                                                                                       01/04/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                       Assigned on Briefs December 4, 2018

                  MARLO DAVIS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                     No. 07-01813     W. Mark Ward, Judge


                           No. W2017-02127-CCA-R3-PC


The Petitioner, Marlo Davis, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief from his second degree murder and reckless homicide
convictions. The Petitioner contends that he received the ineffective assistance of
counsel. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT
W. WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jessica L. Gillentine (on appeal), Bartlett, Tennessee, and Seth Seagraves (at the post-
conviction hearing), Memphis, Tennessee, for the appellant, Marlo Davis.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Holly Palmer,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

       This case arises from the 2006 homicide of Quincy Jones, for which the Petitioner
and his codefendant were indicted for first degree premeditated murder and first degree
felony murder. See State v. Marlo Davis, No. W2011-01548-CCA-CD, 2013 WL
2297131 (Tenn. Crim. App. May 21, 2013). The Petitioner was found guilty of second
degree murder and reckless homicide at the April 2011 jury trial. The trial court merged
the Petitioner’s reckless homicide conviction into his second degree murder conviction
and sentenced the Petitioner to forty years’ incarceration. The Petitioner appealed his
convictions and sentence, and this court summarized the facts as follows:
       On the date in question, November 9, 2006, the victim was
refurbishing one of his rental properties located on the corner of Ely and
Essex Streets in Memphis. He drove a Range Rover, which was parked
behind the property at the time of the shooting. He died from a gunshot
wound to the abdomen.

       Laraine Bobo lived diagonally across the street from the victim’s
rental property. Ms. Bobo testified that, between 3:00 and 3:15 p.m. that
day, she was sitting in her driveway waiting for her grandchildren,
Jarcquise and Melnitra Spencer, and nephews, David and Demetrius
Holloway, to come home from school. As she was waiting, Ms. Bobo
observed Clarence “Dusty” Bailey knock on the victim’s front door.
According to Ms. Bobo, Bailey left when no one answered the door.

       Sometime thereafter, Ms. Bobo saw the co-defendant, whom she
recognized, standing outside the church located across the street from her
house and the victim’s house. According to Ms. Bobo, the co-defendant
was standing next to a telephone pole with another person, but she could
not see the other person’s face because he was wearing a jacket with the
hood pulled up.

       Ms. Bobo testified that she saw Spencer and Holloway, who were
ten years old at the time of the shooting, walking together down the street
towards her house. As the children were walking, Ms. Bobo heard some
people arguing, and although she could not see the argument, she became
fearful and yelled at the children to run home. She heard a gunshot as the
children were running. After getting the children safely inside, Ms. Bobo
saw the victim walking towards her house. Ms. Bobo went to assist the
victim, who had been shot in the stomach, and telephoned 9-1-1. She held
a towel on the wound, but by the time officers arrived on the scene, the
victim was unresponsive.

      Ms. Bobo later identified the co-defendant and Bailey from
photographic displays. She also gave multiple statements to the police.

       Camry Richardson, age fifteen at the time of the shooting, was
walking her cousin home from school that day sometime between 3:15 and
3:20 p.m. when she saw the victim speaking with two African-American
males. One of the men was wearing a hooded jacket. She could not
identify either of them. Richardson was walking towards her house when
she heard a gunshot. She saw the victim hunched over and holding his
stomach; the other two men were running into an alleyway or shortcut of
some kind leading to Miller Street.

                                    -2-
       Ella Renee Conyers testified that she shared a parking area with the
victim behind their respective homes. On November 9, 2006, she was
driving down Essex Street towards her house on Miller Street. As she
stopped at the stop sign on the corner of Ely and Essex Streets, she
observed a man looking in the front door of the victim’s property. She
continued to drive and saw a second man crouched behind another vehicle
belonging to her and parked at her residence. According to Conyers, the
man, realizing she was looking at him, stood up. She did not recognize
him. She then parked off Miller Street in front of her house and saw a third
man across the street from the church. Conyers said this man was watching
her as she parked her car. He was taller than the man crouched behind her
vehicle and was of medium build. She opined that both men were over
eighteen years of age. After parking her vehicle, Conyers first went inside
to check on her dog and then was going to check on the other vehicle when
she heard a gunshot. She went outside and learned that the victim had been
shot.

        Demetrius Holloway, who was fifteen years old at the time of trial,
testified that he was walking home from school with family members on
November 9, 2006. As he was walking with his cousin Spencer, he saw
two men sitting beside the church across the street from his aunt’s house.
According to Holloway, Spencer briefly shook hands with the men before
they continued on their route home. Holloway did not know the two men
but observed that one of the men was wearing a hooded sweatshirt. As they
were walking, Holloway saw the two men walk across the street to a third
man, and the three of them began to argue. Holloway testified that he saw
the man wearing the hooded sweatshirt pull out a gun and that, as he was
running to his aunt’s house, he heard a gunshot. Holloway said the third
man, who had been shot, then ran to his aunt’s driveway, holding his
stomach, and thereafter collapsed. Holloway testified that he did not see
where the two men went after the shooting.

      Clarence Bailey testified that around 2:30 or 3:00 p.m. on November
9, 2006, he was walking on Essex Street towards Ely Street looking for
some work to do. Bailey admitted that he was addicted to cocaine and
seeking money to purchase more cocaine. He further admitted that he had
been using cocaine earlier that day.

       As Bailey was walking, he encountered the [Petitioner] and co-
defendant on the sidewalk, both of whom he had known since they were
children. Bailey recalled that the [Petitioner] was wearing a hooded,
pullover jacket, but he could not remember if the [Petitioner] had the hood


                                    -3-
up over his head. After exchanging greetings with the two men, Bailey
continued walking through the neighborhood.

        Bailey saw the victim’s property and went and knocked on the front
door. No one answered. He left. After turning the corner onto Essex
Street, Bailey saw a white car drive past him, traveling at a slow rate of
speed. According to Bailey, the driver was watching something to the left
before turning and looking at Bailey “dead in [his] face.” As he continued
walking down Essex Street, Bailey saw the [Petitioner] crouched behind the
victim’s Range Rover and the co-defendant crouched behind the car parked
next to the Range Rover. Bailey kept walking and then heard a gunshot.
He turned around to see what was going on and saw the co-defendant walk
from behind the car in the direction of the commotion. Bailey then ran.

        Bailey later gave two statements to the police. According to Bailey,
he was truthful in both statements but omitted some information in the first
statement because he was reluctant to get involved. Bailey identified the
[Petitioner] from a photographic display as “one of the guys . . . stooped
behind the truck.” He also identified the co-defendant. Bailey said that his
police statements were consistent with his testimony.

        Jarcquise Spencer, who was fifteen years old at the time of trial,
testified that he had little recollection of the events of November 9, 2006,
recalling only that the victim collapsed in his grandmother’s front yard and
getting a towel to stop the bleeding. He further did not remember giving a
statement to the police, viewing photographic displays, or testifying at the
preliminary hearing in this matter.

       The recording of his statement was played in-court, and Spencer still
could not remember any of the details surround his testimony at that
hearing. He was able to confirm that it was his voice on the recording. The
recording was admitted as an exhibit.

        Spencer also examined his statement taken by Sergeant Anthony
Mullins at the police station several days after the shooting; however, such
examination was unhelpful in refreshing Spencer’s recollection about the
contents of the statement or the events of the shooting. Spencer was able to
identify his signature at the bottom of the statement next to his mother’s.
His statement was then read for the jury. In the statement, Spencer
identified the [Petitioner] as the shooter and stated that the [Petitioner] was
accompanied by his codefendant during the shooting. When asked if the
[Petitioner] said anything to the victim before firing upon him, Spencer said
the following:

                                     -4-
       Spencer: No, sir. I mean he was like, “Give it to me!”

       Sgt. Mullins: Did [the victim] say anything to [the Petitioner]?

       Spencer: Yes. He said, “No, don’t do me like this!” and he had his
       arms raised up (indicates this with both hands raised in a gesture of
       surrender or compliance).

       Sgt. Mullins: Did [the co-defendant] say anything to [the victim] or
       to [the Petitioner]?

       Spencer: No. He was just standing beside [the Petitioner].

Spencer also told Sgt. Mullins that the [Petitioner] was wearing a hooded
sweatshirt with the hood up but that he could still see his face.

       Sgt. Mullins also asked Spencer about previously viewing several
photographic displays and preparing a sketch of the scene in the statement.
Spencer confirmed that Sgt. Mullins had previously interviewed him at his
grandmother’s house and that he had positively identified several
individuals from photographic displays at that time. Additionally, Spencer
confirmed that, in this prior interview, he had also identified the locations
of various individuals on a crime scene diagram prepared by Sgt. Mullins.
The statement was admitted as an exhibit.

        At trial, Spencer was also shown the four photographic displays he
reviewed with Sgt. Mullins just following the shooting; however, Spencer
could not remember identifying anyone in those displays by the time of
trial. Spencer’s signature appeared on the “Advice to Witness Viewing
Photographic Display” form, along with his initials and handwritten
notations of positive identifications in the displays. Moreover, Spencer
confirmed that his initials and handwriting appeared on the displays; the
displays were also signed and dated with a time notation. In the displays,
Spencer identified Bailey as the man he saw walking; the [Petitioner] as the
man who pointed the gun at the victim; and the co-defendant as the man
accompanying the [Petitioner]. The advice form and displays were
admitted as exhibits.

       Additionally, the crime scene diagram, wherein Spencer identified
his, the victim’s, the [Petitioner’s], the co-defendant’s, and Bailey’s
locale[s] at the time of the shooting, was admitted as an exhibit. Spencer’s
signature appeared on the diagram, but at trial, he did not recall the sketch.


                                     -5-
               Neither the [Petitioner] nor his co-defendant presented any proof.

Id. at *1-4. This court affirmed the Petitioner’s convictions and sentence. The Petitioner
appealed, and our supreme court affirmed. State v. Davis, 466 S.W.3d 49 (Tenn. 2015).

       The Petitioner filed a pro se petition for post-conviction relief, and an amended
petition was filed by post-conviction counsel. The Petitioner raised multiple grounds of
ineffective assistance of counsel. However, the only issues the Petitioner raises on appeal
are whether he received the ineffective assistance of counsel because (1) trial counsel did
not call an expert witness to rebut Mr. Spencer’s testimony and (2) counsel failed to
ensure the Petitioner received a speedy trial. We limit our review to these issues.

       At the August 18, 2017 post-conviction hearing, the Petitioner testified that he was
indicted for first degree premeditated murder in 2007, that his trial was in 2011, and that
he was convicted of second degree murder and reckless homicide. The Petitioner said
that he was sentenced as a Range II offender and that he received the maximum forty-
year sentence.

         The Petitioner testified that he was incarcerated about five years while awaiting
trial, that he usually only saw trial counsel during court proceedings, and that he met with
a private investigator a couple of times. The Petitioner stated that counsel met with him
in the jail one or two times for about thirty minutes “at the most.” The Petitioner said
that his defense at the trial was that he was not at the scene during the incident and that he
was not guilty. The Petitioner stated that his defense was based on discrediting witness
testimony.

        The Petitioner testified that Jarcquise Spencer stated at the preliminary hearing he
saw the Petitioner shoot the victim.1 The Petitioner stated that Mr. Spencer testified at the
trial that he could not recall the incident, that the prosecutor claimed Mr. Spencer lied on
the stand because Mr. Spencer recalled the incident the week before the trial. The
Petitioner said that he did not think Mr. Spencer lied during the trial.

       The Petitioner testified that trial counsel hired an expert to discredit Mr. Spencer’s
testimony and that he believed counsel was going to call the expert to testify. The
Petitioner stated that the week before the trial, counsel said she was not going to call the
expert and that counsel did not cross-examine Mr. Spencer because Mr. Spencer said he
did not recall the incident. The Petitioner said that counsel represented him on appeal
and that counsel raised “some” issues relative to Mr. Spencer.



1
   The spelling of the witness’s name appears in the record as “Jarquez.” For consistency, we use the
spelling reflected in this court’s previous opinion.
                                                -6-
       The Petitioner testified that trial counsel had “abandoned him,” that counsel
should have met with him more before the trial, and that counsel should have cross-
examined Mr. Spencer. The Petitioner said that counsel withdrew after the Petitioner’s
convictions and sentence were affirmed on appeal and that he felt “abandoned.” The
Petitioner stated that counsel did not object during the State’s closing argument.

       On cross-examination, the Petitioner testified that he appeared in court many times
while awaiting trial and that trial counsel “sometimes” met with him at the courthouse.
The Petitioner stated that counsel decided not to call the expert to testify and that he
disagreed with counsel’s decision. The Petitioner did not recall a conversation with
counsel relative to whether the expert should testify. The Petitioner stated that counsel
should have cross-examined Mr. Spencer, that the Petitioner wrote questions he believed
counsel should have asked Mr. Spencer, and that the Petitioner did not recall the
questions. The Petitioner said that he was indicted for first degree premeditated murder
and first degree felony murder and that he could have received a life sentence if he were
convicted of those crimes.

      On redirect examination, the Petitioner testified that after the State rested its case,
he spoke with trial counsel and that counsel said she did not want to call the expert
witness. The Petitioner stated that he trusted counsel’s opinion at the time because she
was his attorney.

       Trial counsel testified that she was a solo practitioner and that she had practiced
law for twenty-four years. Counsel stated that she was death penalty qualified and that
she had represented clients in about fifteen or twenty murder cases. Counsel said that the
Petitioner had been represented by two previous attorneys, that each attorney withdrew,
and that she represented the Petitioner for about eighteen months. Counsel stated that the
Petitioner appeared in court about fifteen times and that she met with the Petitioner each
time. Counsel said that she visited the Petitioner in jail five or six times, that an
investigator was appointed, and that the investigator conducted interviews. Counsel
stated that she usually met with clients in jail for about one hour and that sometimes the
meetings were longer. Counsel said that during the meetings with the Petitioner, they
discussed the Petitioner’s case, possible defenses, and plea offers.

       Trial counsel testified that the investigator interviewed about ten or fifteen
witnesses, that she received a written memorandum relative to each interview, and that
she met with the investigator. Counsel stated that one of the Petitioner’s defenses was
that he was not present at the scene and that she tried to provide the jury with an
alternative person who committed the shooting. Counsel said that she tried to “cast the
light on Clarence Bailey,” that Mr. Bailey was arrested in Tennessee for a first degree
murder that occurred in Texas, and that Mr. Bailey was serving a life sentence at the time
of the trial. Counsel stated that Mr. Bailey testified for the State and that she presented
evidence of Mr. Bailey’s criminal history.

                                            -7-
        Trial counsel testified that she hired an identification expert and that the expert
was prepared to testify at the trial. Counsel stated that as the trial progressed, she
“determined . . . as a strategic matter that presenting [the expert] testimony” was not in
the Petitioner’s best interest. Counsel said that calling the expert would have drawn
attention to Mr. Spencer’s testimony and that Mr. Spencer testified that he could not
recall the incident. Counsel stated that “as a strategic decision as [the Petitioner’s]
attorney[,] I made a legal decision not to call” the expert. Counsel said that she discussed
her decision with the Petitioner and that she told the Petitioner it was not in his best
interest for the expert to testify. Counsel stated that the Petitioner appeared to agree with
her decision and that the Petitioner relied on her legal advice.

       Trial counsel testified that Mr. Spencer was the primary witness and that he was
the only witness who “put the gun in [the Petitioner’s] hands.” Counsel stated that the
defense theory was that the Petitioner was not present, that she relied on Mr. Spencer’s
stating he did not recall the incident, and that she argued no reliable witnesses identified
the Petitioner. Counsel said that if the expert had testified, the expert would have relied
on evidence “draw[ing] attention to the factual basis” of Mr. Spencer’s testimony and that
she wanted to focus on Mr. Spencer’s testimony that he could not recall the details of the
incident.

       Trial counsel testified that she did not object during the State’s closing argument
because it was not in the Petitioner’s best interest. Counsel stated that she did not know
Mr. Spencer was going to testify that he did not recall the details of the incident. Counsel
said that a jury-out hearing was held after Mr. Spencer said he did not recall the incident,
that Mr. Spencer was allowed to review his previous statement, and that the trial court
addressed him about whether he recalled the incident. Counsel stated that Mr. Spencer
was permitted to take his statement home overnight to review and that Mr. Spencer said
he did not recall the incident again the next morning. Counsel said that the court allowed
her and the prosecutor to ask Mr. Spencer whether he could recall the incident, that Mr.
Spencer testified he did not recall it, and that the court permitted the State to introduce
Mr. Spencer’s preliminary hearing testimony and prior statement. Counsel stated that she
argued Mr. Spencer’s prior statements should not have been presented to the jury, that the
court permitted the statements over her objection, and that she appealed on this basis.

       On cross-examination, trial counsel testified that Mr. Bailey stated he went to the
front door of the victim’s home and that the victim did not answer. Counsel said Mr.
Bailey saw the Petitioner and the codefendant speaking with victim. Counsel stated that
she decided not to call the expert and that the expert would have testified that
misidentification “potentially happened in this case.” Counsel said that she retained the
expert to rebut Mr. Spencer’s witness testimony and that her strategy changed because
Mr. Spencer said he could not recall the incident. Counsel stated that she researched the
law related to the evidentiary issue regarding Ms. Spencer’s prior statement. Counsel


                                            -8-
recalled the State’s closing argument and said that she rarely objected during closing
arguments and that she did not believe the State’s argument warranted an objection.

        The post-conviction court entered a written order denying relief. The court found
that trial counsel hired an expert to testify at the trial relative to Mr. Spencer’s
identification of the Petitioner. The court determined that counsel did not call the expert
to testify, as a matter of trial strategy, after Mr. Spencer testified that he did not recall the
incident. The court stated that the expert was not called at the post-conviction hearing
and that the court would not speculate what the testimony would have shown. The court
found that the Petitioner failed to show counsel’s performance was deficient and that he
was prejudiced by any deficiency. This appeal followed.

       The Petitioner contends that trial counsel provided the ineffective assistance of
counsel by failing to call the expert to testify at the trial. The Petitioner argues that
counsel decided not to call the expert after Mr. Spencer testified that he could not recall
the incident and that counsel made “the last-minute decision without proper investigation
or preparation.” The Petitioner asserts that Mr. Spencer’s preliminary hearing testimony
and Mr. Spencer’s prior police statement were read into evidence and that counsel should
have called the expert to discredit the evidence. The State responds that the Petitioner
failed to prove that counsel provided deficient performance and that the Petitioner was
prejudiced.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove

                                              -9-
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
deficient performance prong, a petitioner must show that “the advice given, or the
services rendered . . . , are [not] within the range of competence demanded of attorneys in
criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466
U.S. at 690. The post-conviction court must determine if these acts or omissions, viewed
in light of all of the circumstances, fell “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy by his
counsel, and cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d
854, 874 (Tenn. 2008). This deference, however, only applies “if the choices are
informed . . . based upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992). To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.

       The Petitioner did not present the expert’s testimony at the post-conviction
hearing, and this court will not speculate what the testimony would have shown. See
Black v. State, 749 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Furthermore, trial
counsel’s testimony at the post-conviction hearing reflects that she hired an expert to
rebut Mr. Spencer’s testimony and that the expert was prepared to testify. When Mr.
Spencer testified at the trial that he did not recall the incident, counsel made a strategic
decision not to call the expert. Counsel discussed her decision with the Petitioner, and
the Petitioner appeared to agree with her. Counsel wanted to focus on Mr. Spencer’s
testimony that he did not recall the incident and that the expert’s testimony would have
drawn attention to the “factual basis” of Mr. Spencer’s testimony. Counsel argued no
reliable witnesses identified the Petitioner as the perpetrator. The record does not
preponderate against the post-conviction court’s determination that counsel’s
representation was not deficient and the Petitioner failed to show any deficiency resulted
in prejudice. The Petitioner failed to establish his ineffective assistance of counsel claim
and is not entitled to relief on this basis.

       The Petitioner contends, for the first time on appeal, that trial counsel was
ineffective for failing to “ensure the Petitioner received a speedy trial.” The State
responds that this issue is waived because the Petitioner did not raise this issue in his
post-conviction petition. We agree with the State.

        This issue was not raised in the Petitioner’s pro se or amended post-conviction
petitions. Likewise, no evidence was presented at the post-conviction hearing regarding
this issue, and the post-conviction court did not address it in its order. Consideration of

                                           -10-
this issue is waived. See, e.g., Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. 2004)
(“[A]n issue raised for the first time on appeal is waived.”).

      The judgment of the post-conviction court is affirmed.




                                    ____________________________________
                                    ROBERT H. MONTGOMERY, JR., JUDGE




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