        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 18, 2010

            JOHNNY M. BURROUGHS v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Dickson County
                      No. CR-9436      Robert E. Burch, Judge




              No. M2009-01466-CCA-R3-PC - Filed November 16, 2010


A Dickson County jury convicted the Petitioner, Johnny M. Burroughs, of felony murder,
especially aggravated robbery, and theft of property over $1000, and it imposed a life
sentence for his murder conviction. The trial court sentenced him to twenty years for his
robbery conviction and to two years for his theft conviction, to be served concurrently with
his life sentence. On direct appeal, this Court affirmed the Petitioner’s convictions and
sentence. The Petitioner then filed a petition for post-conviction relief, claiming he received
the ineffective assistance of counsel, which the post-conviction court dismissed after a
hearing. On appeal, the Petitioner contends the post-conviction court erred when it dismissed
his petition. After a thorough review of the record and applicable law, we affirm the post-
conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.

Mitchell B. Dugan, Dickson, Tennessee, for the Appellant, Johnny M. Burroughs.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Clarence E. Lutz, Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; Suzanne Lockert-Mash, Assistant District Attorney General, for the Appellee, State
of Tennessee.


                                        OPINION
                                         I. Facts
                                      A. Background
       On the Petitioner’s direct appeal, this Court set forth the following factual summary
of the events underlying the Petitioner’s convictions:

              On May 3, 2003, Paul Totty and Grandville Johnson were hunting in the
       woods in Hickman County when they discovered a red Nissan truck. The next
       day, the two men noticed that the truck had been set on fire. The truck was
       also seen smoldering by Robert Allen Orton. Mr. Orton called 911 to report
       what he found in the woods.

               The police were dispatched to the location of the burning truck and
       soon discovered that the truck belonged to Jean Bowen, the victim. The victim
       lived in Dickson County. According to her sister, Nell Brown, the two women
       were supposed to have a picnic on May 2, 2003. Ms. Brown became
       concerned when her sister did not show-up for the picnic and called Sandra
       Parker, the victim’s daughter. When Ms. Parker drove by her mother’s house,
       she noticed that her mother’s red Nissan truck was not parked in the driveway
       and assumed that her mother was out running errands or visiting someone.

              On May 4, 2003, after the authorities confirmed that the truck belonged
       to the victim, Peter Rogers, a Deputy Sheriff with the Dickson County
       Sheriff’s Department, was dispatched to the victim’s house. Deputy Rogers
       noticed what he thought were “spots of blood” on the front porch. Deputy
       Rogers knocked on the door, but received no response. When Deputy Rogers
       looked through the window on the front porch of the small farmhouse, he
       could see the victim lying in a pool of blood. Without entering the house,
       Deputy Rogers could tell that the victim was “deceased” because “her body
       was stiff, real ridged like” and “the blood on her was almost a black or a
       purple color and you could tell it was dry.”

              The victim’s body was found in the kitchen of the house, lying on the
       floor next to the freezer. There was blood spattered on the freezer and the
       wall. After talking to the victim’s daughter, the authorities were able to
       determine that the victim’s purse and shotgun were missing in addition to the
       victim’s red Nissan truck. There were no identifiable latent finger prints
       recovered from the scene of the crime.

              According to the medical examiner, the victim died as a result of
       multiple injuries, including “extensive skull fractures, facial bone fractures,”
       contusions to the brain and blunt force injuries to the torso. Several of the

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injuries to the face and head were consistent with being struck with a hatchet.

        During the investigation, the authorities received information that the
victim’s nephew, Greg Smith, had tried to borrow money from the victim and
that he became upset when she refused to give him money. The appellant was
one of Greg Smith’s close friends.

       On the evening of May 15, 2003, the appellant along with Greg Smith
and Vicki Spicer, the two co-defendants, visited Dwight Eric Halbrooks’s
home in Hickman County. The appellant came to the house to sell Mr.
Halbrooks a shotgun that the appellant claimed he got from his father. [The
shotgun actually belonged to the victim.] The appellant also offered to sell Mr.
Halbrooks a red Nissan that was stolen in Dickson. Mr. Halbrooks bought the
gun for twenty-five dollars, but declined to buy the truck.

      After hearing about the robbery and murder in Dickson County, Mr.
Halbrooks had his nephew hide the shotgun, thinking that it might be the
murder weapon involved in the news reports. Mr. Halbrooks later turned the
gun over to agents from the Tennessee Bureau of Investigation.

       On May 15, 2003, Agent Douglas Long of the Tennessee Bureau of
Investigation went with Detective B.J. Gafford of the Dickson County
Sheriff’s Department to the trailer park in Centerville, Tennessee where the
appellant lived. The two officers approached the appellant and asked him to
come in and give a statement. The appellant complied by riding in the car with
the officers to the Criminal Justice Center in Hickman County. Prior to the
statement, the officers obtained a waiver of rights from the appellant and
informed him of his Miranda rights.

       The appellant’s statement reads as follows:

       On Friday night, May 2, 2003, me and Greg Smith were riding
       around in Marenda Campbell’s blue Thunderbird. It was around
       8:00 p.m. and we were driving down I-40 heading west. He and
       I had been riding around Dickson. As we were coming down
       the interstate, I was driving and we noticed that the car was
       running hot. The engine was about to shutdown because it was
       running so hot. Greg told me to pull off the exit, so I did. We
       turned left and went back over the interstate and pulled over at
       the stop sign at the top of the hill. We both get out of the car

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and raised the hood. We’re checking the radiator and then go to
the trunk to see if there is any water. Greg then grabbed the
one-way lug wrench. He tells me he has an aunt that lives close
by. We could see the house from where we were. We start
walking towards her house. As we are walking towards her
house, he started telling me that he was going to jail for four or
five years because he had failed a drug test. He was on
probation for stealing a toolbox. He said he wanted to rob her,
take her money. He kept saying she had a bunch of money. He
said that he wanted to give the money to his girlfriend so she
could pay rent while he was in jail.

When we got to the house, the street light was on, and the porch
light was on. Greg knocked on the door and she came to the
door and opened the wooden door. The screen door was closed.
Greg tells her who he is and that he needs water for his car that
was parked up the street. She tells us to come in and she opens
the door. Greg goes in first and I follow him. The lug wrench
is either in his back pocket or stuck in the back of his pants.
While we were standing in the living room, he tells her he needs
a big jug to put water in. They go into the kitchen. The
doorway to the kitchen was to my right as I stood in the living
room. The TV was to my right and the couch was in front of
me. When Greg and her went into the kitchen, I heard Greg say
something about a jug and then heard some commotion. It
sounded like somebody fell on some pots and pans. It sounded
like something kept hitting pans. I heard this sound five to six
times. I was standing in the living room looking around. Greg
is in the kitchen for a minute to a minute and a half. As he
comes out of the kitchen, he has the lug wrench in his hand.
When he came out of the kitchen, he went over to the couch and
grabbed a brown paper bag that had her purse inside. I don’t
know what happened to the paper bag. After he grabbed the
purse he turns to me and says let’s go. I don’t remember if he
went anywhere else in the house. As we go towards the door, he
is in front of me. He sees the shotgun in the corner next to the
door. He grabbed the shotgun and goes outside the house, with
me following him. He has the purse, shotgun, and lug wrench
in his hand. I think he was carrying the purse and shotgun in his
left hand and the lug wrench in his right hand. Greg is right

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handed. As we leave the house, I turn and head for the street
and he goes for the truck. The truck is parked in the carport to
the right of the house as you look at it. As I am running up the
hill, he passes me in a red Nissan. The truck had a toolbox
behind the cab.

When I got to the top of the hill, I closed the hood and the trunk
and got in. Greg was already on the interstate. I get on the
interstate and start heading towards the Turney Center exit. I’m
driving about 85 to 90 trying to catch him. I finally see him
about a mile before the Turney Center exit. He had pulled over
waiting on me. He pulls out and gets off the exit. I follow him
off the interstate. When we get to the top of the exit we take a
left [and] start driving down the new highway. We finally turn
right on the backside of Beaver Dam Road. We drive down the
road and finally turn left onto an old logging road. I follow him
a little ways, until there is an open spot. I didn’t go any further
because I would have bottomed out. Greg drove the truck back
away’s [sic] through some mud holes. He is gone for about 10
minutes and comes back. He parked the truck facing me, facing
the way we came in. He has the driver’s door open and begins
throwing stuff out while he is standing outside the door. He
threw out the brown console cup holder, some papers, a bunch
of blank checks, a yellow folder, a U.S. coin collector’s kit. I
was standing in front of the truck during this. He reached
behind the seat and grabbed the shotgun. I’m not for sure what
he did with the lug wrench, he may have thrown it in the woods.
After he grabbed the shotgun he gave it to me. The shotgun was
a 20 gauge single shot. I put it in the trunk of the car. At that
time he was going through the purse. He got her money. I think
it was about $60.00. He got a ring and it had a blue setting in it.
He also got a silver watch or bracelet. He left the purse in the
truck. We got in the car and left. I was driving at that time. We
went to the trailer park. It was around 12:00 to 12:30. I went to
my trailer and he went to his.

Saturday mor[n]ing around 11:30 Greg and I left in Marenda’s
car. We went to Eric Highbrooks [sic] house on Bear Creek.
We went up to the door and asked him if he wanted to buy the
shotgun. He asked what kind and I told him it was a 20 gauge.

                                5
      He agreed and gave us a 20 sack of weed. We left and went
      back to the trailer park and smoked it. We hung around the
      trailer park most of the day. Later that evening, almost dark,
      Greg came over asking if I knew anybody that would by [sic]
      the truck and I told him no. He said he had to get rid of the
      truck. As we were walking around, he said something about
      burning it and I said that I had a gas can. My gas can is a one
      gallon can. It’s plastic and red. I gave him the gas can and he
      said he was going to burn the truck. Later that night the
      Thunderbird was gone, so I assumed that he had gone to burn
      the truck. I didn’t see Greg until Sunday evening.

      On Sunday evening Marenda’s dad came over and said they
      found the truck burnt where he worked. I guess he does some
      kind of logging. On Monday or Tuesday Greg came and started
      talking about what happened and I told him I didn’t want to talk
      about it. I was trying to forget about it.

      The appellant also made two supplements to his statement. In the first
supplement, the appellant stated the following[:]

             I think Greg still has the ring and the watch or bracelet.
      I saw him stick the ring and bracelet in his pocket. It was
      already in a paper towel.

             Greg was wearing blue jeans and a white T-shirt and a
      black baseball hat that may have some racing [sic] on it. She
      was wearing blue jeans. I don’t remember what type of shirt she
      was wearing.

             I don’t know where he got the keys to the truck. As I was
      going towards my car, I had passed the 1st stop sign and was
      halfway up the hill when he passed me in the truck.

The second supplement read as follows:

      [Vicki stayed] with the car while it was parked at the CB shop.
      She did not go to the house with me and Greg to rob Greg’s
      aunt. When I got back to the car she was still waiting with the
      car. Vicki did not know what had happened at that time and I

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              did not tell her what happened. She did not know that Greg’s
              aunt was dead until she heard the news later.

              I was in the truck the night the truck was burned. Greg and I
              drove Greg’s girlfriends [sic] car, a blue Thunderbird. I was
              driving the car and Greg was riding as a passenger. I cannot
              remember if Vicki was with us. We drove back up to where we
              had left [sic] the truck on the logging road. Before we burned
              the truck I drove the truck and Greg drove it. I wrecked it
              maybe twice. I did the damage to the bed by backing the truck
              up into a tree and by sideswiping a tree. I was in the truck by
              myself when I wrecked it. Greg also wrecked the truck and did
              damage to it. The wrecking and burning the truck took place
              sometime between 11:30 p.m. and 12:00 a.m. on Saturday, May
              3, 2003.

              While inside Greg’s aunt’s house, both Greg and I saw her still
              moving after Greg had already hit her and she was laying on the
              floor. Greg went back over to where she was laying on the floor
              and hit her with the one-way lug wrench 2 or 3 more times in the
              head.

State v. Johnny M. Burroughs, No. M2005-00900-CCA-R3-CD, 2006 WL 643161, *1-4
(Tenn. Crim. App., at Nashville, Mar. 9, 2006), perm. app. denied (Tenn. Aug. 21, 2006).

        Based upon the events outlined above, a Dickson County grand jury indicted Greg
Smith, the Petitioner, and Victoria Spicer for first degree murder, conspiracy to commit first
degree murder, especially aggravated robbery, conspiracy to commit especially aggravated
robbery, theft of property over $1000, and conspiracy to commit theft over $1000. Smith
pled guilty and was sentenced, and the Petitioner pled not guilty and proceeded to trial. At
the close of the State’s proof, the trial court granted the Petitioner’s motion for judgment of
acquittal as to the conspiracy counts. The defense rested on the State’s proof. After
deliberating, the jury convicted the Petitioner of felony murder, especially aggravated
robbery, and theft of property over $1000 and imposed a life sentence for his felony murder
conviction. The trial court sentenced him to twenty years for his robbery conviction and two
years for his theft conviction, to be served concurrently to his life sentence. The Petitioner
filed a direct appeal, challenging the sufficiency of the evidence supporting his convictions
and contending that double jeopardy barred his especially aggravated robbery conviction.
This Court affirmed his convictions. Burroughs, 2006 WL 643161, *8.



                                              7
                                     B. Post-Conviction

        Following his direct appeal, the Petitioner timely filed a petition for post-conviction
relief, and the post-conviction court appointed counsel, who amended the Petitioner’s
petition. The amended petition alleged, relevant to this appeal, that Counsel was ineffective
for failing to: (1) object to improper comments made during the State’s closing remarks; (2)
file an “adequate” motion to suppress statements made by the Petitioner to police; (3) file an
interlocutory appeal of the denial of the motion to suppress the Petitioner’s statements; (4)
call Greg Smith as a witness at trial; (5) request the jury be instructed on the lesser included
offenses of facilitation of first degree murder and solicitation of first degree murder; (6)
request that the jury be sequestered; (7) challenge the removal of an African-American from
the jury; (8) request a change of venue; (9) obtain a pre-trial order preventing the jury from
seeing the Petitioner with wrist and ankle restraints and dressed in an orange prison jumpsuit;
and (10) present evidence at trial.

       At the hearing on the petition for post-conviction relief, during Counsel’s testimony,
the Petitioner’s post-conviction attorney introduced the trial transcript and had Counsel read
aloud a portion of the State’s closing remarks:

       [T]hey stole everything they could get including her truck and did it in the
       manner that you’ve heard described. That they took the property from the
       person of another by the use of violence; and they took the property
       intentionally and knowingly. What did they say when they walked down the
       hill, got to have some money. They accomplished it with a deadly weapon as
       I’ve described. They beat her to death.

Counsel did not specifically recall hearing the above remarks during closing arguments,
which went without objection. He said he could recall no “tactical reasons” for not objecting
to the remarks, acknowledging that, throughout his representation of the Petitioner, he had
tried to distance his client from his co-defendant’s acts, especially those of co-defendant
Greg Smith. He likewise did not raise the remarks in the motion for new trial he filed on
behalf of the Petitioner. Counsel acknowledged that either contemporaneously objecting to
the remarks or raising them in the Petitioner’s motion for new trial “would have been
appropriate.”

       In order to understand the significance of the next portion of Counsel’s testimony, we
now summarize the Petitioner’s statements to police. According to this Court’s opinion on
direct appeal, the Petitioner made one particularly detailed statement to police about his
involvement in this case. This statement, however, did not indicate that the Petitioner agreed
to help Smith rob the victim before the two entered her home. He made two addenda to this

                                               8
statement, and one of these addenda suggested that the Petitioner agreed to rob the victim
before he accompanied Smith into the victim’s home. Counsel recalled that the Petitioner
signed a waiver of his Miranda rights before he made the inculpatory statements. During the
suppression hearing concerning these statements and their addenda, Counsel argued that,
because the Petitioner was high on marijuana when he executed the waivers and gave the
statements, the totality of the circumstances suggested he did not knowingly and voluntarily
waive his Miranda rights. Counsel also argued that police should have re-Mirandized the
Petitioner before he gave each of the addenda to his statement. Finally, he objected to the
proposed plan of giving each juror a copy of the Petitioner’s statement. The trial court
denied the motion to suppress, and each juror was given a copy of the Petitioner’s statement
and its addenda.

        At the post-conviction hearing, Counsel acknowledged that several circumstances
surrounding the Petitioner’s statement suggested that, at the time he gave the statements, he
believed he was under arrest, when in fact he was not. Counsel explained, however, that he
did not argue for the statements’ suppression on this ground because, by this time, the
Petitioner had already waived his Miranda rights, which would have cured any infirmity
resulting from his false belief that he was under arrest. He likewise did not include this
ground for the statements’ inadmissibility in his motion for new trial.

        Counsel explained that he did not file an interlocutory appeal of the denial of the
motion to suppress the Petitioner’s statements not only because he did not believe it was
likely to be granted but also because he wished to preserve the Petitioner’s ability to directly
appeal the admission of his statements in the event the Petitioner was ultimately convicted.

       Greg Smith pled guilty in June 2004, over five months before the Petitioner’s trial.
Counsel recalled that he and the Petitioner considered calling Smith to testify in hopes Smith
would take full responsibility for the beating death of his aunt. These hopes were dashed,
however, when they spoke with Smith’s defense counsel, who warned them that Smith had
“mental situations” that made him a “wild card.” Counsel feared that Smith would testify
that he and the Petitioner planned to rob the victim before they entered her house, which
would bolster the State’s argument that the Petitioner possessed the intent necessary to
commit robbery and, thus, felony murder. As a result, Counsel never interviewed Smith and
did not call him as a trial witness.

       Counsel did not recall whether the trial court charged the jury with solicitation of
murder and solicitation of especially aggravated robbery, which were lesser-included
offenses of felony murder and especially aggravated robbery. He testified that the trial court
did, however, charge the jury with respect to a facilitation theory of responsibility for these
crimes.

                                               9
        Counsel testified that he decided to not ask the trial court to sequester the jury for two
reasons: First, media coverage of the victim’s killing had been limited. The local paper, as
well as perhaps the paper of a neighboring county, ran only a few articles about the crime.
He said this case received less media coverage than other cases he had been involved in.
Second, Counsel said he wished to avoid attaching too much significance to the Petitioner’s
charges. He feared that asking for sequestration would lead the jury to believe the Petitioner
was principally responsible for the victim’s death whereas his aim was to persuade the jury
that the Petitioner only minimally participated in the events surrounding the victim’s death.

       Counsel confirmed that he advised the Petitioner against testifying, despite the fact
that the State’s evidence against the Petitioner consisted mainly of the Petitioner’s own
statement. He explained he did so because, had the Petitioner testified, the State would have
been able to introduce “horrible” testimony from witnesses who observed the Petitioner and
Smith “giggle” and make sounds in the back of a squad car as they were being transported
from Hickman County to Dickson County. Counsel had already gone to “painstaking”
lengths to ensure this testimony was not independently admitted and did not want to open the
door for the State to introduce the testimony.

       Counsel did not recall whether any African-Americans appeared in the jury pool in
the Petitioner’s case. He said, however, no Batson challenge was made to its makeup.
Counsel was familiar with the demographic profile of Dickson County and its surrounding
counties.

       Counsel explained that he did not request a change of venue for the Petitioner’s trial
because he believed for three reasons that Dickson County would prove more favorable for
the Petitioner than Cheatham County, the venue he would likely receive if granted a change
of venue. First, the Petitioner was more likely to receive a jury containing African-
Americans in Dickson County. Second, juries in Cheatham County tended in his opinion to
be more of the “convicting type.” Third, the assistant district attorney general trying the
State’s case against the Petitioner hailed from Cheatham County.

        Counsel confirmed he did not seek a pre-trial order preventing the Petitioner from
being transported to court in jail jumpsuit and in prison shackles. He testified, however, that,
before trial, he visited the Petitioner in jail to ensure he had alternative clothes to wear to
trial. The Petitioner indicated to him that his family would bring him clothes to wear at trial.
These arrangements apparently fell through, however, because the Petitioner arrived at court
on the first day of trial shackled and dressed in his orange prison jumpsuit. Counsel and a
colleague immediately left and purchased “street” clothing for the Petitioner, which the
Petitioner changed into before he entered the courtroom. Counsel then arranged with the
Sheriff’s Department for the Petitioner, from that day forward, to arrive at court in street

                                               10
clothes. Counsel was unsure whether the jury saw the Petitioner in his orange jumpsuit while
the Petitioner sat in a holding cell before jury selection.

        Counsel confirmed that he presented no evidence in defense of the Petitioner. He
testified that he simply did not know of any witnesses whose testimony could aid the
Petitioner’s defense. He repeated his reservations about calling the Petitioner or his co-
defendant Greg Smith, and he explained he did not call co-defendant Victoria Spicer because
she was unlikely to “say anything” because she had not yet gone to trial on her charges. He
acknowledged that his defense strategy was to attack the State’s witnesses through cross-
examination. Counsel testified that, in preparation for trial, he interviewed the State’s
witnesses, went to the scene of the crime, reconstructed the time line of the events, and
interviewed witnesses who lived near the Petitioner. He explained that none of this
investigation led to the discovery of any witness who would give testimony favorable to the
Petitioner. Based on this paucity of defense material, Counsel elected to rely on the
weakness of the State’s evidence that the Petitioner entered the victim’s home with the intent
to rob or kill her. He stated:

       I didn’t want any other witnesses to talk about [a] quote unquote plan or that
       this was a robbery. I want[ed] to leave it with what we had which was the one
       statement by [the Petitioner] that was written by a law enforcement officer and
       then he signed the statement; and I wanted to basically just be able to argue
       that; and I think I did argue that; but those weren’t [the Petitioner’s] words,
       that wasn’t really his statement. Yeah, he had signed it but there was an
       addendum. That’s what you want to try to explain to the jury, but I didn’t need
       anybody else testifying that they knew of or had heard talk about there was
       going to be a supposed[] robbery.

        On cross-examination, Counsel testified that he had been practicing for seven years
when he tried the Petitioner’s case and that he had tried several murder cases during his
career. Counsel testified that he spoke with co-defendant Spicer’s attorney before the
Petitioner’s trial and that she indicated Spicer would not be willing to offer “any testimony
at all.” He confirmed that both Spicer and Smith had given statements to police that
implicated the Petitioner in the victim’s death.

       Counsel agreed that no evidence suggested the Petitioner actually beat the victim. He
emphasized, however, that other evidence, such as the Petitioner’s statement admitting
involvement and the testimony of witnesses who saw the Petitioner in possession of the
victim’s truck and handgun, established that the Petitioner was present during, if not
principally responsible for, the victim’s robbery and death.



                                             11
       Counsel testified that, although the Petitioner’s inculpatory statements were very
harmful to his case, the State probably would have proceeded to trial on the strength of the
remaining evidence had the trial court suppressed the Petitioner’s statements. He agreed that
he also based his decision to forego an interlocutory appeal on this probability.

       Counsel confirmed that, at the time of the Petitioner’s trial, he was aware that the
State was not seeking the death penalty against Greg Smith due to Smith’s low I.Q. and other
psychological indicators that made him ineligible for the death penalty. Counsel, who was
present during Smith’s plea submission hearing, recalled that Smith became hostile during
the hearing and that a recess was necessary for Smith’s attorney to calm his client down.
Counsel considered these factors in making the decision not to call Smith as a witness.

        Counsel reiterated that he could not recall whether solicitation was charged as a lesser
included offense of felony murder and especially aggravated robbery. He confirmed,
however, that recent caselaw held that, where the solicited offense leads to a completed act,
solicitation is not a lesser-included offense of that act. He could not recall whether this
caselaw was released before or after the Petitioner’s trial.

       Counsel agreed that, before representing the Petitioner, he was involved in a case very
similar to the Petitioner’s case that received a great deal more publicity. He reiterated that,
had he believed the pre-trial publicity to be excessive, he would have moved for
sequestration of the jury.

        Counsel testified he was certain that, if the Petitioner testified and denied giggling
after being arrested, the Hickman County police officers who witnessed Smith and the
Petitioner’s jovial manner would have been able to testify. He agreed that the State could
have called Smith himself to testify about how he and the Petitioner behaved shortly after
their arrest.

       Counsel testified not only that did he not feel the need to bring a Batson challenge as
to any of the prospective jurors, but also that he did not even use all of his peremptory
challenges on the jury pool because he found the pool so agreeable.

        Counsel elaborated on his defense strategy of discrediting the State’s witnesses,
explaining that his main goal was to demonstrate that the State’s proof did not establish the
Petitioner entered the victim’s home with the intent to rob her. Counsel emphasized that he
was able to convince the trial court to exclude “a lot of evidence” that was very damaging
to the Petitioner. Counsel testified that, despite the jury’s verdict, the exclusions he obtained
during the Petitioner’s trial were “some of the best work” he had ever done.



                                               12
        Counsel said he did not meet with the Petitioner “a lot” but “plenty” to be prepared
for the motion to suppress and for trial. During their meetings, the Petitioner did not appear
to Counsel to understand the gravity of the charges against him, though Counsel attempted
to explain the concept of felony murder to his client. The Petitioner rejected any plea offer
from the State that involved a sentence greater than eight years, saying he preferred the death
penalty to serving such a sentence. Counsel said the Petitioner did not believe “for a minute”
that he would receive the fifty-one year sentence he ultimately received.

       On re-direct examination, Counsel explained that the State was not interested in
downgrading the Petitioner’s charges in exchange for his testimony against Greg Smith
because the State planned to make such a deal with Victoria Spicer, who was only fifteen or
sixteen at the time.

       Counsel confirmed the State presented no evidence that the Petitioner physically
participated in beating the victim, as one could infer from the State’s remark that “they beat
her to death.” He emphasized that he argued during closing statements that the Petitioner
“never laid a hand on [the victim.]”

        The Petitioner testified about the events leading up to his statements to police: he was
in the company of Victoria Spicer and was working on his car in Greg Smith’s yard when
police arrived and asked for Smith. The Petitioner informed them Smith was not home, and
the police asked where the Petitioner would be in an hour. He told them he would still be in
Smith’s yard, so police left and returned later “twenty cars deep.” Police patted down
everyone present and placed the Petitioner and Spicer in separate cars. Asked whether he felt
he was under arrest at this time, the Petitioner said he “felt [he] needed to go [with them].”
Police then transported the pair to separate interrogation rooms of the Hickman County
Courthouse, and police soon informed him Spicer had disclosed what she knew of Smith and
the Petitioner’s involvement in the victim’s death. Following this news, the Petitioner
admitted his involvement to police.

        The Petitioner reviewed a statement purporting to be that given by the Petitioner to
police the day he was picked up with Spicer. The Petitioner testified that the statement was
not in his handwriting, though he agreed that he initialed the statement. He testified that the
statement inaccurately reported that Smith told the Petitioner who he was going to rob. The
Petitioner insisted that Smith told the Petitioner that he was going to rob someone, but did
not identify who he planned to rob.

       The Petitioner reviewed the two addenda to his initial statement and again testified
that the statements were not in his handwriting. He said these addenda likewise did not
accurately reflect the statements he gave police. The Petitioner testified that police examined

                                              13
him between six and seven hours at the Hickman County Courthouse.

      On cross-examination, the Petitioner confirmed that he signed a waiver of his
Miranda rights before he gave statements to police. He also confirmed that, at his
suppression hearing, he testified about the events surrounding his statements to police.

       At the conclusion of the hearing, the post-conviction court took the petition under
advisement and later issued a written order denying relief. It is from this judgment that the
Petitioner now appeals.

                                         II. Analysis

        On appeal, the Petitioner contends the post-conviction court erred when it rejected his
claim that Counsel was ineffective and denied him post-conviction relief. Specifically, he
contends Counsel was ineffective for failing to: (1) object to improper comments made
during the State’s closing remarks; (2) file an “adequate” motion to suppress statements made
by the Petitioner to police; (3) request an interlocutory appeal of the denial of his motion to
suppress the Petitioner’s statements; (4) call Greg Smith as a witness at trial; (5) request the
jury be instructed on the lesser included offenses of facilitation of first degree murder and
solicitation of first degree murder; (6) request that the jury be sequestered; (7) challenge the
removal of an African-American from the jury; (8) request a change of venue; (9) obtain a
pre-trial order preventing the jury from seeing the Petitioner with wrist and ankle restraints
and dressed in an orange prison jumpsuit; and (10) present evidence at trial. The State
responds that Counsel was not ineffective and that the post-conviction court properly denied
the Petitioner relief.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon review, when post-conviction proceedings have included a full
evidentiary hearing, as was true in this case, the trial judge’s findings of fact and conclusions
of law are given the effect and weight of a jury verdict, and this Court is “bound by the trial
judge’s findings of fact unless we conclude that the evidence contained in the record
preponderates against the judgment entered in the cause.” Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990). Thus, this Court will not re-weigh or re-evaluate the evidence
below; all questions concerning the credibility of witnesses, the weight and value to be given
their testimony and the factual issues raised by the evidence are to be resolved by the trial
court judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999);
Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s

                                               14
conclusions of law, however, are subject to a purely de novo review by this Court, with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] 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 [petitioner] by the Sixth
       Amendment.         Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect representation,
only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of

                                               15
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d
363, 369 (Tenn. 1996)). However, deference to matters of strategy and tactical choices
applies only if the choices are informed ones based upon adequate preparation. House, 44
S.W.3d at 515.

       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

                              A. Improper Closing Argument

       The Defendant contends Counsel was ineffective for failing to object to the State’s
remarks during closing arguments that “they” violently robbed the victim, and “they” beat
the victim to death. He argues that, because nothing suggested the Petitioner actually
participated in the beating death of the victim, the comments were not only untrue but also
“inflammatory.” He contends Counsel was ineffective for failing to object and ask either for
a mistrial or for the jury to be instructed to disregard the State’s remarks. The State responds
that the remarks were not improper because they reflected the legal theory of criminal
responsibility for the acts of another upon which the Petitioner was being tried for his
involvement in the victim’s death.

       The Tennessee Supreme Court “has long recognized that closing arguments are a
valuable privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156
(Tenn. 2001) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). “Consequently,
attorneys are given greater leeway in arguing their positions before the jury, and the trial
court has significant discretion in controlling these arguments, to be reversed only upon a
showing of an abuse of that discretion.” Terry, 46 S.W.3d at 156 (citing Sutton, 562 S.W.2d
at 823). This Court has explained that “arguments must be temperate, based upon the
evidence introduced at trial, relevant to the issues being tried, and not otherwise improper
under the facts or law.” See State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing

                                              16
Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995) superseded by Rule on other
grounds as stated in State v. West, 19 S.W.3d 753, 755 (Tenn. 2000)).

        In this case, the post-conviction court found that the State’s assertion that “they”
robbed and killed the victim was consistent with the State’s theory of felony murder and that
Counsel, therefore, was not ineffective for failing to object to the remarks. We agree with
the post-conviction court that the State’s remarks were not improper. The State neither
argued nor presented evidence to prove that the Petitioner physically participated in beating
the victim. It presented overwhelming evidence, however, to prove that the Petitioner was
involved in her death in a way that made him guilty of felony murder, which, in essence,
made the Petitioner criminally responsible for the actions of Greg Smith. The State,
therefore, in stating that “they” robbed and killed the victim, likely was speaking in a legal
rather than a literal sense. The remarks being “based upon the evidence introduced at trial”
and “not otherwise improper under the facts or law,” we conclude that the State’s remarks
were not improper. See Goltz, 111S.W.3d at 5. Thus, Counsel was not ineffective for not
objecting to the remarks. See House, 44 S.W.3d at 515. The Petitioner is not entitled to
relief on this issue.

                                   B. Motion to Suppress

        The Petitioner contends Counsel was ineffective for failing to argue at the suppression
hearing concerning the Petitioner’s statements that the Petitioner was unlawfully arrested
before he gave the statements. The State responds that the Petitioner failed to establish by
clear and convincing evidence his claim that he was unlawfully arrested. It further responds
that, had Counsel succeeded in suppressing the statements, the State would have proceeded
with its charges against the Petitioner based upon the State’s remaining evidence.

       The post-conviction court, in its written order, discredited the Petitioner’s post-
conviction testimony that he was arrested before he gave his statements and noted that the
Petitioner failed to present the testimony of the officers present during his statement. The
post-conviction court then found that Counsel’s decision to base his suppression hearing
argument upon the involuntariness of the Petitioner’s Miranda waivers rather than the
unlawfulness of the Petitioner’s arrest was reasonable and did not render his assistance
ineffective.

       In order to prevail herein, the Petitioner must demonstrate, first, that Counsel
unreasonably failed to pursue a line of argument that would have led to the suppression of
the Petitioner’s statements and, second, that without these statements the Petitioner would
not have been convicted. T.C.A § 40-30-103; Williams, 599 S.W.2d at 279-80. The
Petitioner has demonstrated neither.

                                              17
        As the Petitioner notes in his brief, a statement gathered as a result of an unlawful
arrest may be subject to exclusion pursuant to the “fruit of the poisonous tree” doctrine. See
Wong Sun v. United States, 371 U.S. 471, 488 (1963). The post-conviction court, however,
discredited the Petitioner’s testimony that, at the time he gave incriminating statements to
police, he believed he was under arrest. Such a credibility assessment being within its
province, we will not second-guess the post-conviction court. See Momon, 18 S.W.3d at 156.
 The Petitioner presented no other evidence at the post-conviction hearing that the events
leading up to his statement would have led a reasonable person to believe he or she was
under arrest. Thus, the Petitioner failed to establish by clear and convincing evidence that
Counsel successfully could have argued for the statements’ suppression on this basis.
Further, Counsel testified at the suppression hearing that, even had he succeeded in
suppressing the statements, the State would have tried the Petitioner based upon the
remaining circumstantial evidence against the Petitioner. Having failed to establish that
Counsel’s actions could have altered the result of the suppression hearing, the Petitioner has
failed to demonstrate prejudice from Counsel’s representation. See Nichols, 90 S.W.3d at
587. As such, we conclude Counsel was not ineffective in his advocacy on behalf of the
Petitioner during the suppression hearing. See Strickland, 466 U.S. at 694. The Petitioner
is not entitled to relief on this issue.

                                  C. Interlocutory Appeal

        The Petitioner next argues that Counsel was ineffective for failing to file an
interlocutory appeal of the trial court’s denial of his motion to suppress the Petitioner’s
statements. As discussed above, the Petitioner has failed to demonstrate that, had his
statements been suppressed, either the State would have abandoned its charges or the jury
would have acquitted the Petitioner. Thus, the Petitioner has failed to establish by clear and
convincing evidence that he was in any way prejudiced by Counsel foregoing an
interlocutory appeal of his statements’ admission. See Nichols, 90 S.W.3d at 587. Such a
showing is essential to a finding that he is entitled to post-conviction relief. The Petitioner
is not entitled to relief on these grounds.

                       D. Testimony of Co-Defendant Greg Smith

        The Petitioner argues Counsel was ineffective for failing to interview and call as a
witness the Petitioner’s co-defendant Greg Smith. The State responds that, given Counsel’s
conversations with Smith’s attorney, his decision to not call Smith to testify was reasonable.
It further cites the Petitioner’s failure to present Smith’s testimony at the post-conviction
hearing as justification for the post-conviction court’s denial of relief on this basis.

       First, we note that in order for a petitioner to establish prejudice from his attorney’s

                                              18
failure to call a witness, the petitioner must have this witness testify at the post-conviction
hearing. Black, 794 S.W.2d at 757. In Black, this Court established that:

       It is elementary that neither a trial judge nor an appellate court can speculate
       or guess on the question of whether further investigation would have revealed
       a witness or what that witness's testimony might have been if introduced by
       defense counsel. The same is true regarding the failure to call a known
       witness. In short, if a petitioner is able to establish that defense counsel was
       deficient in the investigation of the facts or calling a known witness, the
       petitioner is not entitled to relief from his conviction on this ground unless he
       can produce a material witness who (a) could have been found by a reasonable
       investigation and (b) would have testified favorably in support of his defense
       if called.

Id.
         In this case, the post-conviction court found that Counsel decided to not call Smith
as a witness in the Petitioner’s trial because he believed Smith might “hurt his case more than
he would help it.” Indeed, Counsel testified at trial that Smith’s attorney told him Smith had
“mental situations” that made him a “wild card.” This suspicion was confirmed by Smith’s
outburst during his own guilty plea hearing. Fearing that Smith might testify that the
Petitioner agreed to rob and murder the victim before he accompanied Smith into the victim’s
house, Counsel decided to not call Smith as a witness in order to avoid bolstering the State’s
argument that the Petitioner was complicit in the robbery and murder. Thus, the record does
not preponderate against the post-conviction court’s finding that Counsel based his decision
not to call Smith on his belief Smith would hurt the Petitioner’s case. See Black, 794 S.W.2d
at 755. We conclude Counsel’s decision to not put Smith on the stand in the Petitioner’s
defense was a sound one, based upon reasonable trial strategy. See Hellard, 629 S.W.2d at
9. Further, assuming arguendo that Counsel was unreasonable for not to calling Smith as a
witness, the Petitioner’s did not present Smith’s testimony at his post-conviction hearing and,
therefore, has not demonstrated with clear and convincing evidence that Smith’s testimony
would have affected the outcome of his trial. See Black, 794 S.W.2d at 755. We conclude
that, because the Petitioner Counsel’s decision to not call Smith was based upon reasonable
trial strategy, the post-conviction court properly denied post-conviction relief. The Petitioner
is not entitled to relief on this issue. See Strickland, 466 U.S. at 694.

                       E. Instruction on Lesser-Included Offenses

       The Petitioner argues Counsel was ineffective for failing to ensure the trial court
instructed the jury on two lesser included offenses of first degree murder: solicitation of first
degree murder and facilitation of first-degree murder. The State, whose brief reproduces a

                                               19
portion of the trial transcript not included in the appellate record, responds that the trial court
did indeed instruct the jury on facilitation of first degree murder but properly refused to
instruct the jury on solicitation of first degree murder, which is not a lesser included offense
of first degree murder where the solicited offense results in the death of the victim.

        A conviction for solicitation may lie where a person “by means of oral, written or
electronic communication, directly or through another, intentionally commands, requests or
hires another to commit a criminal offense . . . with the intent that the criminal offense be
committed. . . .” T.C.A. § 39-12-102(a) (2003). Solicitation is only a lesser included offense
of the solicited offense where “no proof exists of the completion of the [solicited] crime.”
State v. Robinson, 146 S.W.3d 469, 486-87 (Tenn. 2004); State v. Ely, 48 S.W.3d 710, 719
(Tenn. 2001).

       The State attached to its brief the transcript of the jury instructions given in this case,
which reveal that the trial court declined to instruct the jury on solicitation of murder.
Referencing a copy in its possession of the preliminary instructions issued to the jury, the
post-conviction court concluded that facilitation was charged to the jury. Not having in its
possession the transcript of the instructions given to the jury in this case, however, it assumed
the solicitation instruction was not issued. Based upon State v. Robinson, however, it
concluded that the Petitioner was not entitled to a solicitation instruction given that evidence
established the completion of the charged offense, i.e. the victim’s death.

       As the post-conviction court noted in its written order, the Petitioner’s objection is
more properly directed toward not receiving an instruction on solicitation of felony murder
rather than first degree murder, given his ultimate felony murder conviction. We will
accordingly address his claim on this basis.

        We agree with the post-conviction court that the Petitioner was not entitled to a
solicitation instruction. Because the evidence in this case clearly established the completed
offense of murder, the evidence would have precluded a conviction for solicitation, which
requires that the solicited offense not be completed. See Robinson, 146 S.W.3d at 486-87.
Accordingly, the trial court properly declined to issue the solicitation instruction, and
Counsel was in no way ineffective with respect to this issue. See Strickland, 466 U.S. at 690.
The Petitioner is not entitled to relief on this issue.

                                    F. Jury Sequestration

       The Petitioner next contends Counsel was ineffective for failing to request that the
jury be sequestered. Sequestration is available “[i]n all criminal prosecutions . . . at the
sound discretion of the trial judge, which shall prohibit the jurors from separating at times

                                                20
when they are not engaged upon actual trial or deliberation of the case.” T.C.A. § 40-18-116
(2003).

      In this case, the post-conviction court found that no significant pre-trial publicity took
place and that the Petitioner failed to present evidence that the jury received outside
information. The court found Counsel’s decision not to request sequestration was
reasonable.

        At the post-conviction hearing, Counsel explained that he did not seek sequestration
not only because no pre-trial publicity had taken place that would justify sequestration but
also because he wished to avoid inflating the seriousness of the charges against the Petitioner
in the jurors’ minds. He explained that, were he to request sequestration, the jury might
believe the Petitioner was the principal offender in the murder whereas Counsel believed the
evidence would show the Petitioner was merely present during the offense. At the post-
conviction hearing, the Petitioner presented no evidence of excessive pre-trial publicity in
his case. Thus, the evidence does not preponderate against the post-conviction court’s
finding that the Petitioner’s trial was not besieged with inordinate publicity. See Black, 794
S.W.2d at 755. Further, we conclude that Counsel’s decision not to seek jury sequestration
was an informed decision, based on his strategy of minimizing the Petitioner’s role in the
victim’s death. See House, 44 S.W.3d at 515. Thus, the Petitioner is not entitled to relief on
this issue.

                       G. Removal of African-American from Jury

        The Petitioner next contends Counsel was ineffective for failing to “challenge the
removal of potential African American jurors from the jury pool . . . effectively denying the
[Petitioner] a right to a jury made up of a cross section of the community.” The State
responds that, because the Petitioner presented no evidence that an African-American was
removed from the jury, he failed to prove by clear and convincing evidence that Counsel was
ineffective for failing to object to the jury’s make-up.

        The United States Constitution and Article I, section 9 of the Tennessee Constitution
guarantee a defendant the right to a jury drawn from a venire that represents a fair cross-
section of the community. State v. Bell, 745 S.W.2d 858, 860 (Tenn. 1988). The United
States Supreme Court in State v. Duren set forth the elements of a prima facie violation of
this fair cross-section requirement:

       (1) that the group alleged to be excluded is a “distinctive” group in the
       community;



                                              21
       (2) that the representation of this group in venires from which juries are
       selected is not fair and reasonable in relation to the number of such persons in
       the community; and

       (3) that this under[-]representation is due to the systematic exclusion of the
       group in the jury-selection process.

439 U.S. 357 (1979).

       The post-conviction court rejected this basis for post-conviction relief after finding
that the Petitioner failed to present evidence that the State removed an African-American
from his jury.

         Whether the Petitioner contends that Counsel should have objected to the removal of
a specific African-American juror or to the fact that his jury venire did not reflect a fair
cross-section of the community is unclear from the Petitioner’s brief. In any case, the
Petitioner failed to present evidence to support either claim. Even had he presented evidence
that the State struck an African-American from the jury, such evidence would be irrelevant
to a fair cross-section claim, as such a claim concerns the composition only of the jury venire,
not of the petit jury. Id. Further, the Petitioner failed to present evidence that the
representation of African-Americans in the venire from which his jury was selected was not
“fair and reasonable in relation to the number of such persons in the community.” Thus, he
failed to support his claim that a fair cross-section violation, to which Counsel should have
objected, occurred. Id. The record containing no proof of a constitutional flaw in the jury
venire, we conclude the post-conviction court properly rejected the Petitioner’s claim that
Counsel was ineffective for not objecting to the jury’s make-up. See Strickland, 466 U.S.
at 690. He is not entitled to relief on this issue.

                                     H. Change of Venue

       The Petitioner contends Counsel was ineffective for failing to request a change of
venue in his case. The State responds that, because the Petitioner failed to support this claim
with proof that the jurors who convicted him were “biased or prejudiced by outside
information,” he failed to establish that Counsel was ineffective in this regard.

        The post-conviction court rejected the Petitioner’s claim that Counsel was ineffective
for failing to ask for a change of venue, finding that the Petitioner failed to support his claim
with evidence of pre-trial publicity or undue excitement in the community in which his trial
was held. Indeed, Counsel testified at trial that he was aware of only a few local articles
reporting the charges against the Petitioner and his co-defendants. He testified that the media

                                               22
coverage of the Petitioner’s trial was slight in comparison with similar murder trials in which
he had participated. Thus, the record does not preponderate against the post-conviction
court’s finding that the Petitioner failed to show that a change of venue would have been
successful. Black, 794 S.W.2d at 757. Thus, the Petitioner failed to show how Counsel’s
decision to not pursue a change of venue prejudiced him. Further, Counsel explained at the
post-conviction hearing that any of the alternative counties to which the Petitioner’s case
could have been transferred were actually less desirable because they were prosecution-
friendly. Counsel’s decision, therefore, was based upon sound trial strategy. As such, we
conclude Counsel was not ineffective for choosing not to seek a change of venue. See
Williams, 599 S.W.2d at 279-80. The Petitioner is not entitled to relief on this issue.

                  I. Petitioner’s Appearance in Jumpsuit and Restraints

        The Petitioner argues Counsel was ineffective for failing to seek a pre-trial order
preventing the Petitioner from being to brought to court in jail attire. He contends that he
was prejudiced because jurors could have seen him when he arrived in jail attire the first day
of his trial. The State responds that, because the Petitioner failed to present evidence that a
member of the jury saw him dressed in jail attire, he failed to prove he suffered prejudice
from being dressed in jail attire.

         The United States Supreme Court has held that forcing a defendant to stand trial in
jail attire violates the defendant’s right to due process because “the constant reminder of the
accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s
judgment.” Estelle v. Williams, 425 U.S. 501, 504-05 (1976). The post-conviction court
rejected this basis for post-conviction relief based upon the Petitioner’s failure to present
evidence that jurors saw him dressed in jail attire.

         The evidence at the post-conviction hearing showed that the Petitioner did not stand
trial in jail attire. Rather, he arrived at his first day of trial wearing a jumpsuit and restraints,
and, after Counsel was alerted, Counsel immediately purchased street clothes for the
Petitioner. The Petitioner then quickly changed into the street clothes. No evidence was
presented at the post-conviction hearing that a member of the jury viewed the Petitioner
before he changed into his street clothes. Thus, the facts of this case do not the indicate that
the Petitioner suffered the prejudice Estelle v. Williams seeks to remedy. As such, no actual
harm befell the Petitioner, and Counsel, therefore, was not ineffective for not seeking a pre-
trial order preventing the Petitioner from being clothed in jail attire on his first day of trial.
See Denton, 945 S.W.2d at 796. The Petitioner is not entitled to relief on this issue.

                                   J. Lack of Defense Proof



                                                 23
        The Petitioner argues Counsel was ineffective for failing to present evidence in
defense of the Petitioner, instead relying upon cross-examination and impeachment of the
State’s witnesses. The State argues that Counsel, having no witnesses whose testimony could
aid the Petitioner’s defense, was left only to distance his client from co-defendant Smith and
limit the impact of the Petitioner’s inculpatory statements.

        The post-conviction court found that Counsel called no witnesses because he was
concerned that each of the witnesses with relevant information might make the Petitioner’s
knowledge that Smith intended to rob the victim “more plainly apparent” to the jury. Indeed,
the evidence does not preponderate against this finding. See Black, 794 S.W.2d at 755. We
set out above why Counsel was loath to call Co-Defendant Smith as a witness. In essence,
Smith was unreliable, and his guilty plea itself imputed guilt to the Petitioner, who was his
companion in the victim’s beating death. For co-defendant Spicer’s part, her attorney
indicated Spicer was unwilling to “say anything.” Also, because co-defendant Spicer had yet
to reach a plea agreement with the State, she had incentive to testify disfavorably toward the
Petitioner. Counsel went to the scene of the crime, interviewed the State’s witnesses, and
interviewed people who lived near the Petitioner, but he located no one who could provide
favorable testimony for the Petitioner. We conclude that, “within the context of the case as
a whole, taking into account all relevant circumstances,” Counsel was not ineffective for
defending the Petitioner by weakening the State’s case rather than presenting new witnesses.
See Strickland, 466 U.S. at 690; Mitchell, 753 S.W.2d at 149. The Petitioner is not entitled
to relief on this issue.

                                      III. Conclusion

        After a thorough review of the record and applicable law, we conclude the Petitioner
has failed to demonstrate that the post-conviction court erred when it denied his petition for
post-conviction relief. Accordingly, we affirm the judgment of the post-conviction court.

                                                   _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




                                             24
