         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 14, 2007

             RONALD EUGENE HALL v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                       No. 2001-D-1974 Cheryl Blackburn, Judge



                     No. M2006-02726-CCA-R3-PC - Filed May 29, 2008


Petitioner, Ronald Eugene Hall, was convicted by a Davidson County Jury of two counts of second
degree murder. The convictions were merged into a single count of second degree murder, for which
Petitioner received a twenty-year sentence to be served at one-hundred percent incarceration. On
direct appeal, this Court affirmed Petitioner’s conviction and sentence. See State v. Ronald Eugene
Hall, M2003-02326-CCA-R3-CD, 2005 WL 292432, at *16 (Tenn. Crim. App., at Nashville, Feb.
8, 2005). Petitioner then sought post-conviction relief. After an evidentiary hearing, the post-
conviction court denied relief. Petitioner appeals the judgment of the post-conviction court. We
affirm the judgment of the post-conviction court because Petitioner has failed to establish that he
received ineffective assistance of counsel or that he was incompetent to stand trial.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES, and JOHN
EVERETT WILLIAMS, JJ., joined.

Jeremy W. Parham, Nashville,Tennessee, for the appellant, Ronald Eugene Hall.

Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.


                                            OPINION

                                        Factual Background


       On October 19, 2001, Petitioner and Henry Lee Dixon were indicted by the Davidson County
Grand Jury for first degree felony murder, first degree premeditated murder, and attempted especially
aggravated robbery in connection with the death of Marcus Scott. Linda Dawn Provost was indicted
for first degree felony murder and attempted especially aggravated robbery in the same indictment.
According to this Court’s opinion on direct appeal, the following facts were elicited through
testimony at trial:

               Marcus Scott was the victim of a homicide in this case. Samuel Scott, Jr.,
       said that he knew his son, Marcus Scott, was dating Linda Provost. However,
       Samuel Scott, Jr. had not met the young woman. Mr. Scott said his son left their
       apartment after he received a telephone call around 10:18 p.m. on July 20, 2001.
       Approximately five minutes later, Mr. Scott heard four successive shots. Mr. Scott
       said that his son did not own a gun.

               Shaquita Brooks said that she had seen Marcus Scott a couple of times with
       Ms. Provost and knew the couple was dating. Ms. Provost told her that Mr. Scott had
       hit her during one of their dates. Ms. Brooks was aware that Defendant Hall had
       previously dated Ms. Provost, but she had never met him.

              Ms. Brooks said that Ms. Provost picked her up around 8:30 p.m. on July 20,
       and the two women drove to Percy Priest Lake to see one of Ms. Provost’s friends.
       While the women were at the lake, Defendant Hall called Ms. Provost and asked if
       he could see her. Ms. Provost and Ms. Brooks then drove to the Kroger parking lot
       on Gallatin Road to meet Defendant Hall.

               After they arrived at the parking lot, Ms. Provost got out of the car and
       hugged Defendant Hall. Ms. Provost and Defendant Hall then began discussing how
       to lure Mr. Scott out of his apartment. Both agreed that Ms. Provost would call Mr.
       Scott and ask him to meet her at her car. Ms. Provost wanted Defendant Hall to
       accost Mr. Scott before he got into her car. Defendant Hall wanted to wait until Mr.
       Scott was inside the car and then drag him back out of the car onto the sidewalk. Ms.
       Brooks said that she did not know what Defendant Hall intended to do after he
       confronted Mr. Scott.

               Defendant Hall used Ms. Provost’s cell phone, and Ms. Brooks heard
       Defendant Hall say that Ms. Provost did not want to go through with “their” plan.
       Defendant Dixon then walked up and joined Ms. Provost’s and Defendant Hall’s
       discussion about the best way to confront the victim. Ms. Provost told the men to get
       in her car so she could show them the bushes behind Kroger where they could hide
       before grabbing Mr. Scott. Ms. Brooks said that Mr. Scott’s apartment building was
       across the street from the bushy area. Defendant Hall and Defendant Dixon got out
       of Ms. Provost’s car in front of Mr. Scott’s apartment building and said they would
       call Ms. Provost in ten minutes.




                                               -2-
        After a few minutes, Defendant Hall and Defendant Dixon walked back to the
parking lot. Defendant Dixon told Ms. Provost that her plan would not work because
there were too many people about. Defendant Dixon said he and Defendant Hall
would pretend to steal Ms. Provost’s purse. Defendant Dixon told Ms. Provost that
there were not any bullets in “the gun.” Defendant Hall asked Ms. Provost if Mr.
Scott had any money, and Ms. Provost said that the victim always carried cash with
him. In order to scare Ms. Provost into abandoning the plan, Ms. Brooks warned the
group that the victim might be armed. Ms. Brooks said that either Defendant Hall
or Defendant Dixon replied that the victim would not have time to use a gun because
they “would be on him.” Ms. Brooks said that Defendant Dixon was the first one to
mention that he and Defendant Hall had a gun. On cross-examination, Ms. Brooks
said that Defendant Dixon was not armed.

         Ms. Brooks argued with Ms. Provost and got in Defendant Dixon’s car. She
and the two men drove to the victim’s apartment building. The men got out, and Ms.
Brooks drove Defendant Dixon’s car back to the Kroger parking lot. Shortly
thereafter, Mr. Dixon came running up to the car, nervous and upset. Ms. Brooks
then heard about three gunshots. Mr. Dixon told her that he thought “he shot him.”
A few seconds later, Defendant Hall got in the car, and said that “he didn’t have any
money on him.” The trio left the parking lot. Defendant Dixon let Ms. Brooks out
at the H.G. Hill’s store across the street, and the two men drove away. Ms. Brooks
tried to telephone Ms. Provost once, but did not reach her.

Ms. Brooks was later recalled as a witness by the defense and admitted that she had
not told the police that Defendant Hall said anything when he returned to the car after
the shooting.

        Cynthia Human lived behind Kroger. On the evening of July 20, she heard
three or four gunshots. Ms. Human looked out the window and saw the rear end of
an automobile in the Kroger parking lot. The car drove away two or three minutes
after the gunshots. Ms. Human did not see anyone either outside or inside the car.

        Officer Gary Poteet arrived at the scene at 10:30 p.m. Ms. Provost was lying
in the street, wounded. Marcus Scott, who had also been shot, was in the front
passenger seat of a green vehicle. The seat was in a reclined position. Officer Poteet
said that Ms. Provost told him that she did not know who shot her because the
shooter wore a ski mask.

        Officer Johnny Lawrence retrieved two projectiles from the seat in which Mr.
Scott had been sitting and two projectile fragments from the driver’s seat. Officer
Lawrence did not find any shell casings at the scene. Officer Daniel Orr examined
the vehicle at the police station and found a shell casing in the rear floor board behind



                                          -3-
the passenger seat. Officer Lorita Marsh matched both Defendants’ fingerprints with
fingerprints found on the car’s frame and on items in the car.

        Officer George Bouton photographed the scene. He inserted wooden rods
through the holes made by the bullets in the passenger seat’s upholstery to illustrate
the bullets’ path and then photographed the rods.

        Dr. Thomas Deering, an assistant medical examiner for Davidson County,
performed Mr. Scott’s autopsy. Dr. Deering said that either three or four bullets
entered Mr. Scott’s body. The path of two of the bullets struck major organs and
were fatal injuries. On cross-examination, Dr. Deering said that Mr. Scott also had
a small laceration over his left eye that was consistent with being struck with a fist.

         Linda Provost testified that she met Mr. Scott in McMinnville, Tennessee
about a month before the incident. Around July 16, 2001, she accompanied Mr. Scott
to his motel room because he told her there was going to be a party. No one else was
in the room, and Ms. Provost attempted to leave. During a struggle, Mr. Scott struck
Ms. Provost in the face with his fist.

        Ms. Provost had dated Defendant Hall when they were in high school.
Shortly before the shooting, Defendant Hall began calling Ms. Provost again in an
attempt to resume their relationship. Defendant Hall called Ms. Provost on the night
of her altercation with Mr. Scott, and Ms. Provost told Defendant Hall about the
incident because she was upset. Ms. Provost said Defendant Hall said that he would
“take care of it.”

        Ms. Provost said that she arranged to meet Defendant Hall at the Kroger
parking lot on July 20. When she arrived, Defendant Hall told her that “he had it
planned out.” Ms. Provost said that she was supposed to park in front of the victim’s
apartment building, call the victim on her cell phone, and ask him to come out and
see her. Once the victim was in the car, Defendant Hall said he and Defendant Dixon
would stage a robbery and drag Mr. Scott out of the car. Ms. Provost said that
neither Defendant Dixon nor Defendant Hall told her what they planned to do when
they got the victim out of the car, but she assumed they were going to beat up Mr.
Scott. Ms. Provost said that there was never any mention of shooting or robbing the
victim, other than a staged robbery. Ms. Provost said that she met Defendant Dixon
for the first time that night.

       Ms. Provost said that she drove to the victim’s apartment building as planned,
and Mr. Scott came out to her car. He got in the passenger seat, and Ms. Provost
heard a noise outside the open passenger side window. Ms. Provost said she was
shot and then heard two more gunshots. Ms. Provost saw Defendant Hall fire the



                                         -4-
shots. She got out of her car and saw Defendant Hall run toward the Kroger parking
lot. Ms. Provost called 911 with her cell phone.

      On cross-examination, Ms. Provost said that Defendant Dixon was not with
Defendant Hall when the shooting occurred. She admitted she lied to the police
when she told them the shooter wore a ski mask.

        The State introduced the phone logs [of] Ms. Provost’s cell phone reflecting
the telephone calls that were made on the night of the shooting. At 9:32 p.m., Ms.
Provost’s cell phone was used to place a call to Mr. Scott. A second phone call to
the victim was made at 10:18 p.m. A 911 call was made from Ms. Provost’s cell
phone at 10:24 p.m.

        Defendant Dixon testified that Defendant Hall came by his apartment around
8:14 p.m. on July 20. Defendant Hall asked him to go with him and meet Ms.
Provost and her friend. Defendant Dixon said that his date for the evening was
delayed so he agreed to accompany Defendant Hall. When they arrived at the Kroger
parking lot, Defendant Dixon let Defendant Hall out of the car and found a parking
place. He said that he and Ms. Brooks chatted, and he did not hear what Defendant
Hall and Ms. Provost were talking about. Defendant Hall called him on his cell
phone and told him about the altercation between Ms. Provost and the victim.
Defendant Hall asked him to come over to Ms. Provost’s car so they could discuss
a plan of action. Defendant Dixon said that neither he nor Ms. Brooks wanted to get
involved, and Defendant Dixon kept trying to leave. Defendant Hall told him to wait
until he calmed down Ms. Provost. Defendant Dixon said that he walked over to the
bushes at the back of the Kroger parking lot in order to relieve himself.

        Ms. Provost drove out of the parking lot, and Defendant Hall told Defendant
Dixon he was going with her. Defendant Dixon said he walked back to his car and
was starting to leave when he heard gunshots. Defendant Dixon pulled his car out
of the parking lot and saw Defendant Hall. Defendant Hall jumped into his car, and
Defendant Dixon said he let both Defendant Hall and Ms. Brooks out at the H.G.
Hill’s across the street. Defendant Dixon said that he drove away at that point.
Defendant Dixon denied that he helped plan either an assault or a robbery on the
victim.

        On cross-examination, Defendant Dixon admitted that his testimony in court
was different from his two prior statements made to the police. Defendant Dixon
said that he occasionally advised Defendant Hall who was eighteen or nineteen at the
time of the incident, and had helped Defendant Hall find a job. Defendant Dixon
admitted that Defendant Hall had asked him what to do about Ms. Provost getting hit
by Mr. Scott on a couple of occasions prior to the shooting. Defendant Dixon said



                                        -5-
        that he knew Defendant Hall and Ms. Provost wanted to do something to the victim,
        but he denied that either one of them had mentioned robbing or shooting the victim.

Ronald Eugene Hall, 2005 WL 292432, at *1-4.

        At the conclusion of the jury trial, Petitioner was found guilty of two counts of second degree
murder and not guilty of attempted especially aggravated robbery. The trial court merged
Petitioner’s conviction for second degree murder under count two with his second degree murder
conviction in count one and sentenced him to twenty years. Petitioner’s conviction was affirmed on
direct appeal. See id. at *16.

        Subsequently, Petitioner filed a pro se petition for post-conviction relief. In that petition,
Petitioner argued that he received ineffective assistance of counsel and that it was questionable
whether he was actually competent to stand trial. The post-conviction court appointed counsel to
represent Petitioner, and an amended petition for post-conviction relief was filed. In the amended
petition, Petitioner argued that his conviction violated the Fourteenth Amendment to the United
States Constitution and Article I, Section 8 of the Tennessee Constitution because Petitioner “did
not receive medication necessary to preserve his mental competence during trial” and that he
received ineffective assistance of counsel at trial because trial counsel: (1) failed to monitor
Petitioner’s intake of prescribed medications; (2) failed to investigate and call witnesses on
Petitioner’s behalf; and (3) failed to advise Petitioner properly as to whether he should testify at trial.

                              Evidence at the Post-conviction Hearing

        At the post-conviction hearing, Petitioner testified that he was presently incarcerated at the
Deberry Special Needs Facility. He admitted that he was diagnosed as a schizophrenic but disagreed
with that assessment. Petitioner stated that he was given Tegretol, Wellbutrin, Haldol and Cogentin
to control his mental problems. Petitioner informed the trial court that he stopped taking the
Tegretol and Wellbutrin at some point. Prior to trial, Petitioner was sent for a mental evaluation and
prescribed medication. Petitioner testified that he “stopped taking [the medication] previous [sic]
to going to trial,” but could not remember for how long. Petitioner stated that neither of his trial
attorneys asked him if he was properly taking his medication. They merely informed him that an
insanity defense “wouldn’t work.”

        Petitioner stated that he “understood what was going on” during the trial. However,
Petitioner claimed that he wanted to testify, but was told that counsel for the State “would make
[him] look stupid.” Petitioner claimed that if he had testified, he would have made the jury
understand that he “ain’t [sic] shoot nobody [sic].” Petitioner proceeded to tell the post-conviction
court a version of the events in which he claimed that he was not even present when the victim was
killed. Petitioner admitted that he “conversated” with trial counsel about this version of the events
but stated that his trial counsel told him that the story was “unbelievable.” Petitioner admitted that
it was his signature on the written waiver of his right to testify, but he denied knowing the substance
or content of the form and did not remember signing it at trial. Petitioner testified that trial counsel


                                                   -6-
encouraged him to plead guilty and take the plea offer prior to trial. Petitioner declined the offer.


        Dr. Rokeya Farooque, a forensic psychiatrist from the Middle Tennessee Mental Health
Institute (“MTMHI”), testified that she saw Petitioner several times prior to trial. She evaluated
Petitioner five months prior to his trial. She read from Petitioner’s medical records that detailed
several admissions to MTMHI for evaluation after occurrences at the jail. The records indicated that
Petitioner had been diagnosed with paranoid schizophrenia and attention deficit hyperactivity
disorder. Petitioner’s most recent admission, in December of 2002, occurred after Petitioner
attempted to cut his wrist. During that admission, Petitioner was treated with Depakote, Haldol D
and Trazodone. Haldol is an antipsychotic medication. Depakote is used for mood stabilization and
was used in Petitioner’s case to control violent behavior. Trazodone is an antidepressant medication
that can also be used as a sleeping aid. Dr. Farooque admitted that she did not complete a
competency evaluation at that time. Dr. Farooque described some of the medication that was
prescribed for Petitioner. According to the doctor, Petitioner received Haldol in the form of a
monthly injection. Dr. Farooque testified that even if Petitioner stopped receiving the injections, the
medication would take time to dissipate from his body. Dr. Farooque testified that she did not
specifically evaluate Petitioner for competence prior to his trial.

        The post-conviction court also heard testimony from Petitioner’s trial counsels. Both of the
attorneys that represented Petitioner testified that Petitioner seemed engaged in his defense, offering
possible defense theories prior to trial. One of the attorneys testified that he engaged in mock cross-
examination with Petitioner prior to trial to see how Petitioner would answer when subjected to
questioning. In counsel’s opinion, the exercise indicated that testimony by Petitioner would be
unsuccessful at trial. Trial counsel admitted that he did not ascertain whether Petitioner was taking
his medication prior to trial and did not consult with any of Petitioner’s doctors prior to trial. The
other trial attorney stated that Petitioner gave him no reason to question Petitioner’s competence.

        At the conclusion of the hearing, the post-conviction court took the matter under advisement.
Later, in a written order, the trial court determined that Petitioner: (1) “failed to meet his burden of
showing by clear and convincing evidence that he was not competent to stand trial or that his trial
counsel was ineffective for failing to monitor his mental health and medications;” (2) failed to
establish that he was prejudiced by trial counsel’s failure to interview and investigate a potential
witness; and (3) failed to demonstrate that he received ineffective assistance of counsel with regard
to his decision to testify at trial. As a result, the post-conviction court dismissed the petition.
Petitioner filed a timely notice of appeal.

                                             Analysis
                                Post-Conviction Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this Court


                                                  -7-
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Shields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).

                                             Competence

        Petitioner alleges on appeal that his conviction is void because he was not competent to stand
trial and did not receive the proper medications prior to trial that were “necessary to preserve his
mental competence during trial.” Specifically, Petitioner claims that his conviction is invalid and
should be “overturned due to his failure to receive medications necessary to maintain competency.”
The State counters that this issue is “barred” from being heard in a post-conviction proceeding
because the issue was previously determined in the trial court and waived because it was not
addressed on direct appeal. Further, the State argues, Petitioner has failed to present proof that he
was incompetent to stand trial.

        As noted by the State, this issue was not presented in Petitioner’s direct appeal from his
conviction. In a post-conviction proceeding, “[a] ground for relief is waived if the petitioner
personally or through an attorney failed to present it for determination in any proceeding before a
court of competent jurisdiction in which the ground could have been presented unless” the claim is
based upon a newly-recognized constitutional right with retroactive application or the ground was
not presented as the result of state action in violation of the federal or state constitution. T.C.A. §
40-30-106(g); see State v. Benson, 973 S.W.2d 202, 208 (Tenn. Crim. App. 1998).

        At the post-conviction hearing, both attorneys for Petitioner testified that the trial court
determined that Petitioner was competent to stand trial. Petitioner did not challenge the
determination of competency on appeal. There was no testimony at the post-conviction hearing as
to why Petitioner did not bring the issue on appeal. The issue is not a newly-recognized
constitutional right with retroactive application, and there was no evidence adduced at the post-
conviction hearing that the ground was not presented as a result of state action. Therefore, this issue
is waived. Moreover, Petitioner has failed to present clear and convincing proof that he was
incompetent to stand trial. In fact, the evidence admitted at the post-conviction hearing actually
supported the conclusion that Petitioner was competent to stand trial. Both trial attorneys testified
that Petitioner was actively involved in his defense, and Dr Farooque testified that at Petitioner’s last
assessment in December of 2002, only five months prior to trial, Petitioner appeared to be
competent.




                                                  -8-
                                  Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

                    Counsels’ Failure to Monitor Medication and Competency

        First, Petitioner claims that both trial counsels were ineffective for failing to “monitor”
whether Petitioner received his prescribed medications prior to trial. Petitioner admits that his
attorneys could not have forced Petitioner to take his medication, but argues that they had a “duty”
to determine whether he was taking all of his medication as ordered.

        In its order denying post-conviction relief, the post-conviction court determined that the trial
attorneys’ testimony was credible. They both testified that Petitioner assisted with his defense and
neither of them observed behavior prior to or during trial that would cause them to question
Petitioner’s competency. The evidence does not preponderate against the judgment of the post-
conviction court. Petitioner has failed to carry his burden in this regard.



                                                  -9-
               Counsels’ Failure to Advise Petitioner About Right to Testify at Trial

        Next, Petitioner argues that trial counsels provided Petitioner with ineffective assistance of
counsel because they told him that he would “look stupid” on the witness stand when Petitioner
clearly desired to testify in his own behalf.

         In its motion denying the petition for post-conviction relief, the post-conviction court again
found the testimony received by both trial counsels to be credible. At the hearing, trial counsels both
testified that they spoke with Petitioner about the decision to testify. Petitioner himself admitted that
he made the decision not to testify after meeting with trial counsel. Further, Petitioner admitted that
he executed a waiver of his right to testify. The evidence does not preponderate against the judgment
of the post-conviction court. Petitioner has failed to carry his burden in this regard.

                               Cumulative Effect of Counsel’s Errors

       Finally, Petitioner argues that the cumulative effect of trial counsels’ errors is sufficient to
warrant a new trial. We have determined that Petitioner did not receive ineffective assistance of
counsel. Accordingly, this issue is without merit.

                                              Conclusion

        For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                                         __________________________________
                                                         JERRY L. SMITH, JUDGE




                                                  -10-
