several reasons. Number one, the State had
               failed to produce any evidence that [the petitioner] was the shooter,
               that [the petitioner’s] gun was involved or anything linking [the
               petitioner] with the inside of [the victim’s] apartment where the body
               was found.




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                           Secondarily, in my opinion, [the petitioner] did not make a
                   particularly good witness, and that is just an experiential thing. It is
                   an opinion I formed based upon opinions, I mean based upon
                   experience in the last 23 years practicing law.

                           Lastly, I was concerned that [the petitioner’s] prior record
                   would be introduced, and would obviously go against his credibility
                   in the event he decided to testify.

Trial counsel testified the petitioner told him his version of the events prior to trial, and they
discussed what he considered to be the critical point, which he expressed to the petitioner as “[h]ow
do we get from [the victim] behind you to you behind [the victim]?” He said it was the petitioner’s
ultimate decision to testify. In his opinion, the petitioner failed to adequately explain to the jury how
he had come to shoot the victim four times in the back.

        Trial counsel testified his records reflected two pretrial court proceedings at which he would
have spoken to the petitioner about the murder case, as well as several hours of conversation that
occurred at the Hardeman County facility after the petitioner was incarcerated on his especially
aggravated robbery conviction. He had not heard of Garrett or Gaines before the post-conviction
hearing and could not recall the petitioner’s having supplied him with the names of witnesses other
than the ones who testified at trial. Trial counsel said his notes indicated that Eric Brown testified
at either the preliminary hearing or at the trial that he saw the victim holding a gun on the petitioner.1
He agreed that he tried the case to the best of his ability and raised all objections he considered
appropriate.

        Trial counsel conceded on cross-examination that his billing statement reflected only 11 in-
court and 5.5 out-of-court hours spent on the case. He explained, however, that some of the time he
spent working on the murder case was reflected on his billing statement for the robbery case. He
testified he did not have a private investigator at his law firm and, at the time he represented the
petitioner, the courts did not appoint private investigators to assist in noncapital cases. He said he
did not go to the housing project where the shooting occurred to attempt to locate any potential
witnesses. Trial counsel testified he was unaware of any eyewitness to the shooting. However, Tina
James testified at the preliminary hearing that she saw a gun lying beside the victim’s body that was
not recovered, and her testimony was read into the record at trial. Trial counsel agreed he might have
used Gaines and Garrett at trial had he been aware of their potential testimony.

         Trial counsel acknowledged he did not file a motion to suppress the photographic lineup
identification made by a witness who testified she saw the petitioner running from the victim’s
apartment, did not file any motions in limine, and did not file a request for a ballistics expert. He
testified he was able to get the medical examiner to testify that the levels of cocaine and alcohol


         1
           At a later point in the hearing, the post-conviction court made it clear that Brown testified on the petitioner’s
behalf at the trial.

                                                            -4-
present in the victim’s body could render someone aggressive, but was unable to get him to commit
to saying that they would have rendered the victim aggressive. He might, therefore, have hired his
own toxicologist or pharmacologist if he had had the resources to do so. He acknowledged the trial
court asked him at the beginning of the trial whether his defense was first aggressor or self-defense
or both and that he replied, “First aggressor probably.”

        In response to questioning by the post-conviction court, trial counsel testified that, because
the petitioner had admitted to him that he shot the victim, he would not have hired a ballistics expert
because he did not think a ballistics expert would have helped the case. He agreed first aggressor
and self-defense were not mutually exclusive theories of defense and, in fact, often went hand-in-
hand together, but said his defense had centered around a theory of self-defense, in which he
attempted to show that the petitioner had been afraid that the victim was going to kill him. Trial
counsel said he “[a]bsolutely[,] [a]bsolutely” advised the petitioner not to testify, explaining to him
while sitting at the defense table that the State had presented a relatively weak first degree murder
case against him, as it could not place him either pulling the trigger or in the victim’s apartment. It
was the petitioner, he said, who first supplied the information that he had shot the victim in the back.
Had the petitioner not testified, counsel thought it would have been much easier for the jury to either
acquit him outright or reach a “compromised verdict of voluntary manslaughter.”

        On December 18, 2002, the post-conviction court entered a lengthy and detailed order
dismissing the petition for post-conviction relief on the basis that the petitioner had failed to
demonstrate by clear and convincing evidence that he was denied the effective assistance of counsel.
Thereafter, the petitioner filed a timely notice of appeal to this court, arguing that the post-conviction
court erred in dismissing his petition.

                                              ANALYSIS

                              I. Post-Conviction Standard of Review

        The post-conviction petitioner bears the burden of proving his or her allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held in
the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual
issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to the facts
of the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96
(Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions of fact
and law, is reviewed de novo, with a presumption of correctness given only to the post-conviction
court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns, 6 S.W.3d at
461.




                                                   -5-
                               II. Ineffective Assistance of Counsel

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel's errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        Because both prongs of the test must be satisfied, a failure to show either deficient
performance or resulting prejudice results in a failure to establish the claim. See Henley, 960 S.W.2d
at 580. For this reason, courts need not approach the Strickland test in a specific order or even
“address both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance
claim”).

                         III. Claims of Ineffective Assistance of Counsel

                        A. Failure to Investigate or Identify Witnesses

        The petitioner first contends he was denied the effective assistance of counsel by trial
counsel’s failure to investigate, identify, and present defense witnesses. He argues Gaines and
Garrett’s testimony would have corroborated his claim of the victim’s having held a gun on him, and



                                                   -6-
that trial counsel’s failure to go into the neighborhood to investigate was the reason he did not know
of their existence and potential testimony.

        With respect to this claim, the post-conviction first noted that neither Garrett nor Gaines
reported to the police the incident they each claimed to have witnessed. The court then observed that
the petitioner’s brother testified about the victim’s reputation in the community for violence, and
Eric Brown testified that on the day of the shooting, he observed the victim holding what appeared
to be a gun against the petitioner as he led him to his apartment. The court therefore concluded that
Gaines and Garrett’s testimony would have been merely cumulative, and that the petitioner failed
to meet his burden of showing how counsel’s alleged deficiency in failing to locate the witnesses had
prejudiced the outcome of his case. The post-conviction court’s order states in pertinent part:

                        As stated previously, the Court finds that Petitioner was not
               prejudiced by the fact neither Mr. Gaines nor Mr. Garrett testified at
               trial nor was Petitioner prejudiced by trial counsel’s alleged deficient
               performance in failing to identify or interview witnesses to testify as
               to the deceased’s reputation. Petitioner admitted to shooting [the
               victim], so the critical issue at trial was whether that shooting was
               justifiable as self-defense. Since no one observed what occurred
               inside the apartment nor did anyone observe the shooting, there was
               really no witness available that would help Petitioner’s case. The
               critical point in the case was explaining how the Petitioner got behind
               the deceased to shoot him in the back. Accordingly, the Court finds
               that Petitioner did not carry his burden to establish how he was
               prejudiced by trial counsel’s deficient performance.

          We conclude the record fully supports the post-conviction court’s findings and conclusions.
As the court noted, the victim’s reputation in the community for violence and the fact that he was
seen on the day of the shooting holding a gun to the petitioner’s back was brought out at trial by
other witnesses, who, by their testimony, provided corroboration of the petitioner’s claim of having
been held at gunpoint by the victim, whom he feared because of his reputation for violence. Neither
Gaines nor Garrett claimed to have witnessed the critical moment of the shooting itself. We,
therefore, agree with the post-conviction court that Gaines and Garrett’s testimony would have been
merely cumulative, and the petitioner has not established he was prejudiced by their failure to testify
at trial.

         We further conclude that the petitioner failed to show by clear and convincing evidence that
trial counsel was deficient for failing to locate the witnesses. Gaines testified he did not report what
he saw to police because he had an outstanding warrant for a probation violation at the time. He said
about a month before the post-conviction hearing, he told a friend he had information about the case,
and she in turn contacted the petitioner’s family. Thus, at the time trial counsel would have been
preparing witnesses for trial, Gaines had apparently not shared his information with anyone. Garrett
also testified he did not report what he witnessed to the police or to the petitioner’s family, and that


                                                  -7-
it was only sometime later that he recounted the story to a group of beer-drinking friends, from
whom word that he might have information about the case apparently reached post-conviction
counsel. However, there is nothing in the record to suggest that the information was generally
available before the petitioner’s trial. Even if trial counsel had canvassed the entire neighborhood,
going door to door in an attempt to locate potential witnesses, there would have been no guarantee
that he could have located Gaines and Garrett, or that they would have been willing to inform him,
at the relevant time, about the incident they witnessed.

                             B. Failure to Prepare a Defense Theory

         The petitioner next contends he was denied the effective assistance of counsel by trial
counsel’s failure to develop a defense theory of the case. He argues that the evidence shows trial
counsel failed to adequately prepare for the case and failed to develop a consistent theory of defense,
as evidenced by his response to the trial court that his defense would probably be first aggressor and
his testimony at the post-conviction hearing that his defense had centered around self-defense. The
petitioner asserts trial counsel’s failure to file a pretrial motion to suppress the photographic lineup
identification and his failure to adequately confer with him before trial hindered the development
of a consistent theory of defense and further prejudiced his case.

        The post-conviction court accredited trial counsel’s testimony about the time he spent in
pretrial consultation with the petitioner and concluded the petitioner failed to show by clear and
convincing evidence that counsel failed to confer with him about his defense strategy or that he was
prejudiced by counsel’s alleged deficiencies in communication. The court found nothing suggestive
about the photographic lineup and concluded the petitioner failed to show he was prejudiced by
counsel’s failure to file a pretrial motion to suppress the identification. Finally, with respect to the
petitioner’s claim that trial counsel failed to present a consistent theory of defense, the post-
conviction court made the following findings of fact and conclusions of law:

                       Despite Petitioner’s suggestion, first aggressor and self-
               defense are not mutually exclusive theories. The concepts of first
               aggressor and self-defense are interrelated. Under the first aggressor
               rule, self-defense is not available to a defendant who initiates the
               force. Tenn. Code Ann. § 39-11-611(d). Thus, to prove self-defense,
               the defendant must provide evidence that the victim was in fact the
               first aggressor. Petitioner’s sole argument that counsel did not
               develop a consistent theory of defense rests on the fact that after the
               first day of trial testimony, the Court inquired of defense counsel as
               to the nature of his defense and counsel stated, “First aggressor,
               probably.” At trial, the defense presented testimony and argued that
               the Petitioner shot the decedent out of self-defense. As part of the
               defense’s case, the defense put forth evidence demonstrating the
               decedent’s reputation for violence and aggression. Since the defense
               of self-defense and first aggressor are interrelated, the Court finds no


                                                  -8-
               inconsistency in the defense’s case. The Petitioner has not carried his
               burden that he was prejudiced by counsel’s alleged deficient
               performance[.]

        The record fully supports the findings and conclusions of the post-conviction court. Trial
counsel was an experienced criminal defense attorney with substantial experience in handling serious
criminal trials. He testified he met with the petitioner several times before trial, which included a
prison visit that lasted several hours. He also testified he discussed defense strategy with the
petitioner and the critical weakness in the petitioner’s proposed trial testimony, in which the
petitioner failed to adequately explain the circumstances under which he shot the victim in the back.
Trial counsel said he strongly advised the petitioner not to testify, but the petitioner was adamant
about wanting to tell his story to the jury and ultimately decided to take the stand.

        There is nothing to support the petitioner’s claim that trial counsel was unprepared for trial
or failed to develop or present a theory of defense. Trial counsel testified his defense centered
around a theory of self-defense. In support of that defense, he presented at least two witnesses who
offered testimony about the victim’s reputation for violence and the fact that he had been seen
holding a gun on the petitioner on the day of the shooting. In addition, Tina James’s preliminary
hearing testimony that she saw a gun lying beside the victim was read into the record at trial. Thus,
there was ample evidence to bolster the petitioner’s testimony about the circumstances leading up
to the shooting and to lend support to his claim of having acted in self-defense. We conclude,
therefore, that the petitioner has not met his burden of showing by clear and convincing evidence
either that trial counsel was deficient for failing to develop a theory of defense or that any alleged
deficiency on counsel’s part prejudiced the outcome of his trial.

                                          CONCLUSION

        Based on our review, we conclude the petitioner has failed to show he was denied the
effective assistance of counsel. Accordingly, we affirm the post-conviction court’s dismissal of the
petition for post-conviction relief.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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