         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 7, 2003

                 MICHAEL P. HEALY v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-26147    Arthur T. Bennett, Judge



                   No. W2002-01962-CCA-R3-PC - Filed February 5, 2004


The petitioner appeals the trial court’s finding that the petitioner received effective assistance of
counsel both before and during trial. We affirm the denial of the post-conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and NORMA MCGEE OGLE , JJ., joined.

Juni Ganguli, Memphis, Tennessee, for the appellant, Michael P. Healy.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        The petitioner, Michael P. Healy, was convicted of the indicted charges of aggravated
robbery and aggravated assault. Sentences of thirty years for aggravated robbery and fifteen years
for aggravated assault, to be served consecutively, were imposed. The convictions were affirmed
on direct appeal to this Court. See State v. Michael P. Healy, No. W1999-01510-CCA-R3-CD, 2001
Tenn. Crim. App. LEXIS 471 (Tenn. Crim. App. at Jackson, June 26, 2001).

       The petitioner filed a pro se petition for post-conviction relief on February 8, 2002. Counsel
was appointed, and an amended petition was filed. An extensive evidentiary hearing was held on
July 10, 2002, and the petition was denied.

       The petitioner’s claims were overlapping in some instances, but the alleged deficiencies of
counsel can be categorized as:
       (1) failure to properly conduct a pre-trial investigation that could develop possible
           defense theories;
        (2) failure to file timely pre-trial motions, including notice of an alibi defense;
        (3) ineffective representation at trial in cross-examination and the failure to object to
             certain testimony.

        The facts supporting the petitioner’s conviction were summarized in State v. Healy. The
petitioner, wearing a platinum blonde wig, sunglasses, and facial covering, entered a store owned
by Sherrie and Benny Colville. The petitioner pointed a gun at Mrs. Colville and demanded she open
the cash register. Instead, she called for her husband, who observed the petitioner from behind a
two-way mirror. The petitioner took Mrs. Colville’s purse. As the petitioner turned to leave, he saw
Mr. Colville crouching in the back of the store and pointed the gun at Mr. Colville. The petitioner
fled, pursued by Mr. Colville, who saw the petitioner remove his disguise enabling Mr. Colville to
see the petitioner’s face. A witness saw the petitioner fleeing the store and obtained the license plate
number on the vehicle in which the petitioner escaped. The petitioner was later apprehended, and
the Colvilles independently identified the petitioner in a six-person photographic lineup as the
perpetrator.

        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, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (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 defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; 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, 104 S. Ct. at 2068.

        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, 104
S. Ct. at 2065; 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, 104 S. Ct. at 2065).

        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, 104 S. Ct. at 2065). The fact that
a particular strategy or tactic failed or hurt the defense does not, standing alone, establish


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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 was initially represented by Michael Johnson of the Shelby County Public
Defender’s Office from December 3, 1998, until April 27, 1999. The petitioner complained that his
counsel was inaccessible, did not spend adequate time with him, failed to initiate a proper
investigation, and did not file a requested speedy-trial motion.

        On April 27, 1999, Gregory Carman was substituted as counsel for the petitioner. The
petitioner claimed that Mr. Carman failed to move to suppress the disguise items, failed to properly
investigate witnesses or the possible presence of surveillance cameras, and failed to object to
prejudicial statements in the prosecution’s closing argument. The petitioner also alleged that, to his
detriment, Mr. Carman changed defense strategy during trial.

        Mr. Johnson testified that during his representation of the petitioner, he obtained full
discovery from the State and shared its contents with the petitioner. He also initiated an
investigation through his office. He stated the petitioner did not wish to consider acceptance of the
plea bargain offer. Mr. Johnson stated he did not file the speedy trial motion as, in his opinion, it
would have been futile. As it was, the petitioner’s arraignment was December 3, 1998, and the trial
occurred on March 4, 1999. Mr. Johnson stated that he had himself removed as counsel due to a
personal conflict with the petitioner.

        Gregory Carman succeeded Mr. Johnson as counsel. His time logs reflected that he had spent
a total of 55½ hours on the case, which included 7½ hours of conferences with the petitioner and
15¾ hours in court. The remainder of time was devoted to investigation, research, review of
evidence, and general preparation. Mr. Carman not only visited the crime scene but initiated two
other investigations with his staff. Witnesses were interviewed, and the possibility of an alibi
defense was explored. This defense was discarded when the only suggested witness, Jeri Wilmouth,
the petitioner’s girlfriend, could not provide a location or time that would support an alibi defense.
Mr. Carman said that his strategy, which was discussed with and approved by the petitioner, was to
attempt to prove a lesser offense than charged. Consequently, identity was not contested, although
the petitioner attempted to resurrect the issue during trial. All pre-trial motions were filed according
to Mr. Carman’s testimony.

        The post-conviction judge issued a written finding and concluded that the petitioner’s bare
allegations of ineffective counsel were unsupported by evidence adduced at the hearing. The post-
conviction judge accredited the testimony of the petitioner’s trial counsel in the denial of the petition.
These findings of fact on post-conviction hearings are conclusive on appeal unless the evidence
preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Having concluded that
the evidence does not preponderate against those findings, we are bound by them. Henley, 960
S.W.2d at 578.



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        Having concluded that the petitioner failed to prove deficiency of counsel, we therefore
affirm the denial of post-conviction relief.




                                                    ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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