         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 4, 2005

                 DEDRICK D. CHISM v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Henry County
                            No. 13668    Julian P. Guinn, Judge



                  No. W2005-00427-CCA-R3-PC - Filed November 7, 2005


This is an appeal as of right from a denial of post-conviction relief. The Defendant, Dedrick Chism,
was convicted by jury verdict of two counts of sale of more than one-half gram of cocaine, a Class
B felony. This Court upheld the Defendant’s convictions on direct appeal. See State v. Dedrick
Dewayne Chism, No. W2002-01887-CCA-R3-CD, 2003 WL 23100335 (Tenn. Crim. App., Jackson,
Dec. 23, 2003). The Defendant subsequently filed a petition for post-conviction relief, which was
denied. The Defendant now appeals to this Court arguing the single issue of ineffective assistance
of trial counsel. We affirm the post-conviction court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN , JJ., joined.

Gary J. Swayne, Paris, Tennessee, for the appellant, Dedrick D. Chism.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION


                                              FACTS

        The events that led to the convictions at issue in this case were summarized by this Court on
direct appeal as follows:

              This case relates to the defendant’s selling crack cocaine to an undercover
       informant in 2001. Sylvester Island testified that in the spring of 2001, he was an
       undercover informant for the Twenty-Fourth Judicial District Drug Task Force and
worked with Agent Mark Anderson on drug purchases. He said that he met the
defendant in January 2001 and that they became friends. He said that the defendant
owned a car detail shop and that he began visiting the shop to drink beer with the
defendant and other people. He said that on March 21, 2001, the defendant went to
Memphis to buy drugs. He said he telephoned Agent Anderson and told him about
the defendant’s drug buy. He said that he and Agent Anderson met at a cemetery, that
Agent Anderson searched his car and his person, and that Agent Anderson installed
video equipment in his car. He said that Agent Anderson gave him two hundred
dollars to buy drugs and that he went to the defendant’s shop. He said that he told the
defendant what he wanted, that the defendant gave him three large crack cocaine
rocks, and that he gave the defendant two hundred dollars. He said he returned to the
cemetery and met Agent Anderson. The state showed Island a plastic bag containing
three crack rocks and he identified them as the drugs he bought from the defendant
on March 21.

        Island testified that on April 12, the defendant told him that the defendant was
going to Memphis to purchase more drugs. He said he telephoned Agent Anderson
and met with him on April 13 at the cemetery. He said Agent Anderson searched him
and his car and installed a video camera in the car. He said he went to the detail shop
and bought one hundred dollars worth of crack cocaine from the defendant. He said
that he and Agent Anderson met back at the cemetery and that when Agent Anderson
checked the video camera, they discovered that it had not been working. The state
showed Island a second plastic bag containing crack cocaine, and he identified it as
the cocaine he bought from the defendant on April 13. He said the task force paid
him one hundred dollars every time he made an undercover drug buy.

        On cross-examination, Island testified that during the second drug buy, a man
named Robert was cleaning cars at the defendant’s shop. He acknowledged that at
a preliminary hearing in an unrelated drug case, he testified that he reported to Agents
Lester McCaleb and Mark Anderson when in fact Agent McCaleb had died seven
weeks earlier. He said he also got paid one hundred dollars every time he testified in
a case.

        Mark Eric Dunlap, a forensic scientist with the Tennessee Bureau of
Investigation (TBI), testified that he performed analysis on two bags of evidence
received in the TBI laboratory. He said that the substance in the first bag was four
grams of cocaine and that the substance in the second bag was 1.6 grams of cocaine.

       Agent Mark Anderson of the Twenty Fourth Judicial District Drug Task
Force testified that in the spring of 2001, he was conducting an undercover drug
operation and using Sylvester Island as an informant. He said that on March 21,
2001, he and Island met at a cemetery and that he did a pat-down of Island’s person
and searched his car. He said he installed video equipment in the trunk and gave


                                          -2-
         Island two hundred dollars in order to buy drugs. He said that Island also was
         wearing a body wire, that the wire transmitted to a radio in Agent Anderson’s car,
         and that he stayed within “ear distance” of Island at all times. He said that Island was
         gone for about forty-five minutes and that Island returned to the cemetery and gave
         him crack cocaine. He said that they put the cocaine in a plastic bag and that both
         initialed the bag. He said that he searched Island and Island’s car again and that he
         paid Island one hundred dollars. He said that this same set of events happened again
         on April 13. He said that the surveillance equipment malfunctioned during both of
         Island’s drug buys. He said, though, that Island had participated in sixty-two other
         drug cases and had worked as an informant for other state and federal agencies and
         that he had no reason to doubt Island’s credibility.

                  On cross-examination, Agent Anderson testified that an affidavit he signed
         alleged that Island bought one-half gram of cocaine from the defendant on March 21
         when the amount was actually four grams. He said he could not explain the
         discrepancy in the amounts other than he made a mistake. He said that he tried to
         audio- and videotape all drug buys but that the equipment malfunctioned in this case.
         He said that he did not see Island purchase drugs from the defendant and that the only
         evidence tying the defendant to this case was Island’s testimony. He acknowledged
         that in his police report, he stated that both of the drug buys were captured on audio-
         and videotape. He said that the Friday before trial, he gave the defense Robert
         Williams’ full name. He said he could not give the defense Mr. Williams’ address
         and phone number because he did not know them. He said that Island would be paid
         one hundred dollars for testifying against the defendant.

                 The jury convicted the defendant of two counts of selling a Schedule II
         controlled substance.

Chism, 2003 WL 23100335, at *1-2.

         In December of 2003, this Court affirmed the Defendant’s convictions on direct appeal. See
id. at *6. The Petitioner filed a pro se petition for post-conviction relief in June of 2004, alleging
several issues including ineffective assistance of counsel. The trial court issued a preliminary order
finding a colorable claim existed, and appointed counsel to represent the Defendant. In September
of 2004, an evidentiary hearing was conducted during which the Defendant and his trial counsel
testified.1




         1
          This hearing was initially delayed as the defense was granted a continuance to obtain a “material witness.”
However, on the day of the rescheduled hearing, the defense stated that it was unable to find this witness and elected to
proceed with the hearing. The Defendant and his trial counsel were the only witnesses who testified at the post-
conviction hearing.

                                                          -3-
         At the post-conviction hearing, Counsel,2 the Defendant’s trial counsel, testified that he had
been practicing for eighteen years, and had handled “several hundred” criminal cases. Counsel stated
that he represented the Defendant both at the preliminary hearing in general sessions court and at
trial. In preparation for trial, Counsel consulted with the Defendant multiple times, met with all of
the State’s witnesses, interviewed potential defense witnesses, and fully exercised his “open
discovery” rights.3

        Counsel testified that his primary defense strategy at trial was to impeach the credibility of
the State’s primary witness, Mr. Sylvester Island, based on inconsistent statements this witness had
made in various court proceedings. According to Counsel, Mr. Sylvester’s testimony at the
preliminary hearing was suspect. His testimony was contradicted on some points by a police officer
who also testified at the preliminary hearing.4 Counsel stated that he entered the preliminary hearing
transcript into the record at the Defendant’s trial, and believed his defense strategy of impeaching
Mr. Island’s testimony was sound.

        When Counsel was asked why he did not subpoena the “Robert” Mr. Island testified he met
at the Defendant’s place of business during the second drug sale, Counsel stated that he recognized
this “Robert” to be a potential witness, but did not know his last name, and the information his client
gave him was incorrect.5 Counsel further stated that he tried to obtain information on Robert from
the State, but he was not given the man’s full identity until only days before the trial, when it was
too late to subpoena him.

        Counsel was asked why he did not subpoena Officer Jacque Bass,6 who could have
impeached Mr. Island’s testimony concerning a photographic lineup. Counsel replied that he
intended to cross-examine Officer Bass, whom the State listed as a witness, but the State did not call
Officer Bass at the Defendant’s trial. Counsel admitted that it was a mistake to not subpoena Officer

         2
          The Defendant’s trial counsel, against whom the Defendant’s allegations of ineffective assistance of counsel
were levied, will be referred to only as “Counsel” throughout this opinion.

         3
           The local District Attorney’s office had a policy of allowing the defense counsel to photo copy its entire case
file, including, occasionally, notes that could rightly be withheld as work product.

         4
          According to the record, Mr. Island testified at the preliminary hearing that he was shown a photographic
lineup consisting of “blacks, whites, and several others . . . even a German.” However, Officer Jacque Bass testified that
he showed Mr. Island a photographic lineup that contained pictures of only black individuals.

         5
            An individual first identified only as “Robert” was, according to M r. Island, working in the Defendant’s place
of business and involved in the second drug sale. The Defendant thought Mr. Island was referring to Robert W illiams.
However, the Robert in question was later identified as Robert Kendall. The State did not call M r. Kendall as a witness
at trial. At the post-conviction hearing, the Defendant alleged that Counsel should have been able to discover the identity
of this witness because he was arrested and incarcerated at the same time as the Defendant. However, Counsel stated
that he checked and found no “Robert” incarcerated. The Defendant maintained at the post-conviction hearing that he
never knew Mr. Kendall, and never employed him at his business as Mr. Island testified.

         6
             Officer Bass is alternately identified as “Jock” and “Jack” Bass in the record.

                                                             -4-
Bass or someone else involved in the photographic lineup procedure. However, Counsel also stated
that much of the testimony he hoped to elicit directly from Officer Bass he was able to raise at the
Defendant’s trial anyway during his cross-examination of Mr. Island.

       When asked why he did not subpoena Steve Russell, Counsel stated that he made the tactical
decision that Mr. Russell’s potential testimony would not be helpful to the Defendant’s case.7

         Counsel also testified that he carefully consulted with the Defendant about the benefits and
detriments of testifying, including informing the Defendant that if he did testify he would open the
door to his prior record, which the State would likely use to impeach his testimony. Counsel stated
that the Defendant debated what to do for some time, but “on the day of the trial, he agreed he would
not testify.” Counsel further stated that the Defendant never changed his mind or informed him that
he wanted to testify. Additionally, Counsel testified that while he was assured off the record of the
Defendant’s desire not to testify, he was not aware of the Momon requirement to place this election
on the record.

         The Defendant testified at the post-conviction hearing that while he had an extensive prior
criminal record, he had always before pled guilty and therefore was not familiar with his right to
testify at trial. He further stated that he informed Counsel that he wanted to testify, but was never
told he had the right to do so. The Defendant also stated that he informed his trial counsel that Mr.
Steve Russell was not the DJ at a the party Mr. Island mentioned in his testimony, and did not know
why Counsel failed to call him as a witness.

       On cross-examination, the Defendant admitted that during his prior appearances before
various courts he was informed of his right to take the stand and testify. He also admitted that Mr.
Russell had an extensive criminal record himself, thereby rendering suspect any testimony he may
have given.

       In January of 2005, the trial court issued an order denying the Defendant’s petition for post-
conviction relief. This appeal followed.

                                              ANALYSIS
         The Defendant alleges that his trial attorney was constitutionally deficient in two respects
related to his jury trial: (1) Counsel was inadequate in his investigation and preparation for trial, and
(2) Counsel failed to properly follow the Momon guidelines for ensuring the Defendant was advised
of his right to testify. The Defendant further argues that these deficiencies led to actual prejudice
and therefore he is entitled to post-conviction relief.



         7
          According to the record, M r. Island stated during his preliminary hearing testimony that he was introduced to
the Defendant by M r. Steve Russell, who was a DJ at a party they both attended. The Defendant argued at the post-
conviction hearing that Mr. Russell was in fact not the DJ at this party, and therefore his trial counsel erred in not calling
Mr. Russell as a defense witness to impeach Mr. Island’s testimony on this point.

                                                             -5-
I. Standard of Review
        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, 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 judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

II. Ineffective Assistance of Counsel
         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “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; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This


                                                  -6-
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

        A. Inadequate Investigation and Preparation
        The Defendant asserts that the simple fact that Counsel did not subpoena any defense
witnesses is strong evidence of inadequate investigation and preparation. Specifically, the Defendant
argues that Counsel should have called Officer Bass, Mr. Steve Russell, and Mr. Robert Kendall to
impeach Mr. Island’s testimony. The Defendant argues that his trial counsel’s failure to call these
witnesses amounted to deficient representation and prejudiced him at trial.

        We begin our analysis by noting the findings the trial court made as to the Defendant’s
assertion of deficient investigation and preparation:

                The allegation that trial counsel failed to properly prepare for trial and
        conduct a proper investigation is not supported by the evidence. More importantly
        and determinative, there is no evidence that would indicate that a “more proper” or
        even a different type of trial preparation or investigation could have brought about
        a different result in the jury’s verdict. The allegation that trial counsel failed to
        present key witnesses falls into the same category. No witnesses were produced by
        the petitioner in this proceeding. There is no evidence to support what other
        witnesses could have added to the trial that would have affected its outcome.

The evidence does not preponderate against the findings of the trial court. We agree with the
conclusion that no prejudice has been shown.

         Additionally, as the Defendant noted in his appellate brief, the burden an appellant must meet
upon alleging that counsel failed to discover, interview or present witnesses in support of his or her
defense is the presentation of these witnesses “at the evidentiary hearing.” Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990). In Black, this Court stated that a defendant petitioning
for post-conviction relief based on his trial counsel’s failure to call a known witness is “not entitled”
to such relief “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. at 758. In this case, the Defendant failed to present at his post-conviction evidentiary hearing any
of the witnesses allegedly overlooked by Counsel.

        The Defendant has failed to point to any evidence which would overcome the findings of the
post-conviction court that his trial counsel was not deficient in his investigation or preparation for
trial. Moreover, we find the Defendant failed to present any of the witnesses at his post-conviction
hearing that he alleges his counsel should have called at trial. As stated above, this Court is not


                                                  -7-
allowed to “speculate or guess on the question of whether further investigation would have revealed
a material witness or what a material witness’s testimony might have been if introduced by defense
counsel.” Black, 794 S.W.2d at 757. Thus, applying an objective standard of reasonableness, we
find no deficient representation based on the evidence before us on appeal. We also find the
Defendant has failed to demonstrate that his trial counsel’s investigation or trial preparation
prejudiced him in any way.

        B. Failure to follow the Momon guidelines
        The Defendant also asserts that his trial counsel was ineffective for failing to apprise him of
his right to testify at trial and ensuring that he knowingly, intelligently and voluntarily waived this
right by complying with the guidelines in Momon v. State, 18 S.W.3d 152 (Tenn. 1999). While
disputed by Counsel, the Defendant also asserts that he wanted to take the stand and testify. He
stated that he so informed his trial counsel, but was nonetheless prevented from testifying.
Defendant notes that Counsel himself stated at the post-conviction hearing that he was unaware of
the Momon requirements. Therefore, the Defendant requests this Court to declare the omission of
the Momon colloquy in his case per se deficient representation.8 The Defendant further argues that
he was prejudiced by his trial counsel’s failure to follow the Momon guidelines. We disagree.

        In Momon, the Tennessee Supreme Court held that the right of a defendant to testify on his
own behalf is a fundamental constitutional right that may only be waived personally by the
defendant. To ensure that a defendant’s right to testify has indeed been personally waived, the court
adopted procedural guidelines that call for the defense counsel to request a jury-out hearing to
demonstrate that a defendant’s waiver of the right to testify has been knowingly, intelligently, and
voluntarily made. See Momon, 18 S.W.3d at 162-63. However, our supreme court also expressly
stated:

        The procedures are prophylactic measures which are not themselves constitutionally
        required. As such, the procedures adopted herein do not establish a new
        constitutional rule which must be retroactively applied . . . . [M]ere failure to follow
        these guidelines will not in and of itself support a claim for deprivation of the
        constitutional right to testify if there is evidence in the record to establish that the
        right was otherwise personally waived by the defendant.

Id. at 163.

       Significantly, the record in the present case does contain evidence that the Defendant did
indeed personally waive his right to testify. After conducting an evidentiary hearing, the post-
conviction court made the following findings:




        8
         The State seems to concede that the omission of the Momon colloquy did amount to deficient representation.
On appeal, the State argues only that while the omission was error, it was harmless error.

                                                       -8-
                  Lastly petitioner contends he was denied the right to testify. Quite simply
         stated, this allegation is untrue. That trial counsel elected not to follow the
         procedural guidelines of Monon [sic] vs State, 18 SW3rd 152 (Tenn. 1999), does not
         justify the setting aside of the verdict in this case. There is more than ample evidence
         that the trial counsel discussed the advantages and disadvantages of testifying with
         the petitioner on more than one occasion prior to trial and that the petitioner
         knowingly and intelligently made the decision to not take the stand. The wisdom of
         this decision becomes quickly apparent upon reviewing the petitioner’s criminal
         history. Interestingly, petitioner made the decision to not testify before the trial
         commenced. A recess was granted during the trial following the close of the state’s
         proof to allow trial counsel to confer and confirm that the petitioner had not changed
         his mind.

                This court concludes there is nothing in the record that even remotely
         suggests an abridgment of any right guaranteed the petitioner by the constitutions of
         the United States of America or the State of Tennessee.

         As noted by the post-conviction court, there is ample evidence that the Defendant did
personally waive his right to testify. The Defendant’s trial counsel, whose testimony the court
accredited, testified at the post-conviction hearing that he conferred with the Defendant prior to trial,
informed him of his rights, and the Defendant elected not to testify. The post-conviction court judge,
who also presided over the Defendant’s trial, noted that Counsel requested a recess to again confirm
that the Defendant had not changed his mind about testifying at trial. Thus, the failure to conduct
a full jury-out Momon colloquy in this case, while error, was procedural error of the sort that “will
not in and of itself support a claim for deprivation of the constitutional right to testify.” Momon, 18
S.W.3d at 163. Counsel’s error does not gain the Defendant post-conviction relief on the ground of
ineffective assistance of counsel.9

         The Defendant has failed to demonstrate that his constitutional right to testify was abridged
by his trial counsel’s omission of a Momon colloquy. Accordingly, the Defendant has failed to prove
by clear and convincing evidence that his counsel’s representation fell outside the range of
reasonable professional assistance. Because we find that the Defendant’s representation was not
deficient, we need not address the Strickland prejudice prong. This issue is without merit.

                                         CONCLUSION
         The Defendant has failed to demonstrate that he received the ineffective assistance of counsel
at trial. We affirm the judgment of the court denying post-conviction relief.



         9
            The free-standing claim of a Momon violation has been waived because it was not presented to the trial court
nor raised on direct appeal. See Tenn. Code Ann. § 40-30-106(g). Accordingly, we address the Momon issue only as
it relates to the Defendant’s ineffective assistance of counsel claim. See Mario Deangalo Thomas v. State, No. W 2004-
01704-CCA-R3-PC, 2005 W L 1669898, at * 2 (Tenn. Crim. App., Jackson, July 18, 2005).

                                                          -9-
       ___________________________________
       DAVID H. WELLES, JUDGE




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