         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    July 13, 2004 Session

               ANTHONY D. CUTTLE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-20307    J.C. McLin, Judge



                 No. W2003-00684-CCA-R3-PC - Filed September 28, 2004


The petitioner appeals the denial of his petition for post-conviction relief, arguing that the post-
conviction court erred in finding he received effective assistance of counsel and in denying his
request to represent himself at the post-conviction proceeding. Following our review, we affirm the
denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., joined.
JOHN EVERETT WILLIAMS, J., filed a concurring opinion.

Marty B. McAfee, Memphis, Tennessee, for the appellant, Anthony D. Cuttle.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Vanessa King, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                          FACTS AND PROCEDURAL HISTORY

       In August 1995, the petitioner, Anthony D. Cuttle, was tried in the Shelby County Criminal
Court on two counts of attempted especially aggravated kidnapping. The jury acquitted him of one
count but convicted him of the other, for which he received a twenty-year sentence in the Department
of Correction as a Range II offender. See State v. Anthony D. Cuttle, No. 02C01-9605-CR-00153,
1997 WL 730255, at *1 (Tenn. Crim. App. Nov. 25, 1997), perm. to appeal denied (Tenn. July 13,
1998). The petitioner’s conviction and sentence were subsequently affirmed by this court, and our
supreme court denied his application for permission to appeal. Id.

       Our direct appeal opinion provides the following account of the crime:
         On the night of April 5, 1994, the victim, Norma Voyles was
sitting in her car outside her home when the [petitioner] approached
her vehicle, stuck a gun to her head, and ordered her to open the door.
When the [petitioner] insisted on taking the driver’s seat, the victim
struggled and managed to escape to the driveway where the
[petitioner] held his cocked gun to her head and threatened to kill her.
The struggle lasted for around ten minutes before the victim’s son
heard the screams and emerged from their residence. At that point,
the [petitioner] pushed the victim to the ground and ran away.

        The victim called police who arrived some five minutes later.
When the investigating officers received word that a man fitting the
assailant’s description had been taken into custody, the victim was
asked to make an identification. Initially uncertain, the victim made
a positive identification after the [petitioner] put on the hood of his
sweatshirt. Later, the victim was able to identify the [petitioner] two
more times, once in a lineup at the police station and again at the
preliminary hearing.

        On the same night, only a few minutes later, Debra Hanna was
attacked by a man she identified as the [petitioner]. She stated that as
she was unlocking her residence door, the [petitioner] approached her
holding a gun. Ms. Hanna was able to get inside, lock the door, and
call police. Within ten minutes, police arrived and reported that they
had taken a man into custody only a few houses away, who fit her
description of the attacker. When escorted by the police to where the
[petitioner] was held, Ms. Hanna identified the [petitioner] as her
assailant.

       . . . . When apprehended, the [petitioner] was carrying a
butcher knife but had no gun.

        At trial, the [petitioner] denied any involvement in either
attack. He claimed that he and a friend had been visiting with his
cousin. He asserted that he had decided to visit his ex-girlfriend,
walked over to her apartment, and, unable to locate her, was returning
to his cousin’s residence when stopped by police.

        Antoine Thompson, a witness for the defense, claimed that he
and the [petitioner] were at a mutual friend’s residence watching
television until sometime between 10:30 and 11:30 p.m. Thompson
recalled that when he went to bed, the [petitioner] was still at the
residence.


                                  -2-
Id.

        The post-conviction proceedings in this case are somewhat complex. Although not included
in the record, the petitioner apparently filed an original pro se petition for post-conviction relief in
August 1998, which was summarily dismissed after the appointment of counsel. On February 15,
2001, the petitioner filed a pro se motion to reopen his post-conviction petition, which was,
apparently, granted by the post-conviction court. Counsel was subsequently appointed and an
amended petition for post-conviction relief, incorporating the pro se petition and alleging ineffective
assistance of trial counsel, was filed on November 6, 2001. The amended petition was followed by
a supplemental amended petition on June 14, 2002, and a second supplemental amended petition on
October 29, 2002, which, together, alleged counsel was ineffective, inter alia, for failing to
adequately investigate and prepare for the case, failing to effectively cross-examine witnesses, and
refusing to assist the petitioner with his trial testimony.

       The post-conviction court granted the petitioner’s motion to proceed pro se on August 15,
2002, but reversed itself approximately one week later, reappointing counsel on August 26. An
evidentiary hearing, at which the post-conviction court allowed both counsel and the petitioner to
present separate proof and arguments, was held on September 26, 2002, October 29, 2002, and
February 7, 2003. On October 29, 2002, the petitioner filed a pro se amended petition for post-
conviction relief.

        On March 7, 2003, the post-conviction court entered a detailed written order denying the
petition for post-conviction relief. Different counsel was appointed to represent the petitioner on
appeal, and a notice of appeal was filed that same day. Nonetheless, the petitioner filed a pro se
notice of appeal on March 13, 2003, a pro se brief on September 4, 2003, and a pro se “Motion to
Consider Appellant’s Pro Se Brief as the Initial Brief” on October 21, 2003. On October 31, 2003,
this court entered an order denying the petitioner’s motion to have his pro se brief considered and
ordering that all future pleadings be filed by the petitioner’s appellate counsel. On November 6,
2003, appellate counsel filed his brief with this court. On April 3, 2003, the petitioner filed a pro
se “Motion to Dismiss Court-Appointed Appellate Counsel,” alleging ineffective assistance of
appellate counsel and requesting that he be allowed to proceed pro se with his appeal. This court
denied his motion by order entered on April 22, 2003.

         In his pro se petitions and at the evidentiary hearing, the petitioner contended he was entitled
to post-conviction relief on four grounds: (1) he was unlawfully arrested; (2) illegal evidence was
introduced at his trial; (3) the prosecutor, his trial counsel, and the trial court conspired to suppress
exculpatory evidence; and (4) he received ineffective assistance of trial counsel. His claim of
ineffective assistance was based on a number of allegations, including that counsel conspired with
the trial court and the prosecutor to suppress a police dispatch transcript, which would have shown
the discrepancies between the petitioner’s appearance at the time of his arrest and the descriptions
the victims provided to police of their attacker, as well as the time that elapsed between the victims’
calls to police; counsel failed to call an alibi witness to testify at trial; counsel insisted on contacting
that same alibi witness despite the petitioner’s instructions to stop bothering her; counsel failed to


                                                    -3-
cross-examine the victims on alleged inconsistencies in their testimony; and counsel failed to
subpoena and introduce a second police dispatch record, which would have revealed that the
petitioner’s arresting officer lied and framed the petitioner for the crime.

        Trial counsel, who had thirty years experience in criminal defense at the time of the
evidentiary hearing, testified he represented the petitioner in criminal court in his capacity as an
assistant public defender. His preparation of the case included interviewing witnesses, researching
the law, and reviewing the evidence. He was confident he received and reviewed a copy of the
transcript of the preliminary hearing. Trial counsel believed one of the central issues in the case
involving Ms. Hanna was that the petitioner was “misindicted,” because the facts alleged did not fit
a kidnapping. He argued the issue to the jury and believed it formed the basis for the petitioner’s
acquittal on that count.

        Trial counsel testified the petitioner provided him with the names of two potential alibi
witnesses: Antoine Thompson, who testified at trial but provided less than an airtight alibi, and
Jeannine Conley, whom the petitioner claimed would be able to place him elsewhere at the time of
the attacks. Trial counsel said Conley informed him she had been diagnosed as manic depressive,
was on medication for depression and hypertension, and could not recall when or where she had seen
the petitioner. Therefore, he concluded her testimony would not be helpful.

         Trial counsel testified he advised the petitioner he thought it would be devastating for the
petitioner to testify because the State would be able to introduce his prior conviction for murder as
well as possibly his prior armed robbery conviction. The petitioner agreed and maintained
throughout the trial that he did not wish to take the stand. However, after he had been voir dired
about his decision not to testify and both the State and the defense had rested, he suddenly jumped
to his feet and “exploded” with the announcement that he now wished to testify.

         Trial counsel acknowledged he was probably upset with the petitioner and might have lost
his temper. As for whether he was wrong in refusing to assist the petitioner’s testimony, counsel
testified that he thought asking questions would “compound the damage” and that he “may have
made a mistake,” but thought he would “make the same . . . decision again.” Trial counsel conceded
the petitioner’s testimony probably would have been smoother had he directed it. He insisted,
however, that his participation would not have been enough to “overcome the devastating things that
occurred from [the petitioner’s] testimony.” Moreover, he would not have been able to control the
petitioner’s demeanor and cocky attitude. On cross-examination, trial counsel agreed the petitioner
would not have been able to explain the facts underlying his prior convictions if counsel had directed
his testimony by asking specific questions requiring responsive answers. Counsel testified he had
gone over the events of the night in question with the petitioner, but had not prepared a list of
questions because the petitioner had consistently expressed his intention of not testifying. In trial
counsel’s opinion, the petitioner’s testimony resolved in favor of the State any doubt the jury may
have had about his guilt.




                                                 -4-
        Trial counsel acknowledged his file contained a copy of a police report showing that a latent
fingerprint lifted from the victim’s car did not match the petitioner. He could not recall if he cross-
examined any police officers on that fact and did not think he called the fingerprint technician to
testify. However, he did not believe the fingerprint evidence would have helped the petitioner’s
case. Trial counsel testified the petitioner wanted him to introduce a dispatch transcript at trial that
he believed would prove he was not the perpetrator. In counsel’s opinion, the evidence would have
hurt, rather than helped, the petitioner’s case, as he explained:

                A. Well, I subpoenaed the records from the dispatcher. And as I
                recall there was about a twenty minute gap between the first call from
                Ms. Voyles, when Ms. Voyles called the police and made her
                complaint and when Ms. Hanna did it. It was about a twenty minute
                difference.

                     I had my investigator go out and measure the distance in his car
                between the Creighton address where Ms. Hanna was and the Navaho
                address where Ms. Voyles was. And he reported back that it was
                about a mile and a half between the two spots. In my calculation, I
                mean, certainly a car could travel between those two spots in less than
                twenty minutes.

                Q.    Sure.

                A. A man walking fast or jogging could probably do it. I didn’t
                think that would help [the petitioner] to show that, to put that
                evidence on to show when those calls were made to the dispatcher.
                In fact, I thought it would show that he had every opportunity to be at
                both places that night because of the difference in the calls. If the
                calls had come in a minute a part [sic], I certainly would had done it.
                But there was a twenty -- I think as I remember right, a twenty minute
                differential.

                      And as I should say, [the petitioner] wanted me to do it anyway
                and that’s another decision I made on my own.

                Q. Okay. It was not a twenty minute move but twenty-four
                minutes, something like that. Does that sound about right?

                A.    Yeah, that’s the best I recollect.

       Trial counsel acknowledged the dispatch transcript described Ms. Voyles’s attacker as a black
male in his late teens or early twenties, although the petitioner was thirty years old at the time of the
crime. He could not recall if the clothing description contained in the report matched the petitioner’s


                                                  -5-
clothing, but thought he recalled that Ms. Voyles, who was a “very good witness,” described the
perpetrator’s clothing when she reported the crime to the police and that the petitioner was wearing
similar clothing when arrested. In addition, he believed Ms. Voyles identified the petitioner as the
perpetrator several times, including at the time of his arrest, from a later photographic lineup, and
again at trial. According to trial counsel, Ms. Voyles’s testimony formed the basis for the State’s
case.

        During the petitioner’s lengthy, rambling, and repetitive evidentiary hearing testimony, he
asserted, inter alia, that Memphis Police Officer R. D. Harrell framed him for the crime; the other
police officers who testified at trial committed perjury at Officer Harrell’s behest; trial counsel, the
prosecutor, and the trial court “covered up” the officer’s actions and conspired to prevent exculpatory
evidence, in the form of the dispatch transcript that recorded the time the victims reported the attacks
and the perpetrator’s description, from going to the jury; and the victims lied during their testimony.
The petitioner also asserted that a second dispatch transcript, which the Memphis Police Department
had since destroyed, would have proved he was arrested less than ten minutes after leaving his home.

         The record reveals the alleged “exculpatory” dispatch transcript was, at the prosecutor’s
suggestion, marked as an exhibit at the trial for identification purposes after defense counsel sought
and received the trial court’s approval of his decision not to call the police dispatcher as a witness.
A review of what transpired at trial is helpful in understanding the petitioner’s claim with respect
to this evidence:

               [TRIAL COUNSEL]: I don’t know, we may have to excuse the jury
               to get this on the record, I don’t know. But this man I have under
               subpoena, a dispatcher with the Memphis Police Department, who
               would testify when the calls, complaints came in. And of course they
               sit [sic] exactly with what the prosecution witnesses have testified to
               about when these things happened. And my client insist[s] that I call
               him as a witness and prove when complaints were made to police
               dispatcher. And I am not going to do it because it just wouldn’t - - it
               would just help incriminate him. And I don’t know if you want to, do
               you think we may have to put him on the record and air this out or
               not? Maybe we should. But I am not going to call the man just
               because he wants me to. I think it is not - -

               THE COURT: Do you think it will hurt his case?

               [TRIAL COUNSEL]: I think definitely it will hurt his case.

               THE COURT: We don’t need to put it on the record, I mean, except
               what we are doing right now unless you want to. I certainly
               understand you know, you’ve been trying cases for twenty years, and
               you know when you ought to try to help somebody. Sometimes


                                                  -6-
                  people don’t understand that you are trying to help them as best you
                  can.

                  ....

                  THE COURT: Well, just for the basis of this record, the Court is
                  going to rule that it is not necessary that you call the witness that you
                  think would be detrimental to your client even though he thinks he
                  should be called. I think you’re looking out for his best interest. And
                  you stated on the record that from what you tell me is true, and I’m
                  sure you checked it, that it wouldn’t do anything but put in the jury’s
                  mind a second time the times that these arrest [sic] occurred. It
                  would certainly seem to this Court that it would be to the defendant,
                  so.

                  [PROSECUTOR]: Along that line, your Honor, if it would help out,
                  we can make an exhibit that will not go to the jury, obviously, of the
                  record that I have which basically substantiate[s] what [trial counsel]
                  is saying. The times falling exactly with ours, with what our
                  witnesses have said.

                  THE COURT: Do you want to do that, [trial counsel]?

                  [TRIAL COUNSEL]: Yes, I would like to have that as an exhibit.

                  THE COURT: Let’s make that part of the record and you can tell
                  your client we’ll do that and it can go up on appeal.

        This dispatch transcript, which was introduced as an exhibit to the post-conviction hearing,
describes Ms. Voyles’s attacker as a male black in his teens or early twenties, wearing a dark gray
hooded sweatshirt and blue jeans and armed with a pistol of unknown caliber, and Ms. Hanna’s
attacker as a male black wearing a dark-colored hooded sweatshirt and armed with a gun. Despite
the post-conviction court’s observation that the photograph taken of the petitioner at the time of his
arrest shows he was dressed in similar clothing,1 the petitioner repeatedly cited the differences
between the descriptions of the perpetrator and his appearance as evidence that would have proved
his innocence. He also cited the above-quoted interaction as evidence that the trial judge, the
prosecutor, and trial counsel conspired to prevent the evidence from going to the jury.




         1
          The photograph taken at the time of his arrest shows the petitioner dressed in a medium to dark blue hooded
sweatshirt, dark gray jacket, and gray jeans.

                                                        -7-
       The petitioner testified he and trial counsel discussed the events of April 5, 1994, and he
informed counsel of how Officer Harrell had “set [him] up.” When asked if trial counsel reviewed
with him the type of questions he would be asked if he testified at trial, the petitioner replied:

                         No. He told me, he basically told me in trial that if I testified in
                  my own defense, that I was going to be found guilty because based on
                  my past record. That’s why when I did decide to take the stand and
                  testify in my behalf and told the jury, I let them know that I did have
                  a past record but don’t hold it against me. That’s the only reason why
                  I was kind of reluctant about taking the stand in my own defense.
                  When he told me that, my past record was going to get me convicted,
                  I believed it. But when he refused to call that dispatcher on the stand
                  to assist me, that’s when I realized that I had to do something because
                  he wasn’t trying to do nothing for me.

         The post-conviction court continued the evidentiary hearing from September 26, 2002, until
October 29, 2002, to allow the petitioner time to subpoena witnesses he insisted were necessary to
prove his allegations. At the October date, the assistant district attorney who prosecuted the case
testified he provided open file discovery to trial counsel. He said he would have liked for the jury
to have seen the dispatch transcript, but did not seek to have it introduced as a trial exhibit because
he thought it was inadmissible hearsay. Antoine Thompson testified the petitioner’s trial counsel
never interviewed him prior to trial, but acknowledged he testified freely at trial and had no new
information to add. Sergeant J. D. Simon and Lieutenant Dana Stine, two of the Memphis police
officers involved in the petitioner’s arrest, testified they turned in their paperwork in connection with
the case and therefore no longer had any records of the petitioner’s arrest.2 The petitioner also
sought to call the victim, Ms. Voyles, as a witness at the evidentiary hearing, stating that he needed
her testimony to prove she falsely accused him of the crime, but the post-conviction court denied the
request.

        In its written findings of fact and conclusions of law, the post-conviction court found, inter
alia, that counsel’s determinations not to impeach the victims with their preliminary hearing
testimony or to introduce the fingerprint or dispatch tape evidence amounted to tactical decisions
based on an objectively reasonable trial strategy; that counsel was unreasonable for refusing to assist
the petitioner’s trial testimony; and that the petitioner had failed to show that counsel’s deficiency
in assisting his testimony prejudiced the outcome of his case. Accordingly, the court denied the
petition for post-conviction relief.

                                                  ANALYSIS

                                   I. Ineffective Assistance of Counsel


         2
         Post-conviction counsel introduced as an exhibit to the evidentiary hearing a letter from W illaine Hampton,
manager of “Memphis Police Communications,” stating that the dispatch records for 1994 were no longer available.

                                                        -8-
        The petitioner contends on appeal that trial counsel was ineffective for failing to assist him
with his trial testimony, failing to adequately prepare for trial, and failing to effectively cross-
examine witnesses. He further contends that the post-conviction court applied an incorrect standard
of proof to the prejudice prong of the Strickland test, requiring him to show clear and convincing
evidence, rather than a reasonable probability, that counsel’s failure to assist with his trial testimony
affected the outcome of his trial.

                             A. Post-Conviction Standard of Review

        The petitioner bears the burden of proving the allegations contained in his post-conviction
petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). However, review of
the post-conviction court’s application of the law to the facts of the case is de novo, with no
presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of
ineffective assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s findings of fact.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns, 6 S.W.3d at 461.

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

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

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

        The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). Furthermore, the
reviewing court must indulge a strong presumption that the conduct of counsel falls within the range
of reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may


                                                  -9-
not second-guess the tactical and strategic choices made by trial counsel unless those choices were
uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068.

                           B. Failure to Assist Petitioner’s Testimony

        The petitioner first indicated his desire to testify after both the State and the defense had
rested and counsel were discussing jury instructions with the court. Trial counsel, who was
obviously caught off-guard, advised the petitioner that there was “no way in the world [he could]
argue around [the petitioner’s] past record,” and the trial court, additionally, warned the petitioner
that the State could introduce his criminal record if he testified. When the petitioner continued to
express his desire to take the stand, the trial court ordered a recess for counsel to discuss the issue
with him further. At its conclusion, trial counsel informed the court that the petitioner remained
adamant about testifying:

               THE COURT: You all need some more time?

               [TRIAL COUNSEL]: No, your Honor. My client insists on
               testifying. I have advised him that if he does, he is on his own. I am
               not going to assist him in his testimony because I think the case has
               already been devastating enough, in my opinion, and this is going to
               make it even worse. He’s been advised, and we voir dired him, that
               these prior convictions of his can be used to impeach his credibility.
               The jury finds out that he has convictions for violent crimes, it is
               going to erase any doubt they may have in this case. So with that,
               having advised him that he shouldn’t do it, and against my advice, I
               am not going to assist him if he insists on testifying.

               THE COURT: All right. Well, of course, we don’t know what a jury
               is going to do. But it is your advice then that you’re still advising him
               not to testify?

               [TRIAL COUNSEL]: Yes, sir. I have so advised him.

               ....

               THE COURT: Well, this certainly does put the Court in a dilemma.
               Let me ask you -- stand up again, please, sir. Do you understand the
               jeopardy that you are putting yourself in by taking the stand? Your
               lawyer has advised you not to take the stand, and you went through


                                                 -10-
               this one other time and said you didn’t want to take the stand. And
               now you’ve changed your mind and say you do want to take the stand.
               And you are aware that several, if not all, of these prior convictions
               will be read into the record and could be detrimental to you even
               though the Court will charge and tell the jury that they should not
               consider them for any purpose whatsoever as far as a guilt or
               innocence is concerned. Have you understood what I just said?

               THE [PETITIONER]: Yes, sir.

               THE COURT: And do you still want to take the stand, do you?

               THE [PETITIONER]: Yes, sir.

         Thereafter, the petitioner took the stand, informed the jury he had a record, and began to
recite the details of his second degree murder conviction, stating it occurred when he was a juvenile
and in the company of another man who committed the crime. In the midst of his recital, the
following transpired:

               [PROSECUTOR]: Objection, your Honor. I would object to the
               statement being given. I would ask that this be in question and
               answer form.

               THE COURT: All right, sir, that is sustained. You’ll have to go
               ahead and give a statement, please, sir, and not ramble. Do you want
               to try and examine him, [trial counsel]?

               [TRIAL COUNSEL]: Can we approach?

               THE COURT: Yes, sir.

        At the bench hearing, trial counsel explained his reasons for not participating in the
petitioner’s testimony by questioning him:

               [TRIAL COUNSEL]: I don’t have any idea what is he [sic] going to
               say. I mean, I know what to ask him. And, again, it is totally
               contrary to my advice for him to even be sitting there. And I just
               don’t feel that I can assist him.
                      I mean, if he wants to make a statement, if he says something
               that is objectionable, [the prosecutor] is going to object and the jury
               can be instructed to disregard it.




                                                -11-
               THE COURT: That is going to be difficult to get him into a question
               and answer. He doesn’t know how to do that.

               [TRIAL COUNSEL]: I just can’t help him. I’m not going to help
               him.

        The petitioner contends counsel’s refusal to participate in his testimony constituted a
deficiency in representation which prejudiced the outcome of his case. Specifically, he argues that,
because he “was not prepared for and aided in his presentation of proof, he went into several areas
that were not relevant to the case, and actually prejudicial to the defense theory.” As an example,
he cites his testimony about “several old convictions,” which he asserts would not have been
admissible to impeach his testimony. With respect to this claim, the post-conviction court concluded
as follows:

                      Trial counsel’s failure to assist the Petitioner during testimony
               does [not] fall to the level of ineffective assistance of counsel. Under
               the circumstances, it was unreasonable for counsel not to assist his
               client’s decision, albeit late and unforeseen, to testify. However
               deficient trial counsel’s performance was, it did not however,
               prejudice the Petitioner’s case. According to the transcripts, the
               Petitioner did not prove beyond clear and convincing evidence that
               [trial counsel’s] performance denied the [petitioner] a fair trial.

                     Furthermore, the Petitioner was allowed to testify more, without
               the help of [trial counsel], than if [trial counsel] would have assisted
               him. The Petitioner had his chance to tell the jury his side of the
               story, yet the jury still found him guilty. It was the [petitioner’s]
               decision to testify and he was allowed to do so. Petitioner has failed
               to prove both prongs of Strickland.

         Initially, we disagree with the petitioner’s claim that the post-conviction court applied an
incorrect standard of proof in utilizing the prejudice prong of the Strickland test. Despite the
language the court used in the portion of its order quoted above, elsewhere in the order it correctly
stated that the post-conviction petitioner bears the burden of proving “the allegations of fact in his
petition by clear and convincing evidence” (emphasis added). Furthermore, it correctly stated that
a petitioner who alleges ineffective assistance of counsel bears the burden of showing that counsel’s
performance fell below an objective standard of reasonableness and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different” (emphasis added and internal quotations omitted).

       The petitioner’s direct testimony covers more than twenty-three pages of the trial transcript
and was little encumbered by the laws of evidence. During his testimony, the petitioner vehemently
denied his involvement in the crime, explained his whereabouts and actions on the night in question,


                                                -12-
and offered his version of the facts underlying his prior convictions for second degree murder and
possession of cocaine with the intent to sell. Although he asserts on appeal that the prior convictions
he brought up would not have been admissible to impeach his credibility, the record clearly reflects
that the trial court had ruled the murder and drug convictions admissible for impeachment purposes
and that the petitioner was aware of that fact before he began his testimony. Therefore, trial
counsel’s assistance with the testimony would not have prevented the damaging information about
the prior convictions from reaching the jury. Moreover, the State had a compelling case even
without evidence of the prior convictions, presenting proof that the petitioner was arrested in the area
shortly after the report of the crimes, essentially matched the descriptions of the attacker, and was
identified by each victim as her assailant.

         Additionally, by the timing of his demand to testify, the petitioner put trial counsel in an
untenable position. Because of the petitioner’s previous and continuing decision not to testify,
counsel had not prepared him for direct or cross-examination. The nature of the charges and proof
against the petitioner would have required counsel to spend a substantial amount of time preparing
the petitioner’s testimony. It is clear from his unaided trial testimony that the petitioner had a lot he
wanted to say and would have been difficult to restrain. Given all of this, and the fact the jury was
expecting to hear final arguments after the recess rather than taking a very lengthy recess followed
by the petitioner’s testimony, we conclude that the petitioner’s surprise eleventh hour demand to
testify simply was unreasonable.

         Under these circumstances, we have no hesitation in concluding that the petitioner has failed
to show a reasonable probability that counsel’s failure to direct his testimony affected the outcome
of his trial.

         Because a failure to establish either prong of the Strickland test results in a failure to establish
the claim, we need not consider whether counsel was deficient for failing to direct the petitioner’s
testimony. However, without making a determination on this issue, we note that counsel was an
experienced defense attorney who, as is very clear from the record, was well prepared for trial. We
note, further, that counsel provided a consistent explanation for his decision not to assist the
petitioner at trial and at the evidentiary hearing, stating that he had no idea what the petitioner was
going to say and believed asking questions would not have helped and might have compounded the
damage caused by the testimony. It is hard to view counsel’s failure to rehearse the testimony or
prepare a list of questions as unreasonable, given the petitioner’s continual expression of his intent
not to testify. Although counsel simply might have gone to such fallback questions for the petitioner
as “What happened next?”, we cannot conclude that this procedure would have resulted in a different
verdict.

                                    B. Failure to Prepare for Trial

         The petitioner next contends that trial counsel failed to familiarize himself with the
preliminary hearing testimony, which rendered him unprepared to adequately impeach the victims’
trial testimony. He further contends that trial counsel committed several other errors, including his


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failure to introduce the fingerprint or dispatch evidence and to point out discrepancies between the
descriptions of the attacker and his appearance at the time of his arrest, which cumulatively
amounted to ineffective assistance of counsel.

        The petitioner bases his assertion that counsel was unfamiliar with the preliminary hearing
transcript on the following exchange that occurred during the petitioner’s cross-examination
testimony:

               Q. And you think the two victims in the courtroom are involved in
               this racially motivated conspiracy?

               A.    Yes, sir. I have right here in this preliminary hearing –

                     [TRIAL COUNSEL]: I haven’t even looked at that.

               A.    -- my preliminary hearing transcript from the lady –

                    [PROSECUTOR]: Objection. I would - - this is hearsay. I
               object to it.

                    THE COURT: That is sustained. You can’t mention that, sir,
               what happened.

        However, at the evidentiary hearing, trial counsel expressed his confidence that he had, in
fact, reviewed the preliminary hearing transcript and testified he did not know what he had meant
by the above statement. The post-conviction court accredited trial counsel’s testimony on this issue,
finding that counsel was fully prepared and that his decisions with respect to the dispatch transcript
and fingerprint evidence were based on sound trial strategy. The record does not preponderate
against the post-conviction court’s findings. Accordingly, we conclude that the petitioner is not
entitled to post-conviction relief based on his claim of ineffective assistance of counsel.

                     II. Denial of Petitioner’s Request to Proceed Pro Se

       The petitioner contends the post-conviction court violated his Sixth Amendment right to self-
representation, thereby committing reversible error, by denying his repeated requests to represent
himself at the post-conviction proceedings. We respectfully disagree.

        The constitutional right to self-representation, afforded by both the Sixth Amendment of the
United States Constitution and Article I, section 9 of the Tennessee Constitution, is not applicable
to post-conviction proceedings. Cole v. State, 798 S.W.2d 261, 263 (Tenn. Crim. App. 1990).
However, a post-conviction petitioner has a common law right to self-representation, implicitly
established by Tennessee Supreme Court Rule 13. Id. This common law right is not fundamental,
and a post-conviction court may therefore appoint counsel to represent a petitioner if necessary for


                                                -14-
the proper administration of justice. Charles William Young v. State, No. M2002-01815-CCA-R3-
PC, 2004 WL 305790, at *4 (Tenn. Crim. App. Feb. 18, 2004) (citations omitted).

        The record reveals that the petitioner initially sought substitution of counsel rather than the
right to proceed pro se, stating at an August 15, 2002, hearing that his appointed counsel was not
including all the claims he wanted raised and that he therefore wanted “someone who [was] more
concerned about [his] situation.” The post-conviction court denied the petitioner’s request for
substitute counsel but granted his subsequent request to represent himself. However, on August 26,
2002, the post-conviction court reversed itself, explaining to the petitioner that it was going to
require post-conviction counsel to continue to represent him but would also allow the petitioner to
present the claims he wanted raised. The petitioner protested and, in so doing, revealed that his real
desire continued to be for the substitution of counsel and/or a delay in the proceedings, rather than
the right to self-representation:

               [THE PETITIONER]: But I can’t do it -- I can’t represent myself. I
               mean, I don’t want this -- I don’t trust, first of all, [trial court], and –

               THE COURT: You’ll have the opportunity to present whatever other
               issues you have. [Post-conviction counsel] I’m sure will cover that
               procedure with you.

               [THE PETITIONER]: And his amended petition is incomplete.

               THE COURT: As I said, you will have the right to present any other
               issues that you -- that are relevant to this matter. And [post-
               conviction counsel] will cover the procedure for doing so with you,
               but we will proceed on the date that I’ve given. You will have from
               now -- if there are any additional things you want to bring with you,
               you have from now until the date that we’ve given to have those
               matters here and we’ll proceed.

        At the evidentiary hearing, the post-conviction court allowed the petitioner to raise the claims
his counsel had deemed to be without merit, to make his own assertions and argument, and, with the
exception of the victim, to call the witnesses he asserted were essential to prove his allegations.
Thus, we agree with the State that there were no claims or evidence that the petitioner was prevented
from raising by the post-conviction court’s denial of his requests to represent himself. We, therefore,
conclude that this issue is without merit.




                                                  -15-
                                        CONCLUSION

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


                                                     ___________________________________
                                                     ALAN E. GLENN, JUDGE




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