        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs June 2, 2010

                STEVEN D. SKINNER v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
              Nos. 00-05699, 00-05700    James M. Lammey, Jr., Judge


                No. W2009-00307-CCA-R3-PC - Filed October 22, 2010


The petitioner, Steven D. Skinner, appeals the denial of his petition for post-conviction relief.
On appeal, he argues that counsel’s representation was ineffective because counsel failed to
investigate and prepare for his case. After careful review, we affirm the judgment from the
post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which D AVID H. W ELLES
and C AMILLE R. M CM ULLEN, JJ., joined.

June Ganguli and Ruchee J. Patel, Memphis, Tennessee, for the appellant, Steven D. Skinner.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; William L. Gibbons, District Attorney General; and David Zak, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       The petitioner was convicted of two counts of first degree premeditated murder and
received consecutive life sentences with the possibility of parole. The petitioner’s
convictions arose after the two victims, members of the same gang as the petitioner (the
Gangster Disciples), were given approximately $53,000 to purchase drugs in Houston, Texas.
The victims returned from Texas without the money or the drugs and claimed they were
swindled. The leadership of the gang then ordered that the victims be killed. The
petitioner’s involvement in the killings consisted of providing a signal to other gang
members, the flashing of the lights of a truck, to instruct those members to commence the
shooting of the two victims. The petitioner’s convictions and sentences were affirmed on
appeal. See State v. Steve Skinner, No. W2003-00887-CCA-R3-CD, 2005 Tenn. Crim. App.
LEXIS 179, *1 (Tenn. Crim. App. Feb. 28, 2005). The petitioner filed a petition for post-
conviction relief and was appointed counsel thereafter. Following hearings on September
4, 2008, and November 10, 2008, the post-conviction court denied the petition for post-
conviction relief.

       During the hearing on the petition for post-conviction relief, the petitioner testified
that he was convicted by a jury of multiple counts of first degree murder and admitted that
he was a member of the Gangster Disciples. He said that he entered a guilty plea in federal
court to distributing cocaine at the time of the murders. He claimed he was not at the scene
when the victims were shot. He said that counsel was appointed to represent him in state
court. He also said he admitted to counsel that he was at the scene but denied that he gave
the signal to kill the victims. He explained that counsel did not ask for an investigator to be
appointed to the case. The petitioner said counsel gave him discovery materials but did not
review them with him. He testified that counsel only met with him on one occasion in jail
and then only briefly in court. He said they discussed some trial strategy, including that he
could not be convicted based on the uncorroborated testimony of an accomplice. The
petitioner claimed that counsel was unprepared for cross-examination.

       The petitioner’s trial counsel testified that he represented the petitioner during his trial
on the first degree murder charges. He testified that the petitioner’s case turned on a single
issue, whether he did or did not give the signal that ordered the shooting of the victims. Trial
counsel testified that the petitioner was able to assist him in many aspects of preparing his
defense that might not normally be performed by a criminal investigator because he knew the
inner workings of the gang and provided information on all the people who accused him of
the crimes and those who were testifying against him. Counsel explained that an investigator
could not have expanded upon the volume of relevant information the petitioner was able to
provide, so he deemed it unnecessary to retain an investigator. Trial counsel met with the
petitioner many times to discuss the case and prepare strategy.

        Counsel testified that he effectively cross-examined the State’s witnesses and was able
to impeach several of them. He explained that he consulted with the petitioner throughout
the trial and that the petitioner provided helpful information. For example, he learned from
the petitioner that a State’s witness would testify he saw no light signal before the murders.
Afterward, he was able to elicit that testimony from the witness.

        The federal prosecutor who tried the petitioner testified that the petitioner was under
a federal indictment during the time he was prosecuted in the Shelby County Criminal Court.
The federal indictment charged the petitioner with two counts of conspiracy to possess and
distribute controlled substances. He testified that the petitioner had not been charged with
the murders in federal court because he had cooperated with the government by providing

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information about the other conspirators. He eventually entered into a plea agreement with
the federal government in which he pleaded guilty to one drug conspiracy charge. Although
the petitioner was surprised at facing state charges following his federal conviction, there
was no agreement in place barring such prosecution.

       The post-conviction court denied the petition for relief and found that the petitioner
had failed to introduce proof regarding his claims that trial counsel was ineffective. The
court found that trial counsel’s failure to object to jurors’ anonymity was not deficient
performance and, instead, was a matter of trial strategy.

                                           Analysis

        On appeal, the petitioner claims that he received ineffective assistance from his trial
counsel. Specifically, he contends that trial counsel failed to properly investigate his case
when he did not utilize an investigator, failed to review the transcripts of his co-defendant’s
trials for purposes of preparing for impeachment on cross-examination, and failed to
sufficiently explain to the petitioner the strength of the case against him or the legal strategy
of his defense. Moreover, the petitioner claims that the cumulative effect of those errors
demonstrated his trial counsel’s ineffectiveness.

       When a claim of ineffective assistance of counsel is made under the Sixth
Amendment, the burden is upon the complaining party to show that (1) counsel’s
performance was deficient, and (2) the deficiency was prejudicial in terms of rendering a
reasonable probability that the result of the trial was unreliable or the proceedings
fundamentally unfair. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984). In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
required that the services be rendered within the range of competence demanded of attorneys
in criminal cases. In reviewing counsel’s conduct, a “fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065; see Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

        It is unnecessary for a court to address deficiency and prejudice in any particular
order, or even to address both if the petitioner makes an insufficient showing on either.
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner
must establish a “‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” State v. Burns, 6 S.W.3d 453, 463
(Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068) (citations omitted).

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        The petitioner bears the burden of proving the factual allegations that would entitle
the petitioner to relief by clear and convincing evidence. T.C.A. § 40-30-210(f). We review
the post-conviction court’s factual findings underlying a claim of ineffective assistance of
counsel under a de novo standard with a presumption that those findings are correct – unless
the preponderance of the evidence establishes otherwise. Burns, 6 S.W.3d at 461. However,
the post-conviction court’s conclusions of law – such as whether counsel’s performance was
deficient or whether that deficiency was prejudicial – are reviewed under a de novo standard
with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001)
(citations omitted).

       “When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at
the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see
also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is
the only way the petitioner can establish that (1) a material witness existed who could have
been discovered but for counsel’s negligent investigation of the case; (2) a known witness
was not interviewed; (3) the failure to discover or interview the witness caused him
prejudice; or (4) the failure to present a known witness resulted in the denial of critical
evidence which caused the petitioner prejudice. Black, 794 S.W.2d at 757. Neither the trial
court nor this court can speculate on what a witness’s testimony might have been if
introduced by counsel. Id.

       Here, the post-conviction court concluded that the petitioner failed to show by clear
and convincing evidence that he was denied effective assistance of counsel. The petitioner
argues that trial counsel was ineffective for failing to use an investigator. The post-
conviction court found that trial counsel’s representation did not fall below an objective
standard of reasonableness which is supported by the record. Trial counsel testified that the
petitioner was the most knowledgeable person regarding the case and assisted him in
preparing for trial. Counsel testified that the petitioner knew each witness for the State that
was accusing him of the crimes and was able to provide useful information pertinent to the
case and, specifically, for cross-examination to impeach the State’s witnesses. Trial counsel
said that no investigator would have been able to provide them the volume of information
that he was able to provide. Counsel also testified as to his preparation for trial, including
his review of the petitioner’s federal sentencing report and the testimony from his co-
defendant’s federal trials.

      The petitioner also contends that counsel was not fully prepared to proceed to trial
because he could not articulate the status of the co-defendant’s cases that were resolved in
advance of the petitioner’s case. However, counsel testified that he had access to this

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material and reviewed all of it prior to trial. He also had conversations with the federal
prosecutor about the case and subpoenaed him to court in case he needed his testimony. He
ultimately made a strategic decision not to use the prosecutor’s testimony because he did not
know what additional, harmful information he might testify to in front of the jury. Clearly,
the trial court accredited the testimony of trial counsel in concluding that he was properly
prepared for trial.

       Next, the petitioner argues that counsel did not sufficiently inform him of the strength
of the case against him. Specifically, he argues that the record shows that he was “not
explained the effectiveness of the impeachment of witness testimony, the privilege of the
Prosecution to proceed under alternate theories simultaneously, and, finally, the privilege of
the State to indict and prosecute a case regardless of the outcome in Federal court when there
is no written agreement otherwise.” However, the petitioner fails to cite to the record in
support of any of these claims. This issue is waived since the petitioner has failed to make
appropriate references to the record. Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975
S.W.2d 313, 318 (Tenn. Crim. App. 1997); State v. Turner, 919 S.W.2d 346, 358 (Tenn.
Crim. App. 1995); see also Tenn. R. App. P. 27(a)(7) and (g). It is the duty of the accused
to provide a record which conveys a fair, accurate, and complete account of what transpired
with regard to the issues forming the basis of the appeal. Tenn. R. App. P. 24(b); see State
v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).

       In his final issue, the petitioner argues that he was denied a full and fair hearing on
the merits of his petition. The record reflects that there were two days of hearings on this
matter on September 4, 2008, and November 10, 2008. During those hearings, the petitioner
was afforded the opportunity to call witnesses and present evidence to support his petition.
The hearings were postponed to a later date to allow the petitioner’s federal public defender
an opportunity to testify on his behalf. We conclude that the petitioner was given an
opportunity to be heard at his evidentiary hearing and that any failure of the post-conviction
court to address issues from his initial or amended petition for relief is based on the
petitioner’s failure to present evidence to support those issues.

                                         Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the
post-conviction court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE

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