        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 1, 2009

                UVAUTAI BROOKS v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                       No. 05-01284     Paula Skahan, Judge




                 No. W2009-00682-CCA-R3-PC - Filed May 18, 2010


A Shelby County jury convicted the petitioner, Uvautai Brooks, of one count of aggravated
robbery and three counts of facilitation of aggravated robbery. The trial court sentenced the
petitioner, as a Standard Range I Offender, to serve an effective ten-year sentence in the
Tennessee Department of Correction. The petitioner filed for post-conviction relief alleging
the ineffective assistance of counsel. The post-conviction court denied the petitioner’s claim,
and the petitioner appeals the decision of the court. After reviewing the record, the parties’
briefs, and the applicable law, we affirm the decision of the post-conviction court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and JOHN
E VERETT W ILLIAMS, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Uvautai Brooks.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Bryan Davis, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                       Background
        A Shelby County grand jury indicted the petitioner, Uvautai Brooks, on four counts
of aggravated robbery. The following is a summary of the facts from the petitioner’s jury
trial held June 22 through June 24, 2005.

      At approximately 6:00 p.m. Saturday, April 26, 2003, four men robbed Sound FX Car
Audio (“Sound FX”). During the robbery the owner of Sound FX, Douglass Scott Hines,
was in the business along with Jeffrey Brian Matthews and David Stimpson. Mr. Hines and
Mr. Mathews identified the petitioner, in a photographic lineup and in the courtroom, as one
of the men who committed the robbery. According to Mr. Hines and Mr. Mathews, the
petitioner appeared to be the leader of the robbers. The police did not show Mr. Stimpson
a photographic lineup; however, while testifying during the petitioner’s trial, he identified
the petitioner as one of the men involved in the robbery.

        Officer Willie Sanders, with the Memphis Police Department, was the first officer to
respond to the robbery at Sound FX. When he arrived, the men at the store informed him
that the four had robbed them. Officer Hope Smith, a crime scene officer with the Memphis
Police Department, also went to the scene of the robbery. While she was at the scene,
Officer Smith took photographs, processed the crime scene, and tagged evidence, but she was
unable to retrieve any usable fingerprints.

       Sergeant Joseph Pearlman was the investigator assigned to the Sound FX robbery.
Sergeant Pearlman testified that he developed the petitioner as a suspect as the result of a
Crime Stopper’s tip. On April 24, 2003, someone passed counterfeit money at Sound FX,
and the United States Treasury Department’s Secret Service had a video still of the person
who had passed the counterfeit money. Sergeant Pearlman compared the petitioner’s mug
shot to the video still and decided to include the petitioner’s picture in the photographic
lineup that he showed to Mr. Hines and Mr. Mathews. On May 19, 2003, Officer Donald
Wolfe, with the Shelby County Sheriff’s Department, showed a photospread to Mr. Hines,
which included the petitioner’s picture.

       Iran Westbrooks testified for the defendant. Mr. Westbrooks was involved with the
Sound FX robbery and had pleaded guilty to aggravated robbery. He testified that the
petitioner was not involved in the Sound FX robbery; however, he admitted that at his guilty
plea hearing he stated, under oath, that the petitioner was involved in the robbery. Dwight
Alston, Jr., the petitioner’s roommate at the time of the robbery, testified that “the robbery
was supposed to have taken place” on April 29, 2003. Mr. Alston said that the petitioner
could not have been involved with the robbery because when he arrived home between 6:00
and 6:15 p.m. on April 29, 2003 1 , the petitioner was at their home. DuJuan Taylor testified
that he was also the petitioner’s roommate at the time of the robbery. According to Mr.
Taylor, when he arrived home on April 26, 2003, around 6:30 p.m. the petitioner was there.



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         Although the robbery occurred on April 26, 2003, Mr. Alston maintained that the petitioner could
not have been involved because he was with the petitioner on April 29, 2003, around 6:00 p.m. Defense
counsel and the prosecutor asked him if he was certain about the date multiple times, and he stated that he
was certain about the date and time. Mr. Alston testified that there was “[n]o doubt in his mind about the
date. The 29th of April, 2003.”

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He denied telling Sergeant Pearlman that, because he was in the hospital on April 26, 2003,
he did not know where the petitioner was.

       The petitioner testified in his own defense and stated that he was in Sound FX on
April 24, 2003, to purchase merchandise, and he did not go back to the store after that day.
He said that he was home all day Saturday, April 26, 2003, the day that the robbery occurred.
The petitioner testified that he did not pass counterfeit money at Sound FX or rob Sound FX.

       After hearing the evidence, the jury convicted the petitioner of one count of
aggravated robbery and three counts of facilitation of aggravated robbery. The petitioner did
not directly appeal his convictions or sentences; however, on July 25, 2007, the petitioner
timely filed a petition for post-conviction relief. On April 21, 2008, the petitioner’s
appointed counsel amended the petition. On November 26, 2008, the post-conviction court
held an evidentiary hearing to determine the merits of the petitioner’s claim that he received
the ineffective assistance of counsel.

         At the post-conviction hearing, the petitioner’s trial counsel testified that during the
trial, he did not find that the state asking Sergeant Pearlman how he developed the petitioner
as a suspect was objectionable. Trial counsel stated that he did not object to that question
because he “didn’t see anything to object to [sic].” He further stated that he did not think that
the question elicited hearsay or prejudicial testimony. Trial counsel said that he did not think
that Sergeant Pearlman’s mention of the Crime Stopper’s tip was objectionable. Because
trial counsel did not find the statement objectionable, he did not make an objection or ask for
a mistrial. Trial counsel stated that, based on his experience, he did not believe the statement
was hearsay. He said that when he had made objections to a witness testifying about
receiving a tip in the past, the courts overruled his objections. Trial counsel explained that
“in the past, it has been ruled that you cannot say what you heard[,] but you can state what
you did as a result of that information.” Trial counsel stated that he did not believe that the
state offered the testimony for the truth of the matter asserted. Trial counsel also did not
believe that Sergeant Pearlman’s statement was a violation of the right to confrontation of
witnesses.

       Trial counsel testified that, at the time of trial, he was unaware of United States
Supreme Court cases that established new tests to determine whether hearsay evidence is
testimonial. Trial counsel stated that he was aware of Tennessee law, which states that
testimony that a party does not offer for the truth of the matter is not hearsay. Trial counsel
believed that the state offered the testimony to show why Sergeant Pearlman developed the
petitioner as a suspect, and thus, it was not hearsay. According to trial counsel, the probative
value of the testimony was to show why authorities thought the petitioner was involved in
the robbery. Trial counsel stated that the petitioner wanted the jury to hear testimony about



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how authorities developed him as a suspect because the petitioner claimed that he became
a suspect based on their belief that he had passed the counterfeit money.

       Trial counsel reviewed the discovery materials and was aware that someone had
passed counterfeit money in the store two days before the robbery. Trial counsel stated that
he did not file a motion in limine to prohibit the state from mentioning the counterfeit money

       because that was part of [the petitioner’s] defense. That the only reason that
       the store owners or the people at the store said it was him was because they
       had seen him in there earlier and when he was accused of passing counterfeit
       money. And part of the Defense was that [they did not] recognize him from
       this particular incident. [They recognized] him from before when [they] got
       the pictures and stuff saying that he had passed the counterfeit money.

Trial counsel did not feel that the testimony regarding the counterfeit money was prejudicial.
Trial counsel was aware that pursuant to Tennessee Rule of Evidence 404 (b) prior bad acts
are generally inadmissable; however, trial counsel did not view the counterfeit money
testimony as a prior bad act because a jury had not convicted the petitioner of the crime.

        Trial counsel testified that he filed a motion to instruct the jury regarding possible
penalties and lesser included offenses. He stated that he did not specifically ask, in writing,
for an instruction to include aggravated assault as a lesser included offense. Trial counsel
did not make such a request because he “didn’t see aggravated assault as a lesser included
of aggravated robbery.”

       Trial counsel stated that he called Mr. Westbrooks as a witness at the petitioner’s
request. Trial counsel had met with Mr. Westbrooks, and he knew how Mr. Westbrooks
would testify before he called him as a witness. Trial counsel did not think that calling Mr.
Westbrooks was wise, and he stated on the record that the petitioner was going against his
advice. Trial counsel questioned the petitioner, in front of the jury, about his decision to call
Mr. Westbrooks as a witness “so the jury would know that he made this decision and
hopefully . . . they would realize that [Mr. Westbrooks] didn’t know what he was talking
about.” He did not want to present Mr. Westbrooks as a witness because Mr. Westbrooks
had already testified under oath that the petitioner was involved, and if he gave contrary
testimony during the trial, it would damage his credibility. At the time of trial, counsel was
unaware that he, rather than the defendant, decided which witnesses to call. He became
aware that it was his decision after the federal court sanctioned him in another case for
following his client’s wishes although he did not believe them to be in the client’s best
interest. He stated that if he could do the trial again, he would not call Mr. Westbrooks as
a witness.


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        Trial counsel did not remember calling Mr. Alston as an alibi witness. He did not
recall whether he knew that Mr. Alston would testify that the robbery happened on April 29.
He agreed that it was possible that he called Mr. Alston as a witness without knowing on
which date he would say the robbery occurred. Trial counsel spoke to Mr. Alston for maybe
“a few minutes” outside the courtroom before the trial. He stated that he “[p]robably” called
Mr. Alston as a witness at the petitioner’s request. Trial counsel asked for an investigator
on June 20, 2005, which was two days before the trial began. He stated that he did not ask
for an investigator sooner because he “was probably of the opinion that [they] didn’t need
one . . . .”

         When asked whether he found anything objectionable about Sergeant Pearlman
testifying that after he received the Crime Stopper’s tip he pulled the video from the
counterfeit investigation and matched it to the petitioner’s jail photo, trial counsel answered,
“No.” Likewise, he did not find anything objectionable when the state said that Sergeant
Pearlman’s copy of the photospread was different from the one the state introduced into
evidence or when the state asked Sergeant Pearlman about the booking numbers listed on the
photospread. Trial counsel did not remember his reasoning for asking Sergeant Pearlman
how he put the photospread together, and he did not see any possible prejudicial effect to his
case because of the question. He thought that he might have asked Sergeant Pearlman about
how he put the photospread together “to make sure that the pictures were all similar in all
respects.” Trial counsel said that he did not find it objectionable when the state mentioned
in its closing argument that Mr. Hines came to Tennessee from California and postponed an
international trip to be present for the trial.

        On cross-examination, trial counsel stated that he had been practicing law, mainly
criminal defense, for about nineteen years. He stated that the petitioner’s case was not
unusual, and he consulted with the petitioner about trial strategy. He said that showing that
the petitioner was in the store two days before the robbery with counterfeit money was a
“major part” of the petitioner’s strategy, and he discussed the ramifications of that strategy
with the petitioner. Trial counsel disagreed with the petitioner’s wishes regarding strategy,
but he went forward with them because he thought he was supposed to go along with what
his client wanted to do. He told the petitioner that he disagreed with his strategy and advised
him of the consequences of pursuing such a strategy. Likewise, he advised the petitioner
about the consequences of calling Mr. Westbrooks as a witness. Trial counsel stated that he
gave the petitioner “the full value of [his] experience and expertise” and did not feel that his
performance was deficient.

       Following the hearing, the post-conviction court entered an order denying the
petitioner’s request for post-conviction relief. The petitioner timely appealed the judgment
of the post-conviction court.



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                                          Analysis

       The petitioner raised several issues in his petition for post-conviction relief and
presented several issues during the hearing on the petition for post-conviction relief.
However, on appeal, the petitioner only asserts that trial counsel was ineffective for failing
to object and ask for a mistrial when Sergeant Pearlman testified that a Crime Stopper’s tip
implicated the petitioner as a suspect in the robbery. The state responds that trial counsel
made a tactical decision not to object to the testimony regarding the Crime Stopper’s tip and
that counsel’s failure to object did not prejudice the petitioner. We agree with the state.

       In order for a petitioner to succeed on a post-conviction claim, the petitioner must
prove the allegations of fact set forth in his petition by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction
court’s findings unless the petitioner proves that the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction
court’s factual findings, such as findings concerning the credibility of witnesses and the
weight and value given their testimony, is de novo with a presumption that the findings are
correct. See id. Our review of the post-conviction court’s legal conclusions and application
of law to facts is de novo without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 457-58 (Tenn. 2001).

        To establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense rendering the outcome unreliable or fundamentally unfair. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d
784, 787 (Tenn. 2004). Deficient performance is shown if counsel’s conduct fell below an
objective standard of reasonableness under prevailing professional standards. Strickland, 466
U.S. at 688; see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that
representation should be within the range of competence demanded of attorneys in criminal
cases). Prejudice is shown if, but for counsel’s unprofessional errors, there is a reasonable
probability that the outcome of the proceeding would have been different. Strickland, 466
U.S. at 694. A fair assessment of counsel’s 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.” Id.
at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). The fact that a particular
strategy or tactical decision failed does not by itself establish ineffective assistance of
counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). However, deference is given
to strategy and tactical decisions only if the decisions are informed ones based upon adequate
preparation. Id. Both deficient performance and prejudice must be established to prove
ineffective assistance of counsel. Strickland, 466 U.S. at 697; see also Goad, 938 S.W.2d



                                              -6-
at 370. If either element of ineffective assistance of counsel has not been established, a court
need not address the other element. Strickland, 466 U.S. at 697.

        The petitioner alleges that the testimony regarding the Crime Stopper’s tip was
hearsay evidence and a violation of the petitioner’s constitutional right to confront the
witnesses against him, and thus, trial counsel should have objected to the testimony. The
post-conviction court accredited trial counsel’s testimony and found that trial counsel’s
decision not to object to Officer Pearlman’s testimony was a tactical decision based on his
belief that the state was not offering the testimony for the truth of the matter asserted, and
thus, was not hearsay. The post-conviction court further found that the petitioner did not
show how the outcome would have been different had counsel objected. Regarding the
testimony violating the petitioner’s right to confront witnesses, the post-conviction court
likewise accredited trial counsel’s testimony that he believed the statement was not testimony
against the petitioner, and the post-conviction court found that trial counsel’s decision not
to object was “within the range of reasonable professional assistance.” The post-conviction
court found that counsel’s tactical decision not to object to the testimony regarding the Crime
Stopper’s tip was reasonable, and the evidence does not preponderate against the findings of
the post-conviction court. Accordingly, we conclude that the petitioner has not carried his
burden of proving both prongs of the ineffective assistance test and is not entitled to relief.




                                                ___________________________________
                                                J.C. McLIN, JUDGE




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