        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 4, 2009

            OCTAVIA CARTWRIGHT v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                       No. 00-04743     Paula Skahan, Judge


               No. W2008-02682-CCA-R3-PC - Filed January 26, 2010


The petitioner, Octavia Cartwright, appeals the denial of her petition for post-conviction
relief. She is currently serving a ninety-one-year sentence for her convictions for attempted
first degree murder, two counts of especially aggravated robbery, especially aggravated
burglary, four counts of especially aggravated kidnapping, and one count of evading arrest
in a motor vehicle with risk of death or injury. On appeal, she contends that she received
ineffective assistance of counsel. After careful review, we affirm the post-conviction court’s
denial of relief.

 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 A LAN E. G LENN
and J.C. M CL IN, JJ., joined.

Samantha Newman and R. Andrew Hutchinson, Memphis, Tennessee, for the appellant,
Octavia Cartwright.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; William L. Gibbons, District Attorney General; and Stacy McEndree,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The facts underlying the convictions in this case involve an attack on and the entry
into the home of the victim. This court summarized the facts in the opinion on direct appeal.
The petitioner and an accomplice attacked and brutally assaulted the victim in her home
before fleeing in the victim’s automobile in the early morning hours of August 29, 1999. The
petitioner repeatedly struck the victim with a gun, and the petitioner’s accomplice stabbed
her several times with a pair of scissors. State v. Octavia Cartwright, W2005-02316-CCA-
R3CD, 2007 WL 162176 (Tenn. Crim. App. Jan. 22, 2007), perm. to appeal denied (Tenn.
May 21, 2007). The petitioner was sentenced to ninety-one years for her multiple
convictions.

        During the post-conviction hearing, the petitioner’s mother testified that she hired trial
counsel approximately one year after the offenses occurred while the petitioner was
incarcerated. The petitioner’s mother said that she had to make real efforts to visit with
counsel and that he did not meet with the petitioner while she was incarcerated. She also
testified that she went to court several times and that trial counsel did not appear for court.
She testified that she wanted to hire an independent doctor to perform a mental evaluation
on the petitioner but said that trial counsel told her it would be a waste of time and money.
The petitioner’s mother testified that trial counsel did not adequately prepare her for trial and
specifically stated that trial counsel told her that she would not be asked any questions about
the petitioner’s record as a juvenile.

        The petitioner testified that trial counsel visited her on only two occasions prior to
trial. She said that she asked trial counsel about an independent mental evaluation, and he
told her that he had spoken with some doctors, but they would charge fifteen hundred dollars.
She claimed that trial counsel did not tell her that witnesses other than the victim would
testify against her. She testified that she asked trial counsel to introduce the clothes she was
wearing on the night of the attack as evidence at trial. She said her clothes did not have as
much of the victim’s blood on them as the clothes worn by the co-defendant.

       The petitioner testified that she asked to speak with the assistant district attorney
general prior to trial counsel’s appearance in court. She testified that trial counsel was late
to court, and the prosecutor spoke to her after counsel arrived. She said that the prosecution
related the plea offer to her while trial counsel said nothing. She also said that trial counsel
did not explain that she could be held responsible for the actions of her co-defendant. She
affirmed that the assistant district attorney would not offer anything less than twenty-five
years at one-hundred percent service and that she was unwilling to accept the State’s offer.

       The petitioner testified that trial counsel did not help her prepare a statement for
sentencing and that he did not ask what she planned to say. She stated that she would not
change anything about the statement that she read in court. The petitioner testified that she
did not want a new trial, only a new sentencing hearing.

       The assistant district attorney who prosecuted the petitioner testified that the victim
wanted to avoid a trial but wanted the petitioner to agree to a sentence of at least twenty-five
years at one-hundred percent service. The victim told him that she would testify if the
petitioner did not agree to enter a guilty plea. He testified that he told the petitioner he would
seek a sentence of ninety-one years if she proceeded to trial.

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       The prosecutor testified that trial counsel asked him if he would talk to the petitioner
about the plea offer. He recalled that he spoke to the petitioner for “two, two and a half
hours” about the plea offer. The petitioner asked for a sentence that would get her out of jail
immediately because she felt like she had been in jail long enough.

        Trial counsel testified that he was the third lawyer to represent the petitioner in this
case. He testified that she had already reviewed the discovery material with previous counsel
before he became involved. He challenged the competency findings from the mental
evaluation in a hearing but decided against obtaining outside expert testimony because the
State’s expert would have testified that the petitioner was a malingerer. He recalled
discussing the mental health aspects with the petitioner and her mother. He asked the
petitioner detailed questions about her mental health evaluation, with the two-pronged goal
of forwarding her defense and evaluating her potential for mental health treatment. Trial
counsel testified that he had numerous meetings with the petitioner’s mother throughout the
pretrial process.

       Trial counsel disagreed with introducing the bloody clothes because he planned to
question the State’s witness about the lack of blood in the vehicle shortly after the offense.
He said that he went to the crime scene more than once to familiarize himself with the
victim’s home and the neighborhood around it. He testified that both he and the prosecutor
explained the concept of criminal responsibility to the petitioner. He said that he reviewed
the petitioner’s planned statement prior to the sentencing hearing and approved it because
he thought the rambling statement would be evidence for the trial court to understand her
mental capacity.

                                           Analysis

        Following the hearing, the post-conviction court denied the petition for relief. On
appeal, the petitioner argues that trial counsel was ineffective. This court reviews a claim
of ineffective assistance of counsel under the standards of Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975), and Strickland v. Washington, 466 U.S. 668 (1984). The petitioner has the
burden to prove that (1) the attorney’s performance was deficient, and (2) the deficient
performance resulted in prejudice to the petitioner so as to deprive him of a fair trial.
Strickland, 466 U.S. at 687; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Butler v.
State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure to prove either deficiency or prejudice
justifies denial of relief; therefore, the court need not address the components in any
particular order or even address both if one is insufficient. Goad, 938 S.W.2d at 370. 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.”
Strickland, 466 U.S. at 694.

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       The test in Tennessee to determine whether counsel provided effective assistance is
whether his or her performance was within the range of competence demanded of attorneys
in criminal cases. Baxter, 523 S.W.2d at 936. The petitioner must overcome the
presumption that counsel’s conduct falls within the wide range of acceptable professional
assistance. Strickland, 466 U.S. at 689; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn.
2001). Therefore, in order to prove a deficiency, a petitioner must show “that counsel’s acts
or omissions were so serious as to fall below an objective standard of reasonableness under
prevailing professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at
688).

       In reviewing counsel’s conduct, a “fair assessment . . . 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.” Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689).
The fact that a particular strategy or tactic failed or hurt the defense does not, standing alone,
establish unreasonable representation. However, deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.
Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982).

       The petitioner contends that trial counsel was ineffective for failing to order an
independent mental evaluation, failing to fully investigate the facts of the case, failing to
present the clothing she wore on the night of the crime, and in allowing the petitioner’s
juvenile record to be heard. The petitioner also contends that counsel did not meet with her
sufficiently to put on an adequate defense, did not educate her on whether to accept the
State’s plea offer, and did not prepare her for how to address the trial court during
sentencing.

        The petitioner’s mother testified that she wanted an independent mental evaluation
for the petitioner prior to trial. The petitioner suggests that it was “highly probable” that trial
counsel’s failure to contact an independent psychiatrist prejudiced the petitioner’s case and
prevented her from presenting mitigating proof at trial. “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 her prejudice; or (4) the failure to present a
known witness resulted in the denial of critical evidence which caused the petitioner


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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. Because the
petitioner failed to call these potential witnesses during the post-conviction hearing, the
petitioner has failed to establish prejudice.

        Next, the petitioner argues that trial counsel was ineffective in failing to fully
investigate the case. Specifically, the petitioner argues that trial counsel did not visit the
crime scene until the day before trial and also failed to interview witnesses before the trial
and before the sentencing hearing who were “willing and able” to testify. Again, with regard
to the witnesses, the petitioner failed to call them to testify during the post-conviction
hearing. Therefore, he failed to establish prejudice on appeal. With regard to trial counsel’s
investigation of the case, he testified that he visited the crime scene more than once to
familiarize himself with the scene. The post-conviction court held that the petitioner failed
to present any evidence that trial counsel failed to fully investigate the case and accredited
trial counsel’s testimony. The defendant has not presented any evidence to support her
argument and, therefore, is not entitled to relief on this issue.

        Next, the petitioner argues that counsel was ineffective for failing to present the
clothing she wore on the night of the crime. She argues that, despite the brutal assault on the
victim, “there was almost no blood on [her] clothes.” She contends that this would have
shown a lack of proximity to the victim. Counsel testified that it was a strategic decision not
to introduce the clothes at trial. It is well settled that the fact that a particular strategy or
tactic failed or hurt the defense does not, standing alone, establish unreasonable
representation. However, deference to matters of strategy and tactical choices applies only
if the choices are informed ones based upon adequate preparation. Henley, 960 S.W.2d 579;
Hellard, 629 S.W.2d 9. Here, it was sound strategy for counsel to decide not to introduce
the clothing at trial. He testified that he did not want to introduce the clothes because they
did have blood on them. He decided not to introduce the clothes because he wanted to
question the State’s witnesses about the lack of blood in the car shortly after the offense
because it was alleged that the petitioner and her accomplice put the bleeding victim in the
getaway car before the victim escaped. Our review reflects that this decision was based on
sound strategy. The petitioner is not entitled to relief on this issue.

        Next, the petitioner argues that trial counsel was ineffective for allowing her juvenile
record to be admitted at trial. Specifically, she argues that it was a mistake for counsel to
insist that the petitioner’s mother testify at trial and that counsel compounded the mistake by
failing to caution the petitioner’s mother about the risks of opening the door to evidence
about the petitioner’s juvenile record. During cross-examination, the State brought out the
petitioner’s juvenile record after her mother testified that the petitioner was nonviolent.
During the post-conviction hearing, trial counsel testified that he called the petitioner’s


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mother to testify as a character witness in support of his theory of defense. The petitioner’s
mother testified that trial counsel told her that the petitioner’s juvenile record would not be
brought up at trial. The post-conviction court held that the petitioner failed to demonstrate
how the introduction prejudiced her at trial. On appeal, she argues that it is clear that this
information influenced the jury in their determination that the petitioner committed the crime.
This conclusion overlooks the weight of the evidence against the petitioner and places the
blame for her conviction on the idea that the jury convicted her because of her prior record.

        Trial counsel testified that he called the petitioner’s mother to testify about her fear
that the petitioner was associating with a person of questionable character, the co-defendant.
He said that the petitioner’s mother embellished on her part and went too far in her
characterization of the petitioner which, in turn, opened the door to the introduction of the
juvenile record, including adjudications for a gun crime, an aggravated assault, theft of
property, and multiple assaults. In light of the evidence against the petitioner, including the
victim’s testimony regarding the petitioner’s involvement, the petitioner has failed to meet
her burden of demonstrating that she was prejudiced by the introduction of her juvenile
record.

        Next, the petitioner argues that trial counsel failed to adequately communicate with
her, resulting in her defense being prejudiced. Specifically, she argues that the trial counsel
failed to “effectively explain the plea agreement” proposed by the State, which resulted in
proceeding to trial. The petitioner acknowledges that she rejected the offer of twenty-five
years but contends that counsel did not tell her that she faced exposure to a potential ninety-
one-year sentence. She also argues that counsel did not explain that she could be held
criminally responsible for the actions of her co-defendant and that he did not properly
prepare her for the sentencing hearing. The post-conviction court rejected each of these
contentions based on the evidence presented during the hearing. Trial counsel testified that
he met with the petitioner multiple times prior to trial and even scheduled an appointment
with the State’s attorney so they could all discuss the plea offer. The State’s attorney
testified that he told the petitioner he would seek a ninety-one-year sentence at trial. With
regard to the sentencing hearing, counsel testified that part of his strategy included allowing
the court to see first-hand the rambling nature of the petitioner’s thought process to
demonstrate her mental capacity. The petitioner has failed to show any deficiency or
prejudice with regard to counsel’s communication with her about either the State’s plea offer
or the sentencing hearing. Therefore, she is not entitled to relief. The petitioner was aware
of the full circumstances of the plea offer from the State and the seriousness of the sentence
that the State would seek at trial. She made a decision to reject the plea offer because, at the
time, she believed that she had served enough time.

                                         Conclusion


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       Based on the foregoing and the record as a whole, we affirm the post-conviction
court’s denial of relief.




                                               ___________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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