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

              NICHLOUS MAXWELL v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                          No. 03-08392   Chris Craft, Judge


                  No. W2011-01219-CCA-R3-PC - Filed May 18, 2012


The petitioner, Nichlous Maxwell, appeals the denial of his petition for post-conviction relief,
arguing that trial and appellate counsel were ineffective for failing to argue for a jury
instruction on facilitation of a felony. Following our review, we affirm the denial of the
petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J AMES C URWOOD W ITT, J R., J., joined.

Neil Umsted, Memphis, Tennessee, for the appellant, Nichlous Maxwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Marianne Bell, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

        The petitioner, who was indicted for the May 26, 2003 first degree premeditated
murder of Prentice Moore, was convicted by a Shelby County jury of second degree murder
and was sentenced by the trial court to twenty-five years in the Department of Correction.
This court affirmed his convictions on direct appeal but modified his sentence to twenty-three
years, and our supreme court subsequently denied his application for permission to appeal.
State v. Nichlous Maxwell, No. W2006-01213-CCA-R3-CD, 2008 WL 4613878, at *1
(Tenn. Crim. App. Oct. 15, 2008), perm. to appeal denied (Tenn. Mar. 23, 2009). Our direct
appeal opinion contains the following summary of the evidence presented at trial:
        In the early morning hours of May 26, 2003, Prentice Moore (also
known as “Twin One”) was shot and killed in the parking lot of an Exxon gas
station in Memphis. Earlier that morning, [the petitioner] and the victim were
involved in an altercation at the Denim and Diamonds nightclub. Gregory
Livingston, the director of security for the club, was summoned to the security
office via portable radio after one of his employees reported a fight that had
occurred at the pool tables. When Mr. Livingston arrived at the office he
found the victim and his twin brother, Prenston Moore (also known as “Twin
Two”) there. Mr. Livingston found the twins to be agitated and upset. When
Mr. Livingston asked the twins what happened, the victim responded that
“some other guys jumped him and his brother.” The victim also informed Mr.
Livingston that [the petitioner] said he was going to kill them. Because the
twins were concerned for their safety, the security guards escorted them out of
the building about thirty minutes after the fight occurred.

        Prenston Moore testified that the problems between the victim and [the
petitioner] began in October 2002 when [the petitioner] poured a beer on the
victim’s girlfriend. This caused a fight between the victim and [the petitioner]
at the nightclub. The fight was broken up by security and both men went on
their way. The victim and Prenston Moore did not see [the petitioner] again
until the night of May 25, 2003 at the nightclub. When Prenston Moore, the
victim, and their friends were leaving the club in the early morning hours of
May 26, 2003, they walked past [the petitioner]. Prenston Moore testified that
he heard [the petitioner] say he was “dumping n-----s.” Prenston Moore stated
that this statement was slang for killing someone. After this comment, the
victim began fighting with [the petitioner]. Prenston Moore joined the fight
and hit [the petitioner] several times with a pool cue and then chased him out
of the nightclub.

       After being escorted out of the club by security, the victim, Prenston
Moore, and their cousin, Pat Grant, drove to a nearby Exxon station. The
victim was driving the car, while Prenston Moore was in the backseat and Mr.
Grant was in the front passenger seat. After circling the Exxon parking lot
twice, the men stopped in the parking lot. Very soon after parking, Prenston
Moore heard shots fired. The victim reached in the backseat and pushed
Prenston Moore’s head down. At this point, Prenston Moore felt blood fly into
his face and he thought he had been shot. Within a few seconds, however, he
realized that it was the victim who had been shot. Prenston Moore looked to
the back of the vehicle and saw a bullet hole. Prenston Moore also saw a
person he identified as [the petitioner] running away from the rear of the car.

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Prenston Moore testified that [the petitioner] was carrying an assault rifle.
Prenston Moore stated that he did not see anyone with [the petitioner] and that,
even though [the petitioner] had something covering part of his face, he
recognized [the petitioner] by his bald head. During the incident, Prenston
Moore heard three or four shots fired and testified that all the shots were fired
from the rear of the vehicle. After the shots stopped, the victim “pulled off”
the lot onto Mendenhall and hit another car. The victim was able to drive a
short distance further to Cottonwood and then “fell back.” Prenston Moore
grabbed the wheel and managed to stop the car. Once the car was stopped,
Prenston Moore pulled the victim out of the car and covered him up.

        Edward Reynolds, Omar Edwards, and Roy Washington were friends
of the victim and were with him at the nightclub that night. Mr. Reynolds and
Mr. Edwards saw the fight between the victim, Prenston Moore, and [the
petitioner]. Mr. Reynolds, Mr. Edwards, and Mr. Washington left the club
after the fight in Mr. Edward[s’] white Tahoe. The men also drove to the
Exxon station and circled the parking lot. They then pulled up next to a gas
pump, and the victim was on the other side of the same gas pump. Mr.
Reynolds looked back and saw [the petitioner] holding an assault rifle. Mr.
Edwards saw [the petitioner] carrying a gun with a “banana clip.” Mr.
Washington saw [the petitioner] carrying a “machine gun with a long clip.”
All three men acknowledged that [the petitioner] had something covering part
of his face, but they could tell the [the petitioner] was bald. None of the men
saw another person with [the petitioner]. Mr. Reynolds saw the victim push
Prenston Moore’s head down before he was shot. Mr. Edwards saw a bullet
“knock out” the back window. Mr. Washington saw a bullet strike the victim.

        Bryan Cohran was also at the Exxon station early that morning. Mr.
Cohran was not a friend of the victim or [the petitioner], but was “relieving
himself” behind the Exxon station when he saw [the petitioner] and a taller,
lighter complected man run towards the victim’s car and start shooting. Mr.
Cohran noticed that the [the petitioner] had an assault rifle and the other man
had a handgun. Mr. Cohran saw shots fired from the rear of the victim’s
vehicle. After [the petitioner] and the other man fired several shots, they ran
back the way they came, and someone in a green Tahoe started shooting at
them.

       Inside the green Tahoe were Tim Scott and Larry Moore. Mr. Scott had
followed the victim and Mr. Edwards from the club to the Exxon. When they
arrived, they could not find a parking space and were waiting for someone to

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leave when they saw two men come around the building. Both men testified
that the bald man (identified as [the petitioner]) was carrying an assault rifle
and the other man was carrying a handgun. Both men also testified that the
man carrying the assault rifle had gold teeth. At trial, [the petitioner]
demonstrated for the jury that he has gold teeth. Larry Moore testified that he
saw [the petitioner] fire several shots and that he saw the other man shoot.
Larry Moore also saw the victim push Prenston Moore’s head down before he
was shot. Mr. Scott began shooting at [the petitioner] and the other man once
he realized what was happening.

        Fredrick Rodgers also witnessed the fight at the club and the shooting
at the Exxon. He saw [the petitioner] carrying an assault rifle and fire into the
back of the victim’s car. Mr. Rodgers also stated that there was another man
with [the petitioner] and that he recognized [the petitioner] because of his gold
teeth.

       Several members of the Memphis Police Department testified for the
State. Officer David Payment testified that he investigated the area at
Cottonwood and Mendenhall where the victim’s car came to a stop as well as
the Exxon station where the shooting occurred. At the Cottonwood scene
Officer Payment recovered a spent nine millimeter shell casing (fired into the
air by Mr. Grant when a car drove by after Prenston Moore had pulled the
victim out of the car) and a live nine millimeter bullet near the victim’s car.
He also recovered a nine millimeter handgun from the victim’s car. Prenston
Moore testified that the victim carried a gun in his car. At the Exxon station,
Officer Payment recovered three spent 7.62 x 39 shell casings, four spent nine
millimeter shell casings, and a nine millimeter bullet fragment on the front
dash of the victim’s car. Officer Payment also testified that the front
windshield of the car had a bullet hole in it, although he was unable to testify
as to whether the bullet hole was an entrance or exit hole. Sergeant James
Fitzpatrick testified that he observed two bullet holes in the rear window of the
victim’s car. In Sergeant Fitzpatrick’s opinion, the bullet fragment found on
the front dash came from the rear of the vehicle, hit and passed through the
victim, struck the front windshield, and then “lost its power and bounced
back.”

       Sergeant John Palsey identified [the petitioner] as a suspect. Several
eye witnesses identified [the petitioner] in a photo spread and also mentioned
another man named either Terrell or Chris. The officers were not able to
positively identify this person, although they did confirm that there were nine

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       millimeter shell casings found at the Exxon station consistent with a second
       shooter.

              Dr. O’Brian Cleary Smith, the Shelby County Medical Examiner,
       performed the autopsy on the victim’s body. Dr. Smith determined that the
       victim was killed by a high velocity gunshot wound that entered through his
       right eye and exited through the back of his head. Typically, an example of a
       high velocity gun is an assault rifle, and a handgun is not a high velocity
       weapon.

               Monica Allen, [the petitioner]’s girlfriend at the time of the shooting,
       testified on his behalf. Ms. Allen testified that she saw the fight at the club
       and saw [the petitioner] run out of the club. Ms. Allen testified that she left a
       short time later after “the crowd cleared out.” When Ms. Allen arrived home,
       [the petitioner] was there with injuries sustained from the fight. She testified
       that she gave him a rag to clean himself with and then they both went to bed.
       She was unsure of the time they went to bed but guessed it was around three
       o’clock in the morning. Ms. Allen also agreed on cross-examination that
       because she was asleep she did not know if [the petitioner] left during the
       night, even though he was there when she woke up the next morning.

Id. at *1-3.

        On January 25, 2010, the petitioner filed a petition for post-conviction relief in which
he raised claims of ineffective assistance of trial and appellate counsel based on a number
of allegations of deficient performance. On October 13, 2010, he filed an amended petition
in which he alleged that trial counsel was deficient for not requesting a jury instruction on
facilitation as a lesser-included offense and not raising the issue on appeal. The petitioner
further alleged that, were it not for these deficiencies of counsel, there was a reasonable
probability that the outcome of his trial would have been different, as there was sufficient
evidence for the jury to have found him guilty of having facilitated the murder of the victim
rather than having committed it himself.

        We confine our summary of the evidentiary hearing proceedings to the evidence that
is relevant to the issue raised on appeal. Trial counsel, who graduated law school in 1994
and whose practice consisted of ninety-nine percent criminal defense, testified that the
petitioner’s mother retained her to represent the petitioner after his original counsel was
relieved due to a conflict. Original counsel gave her his file, and she also worked closely
with an investigator that had been obtained to help prepare the petitioner’s case. Trial
counsel said that their defense strategy consisted of an alibi defense, as the petitioner

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maintained from the beginning that he had been with his girlfriend at the time of the
shooting. She said she was aware from witness statements she reviewed before trial that the
State had two or three witnesses who were going to identify the petitioner as the shooter.
However, when it came down to the trial, “it seemed like every single witness that took the
stand that day . . . suddenly ha[d] a better memory than . . . before,” and the number of
witnesses who identified the petitioner more than doubled. She said she attempted to
discredit these witnesses by cross-examining them about their personal relationships with the
victim and his brother and their possible gang affiliations.

        Trial counsel acknowledged that she attempted to bring out at trial the fact that there
had been “ongoing hostility” between the petitioner and the victim and his twin brother. She
explained, however, that she did so in order to show that the petitioner’s pattern of behavior
in the face of the victim’s and his brother’s attacks was always to run away and not to return
to the fight.

       Trial counsel testified that she strenuously opposed the State’s request for a jury
instruction on criminal responsibility because she believed it was inappropriate and would
be confusing to the jury. The petitioner was the only person indicted for the crime, and she
believed that the evidence at trial, which included testimony about multiple gunshots coming
from different directions, did not show that the petitioner was “acting with anyone else or
would know that anyone else was out there going to do these things.” Trial counsel testified
she did not want to “compound the error” of the trial court’s issuing an instruction on
criminal responsibility by requesting an instruction on facilitation, which, in her view, would
have only “mudd[ied] the water.” She explained:

       A.     If I’m against criminal responsibility I think I have - - even though they
       give criminal responsibility I don’t think I have to help in the error by saying
       well, while you’re there why don’t we just go on and throw in facilitation. I
       think that would have made it worse.

       Q.    And you don’t think it would have been beneficial to [the petitioner’s]
       defense?

       A.      I don’t know how when your position is alibi you suddenly asking for
       facilitation helps your alibi defense.

        Trial counsel acknowledged that she addressed the lesser-included offenses to murder
in her closing argument but said she did so without abandoning the alibi defense:

              And the way we tried to approach that was maintain the alibi because

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       that was his position that he was not there, that he was somewhere else. But
       to make sure the jury understood that given what the testimony had been it
       could very well be that one of those other people out there who had nothing to
       do with our client was the one that caused the death.

              Even if they chose to believe our client was out there they still had those
       other people acting without him being involved at all. And that’s what I
       thought was the appropriate way to do it to present this to they jury we’re still
       holding to our alibi.

              But if you think he died look at it very carefully because there’s a
       shooting from the front, there’s Mr. Scott, there’s this other person that some
       people say it’s Chris, some people say it’s not Chris. Think before you make
       your decisions and realize that you’ve not been really shown who the shooter
       was.

              ....

               And in that way we could approach criminally negligent homicide, vol-
       man . . . and reckless . . . [w]ithout abandoning what . . . the course would have
       been on throughout.

       On cross-examination, counsel reiterated that she had made a strategic choice not to
request an instruction on facilitation because she believed it would have hurt, rather than
helped, the petitioner’s case. She also acknowledged having told the jury in her closing
argument, “I’m not sure why I’m going over these [lesser-included offenses] because [the
petitioner] wasn’t there, perhaps I’m going over them for the other shooters.”

       The petitioner testified that he maintained throughout that he had not been present at
the time of the shooting.

                                         ANALYSIS

        The petitioner argues that trial counsel was deficient for not requesting a jury
instruction on facilitation and not preserving or raising the issue for appeal. In support, he
cites this court’s decisions in Michael Davis v. State, No. W2009-02111-CCA-R3-PC, 2010
WL 2539689 (Tenn. Crim. App. June 23, 2010), and Montea Wilson v. State, No. W2008-
02439-CCA-R3-PC, 2010 WL 3822934 (Tenn. Crim. App. Sept. 30, 2010), in which the
petitioners’ respective counsel were found to be ineffective based on their failure to request
lesser-included offense instructions or to preserve the issue on appeal. The State responds

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by arguing that the case at bar is distinguishable on its facts and that the post-conviction court
properly found that the petitioner failed to show that his counsel was deficient for not
requesting that the jury be instructed on facilitation, or that he was prejudiced as a result. We
agree with the State.

       The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). 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 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 v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       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 (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.

        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; 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

                                               -8-
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.

       In denying relief, the post-conviction court found that trial counsel had made a
reasonable, strategic choice not to request an instruction on facilitation and that the petitioner
could not show, under the facts of the case, that he suffered any prejudice as a result of the
lack of a facilitation instruction.

        The record supports the findings and conclusions of the post-conviction court. Trial
counsel explained at great length why she did not want to request an instruction on
facilitation, testifying that she thought it would have undermined their alibi defense and
further added to the jury confusion caused by the criminal responsibility instruction. In
addition, she thought that even if the jury disbelieved the alibi witness and thought the
petitioner was present during the shooting, the State failed to present proof sufficient for a
jury to find that the petitioner facilitated the crime.

        We agree with the State that our decisions in Michael Davis and Montea Wilson are
distinguishable from the case at bar. In Montea Wilson, this court concluded that counsel
was deficient for not preserving as an issue for appeal the trial court’s failure to instruct the
jury on second degree murder as a lesser-included offense of felony murder, despite the fact
that counsel “may have made [a] strategic decision not to ask for the instruction,” because
there was sufficient evidence to support the lesser-included offense. 2010 WL 3822934, at
*14-15. In the case at bar, trial counsel reasonably believed that the evidence did not support
a jury finding that the petitioner facilitated the crime. She also believed that an instruction
on facilitation would confuse the jury and undermine her alibi defense.

       Michael Davis v. State is also distinguishable from the case at bar. The petitioner in
Michael Davis was found guilty of especially aggravated robbery under a theory of criminal
responsibility. 2010 WL 2539689, at *1, 5. The victim was a laudromat attendant who was
accosted by four or five armed and masked men early in the morning at his place of
employment. State v. Michael Davis , No. W2006-01151-CCA-R3-CD, 2007 WL 2247254,
at *1-2 (Tenn. Crim. App. Aug. 3, 2007), perm. to appeal denied (Tenn. Jan. 28, 2008). The
men struck the victim in the head, robbed him of his watch and jewelry, blindfolded and
bound him, carried him to a pickup truck, shot him in the leg, removed his car keys and
wallet, and drove him around before shoving him out of the truck. Id.

       Approximately an hour and a half after the men entered the laudromat, the victim’s
brother arrived at the business in time to witness the petitioner, with whom he was familiar,
driving off in the victim’s vehicle. In addition, police later found abandoned a stolen pickup
truck with blood in the backseat, a mask, a bloody towel, and, affixed to the rear, a dealer’s

                                               -9-
drive-out tag that was linked to the petitioner. Id.

       Trial counsel’s defense strategy consisted of an attempt to show that the petitioner was
not present and had nothing to do with the crimes. Michael Davis, 2010 WL 2539689, at *3.
Nonetheless, counsel argued in closing “that if the petitioner was guilty of anything, it was
only theft or possession of stolen property.” Id. Counsel could not specifically recall
whether he requested lesser-included offense instructions, and instead “indicated . . . that he
presumed that the trial court would have automatically included any applicable lesser-
included offenses[.]” Id. at *6. Based on the specific facts involved in the case, this court
concluded that counsel was deficient for failing to request a jury instruction on facilitation
and that the petitioner was prejudiced as a result. Id. at *6-7.

        Trial counsel in the case at bar, unlike the counsel in Michael Davis, was clear that
she made a strategic choice not to request an instruction on facilitation because she believed
the facts did not support a finding of facilitation and the instruction would only confuse the
jury and hurt the petitioner’s case. Moreover, she found a way to address lesser-included
offenses in closing without abandoning the petitioner’s alibi defense. Thus, given the facts
of this case, we conclude that the petitioner has not shown that counsel was deficient for not
requesting a jury instruction on facilitation, or that he was prejudiced by her failure to do so.

                                       CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the judgment of the post-
conviction court denying the petition for post-conviction relief.




                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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