         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 27, 2009

                MICHAEL S. MORANI v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Cumberland County
                           No. 6395   Leon C. Burns, Jr., Judge



                     No. E2008-00565-CCA-R3-PC - Filed March 3, 2009


The petitioner, Michael S. Morani, appeals the denial of his petition for post-conviction relief. In
this appeal he asserts that he was denied the effective assistance of counsel at trial. Discerning no
error, we affirm the judgment of the post-conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and D. KELLY THOMAS, JR., JJ., joined.

G. Earl Patton, Crossville, Tennessee, for the appellant, Michael S. Morani.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Randall A. York, District Attorney General; and Mark Gore, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION
                On February 1, 2002, a Cumberland County Criminal Court jury convicted the
petitioner of one count of attempted premeditated first degree murder, see T.C.A. §§ 39-12-101; 39-
13-202 (2000), and one count of theft of property valued at $10,000 or more, see id. § 39-14-105(4).
The trial court imposed a five-year sentence for the theft conviction to be served concurrently with
a 23-year sentence for the attempted murder conviction. The trial court also imposed $60,000 in
fines.

               We glean the facts surrounding the petitioner’s conviction from the petitioner’s direct
appeal of his convictions.

               The [petitioner] first met the victim, Alan Logan, in August of 1999
               when he applied for benefits at the Department of Human Services in
               Roane County, where the victim worked. As the victim testified at
               the trial court, he allowed the [petitioner] to share his Cumberland
                   County residence for approximately two months, providing both
                   “emotional and financial support.” Two years later, the [petitioner]
                   arrived unexpectedly at the residence of the victim, apparently “on
                   foot” and attempting to rekindle their friendship. Approximately one
                   hour into the conversation, Jennifer Reynolds, the [petitioner]’s
                   girlfriend, arrived in a vehicle. The [petitioner] spoke to her privately
                   and she left. About twenty minutes later, she returned, talked with
                   the [petitioner] and left again. After returning to the residence, the
                   [petitioner] remarked, “I’ve killed a man . . . because he had
                   something I wanted and he wouldn’t give it to me.” He then
                   displayed a handgun. As the victim reached for his drink, the
                   [petitioner] ordered him to “freeze.” In response, the victim threw a
                   table at the [petitioner] and fled toward the door. The [petitioner]
                   shot the victim once in the arm before his gun jammed, allowing the
                   victim to run to a nearby residence, where the neighbor telephoned
                   911. The victim hid in the woods as the [petitioner] took the victim’s
                   1999 Buick Regal and drove away.

State v. Michael Salvator Morani (Morani I), No. E2002-02394-CCA-R3-CD, slip op. at 1-2 (Tenn.
Crim. App., Knoxville, Aug. 14, 2003), perm. app. denied (Tenn. Dec. 15, 2003).

                 The petitioner challenged only the length of his sentences and the amount of his fines
on appeal, and this court affirmed the judgments of the trial court.1 Id., slip op. at 1. The petitioner
then filed a petition for post-conviction relief requesting a delayed appeal alleging “ineffective
assistance of counsel for failing to file a timely motion for new trial.” Michael Salvator Morani v.
State (Morani II), No. E2005-01897-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App., Knoxville, June
30, 2006). On July 25, 2005, the post-conviction court entered an agreed order granting a delayed
appeal and holding all other post-conviction issues “in abeyance or dismissed without prejudice
pending a ruling on appeal,” and the petitioner filed a timely notice of appeal. Id., slip op. at 3. This
court reviewed the petitioner’s claims on delayed appeal, and we affirmed the judgments of the trial
court. Id., slip op. at 1.

                The petitioner, through counsel, amended his petition for post-conviction relief on
May 31, 2007. His amended petition alleged that trial counsel was ineffective in failing “to timely
confer with the client and evaluate his defenses on their merits,” failing to “fully discuss potential
strategies and tactical choices during plea negotiations and prior to trial,” failing to “timely and
effectively test the State’s case through defensive procedures,” failing to “conduct appropriate and
timely investigation, both factual and legal, to assist [p]etitioner in determining his defensive
choices,” and making “independent tactical decisions that were not in the [p]etitioner’s best interest.”
The original petition for post-conviction relief further alleged that counsel was ineffective in failing
to evaluate the petitioner’s mental history in presenting an adequate defense.


         1
           Because trial counsel failed to file a timely motion for new trial, the petitioner was unable to pursue all issues
on direct appeal. Morani II, slip op. at 2.

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                  At the February 26, 2008 evidentiary hearing on his petition, the petitioner testified
that he met with trial counsel “[t]hree . . . [m]aybe four” times. During these meetings, the petitioner
informed counsel of his “intimate relationship” with the victim. The petitioner stated that, at trial,
the victim “flatfoot lied” by denying the relationship. The petitioner explained, “[The victim] was
saying . . . some kind of NAACP March, or whatever, or Million Man March . . . was the reason why
he was helping me out and doing all of the things that he was doing for me at that time, and . . . he
don’t know why things happened the way they happened . . . all of that was false.” He said, “I gave
[counsel] a couple of witnesses who . . . pretty much knew [about the relationship] and could have
testified in trial to the fact that a lot of things that [the victim] was saying was not true.” One witness
worked with the victim and the other witness, his godmother, had housed the petitioner. The
petitioner testified that he provided the names and telephone numbers of these witnesses to counsel
“[m]aybe a couple of months” before trial and that he asked trial counsel to subpoena the witnesses.
He maintained that he was unable to speak with counsel about why she did not call the witnesses,
and that he was unaware that the witnesses would not testify on his behalf until the day of his trial.
He stated that counsel told him that the witnesses “didn’t have anything relevant to say that could
have benefited [sic] [the petitioner] in any kind of way, in trial or whatever,” and counsel said that
the witnesses’s testimony would harm the petitioner’s case more than helping him. The petitioner
testified, however, that counsel never explained why the testimony would have damaged his defense.
The petitioner stated that counsel never informed him that she discerned his defense theories as
unavailing.

                On cross-examination, the petitioner acknowledged that none of the aforementioned
witnesses were present at the hearing to testify as to what they would have offered at trial. He
explained, “I didn’t have an idea that the hearing would be today.” He further admitted that he did
not issue subpoenas for any of the witnesses when he filed his petition for post-conviction relief.

                The petitioner testified that he provided trial counsel with “evidence to go . . .
investigate as far as my psychiatric history.” He claimed he was “bipolar” and had “mood swings
with anger bursts,” which he believed “could have played a major role . . . into a proper defense.”
He stated he had been “in a couple of psychiatric facilities as a juvenile, and one for stress about two
or three years.” He explained that he suffered from a “chemical imbalance or whatever”; however,
he did not produce medical records at the hearing. On cross-examination, he admitted that he was
not prescribed any medications at the time of trial. He admitted that counsel explained, and he
understood, the elements of attempted premeditated first degree murder and theft and that his case
would be tried before a jury.

                  The petitioner testified that the State offered him two separate plea deals during the
pretrial stages. The petitioner rejected the first offer of eight years’ incarceration, and the State later
offered 10 years’ incarceration upon a plea of guilty. He said, “[Counsel] explained to me that . .
. you get found guilty, this is how much time you can get, and if you take this offer, this is how much
time you can get.” He admitted that counsel explained that he could receive a longer sentence if the
case went to trial; however, the petitioner maintained that he and counsel “didn’t have a discussion
about . . . the fact that [he] would not have a defense in trial.” He explained, “I was innocent . . . .
I was not guilty of premeditated first degree murder, and I felt like I had a defense . . . which was
the truth, to be able to prove my innocence, so I decided not to take the offer.” At one point, he

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“snapped” at counsel because she wanted him to accept a plea offer, but “[he] didn’t feel like an offer
was the way [he] wanted to go.”

                   The petitioner testified that he filed a motion to suppress evidence of an alleged
confession made to Investigator Wiley Potter. He maintained that he withdrew the motion upon the
advice of counsel. He said, “[Counsel] . . . explained . . . the suppression hearing would [take] place
without . . . the jury . . . and that the judge would deny that; and when he denied it . . . she would not
be able to bring it up when the investigator took the stand and question him . . . about the statement
in front of . . . the jury.” He determined that withdrawing the motion was the best option because
he thought that, if the judge denied his motion, the jury “would not be able to hear anything about
[his] denying . . . the statement.” He complained that, at trial, counsel failed to question the
investigator on whether the petitioner made the confession, “which was the whole reason why [he]
told [counsel] not to suppress the statement in the first place.” The petitioner testified that counsel
led him to believe that she would attempt to make Investigator Potter “trip himself up” on the
witness stand.

                 Lastly, the petitioner testified that counsel did not sufficiently discuss his option to
testify in his own defense and that his decision not to testify was “forced upon [him].” He claimed
that, at the time of trial, he did not understand that “[his] testimony was the only way that the jury
would hear [his] side of the events.” He expected that counsel’s questioning of witnesses and
opening and closing statements would relay his version of events. On cross-examination, he
admitted that he signed a waiver of rights form declaring he did not wish to testify. He said,
however, “[Counsel] did not present any evidence when the [S]tate closed to the fact of my
innocence, so if I took the stand, I felt like that wouldn’t have d[one] anything but hurt me.” He
further testified that he was unaware that, by signing the waiver, he effectively ended the trial. The
petitioner stressed that he did not know that counsel was not presenting defense witnesses until the
time of trial, and he maintained that he was innocent.

                Counsel testified that she had been a public defender for nine years. She could not
recall how many times she met with the petitioner prior to trial, but she stated that she counseled him
“[s]everal” times. Counsel stated that she and the petitioner discussed trial strategy at every meeting.
She explained, “[The petitioner] never told me that he didn’t fire that gun, he never said it here
today.” Contrary to the petitioner’s testimony, counsel stated that she and the petitioner “were
focusing on largely . . . whether or not the [S]tate could prove premeditation.” Counsel testified that
the theft charge was “superfluous” because “it was a much lesser offense” than attempted murder.
Counsel testified,

                [The petitioner] wants to talk about whether he was innocent, but
                when you have a client that’s not telling you that he didn’t fire the
                gun, you don’t have a client that’s telling you that he’s completely
                innocent. You have a client that’s trying to tell you that you need to
                find a way to get him a lesser charge or to find a way to not let the
                [S]tate prove its case in some respect.



                                                   -4-
Counsel testified that she explained to the petitioner the elements of the charges against him and
Tennessee’s law on premeditation.

                Regarding the witnesses that the petitioner wished to present at trial, counsel testified
that she thought the witnesses described to her “were character witnesses.” She stated that she “tried
to explain to him that those witnesses would be much more appropriate for a sentencing hearing.”
Counsel gleaned from meeting with the petitioner that these witnesses would testify to the
petitioner’s difficult childhood and the nature of his relationship with the victim. She said, “[I]t
didn’t seem to me that they had any knowledge relevant to the facts of the case.” Counsel
maintained that she informed the petitioner that the witnesses were irrelevant on several occasions.
On cross-examination, she acknowledged that she did not contact the witnesses, despite the
petitioner providing her telephone numbers. She recalled informing the petitioner, prior to trial, that
no witnesses would testify on his behalf at trial. She acknowledged that the petitioner seemed
surprised to learn that she had subpoenaed no witnesses, but “[the petitioner] was always surprised
when things didn’t go his way.”

                 Counsel stated that she “tried to touch” on the alleged homosexual relationship
between the petitioner and the victim at trial; however, she stated, “[W]ith that subject, there was
also the danger of alienat[ing] the jury, and I tried to explain that concept to him too, that we were
sort of walking a fine line there.” She “didn’t hammer on” the issue because she opined that the
testimony would harm his case more than it would help. On cross-examination, she stated that the
petitioner, at times, thought his relationship with the victim was important to his defense; however,
at other times in trial preparation, he did not think the relationship important. She explained that,
in her opinion, “if [the jury] believed that [the petitioner] shot at [the victim], and they were
homosexuals, . . . how does that make that better?” Counsel acknowledged that in her case notes she
had written that one possible witness “[w]arned the [petitioner] that the victim was gay/predatory.”
She also had written a note that another witness worked at the Tennessee Department of Human
Services and suggested a “[f]ather-son” relationship between the petitioner and the victim. Counsel
testified that the petitioner never discussed self-defense as a defense theory.

                Counsel testified that she was not aware of any mental health issues until after the
trial. She testified that the petitioner never mentioned any mental health problems and that she
believed that the petitioner was capable of understanding and appreciating the charges against him.
Although she “observed . . . some bad behavior from him,” she never observed any behavior that led
her to request “a forensic evaluation to determine competence or insanity at the time of the offense”
or to ask for a jury instruction on insanity or diminished capacity. When asked whether the
witnesses provided by the petitioner could have provided mental health history, counsel responded,
“It was also possible that [the petitioner] could have done that, but he didn’t.” Counsel noted that
the petitioner mentioned he was “bipolar,” and she explained that, upon learning about this
condition, it would have been “exterme[ly] difficult” or “impossible” to get an expert to testify for
the petitioner.

                Regarding the motion to suppress evidence of the petitioner’s statements to
Investigator Potter, counsel testified that during oral argument of the motion, the petitioner expressed
his desire to withdraw the motion. She explained, “The likelihood of success, honestly, was

                                                  -5-
probably not good. But it was one of those motions that probably needed to be argued.” She
testified that the supposed confession was neither recorded nor written and that the petitioner
claimed “the investigator [was] putting words into his mouth.” Counsel testified that she abided by
the petitioner’s decision to withdraw the motion because “[she] could still cross-examine
Investigator Potter at trial.”

                Counsel testified that she presented both of the State’s plea offers to the petitioner.
Upon presenting the petitioner with the eight-year offer, he responded that “he wasn’t going to take
anything that didn’t give him time served. He wanted out of jail, period.” She testified that the
petitioner told her he believed that as the trial date approached, the more lenient the plea offer would
become. She explained to him that his strategy was incorrect and that he would likely receive a
harsher sentence. Further, she explained that she believed that the petitioner did not have a
legitimate chance of being acquitted and that he should consider the plea offers.

                 Counsel discussed the implications of the petitioner’s testifying in his own defense
at trial, and she told him that “he was the only one who could decide that.”

             At the close of proof, the post-conviction court opined on counsel’s decision not to
“hammer” on the petitioner’s alleged romantic relationship with the victim,

               There’s . . . just some allusion here today about there was [a
               homosexual] relationship. But how does that impact the decision in
               this case? How does the decision not to present that in a forceful way
               by counsel at the trial, . . . how was that likely to change the results?
               I don’t think it would have any bearing on it. . . . With the facts as
               they were presented at trial, it would be awfully hard to suggest [the
               shooting] didn’t happen, that he’s lying about it. I guess [the
               petitioner] is saying . . . , “I don’t deny shooting him, but I don’t -- it
               didn’t happen like he said it happened.” I don’t think there’s enough
               proof here to suggest that that would have made any difference.

                As for the petitioner’s argument that counsel should have further investigated the
witnesses provided by the petitioner, the post-conviction court acknowledged that “it would have
been better” for counsel “to have talked to those witnesses to find out exactly what they were going
to say”; however, the post-conviction court credited counsel’s determination that the witnesses were
“character witnesses” and her tactical decision not to call them at trial. The post-conviction court
further noted that the petitioner did not present these witnesses for the hearing, so the court could
not determine any prejudice. It stated, “[W]e don’t know. We haven’t heard from them. We don’t
have any affidavit, we don’t have any knowledge of what they’re going to say and how that would
have made any difference.”

                   The post-conviction court noted that “[t]here wasn’t anything presented [at any time]
that suggest[ed] that [the petitioner] wasn’t competent to stand trial.” The post-conviction court
further found that no evidence suggested insanity or diminished capacity. The court stated, “All in
all, it seems . . . that counsel was effective,” and the court denied post-conviction relief. On March

                                                  -6-
6, 2008, the post-conviction court filed a written order summarizing its findings and denying the
petition for post-conviction relief.

                The petitioner appeals the denial of post-conviction relief, and he posits that counsel
failed to adequately investigate the case and inform the petitioner of her theories of the case. He
contends that this failure caused him to misunderstand the circumstances and weaknesses of his
defense, and, based on that misunderstanding, he rejected that State’s plea offers. He states that he
“went into his trial believing that he would have witnesses to testify on his behalf, and that he had
at least one [m]otion filed that his attorney would argue in an effort to suppress certain evidence
against him.” He argues that “he [was not] advised prior to trial that his own testimony was the only
testimony that could possibly provide proof of the innocence he claims to have continually
maintained.” The State, obviously, argues that the post-conviction court properly denied the
petitioner relief.

               The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d
572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By
contrast, the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

               When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he must first establish that the services rendered or the advice given were below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). The error
must be so serious as to render an unreliable result. Id. at 687, 104 S. Ct. at 2064. It is not
necessary, however, that absent the deficiency, the trial would have resulted in an acquittal. Id. at
695, 104 S. Ct. at 2068. Should the petitioner fail to establish either factor, he is not entitled to
relief. Our supreme court described the standard of review as follows:

                               Because a petitioner must establish both prongs of the
               test, a failure to prove either deficiency or prejudice provides a
               sufficient basis to deny relief on the ineffective assistance claim.
               Indeed, a court need not address the components in any particular
               order or even address both if the defendant makes an insufficient
               showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

               On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of

                                                 -7-
counsel, however, applies only if the choices are made after adequate preparation for the case.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

               Claims of ineffective assistance of counsel are regarded as mixed questions of law
and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given no
presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762,
766 (Tenn. 2000).

                 The evidence adduced at the hearing supports the post-conviction court’s denial of
relief to the petitioner. Counsel testified that she discussed with the petitioner the theory of
challenging the element of premeditation for the attempted premeditated first degree murder charge.
She discussed trial strategy at every meeting. Although she could not specify the number of
meetings she held with the petitioner, she stated that she met with him “[s]everal” times. Counsel
had been a public defender for nine years, and she used her judgment in determining the strategy and
tactics used at trial.

                  We agree with the post-conviction court that counsel’s decision not to call the
witnesses put forth by the petitioner was a tactical choice not to be reevaluated in hindsight. The
post-conviction court “credited counsel’s determination that the witnesses were character witnesses”
and noted that the petitioner had not produced these witnesses to prove otherwise. “When a
[post-conviction] 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). If he fails to
do so, he generally fails to establish ineffective assistance of counsel. Id. The post-conviction court
may not speculate “on the question of . . . what a witness’s testimony might have been if introduced”
at trial. Id.; see also Wade v. State, 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995). The petitioner
has failed to show any prejudice, and we will not disturb the post-conviction court’s determination.

                 Further, we do not disturb the post-conviction court’s finding that counsel’s decision
not to “hammer on” the alleged homosexual relationship between the victim and the petitioner was
a sound tactical decision. We will not disturb counsel’s determination that concentrating on the
nature of the men’s relationship could possibly alienate the jury. We further note that nothing in the
trial or hearing evidence suggests that this evidence would have aided the petitioner’s defense and
may have, in fact, helped the State’s proof of premeditation. We also cannot determine any resulting
prejudice because we note that our opinion regarding the petitioner’s 2003 direct appeal suggested
the nature of the relationship, establishing that the nature of the relationship was presented to some
degree at trial. See Morani I, slip op. at 2.

                  The petitioner argues that because of inadequate communication from counsel, he did
not have the proper knowledge to evaluate whether to accept plea offers from the State and whether
to testify at trial. Counsel testified that, prior to trial, she informed the petitioner that no witnesses
would testify at trial and that she and the petitioner discussed a strategy focused on challenging
premeditation. Counsel testified that the petitioner was unwilling to accept the plea offers and that

                                                   -8-
she advised against his strategy that the State would become more lenient as trial approached. The
petitioner admitted that counsel explained the severity of the sentence he could receive at trial as
compared with the plea offers. Counsel also stated that she believed the petitioner understood her
explanations during their meetings and that she observed no mental health defects that would prevent
him from comprehending. She communicated to the petitioner that she believed he had little
possibility of being acquitted by the jury. The post-conviction court, in denying relief, clearly
credited the counsel’s testimony over that of the petitioner, and we discern no error in its
determination that counsel adequately informed the petitioner.

                Although the post-conviction court did not explicitly rule upon whether the
withdrawing of the petitioner’s motion to suppress provided sufficient grounds for ineffective
assistance of counsel, we note that it roundly rejected the petitioner’s testimony and credited
counsel’s testimony. Counsel testified that, during argument on the motion to suppress, the
petitioner asked her to withdraw the motion. Further, she opined that the motion was unlikely to
succeed and that she challenged the alleged confession through cross-examination of Investigator
Potter. The petitioner fails to show by clear and convincing evidence that counsel’s decision, as per
the petitioner’s request, not to pursue the motion to suppress violated his right to effective assistance
of counsel.

                 On appeal, the petitioner abandons his grounds that counsel was ineffective in failing
to investigate the petitioner’s mental health. We credit the post-conviction court’s findings that such
arguments are unavailing and fail to establish grounds for post-conviction relief.

                Because the petitioner has failed to show by clear and convincing evidence that
counsel’s performance fell below the range of competence demanded of attorneys in criminal cases
or that counsel’s deficient performance prejudiced his defense, we affirm the post-conviction court’s
denial of relief.



                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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