        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 7, 2010

                 SHAKIR ADAMS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 08-05967    James M. Lammey, Jr., Judge


                No. W2010-00217-CCA-R3-PC - Filed March 1, 2011


The petitioner, Shakir Adams, appeals the denial of his petition for post-conviction relief
from his first degree premeditated murder conviction, arguing that he received the
ineffective assistance of counsel. Following our review, we affirm the post-conviction
court’s denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Magan N. White, Jackson, Tennessee (on appeal); and Cicely A. Dickerson, Bartlett,
Tennessee (at hearing), for the appellant, Shakir Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; and Kevin R. Rardin and Stacy M.
McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

       The petitioner was convicted of first degree premeditated murder by a Shelby County
Criminal Court jury and sentenced to life imprisonment. This court affirmed his conviction
and sentence on direct appeal, and the Tennessee Supreme Court denied permission to
appeal. See State v. Shakir Adams, No. W2006-02038-CCA-R3-CD, 2008 WL 1891451
(Tenn. Crim. App. Apr. 29, 2008), perm. to appeal denied (Tenn. Oct. 27, 2008).
On direct appeal, this court recounted the proof adduced at trial as follows:

        Rovonda Green testified that she lived in the Warren Apartments in
November of 1999. On the morning of November 7th, she was sitting on the
balcony of an upstairs apartment with two other women and observed a group
of men, including the [petitioner], talking together in the grassy area below.
However, she was unable to hear what the men were discussing. Ms. Green
stated that she was sitting on the apartment steps talking to her neighbors,
Rosalyn Hardy and Lolar Stewart, when she heard gunshots. She then saw the
[petitioner] running after the victim, shooting at him with a handgun. She
recalled that she had seen the victim a few times but did not know him. Ms.
Green testified that her initial reaction upon seeing the shooting was to get up
and run inside Ms. Hardy’s apartment. After the shooting, Ms. Green met
with police officers and identified a photograph of the [petitioner] from a
photographic array.

        On cross-examination, Ms. Green testified that she had lived at the
Warren Apartments for approximately three years prior to the incident. She
stated that she did not know the [petitioner] personally, and did not believe
she had ever spoken to him. She testified that the [petitioner] knew Lolar
Stewart and stated that she had seen the [petitioner] coming out of Ms.
Stewart’s apartment on more than one occasion. Ms. Green reiterated that the
[petitioner] had a gun, although she did not know what color or model of gun
the [petitioner] possessed. Ms. Green admitted that she did not tell police
officers that she saw the [petitioner] shooting at the victim in the statement she
made after the shooting took place. However, she stated that she was shown
a photographic array of suspects and identified the [petitioner] as the
individual who ran past her firing a gun.

        On re-direct examination, Ms. Green testified that she saw both the
[petitioner] and the co-defendant, Tony Johnson, firing at the victim. She also
testified on re-direct that the victim was unarmed. On re-cross examination,
Ms. Green stated that before the shooting, the men walked off and out of her
line of sight where she could not see them. Ms. Green admitted that in her
statement to police, she said that she saw the co-defendant shooting at the
victim, but did not mention that the [petitioner] was also shooting at the victim
as well. She conceded that her difficulty recalling exactly who shot at the
victim was the reason she did not indicate that she saw anyone other than the
co-defendant shooting at the victim in her statement to police.


                                       -2-
        Elbony Baldwin testified that she lived at the Warren Apartments with
her son when the shooting occurred. She stated that her cousin, a young man
named Peewee, also lived at the apartment with her and her son at that time.
She stated that she was familiar with the [petitioner] through Peewee and the
[petitioner] visited her apartment regularly.

       Ms. Baldwin stated that prior to the murder, she witnessed several men
standing in a circle outside the apartments around one individual. She
identified the [petitioner] as one of the men standing in the circle. She stated
that the men were having an angry conversation, but she was unable to
determine the subject of the conversation. She stated that as the group broke
up, the [petitioner] went and said something to a man who had been standing
in the middle of the circle. After speaking to him, the man walked into a
house two doors away and the [petitioner] walked off. Ms. Baldwin stated
that she went into her apartment and closed the door.

        Ms. Baldwin testified that several minutes later, she left her apartment
and went to the grocery store. She also testified that closer to the time of the
shooting, she had returned from the grocery store and was in her apartment
with Peewee putting away groceries. She stated that upon hearing gunshots,
she went to the window and saw several people running past. She admitted
that she did not know where the [petitioner] was when the shots were fired.
Ms. Baldwin stated that she did not see the [petitioner] until the evening of the
murder when he arrived at her apartment. Ms. Baldwin spoke with the
[petitioner] who told her that “him and his folk, didn’t give me no specific
name, they shot this little dude. The young man.” The [petitioner] told Ms.
Baldwin that he shot the victim once and then his gun jammed, so his
associates shot him two more times. After killing the victim, the [petitioner]
and his “folk” jumped into a car and headed to his girlfriend’s house in
Whitehaven. The [petitioner] also told Ms. Baldwin that his conscience was
not going to be bad and that he would “sleep like a king.”

       Ms. Baldwin testified that she saw the [petitioner] the next morning at
the bus stop on her way to an appointment at the Department of Human
Services (DHS). Ms. Baldwin asked the [petitioner] if he left the gun from
the shooting in her apartment. The [petitioner] told her that he did not leave
the gun in her apartment. After her appointment at DHS, Ms. Baldwin
received a phone call informing her that she needed to return to her apartment
because she was going to be evicted within three days. Peewee told her that
the police had been to her apartment and found the gun in her couch.

                                       -3-
       Ms. Baldwin testified that she did not know whether the [petitioner]
was a member of the Gangster Disciples, but she stated that Peewee was a
member of that gang. She also stated that she did not know the identity of any
of the other young men who were standing around the victim prior to the his
death. Ms. Baldwin identified photographs taken of her living room, couch,
and the gun found by police underneath the couch cushions. She testified that
the gun belonged to the [petitioner]. She also stated that the [petitioner]’s use
of the word “folk” when he told her about the murder on the night of the
shooting was commonly used to refer to fellow gang members.

        On cross-examination, Ms. Baldwin testified that she had lived at the
Warren Apartments for approximately a month before the shooting. She
stated that she had never dated the [petitioner]. She recounted that Peewee
met the [petitioner] at the Clayborne Apartments before Peewee moved in
with her at the Warren Apartments. She also stated that the initial
confrontation between the victim and the circle of men lasted only about five
or six minutes. Ms. Baldwin recalled that Peewee told her about the shooting
before the [petitioner] arrived later that evening and told her that he shot the
victim. The [petitioner]’s version of the story confirmed Peewee’s story.
After police searched her apartment, she went downtown to speak with
detectives who had her call the [petitioner] and tell him to turn himself in to
the authorities. The [petitioner] refused to turn himself in, stating that he
would not do so until after his birthday on January 12, 2000. Ms. Baldwin
provided detectives with the [petitioner]’s phone number. She also stated that
she was not considered a suspect by police.

        Lolar Stewart testified that she was outside her apartment visiting with
Ms. Green and Ms. Hardy when she witnessed the murder. Ms. Stewart
identified the [petitioner] as one of the men involved in a confrontation she
had witnessed earlier that day. She stated that the [petitioner], co-defendant
and several other men were speaking to the victim and asking him whether he
knew anything about an individual named “Head” who had been shot. The
victim went over to a neighboring apartment to call his cousin while the other
men stood around. According to Ms. Stewart, after the victim called his
cousin and returned outside, one of the men in the group called the victim’s
name and punched the victim in the face. The victim took off running, and
the men followed after him, running and shooting. Ms. Stewart saw the
[petitioner] with a handgun. Ms. Stewart testified that when the men started
shooting, she got up and ran into her apartment. After waiting inside for a
period of time, she walked outside and around the corner where she saw the

                                       -4-
victim lying dead on the ground.

        Ms. Stewart testified that she knew the [petitioner] fairly well, and she
had seen him with a gun on more than one occasion. Ms. Stewart
acknowledged that the [petitioner] used to come to her apartment regularly
and that they had dated. Ms. Stewart stated that the [petitioner] was a member
of the Gangster Disciples, and her knowledge of that fact was based on the
[petitioner]’s use of gang signs, handshakes, and his manner of talking.
During an interview with police, Ms. Stewart identified the [petitioner] from
a photographic array. Ms. Stewart also identified photographs of the
[petitioner]’s coat and handgun which were located in Ms. Green’s apartment.
Ms. Stewart further identified the statement she gave to police in which she
said that she saw the [petitioner] shoot the victim.

        On cross-examination, Ms. Stewart testified that while she was talking
to Ms. Green and Ms. Hardy, their attention was drawn to the confrontation
that the men were having with the victim. She stated that she did not discuss
the shooting with the other two women after it occurred. She described the
gun used by the [petitioner] as a black and silver gun. When shown a
photograph of the handgun, she acknowledged that the gun in the photograph
was almost all black, with little or no silver coloring in it. She also
acknowledged that before the [petitioner] joined the men in the circle, and
before she joined the other two women on the steps, she and the [petitioner]
had been in her apartment. Ms. Stewart testified that she saw the [petitioner]
at the Warren Apartments almost every day. She stated that when she was
initially questioned by police, she said that she did not know anything about
the shooting. However, she said that she made her statement to police after
they threatened to remove her children from her home.

        Tennial Ward testified that she was visiting her sister in her apartment
when the victim stopped by to use the telephone. She stated that she had seen
the victim a couple of times around the apartment complex prior to the
shooting. After the victim finished his telephone call, he went back outside
and was confronted by at least six men. Ms. Ward stated that she opened the
back door of the apartment and saw the victim talking to the men who stood
in a loose circle around him. The men left soon thereafter and Ms. Ward went
back inside and closed her door. Five to ten minutes later, Ms. Ward heard
several gunshots. She stated that she got her children down on the floor and
called the police. Ms. Ward stated that she did not know if any of the men
who confronted the victim were members of a gang.

                                       -5-
        Officer Kevin Shaver testified that he worked as a police officer with
the Crime Scene Investigation Bureau of the Memphis Police Department. He
stated that he helped process the crime scene. He testified that he recovered
five spent nine-millimeter shell casings, and one live nine-millimeter bullet at
the crime scene. Officer Shaver testified that the nine-millimeter shell casings
were manufactured by R-P Ammunition.

       Officer Ricky Davidson testified that he worked as a police officer with
the Crime Scene Investigation Bureau of the Memphis Police Department. He
stated that the day after the shooting, he went to Ms. Green’s apartment to
photograph and collect the gun found in her couch. At the scene, Officer
Davidson photographed and tagged a nine-millimeter handgun. Officer
Davidson was able to further identify the handgun model as a Jennings Nine
manufactured by Bryco Arms. Officer Davidson stated that the gun contained
a magazine loaded with five live rounds manufactured by R-P Ammunition.
Officer Davidson also stated that he was unable to obtain any usable
fingerprints from the handgun.

        Dr. O.C. Smith, a forensic pathologist, testified that he performed an
autopsy on the victim and concluded that he died as a result of multiple
gunshot wounds. Dr. Smith located three wound tracks in the victim’s body.
Dr. Smith testified that the most significant injury occurred as a result of a
bullet that entered the victim’s body through the “back of the shoulder and
proceeded through to the front and right side of the body[,] going through the
top of the left lung, injuring the subclavian artery and vein near the
collarbone, and hitting the left common carotid artery.” The bullet exited
through the windpipe. Another bullet entered the victim’s body through the
thigh, striking a bone, fracturing it into multiple fragments, and lodging in the
back of the thigh. A third bullet passed through the victim’s bicep in one arm.

        Special Agent and Forensic Scientist Steve Scott of the Tennessee
Bureau of Investigation testified that he worked at the crime laboratory in
Nashville where he was assigned to the Firearms Identification Unit. He
testified that he performed several tests on the nine-millimeter handgun
recovered from the crime scene. He identified the gun as a Jennings Nine
manufactured by Bryco Arms, and stated that it was in operating condition
with functioning safety features. He also testified that a bullet recovered from
the victim possessed the same or similar characteristics as a bullet fired from
the gun. However, the similarities were not sufficient for more conclusive
identification. Agent Scott was able to conclusively identify the five spent

                                       -6-
       shell casings recovered by Officers Shaver and Davidson at the crime scene
       as having been fired from the [petitioner]’s gun.

Id. at *1-4 (footnote omitted).

       On February 3, 2009, the petitioner filed a pro se petition for post-conviction relief,
and following the appointment of counsel, an amended petition was filed on July 2, 2009.
The post-conviction court conducted an evidentiary hearing over the course of three days
in September and October 2009.

       At the hearing, the petitioner’s original trial counsel testified that he was retained by
the petitioner’s father in the summer of 2000 to represent the petitioner on his first degree
murder charge. He said that he would have reviewed everything that was in the discovery
given to him by the State, and he acknowledged that he filed a motion to suppress illegally
obtained evidence. He also acknowledged that the case was reset twenty-five times during
the course of his representation, but he could not recall the exact circumstances of each
instance. He identified a letter written by him to the Board of Professional Responsibility
in which he relayed that the State had sought two continuances on the trial date and that he
had objected to one of those instances. However, original counsel was unable to recall
anything specifically related to the case.

         Original counsel withdrew from representation in March 2003 and stopped
practicing law for personal reasons, which led to the suspension of his license. As a result
of his suspension, original counsel was required to pay restitution to three clients, including
the petitioner. Original counsel admitted that he was arrested and found in contempt of
court for failing to appear at the petitioner’s trial. During the two days he spent in jail,
someone left a note on his bed of a drawing of a sword, which the sheriff’s department
characterized as a threat. Shortly thereafter, a newspaper article regarding the incident was
published in The Commercial Appeal, which included quotations from the trial judge
indicating why he released original counsel from jail.

        Trial counsel testified that he was appointed to represent the petitioner in 2005
because the interim counsel had a conflict. At that time, trial counsel had been practicing
law for approximately six years and had tried two capital cases. The petitioner had been in
jail four years at that point. Trial counsel reviewed the petitioner’s file and contacted the
investigator who had been working on the case. He also obtained the transcript from the
trial of the co-defendant, Tony Johnson, which he used to impeach one or two of the
witnesses at the petitioner’s trial.



                                              -7-
        Trial counsel testified that he did not file a motion to dismiss based on a violation of
the right to a speedy trial because his research showed that many of the requests for
continuances were attributable to the petitioner. Trial counsel could not find any evidence
of prejudice with regard to any of the witnesses attributable to the delays. Trial counsel was
concerned about the testimony of two female witnesses, Lolar Stewart and Elbony Baldwin,
because they provided favorable information at one time but were “a little shaky” and
testified unfavorably to the petitioner at Tony Johnson’s trial. Counsel attempted to contact
the two women, but they refused to talk to him.

      Trial counsel testified that he did not challenge the admissibility of the gun found in
Elbony Baldwin’s apartment as having been seized without a warrant because the officers
were given consent to search the apartment. Trial counsel recalled that in a previous
statement, Tony Johnson had maintained that he was shooting with a .380 firearm, that his
gun jammed, and that he stopped to clear it. However, no casings for a .380 were recovered
from the scene; only casings from a nine millimeter were discovered. Therefore, trial
counsel attempted to argue at trial that Johnson had been firing a nine-millimeter and only
admitted to shooting a .380 to evade conviction. He recalled that the witnesses only saw
Tony Johnson shooting even though they saw the petitioner with a gun.

        Trial counsel testified that he filed a motion to continue a few weeks before trial
based on a newspaper article about the arrest of the petitioner’s original counsel, and the
comments attributed to the trial court that original counsel had to be released from jail
because the petitioner “is a gangster disciple who is going to kill him.” Counsel was
concerned that the court had in essence commented on the proof and that the jury pool
would be unfairly prejudiced. Counsel sought a continuance so the story would fade from
potential jurors’ minds before the trial. However, he did not think that there was a legitimate
basis for a motion for recusal because he did not see the trial court’s comments as a
reflection of its belief of the petitioner’s guilt or innocence. At the petitioner’s trial, counsel
did not object to Lolar Stewart’s testimony that she had seen the petitioner carry a gun
because he believed the question was an appropriate “foundational” question.

        Trial counsel testified that Tony Johnson had supposedly written an affidavit stating
that he wrongly told the police that the petitioner was involved in the crime, but Johnson had
never signed the affidavit. Trial counsel talked to Johnson, but Johnson told him that his
appeal was pending and that he would not “get on the stand and say anything to this effect”
or sign the affidavit.

       Co-defendant Tony Johnson testified that he wrote an affidavit in 2001 in which he
stated that in his original statement to police, he had falsely accused the petitioner of
participating in the crime. He did not sign or date the affidavit, and he was not sure why he

                                                -8-
did not. It was his intention to testify in court that the petitioner did not shoot the victim,
and he made trial counsel aware of his intention. However, he was not called to testify.
Johnson claimed that his appeals had concluded when he met with trial counsel to discuss
the affidavit, and he never told counsel that he could not be helpful to the petitioner.
Johnson said that no handwriting exemplars were ever taken from him, nor was any
handwriting analysis conducted. Johnson never filed a petition for post-conviction relief.

       The petitioner testified that he was in jail about six years before reaching trial.
Besides original counsel and trial counsel, two other attorneys worked on his case. He
recalled that original counsel abandoned his case on the day it was supposed to go to trial,
and his father filed a complaint against original counsel with the Board of Professional
Responsibility.

        The petitioner testified that trial counsel represented him for two years before his trial.
He said that trial counsel only visited him in jail on three occasions and never discussed
defense strategies with him. He said that he was never offered a plea bargain, but on cross-
examination, he acknowledged that he was not aware that first degree murder was a “no-
deals” offense. He did not realize that it was against the law for it to take so long for him
to go to trial. The petitioner stated that very few of the case continuances were attributed
to the State. The petitioner said that Johnson was not called to the stand so he could invoke
his right against self-incrimination.

       The post-conviction court entered a written ordering denying the petitioner post-
conviction relief. The court found, generally, that the petitioner failed to prove his claims
by clear and convincing evidence and that his allegations were without merit.

                                          ANALYSIS

        The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
court are conclusive on appeal unless the evidence preponderates against them. See Tidwell
v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual
issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of
the law to the facts of the case is de novo, with no presumption of correctness. See Ruff v.
State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel,
which presents mixed questions of fact and law, is reviewed de novo, with a presumption
of correctness given only to the post-conviction court’s findings of fact. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

                                                -9-
       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is
       reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.

        The petitioner argues that he received the ineffective assistance of counsel with
regard to the violation of his right to a speedy trial, the failure to file a motion for recusal of
the trial judge, the failure to call Tony Johnson to testify at trial or introduce Johnson’s
statement, and the failure to object to bad act evidence elicited by the State from Lolar
Stewart.

                                        I. Speedy Trial

       The petitioner argues that original counsel was ineffective in abandoning the
petitioner’s case, and trial counsel was ineffective in failing to file a motion to dismiss due

                                               -10-
to the violation of his right to a speedy trial. He asserts that he was prejudiced by these
deficiencies because two witnesses, Lolar Stewart and Elbony Baldwin, would have testified
in his favor but “as time passed, they changed their testimonies and implicated [the
petitioner] in the shooting.”

        At the evidentiary hearing, trial counsel testified that he did not believe that he had
any basis to file a motion to dismiss based on a violation of the right to a speedy trial
because his research showed that many of the requests for continuances were attributable
to the petitioner. He said that he also could not find any evidence of prejudice with regard
to any of the witnesses attributable to the delays. The post-conviction court did not directly
address this issue in its order but found that the petitioner failed to show any prejudice
regarding his claim against original counsel.

       The Sixth Amendment to the United States Constitution and article 1, section 9 of the
Tennessee Constitution guarantee the accused the right to a speedy and public trial. In
determining whether the petitioner’s right to a speedy trial was violated by the delay in this
case, we must consider the following four factors: (1) the length of the delay; (2) the reason
for the delay; (3) the petitioner’s assertion of the right; and (4) the prejudice caused to the
petitioner by the delay. See State v. Bishop, 493 S.W.2d 81, 83-84 (Tenn. 1973) (citing
Barker v. Wingo, 407 U.S. 514 (1972)).

       As to the first factor, certainly a six-year delay would be considered sufficient to
trigger further inquiry. See State v. Utley, 956 S.W.2d 489, 494 (Tenn. 1997) (stating that
the delay must approach one year to trigger the Barker v. Wingo analysis). However, the
remaining factors weigh in favor of the State. The proof at the evidentiary hearing
established that the majority of the continuances were requested by the petitioner’s various
attorneys and that the petitioner never asserted his right to a speedy trial.

        Most importantly, there is also no proof of prejudice, “the single most important
factor in the balancing test,” see State v. Baker, 614 S.W.2d 352, 356 (Tenn. 1981), due to
the delay. The testimony at the evidentiary hearing established that Stewart and Baldwin
may have had favorable information at one time; however, that information was never
brought to light and neither woman testified at the hearing as to whether her testimony had
changed and, if so, how and why. This court can only speculate as to what the women
would have testified, which does not rise to the level of clear and convincing proof. The
petitioner has failed to prove that he was prejudiced by original counsel’s “abandonment”
of his case or trial counsel’s failure to file a motion to dismiss.




                                             -11-
                                         II. Recusal

        The petitioner argues that trial counsel was ineffective in failing to file a motion for
recusal of the trial judge due to the judge’s comments published in a Commercial Appeal
article about the petitioner.

          The article relayed that original counsel had been jailed for contempt due to his
failure to appear for the petitioner’s trial approximately three years earlier. The article said
that original counsel was in the same jail with the petitioner, whom the police identified as
a gang member, and that original counsel had “skipped out on him with thousands of dollars
in fees.” The trial judge was quoted as saying, “‘The Gangster Disciples now know he’s in
jail . . . . He needs to get out.’”

        At the evidentiary hearing, trial counsel testified that he did not file a motion for
recusal and that he was not sure that such motion would have been proper. He felt that the
trial judge’s remarks were more of a comment on the petitioner’s background, than a
reflection of his belief in the petitioner’s guilt or innocence. The post-conviction court did
not directly address the issue in its order, but given that resolution of this issue does not
require a credibility determination, we will address it de novo.

        Our supreme court has held that a trial judge should grant a recusal motion when he
or she “has any doubt as to his or her ability to preside impartially in the case or when a
person of ordinary prudence in the judge’s position, knowing all of the facts known to the
judge, would find a reasonable basis for questioning the judge’s impartiality.” Bean v.
Bailey, 280 S.W.3d 798, 805 (Tenn. 2009) (internal quotations and citations omitted).
“[T]he test for recusal is an objective one because the appearance of bias is just as injurious
to the integrity of the courts as actual bias.” State v. Cannon, 254 S.W.3d 287, 307 (Tenn.
2008). “[W]hen a person of ordinary prudence in the judge’s position, knowing all of the
facts known to the judge, would find a reasonable basis for questioning the judge’s
impartiality,” the appearance of bias is enough to trigger a judge’s recusal. Alley v. State,
882 S.W.2d 810, 820 (Tenn. Crim. App. 1994).

       In the newspaper article in question, the trial judge made no expression regarding his
belief in the petitioner’s guilt or innocence or the merits of the case. The court
acknowledged that original counsel might be in jeopardy from gang members incarcerated
and awaiting trial, given his failure to complete his representation of the petitioner despite
having been paid. The original link between the petitioner and a gang was attributed to the
police, not the trial judge. In context and in its entirety, we cannot conclude that any
reasonable person would view the trial judge’s remarks as a bias against the petitioner
instead of simply an explanation as to why original counsel was released from jail.

                                             -12-
                             III. Co-Defendant Tony Johnson

       The petitioner argues that trial counsel was ineffective in failing to call co-defendant
Tony Johnson as a witness at his trial. Johnson had previously given a statement to law
enforcement in which he admitted that he and the petitioner shot at the victim, but he was
unsure whether he actually hit him. He said that they were shooting at the victim as the
victim was running away, but his firearm jammed and he stopped shooting. As he was
clearing his gun, he saw the petitioner stand over the victim and shoot him two times. He
said that he was armed with a .380 firearm, and the petitioner was armed with a nine-
millimeter firearm.

      Sometime in 2001, according to Johnson, he made a handwritten affidavit
exculpating the petitioner. The unsigned, undated affidavit stated:

              On the above time in [sic] date 12-9-99 2:15 am I made a very untrue
       statement on [the petitioner]. I place[d] him into a homicide which he had no
       knowledge of. I’m sorr[y] for putting this court through so much trouble
       d[ue] to my wrong doing. So I’m asking the courts to release [the petitioner]
       cause he didn’t have any knowledge of the homicide which occurred on 11-
       07-99.

        At the evidentiary hearing, Johnson testified that he would have testified at the
petitioner’s trial that the petitioner did not shoot the victim, but he was not called to testify.
He would have testified that he originally implicated the petitioner “to make it look like that
he [was] the one who did it when actually it was me.” Trial counsel testified that he did not
call Johnson to testify because Johnson told him that he would not testify or sign the
affidavit because his appeal was pending. Johnson contradicted trial counsel’s testimony,
stating that his appeals had ended and that he had been transferred to the Shelby County Jail
from Whiteville Correctional Facility for the purpose of testifying but was never called.

         The post-conviction court found that counsel’s conduct fell “‘within the wide range
of professional assistance’” regarding the issue of Tony Johnson’s affidavit and the matter
of alibi witnesses. The court found that the credibility and reliability of Johnson’s statement
were “lacking because it was not properly signed or dated, nor was a handwriting analysis
ever performed.” The court said that the statement would have likely not been admissible
at trial because Johnson did not take responsibility for the homicide; therefore, it would not
qualify as a statement against penal interest for purposes of the rule against hearsay.

       The petitioner asserts that Johnson wanted to testify at his trial but was never called.
He alleges that trial counsel’s explanation that Johnson refused to testify because his appeal

                                              -13-
was pending cannot stand because Johnson’s appeal had concluded at the time of the
petitioner’s trial. The post-conviction court accredited counsel’s testimony, and we will not
revisit that determination. We note that even if Johnson’s direct appeal had concluded, he
was not precluded from seeking other relief.

        The petitioner also focuses his argument on whether the affidavit would have been
admissible as a statement against penal interest pursuant to Tennessee Rule of Evidence
804(b)(3) in the event Johnson did not testify. Initially, however, the petitioner never
showed that the affidavit could have been properly authenticated pursuant to Tennessee Rule
of Evidence 901 as having been written by Johnson. He called no handwriting experts at
the post-conviction hearing to establish that trial counsel could have authenticated the
affidavit. The post-conviction court was particularly concerned with the credibility and
reliability of the affidavit in that it was not signed or dated, or had a handwriting analysis
performed. There is nothing in the record to show that counsel could have even established
the right to have the affidavit admitted into evidence. Moreover, it is questionable whether
the affidavit would have been admissible as a statement against interest, see Tenn. R. Evid.
804(b)(3), because Johnson did not directly take responsibility for the homicide in the
affidavit.

       The petitioner asserts that Johnson’s statement would have been admissible pursuant
to State v. Brown, 29 S.W.3d 427, 433-434 (Tenn. 2000), which held that the right to
present a defense trumps the rule against hearsay in certain situations. Factors to consider
in determining whether the exclusion of evidence violates the right to present a defense
include whether (1) the excluded evidence is critical to the defense; (2) the evidence bears
sufficient indicia of reliability; and (3) the interest supporting exclusion of the evidence is
substantially important. Id. at 434 (citing Chambers v. Mississippi, 410 U.S. 284, 298-301
(1973)).

       In the present case, there was no proof that the handwritten, unsigned, and undated
affidavit could have even been authenticated in the first place, and the interest of excluding
unreliable evidence is substantially important. Moreover, in that three witnesses saw the
petitioner participate in the shooting and testified to such, it can hardly be said that any
unreliable, unauthenticated hearsay evidence from a co-defendant would be critical to the
defense.

      In sum, we cannot conclude that counsel rendered ineffective assistance with regard
to Tony Johnson’s affidavit.




                                             -14-
                                   IV. Bad Act Evidence

       The petitioner lastly argues that trial counsel was ineffective in failing to object,
under Tennessee Rule of Evidence 404(b), to the “bad act” evidence introduced in Lolar
Stewart’s testimony that she had seen the petitioner possessing a gun on other occasions.
As to this issue, the post-conviction court found that the petitioner failed to offer sufficient
proof on the issue and that trial counsel’s decision whether to object was “a strategic
decision this court will not second guess.”

       We note that the petitioner failed to conduct a 404(b) hearing at his post-conviction
evidentiary hearing; therefore, any assertion that Stewart’s statement could have been
properly excluded as a prior bad act does not clearly and convincingly establish deficient
performance on the part of trial counsel. Moreover, we fail to see how testimony that the
petitioner possessed a gun on other occasions could have affected the jury’s verdict because
three witnesses testified that they saw the petitioner involved in the shooting.

                                      CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the judgment of the post-
conviction court denying the petition for post-conviction relief.



                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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