                                                                                       06/30/2020
      GIN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT JACKSON
                          Assigned on Briefs March 3, 2020

             ANTHONY THOMPSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                    No. 14-03467 J. Robert Carter, Jr., Judge


                            No. W2019-01206-CCA-R3-PC


The petitioner, Anthony Thompson, appeals the denial of his petition for post-conviction
relief, which petition challenged his conviction of first degree murder, alleging that he
was deprived of the effective assistance of counsel. Discerning no error, we affirm the
denial of post-conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and J. ROSS DYER, JJ., joined.

Joshua N. Corman, Memphis, Tennessee, for the appellant, Anthony Thompson.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Scott Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              A Shelby County Criminal Court jury convicted the petitioner of one count
of first degree premeditated murder stemming from the shooting death of Barris Jones.
State v. Anthony Thompson, No. W2016-00077-CCA-R3-CD, slip op. at 1 (Tenn. Crim.
App., Jackson, Mar. 9, 2017). This court summarized the evidence on direct appeal:

             [T]he [petitioner] stood over the victim, who was unconscious
             from a blow to the head, and shot him eleven times.
             Marquitta Covington identified the [petitioner] as the one
             who shot the victim numerous times. Co-defendant Keron
             Cowan testified that he was one of the three men at the scene,
             that he was the first to strike the victim, who was then hit
              with a pistol in the back of the head by “Twin,” and that he
              was ordered at gunpoint by the [petitioner] to move out of the
              way. As he did so, he heard numerous gunshots. Further, the
              victim, in a dying declaration, uttered the [petitioner’s] name
              in response to Officer [Keith] Holden’s question, “What
              happened? Who’s responsible for this[?]” The testimony of
              Mr. Cowan was corroborated by that of Ms. Covington and
              Mr. [Lemarcus] Rhodes who said he saw the victim being
              attacked by three men, whom he could not identify, two of
              whom had pistols.

Id., slip op. at 12-13 (seventh alteration in original). Upon the petitioner’s conviction, the
trial court imposed a life sentence. Id., slip op. at 1. This court affirmed the conviction
on direct appeal, id., slip op. at 13, and our supreme court denied review, State v. Anthony
Thompson, No. W2016-00077-SC-R11-CD (Tenn., Jackson, July 20, 2017) (Order).

               The petitioner filed a timely pro se petition for post-conviction relief, and,
after the appointment of counsel, he filed an amended petition, alleging the ineffective
assistance of the petitioner’s trial counsel. Specifically, the petitioner alleged that trial
counsel performed deficiently by failing to argue against the victim’s statement of
identification being admitted as a dying declaration on the ground that the victim was
unconscious at the time that he was shot and by failing to present alibi witnesses at trial.

               At the May 2019 evidentiary hearing, trial counsel testified that he received
discovery materials from the State in preparation for trial, which materials included the
transcript of a preliminary hearing. Marquitta Covington testified at that hearing that the
victim was unconscious at the time that he was shot. Before trial, counsel moved to
exclude the victim’s identification of the defendant as the shooter, arguing that the
statement did not qualify as a dying declaration because the victim did not believe that
his death was imminent. Counsel acknowledged that he did not challenge the statement’s
admissibility on the ground that the victim was unconscious and, therefore, unable to
identify the shooter, but he stated that because most of the elements of a dying
declaration “were pretty obviously satisfied,” he “challenged the one that -- appeared to
be the least likely to be -- to allow the statement to be admissible.”

             Trial counsel testified that he impeached several of the State’s witnesses
with inconsistent statements regarding the shooter’s identity. For example, at the
preliminary hearing, Ms. Covington had identified the shooter as one of the co-
defendants, but at trial, she identified the petitioner as the shooter. Similarly, at the
preliminary hearing, Lemarcus Rhodes testified that “[t]he fat guy did the shooting,” but
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at trial he stated that he did not know who had fired the shots. According to trial counsel,
Mr. Rhodes’s description of the shooter as “fat” pointed to one of the co-defendants, who
“was a big guy,” as the shooter.

              Trial counsel stated that he explored using an alibi defense, speaking with
several of the petitioner’s family members who would testify that the petitioner had been
in Mississippi at the time of the murder. He described his primary defense strategy as
emphasizing the “identification issues as far as who the shooter was,” and, after
discussing the issue with the petitioner, he chose not to present alibi witnesses at trial.
Because trial counsel “felt like there had been quite a bit of proof established that [the
petitioner] was present at the scene, but there were questions about whether or not he was
the shooter,” counsel was “concern[ed] about putting on alibi witnesses to say [the
petitioner] was in another state when we had other people testify that he was there, I was
afraid it would blow up in our face.”

              During cross-examination, trial counsel stated that in arguing to exclude the
victim’s statement of identification, he focused on the condition of the victim,
emphasizing that the victim had survived for several hours after officers arrived at the
scene. Although he could not recall his specific thought process in preparing his
argument, trial counsel said that he was “sure [he] had” considered arguing that the
victim was unconscious at the time of the shooting but decided against it. He had thought
that the question of the victim’s consciousness was more of an issue to argue before the
jury.

               Trial counsel stated that all of the potential alibi witnesses were the
petitioner’s family members. He elaborated on his concern about calling alibi witnesses:

              There had been numerous witnesses that were put on that had
              identified [the petitioner] at least as having been at the scene
              of the crime. I was afraid by putting up family members just
              to say that he was [in] another state, that the jurors would take
              it we’re trying to pull one over on them.

He decided against calling those witnesses to avoid that risk.

                Bessie Henderson, who was the mother of the petitioner’s girlfriend,
testified that she had spoken with trial counsel approximately three times prior to trial and
that she was present in Memphis and available to testify at trial. She stated that, at the
time of the shooting, she was at 1239 Boone Drive in Utica, Mississippi, where she was
celebrating Memorial Day with her family, including the petitioner. She arrived at the
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gathering around noon and stayed until approximately 6:30 p.m. or 7:00 p.m. At that
time, the petitioner was dating Ms. Henderson’s daughter, and they both lived with Ms.
Henderson. Ms. Henderson recalled that the petitioner left the family gathering “right
behind me,” stating that she remembered this detail because “when I go in my house I
lock my door. That’s it. If you not in there you can’t get in.” She said that Utica was
198 miles outside of Memphis, which she estimated was a three to four-hour drive. She
stated that she would have given this same testimony had she been called as a witness at
trial. On cross-examination, she stated that she told trial counsel that the petitioner was
with her at the family gathering at the time of the shooting.

              Shavonnah Knight, who was the sister of the petitioner’s girlfriend, testified
that she was prepared to testify at the petitioner’s trial that the petitioner was “in Utica at
the family gathering” on the day of the shooting. She recalled the events of that day:
“Well, [the petitioner] was at my grandma’s house, and we was having a barbecue. . . .
[H]e was playing ball with my cousin and them. And then they went to play dominoes . .
. . And then around -- I’d say around 7:00 we all went home . . . .” She specifically
recalled the petitioner’s being at the barbecue “because I stayed with my mom when he
was staying with us as well, him and my sister. So we was all basically together. So we
basically came to the gathering and left to the gathering the same.”

              On cross-examination, she stated that she considered the petitioner to be her
brother-in-law. She had spoken to trial counsel before trial and told him that the
petitioner was present with her in Utica at the time of the shooting.

              Jessica Knight, the petitioner’s girlfriend, testified that she had spoken with
trial counsel in the time leading up to the petitioner’s trial, discussing the petitioner’s
alibi. She stated that she was prepared to testify during the petitioner’s trial, but “[w]e
actually got a phone call like the last day saying the case was going in his favor so there
was no need for us to testify.” She recalled that the day of the shooting was Memorial
Day, and “[w]e was just at my grandmother’s house, just playing basketball, playing
dominoes, and I remember [the petitioner] got mad because he couldn’t shoot his
fireworks, because it was still light outside. So he just threw a fit basically and went
inside the house.” At that time, she and the petitioner were living with her mother in
Utica. She estimated that she and the petitioner arrived at her grandmother’s house at
approximately 12:30 p.m. or 1:00 p.m. that day and left around 6:00 p.m. She estimated
that Utica was a three-hour drive from Memphis.

             On cross-examination, she stated that her conversations with trial counsel
were by telephone. She spoke to trial counsel alone and was the first of the family
members to speak with him. Counsel then followed up with other family members.
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               Upon questioning by the court, she acknowledged that she did not contact
police to notify them that they had the wrong suspect. She was present with the
petitioner at the time of his arrest, however, and she tried to tell the police they had the
wrong person at that time, but “[t]hey didn’t want to hear nothing we had to say.”

              Jessie Jones, the grandmother of Jessica Knight, stated that she tried to
speak with trial counsel about the petitioner’s alibi, “but he didn’t -- he didn’t talk to me
about that.” She stated that she was prepared to testify at the petitioner’s trial and that,
had she been called, she would have testified that on May 26, 2014, the petitioner “was at
my house. I always cook a dinner on Sunday’s and he -- everybody from my children all
-- grandchildren, all be at my house every Sunday.” She stated that the family was also at
her house on Memorial Day. She estimated that the petitioner arrived at her house
around noon that day and stayed until approximately 8:00 p.m. or 9:00 p.m.

              During cross-examination, Ms. Jones explained that on the weekend of the
shooting, she cooked for the family on both Sunday and Monday for the Memorial Day
holiday. She specifically recalled the petitioner’s being present at her house that day
because “they was playing ball, and we was out there on the porch.” When asked if she
had told the police that the petitioner was present at the family gathering at the time of
the shooting, she replied, “They didn’t have no trial that I remember. They didn’t ask
nobody about nothing.” She reiterated that trial counsel was “supposed to have talked to
us, but he wouldn’t -- he didn’t talk to us.”

              At the close of the evidence, the post-conviction court took the matter
under advisement. In its written order denying post-conviction relief, the court found that
trial counsel’s defense strategy “was one of trying to rely upon the State’s inability to
prove that [the] petitioner was responsible.” The court concluded that counsel’s
decisions were tactical in nature and “were based on adequate preparation,” and,
consequently, the petitioner was not entitled to post-conviction relief.

              In this timely appeal, the petitioner reasserts his arguments that trial counsel
performed deficiently by failing to argue that the victim’s statement of identification
should have been excluded on the ground that the victim was unconscious at the time of
the shooting and by failing to call alibi witnesses.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
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conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

                Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

              When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears
the burden of overcoming this presumption,” id. (citations omitted). We will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). Such deference to the tactical decisions of counsel, however, applies only if the
choices are made after adequate preparation for the case. Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992).

              Here, the record supports the post-conviction court’s conclusion that trial
counsel’s decisions were tactical. Trial counsel testified that he chose to argue for the
exclusion of the victim’s statement on the ground that the victim did not believe his death
was imminent because he determined that to be the strongest argument for exclusion.
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Counsel also testified that he chose not to call alibi witnesses out of concern that the alibi
was contradicted by eyewitnesses and that, because all of the alibi witnesses were family
members, the jury would not find them credible. Counsel’s uncontroverted testimony
established that these decisions were strategic ones, and we will not now second-guess
that strategy. See Adkins, 911 S.W.2d at 347.

              Accordingly, the judgment of the post-conviction court is affirmed.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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