         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 14, 2009

                    ELROY GAINES v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                        No. 01-03286 James M. Lammey, Jr., Judge



                     No. W2008-01341-CCA-R3-PC - Filed August 5, 2009


The petitioner, Elroy Gaines, appeals the Shelby County Criminal Court’s denial of his petition for
post-conviction relief. Following a jury trial, he was convicted of aggravated sexual battery, a Class
B felony, and was subsequently sentenced as a career offender to thirty years in the Department of
Correction. On appeal, the petitioner argues that he was denied his right to the effective assistance
of counsel based upon counsel’s failure to: (1) properly investigate the case and prepare for trial; (2)
adequately communicate with the petitioner; and (3) properly preserve appellate issues. Following
review of the record, the judgment of the post-conviction court is affirmed.

     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 ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Juni Ganguli, Memphis, Tennessee, for the appellant, Elroy Gaines.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

       The relevant underlying facts of the case, as established on direct appeal, are as follows:

               The thirty-five-year-old victim, Renita Brown, testified that on July 14, 2000,
       she left her mother’s residence with the [petitioner] in order to purchase marijuana.
       She stated the [petitioner] grabbed her and pulled her into an alley and, when she
       started screaming, punched her in the eye. Brown testified the [petitioner] took her
       to a park where he choked her and made her perform oral sex on him. She stated the
       [petitioner] forced her to accompany him to an empty house, where the [petitioner]
       again forced her to perform oral sex on him. Brown stated she had oral sex with the
       [petitioner] because he threatened to kill her with a brick he was holding. She stated
       the [petitioner] beat her with his fist on her legs, choked her, covered her mouth with
       his hand, and forced her to have vaginal intercourse “for hours” before she finally
       “passed out.” . . . .

               Paulina Perkins, the victim’s mother, testified that on the morning of July 14,
       the victim appeared at her house bruised and bleeding with her clothes “tore off of
       her.” Perkins stated the victim said she had been beaten by the [petitioner].

State v. Elroy Gaines, No. W2003-01442-CCA-R3-CD (Tenn. Crim. App. at Jackson, Mar. 30,
2004). At an examination the following morning, it was noted that the victim had a contusion on
her forehead, a swollen and bruised left eye, bruises on both sides of her arms, and a very large
wound on her right hip. Id. Medical personnel were unable to perform a genital examination
because there was “so much swelling” and the area was “very tender and very painful.” Id. It was
noted that the victim’s injuries were consistent with a forcible rape having occurred within the day
prior to the examination, and testing on a vaginal sample taken from the victim matched the
petitioner’s DNA. Id. The petitioner acknowledged that he had sexual intercourse with the victim
but stated that it was consensual. Id. He further admitted that he had beaten the victim but
contended it was only after she commented that he was involved in his nephew’s murder. Id.

        A Shelby County grand jury indicted the petitioner for two counts of aggravated kidnapping
and two counts of aggravated rape. Following a jury trial, he was acquitted on three counts and
found guilty of aggravated sexual battery, as a lesser offense of aggravated rape, on the remaining
count. He was subsequently sentenced as a career offender to a term of thirty years in the
Department of Correction. A direct appeal was filed, challenging only the sufficiency of the
evidence, and a panel of this court affirmed the conviction. Id. Subsequently, the petitioner filed
a timely pro se petition for post-conviction relief alleging, among other grounds, that he was denied
his Sixth Amendment right to the effective assistance of counsel. Following the appointment of
counsel, an amended petition was filed, and a hearing was conducted at which the petitioner, two
trial counsels, and appellate counsel testified.

                                     Post-Conviction Hearing

        The first witness to testify at the hearing was the assistant public defender appointed to
represent the petitioner (“trial counsel”). Trial counsel was the division head of the major violators
unit, where the petitioner would be tried based upon his prior convictions for voluntary
manslaughter, attempted assault with rape, receiving and concealing stolen property, accessory after
the fact, murder in the perpetration of a robbery, grand larceny, burglary of a building, and seven
counts of aggravated assault. Trial counsel explained to the petitioner that, if convicted, he would
be sentenced as a career offender and could be subject to “60 years, mandatory.”




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         Trial counsel testified that she was appointed to represent the petitioner on April 1, and that
his first report date was May 11. She acknowledged that the only pretrial motion which she filed,
the discovery motion, was not filed until May 23, after the first report date. However, she related
that the general practice in the major violator’s unit was for the State to prepare the discovery packet
and give it to defense counsel at arraignment. Trial counsel specifically testified that she received
a discovery packet prior to the petitioner’s report date in this case. The motion she subsequently
filed was precautionary following reindictment of the petitioner.

        Trial counsel stated that she worked more than seventy-five hours on the petitioner’s case.
She also testified that she visited with the petitioner at the jail on at least two occasions, as well as
at various report dates. Additionally, when the petitioner wanted to see trial counsel, he would notify
her and he would then be brought to the courtroom for a meeting. According to trial counsel, this
occurred at least four or five times. In the four months prior to the trial, trial counsel recalled
meeting with the petitioner “at least a couple of times per month.” Additionally, trial counsel
requested an additional assistant public defender sit as second-chair on the case and met with him
on numerous occasions to go over the file. Trial counsel also utilized the services of an investigator
in her office.

         According to trial counsel, before the trial began, she and the investigator met with the
witnesses they were able to locate. She testified that the defendant had previously given them a list
of witnesses but failed to include addresses, phone numbers, or, in some instances, last names. She
testified that the petitioner complained to the trial court regarding her failure to interview witnesses
and requested that she be relieved based upon her failure to investigate. However, the trial court
explained to the petitioner that trial counsel and the investigator were unable to conduct the
investigation based upon the information he had supplied. The petitioner then supplied trial counsel
with a more thorough list, and she and the investigator interviewed the witnesses they could locate.
However, according to trial counsel, none were eyewitnesses to the crime and did not provide any
useful information for the petitioner’s defense. Trial counsel acknowledged that she did not speak
with the victim but testified that it was a strategic decision. The victim had previously given two
contradictory sworn statements, which trial counsel intended to use to impeach the victim’s
credibility. Trial counsel also testified that she investigated the victim’s criminal history prior to
trial.

        Prior to trial, counsel advised the petitioner that his previous criminal convictions could be
used to impeach him and advised him against testifying, advice which the petitioner did not follow.
However, trial counsel testified that she did prepare the petitioner for testifying by telling him what
to expect; however, she did not conduct a mock cross-examination with him.

        During jury deliberations, the jury asked a question regarding the instructions for aggravated
rape and rape. As a result of that question, the trial court altered the instructions. According to trial
counsel, the element of bodily injury had inadvertently been included in the charge for rape. The
court removed the improper element from the charge. Additionally, the court added the element that
the victim did not consent to the charge for aggravated rape. The court stated that it made this


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addition because the instruction, as written, would allow the jury to believe the petitioner and still
convict of aggravated rape. Trial counsel did not object to the addition, despite the fact that the
added element was not prescribed by statute as it added an additional element, thus increasing the
burden on the State. As noted, the jury found the petitioner not guilty of aggravated rape and rape,
convicting him only of the lesser offense of aggravated sexual battery. No amendment was made
to the charge for the lesser offense.

        Next to testify was second-chair defense counsel. He testified that he was brought in later
in the case “basically to run interference between trial counsel and [the petitioner] and to answer any
questions the petitioner might have regarding the trial.” He testified that he recalled that the
witnesses suggested by the petitioner were not helpful to his defense. Finally, he testified that no
objection was made to the altered jury charge, as it inured to the defendant’s benefit by increasing
the State’s burden of proof.

        Appellate counsel was also called to testify at the hearing and stated that the only issue raised
on direct appeal was sufficiency of the evidence. When questioned regarding the jury instruction
alteration, appellate counsel stated that he did not see anything improper and that he certainly would
not appeal something the petitioner was acquitted of, stating there was no basis to complain after the
petitioner had been acquitted of aggravated rape. Appellate counsel stated that he communicated
with the petitioner by letter, sending copies of his brief and transcripts to the petitioner.

         Finally, the petitioner testified and acknowledged that he had informed trial counsel that he
had sex with the victim and beat her, although he claimed the sex was consensual. He further
acknowledged that this was the strategy pursued by trial counsel. He complained that he did not
receive discovery material “for about three months” following counsel’s appointment. The petitioner
went on to state that he filed multiple motions, which were ruled upon by the trial court, because trial
counsel did not file any. He testified that he gave trial counsel the names of four or five witnesses
and that she made no effort to speak with them. According to the petitioner, trial counsel stated there
was no need to speak with the additional witnesses because the victim had told so many lies. He
further testified that trial counsel never visited him in jail and failed to respond to his numerous
letters. He testified that he asked that trial counsel be removed from his case and that he made a
complaint to the Board of Professional Responsibility. He claimed that he met second-chair counsel
about five days prior to trial and that neither attorney prepared him for cross-examination. He
acknowledged that he testified against the advice of counsel. He also testified that neither attorney
answered his questions during the trial. When he asked why they failed to object to the alteration
of the jury charge, they told him that the trial judge “ran the courtroom” and could do what he
wanted.

        According to the petitioner, trial counsel informed him that sufficiency of the evidence was
the only issue that would be raised on appeal. He testified that he wrote numerous letters to appellate
counsel but did not receive a response before the appeal was filed. The petitioner believed that the
jury instruction issue should have been included in the motion for new trial and should have been
raised on appeal.


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         After hearing the evidence presented, the post-conviction court found that the petitioner had
failed to establish his claim of ineffective assistance of counsel. Following the denial of his petition,
the petitioner filed the instant timely appeal.

                                               Analysis

        On appeal, the petitioner asserts that the post-conviction court erred in denying his petition
for post-conviction relief. Specifically, he contends that the court erred in finding that trial counsel
was not ineffective based upon trial counsel’s failure to: (1) properly investigate the case and
prepare for trial; (2) adequately communicate with the petitioner; and (3) properly preserve appellate
issues. To succeed on a challenge of ineffective assistance of counsel, the petitioner bears the burden
of establishing the allegations set forth in his petition by clear and convincing evidence. T.C.A. §
40-30-110(f) (2006). The petitioner must demonstrate that counsel’s representation fell below the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
the petitioner must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. 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). This deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        It is unnecessary for a court to address deficiency and prejudice in any particular order or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. 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.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a purely de novo
standard with no presumption that the post-conviction court’s findings are correct. Id.

       Following the presentation of evidence at the post-conviction hearing, the court made the
following findings with regard to the amendment of the jury charge:




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       And basically, [the trial court] made it - - gave the State something else they had to
       prove which they were unable to prove and because of that, [the petitioner] did not
       get - - if he was found guilty of an A felony as a career offender, he’d be facing 120
       years right now. . . . And but for the fact that apparently [the trial court] did the right
       thing, he went on about it, talking about what he should do and that basically if he
       did not do what he did, in his opinion he thought the defendant would get convicted
       and he thought it was the appropriate thing to do.

               To object to that by defense counsel, frankly I think would be - - that would
       have been ineffective assistance of counsel if they would of objected to it, you know,
       and if they had prevailed. So I don’t see how anything the defense counsel did
       actually injured [the petitioner.]

In its written order denying relief, the post-conviction court further found:

                [The p]etitioner contends that counsel failed to timely secure discovery
       materials in time to adequately investigate the case. [Trial counsel] testified that the
       discovery motion was filed May 23, 2001. [Trial counsel] further testified that
       discovery packets were usually already prepared, enabling counsel to get the
       discovery materials on arraignment date. The later motion for discovery was a
       protective measure to ensure counsel had received all materials. This Court finds that
       [trial counsel] exercised reasonable professional judgment in securing the discovery
       materials.

               ....

                [The p]etitioner claims counsel failed to conduct a full and adequate pre-trial
       investigation. Specifically, [the p]etitioner contends that counsel did not interview
       potential witnesses and ignored important aspects of the investigation, including the
       consensual past relations between [the p]etitioner and the victim. [Trial counsel]
       testified that she submitted the case for investigation and she met with witnesses she
       was able to find. [Trial counsel] also testified that [the p]etitioner did not supply
       addresses or phone numbers for witnesses, nor did [the p]etitioner provide last names
       until shortly before trial. This court finds that [trial counsel] exercised reasonable
       professional judgment and that the representation did not fall below an objective
       standard of reasonableness.

               ....

               [The p]etitioner contends that counsel was ineffective for failure to meet with
       [the p]etitioner as necessary. . . . [Trial counsel] testified that she met with [the
       p]etitioner in the jail on at least two occasions. [Trial counsel] also testified that she
       met with [the p]etitioner another four or five times on non-trial or report dates in the


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        courtroom. This Court finds that [the p]etitioner has failed to prove how [trial
        counsel] acted below an objective reasonable standard.

                ....

                [The p]etitioner contends that counsel did not object to the trial court’s
        amending the jury instructions, waiving the issue for appeal. [Trial counsel] testified
        that she did not object to the jury instruction amendment because it added an element
        the State to prove. [Second-chair counsel] testified that adding the element was a
        benefit for [the p]etitioner. [The p]etitioner has failed to prove how counsel’s action
        fell below an objectively reasonable standard.

                Appellate Counsel failed to raise the jury instruction amendment issue under
        plain error, thus waiving the issue. [Appellate counsel] testified that he would not
        raise something on appeal if a defendant was acquitted. As [the p]etitioner was
        convicted of a lesser included offense, [appellate counsel] made a tactical decision
        to not appeal this issue. This Court finds that [appellate counsel] exercised
        reasonably objective representation.

I. Failure to Investigate and Prepare

        On appeal, the petitioner first contends that trial counsel was ineffective for failure to
properly investigate and prepare the case. Specifically, he asserts that trial counsel failed to timely
file appropriate discovery motions, properly investigate defense witnesses, and interview prosecution
witnesses, specifically the victim. He argues that “in this multiple offense felony case, [trial counsel]
filed only one pre-trial motion, investigated witnesses only a few weeks before trial, and chose to
not investigate the victim in the twenty[-]two[-]month period that [the petitioner] awaited trial.”

         With regard to the discovery motion, trial counsel, as observed by the post-conviction court
in its findings, testified that she received a discovery packet from the State prior to the filing of the
motion, which the petitioner ignores in his argument. Trial counsel also specifically stated that the
motion was filed only as a protective measure to insure that she was in possession of all relevant
information following reindictment. Clearly, based upon its findings, the post-conviction court
accredited the testimony of trial counsel, and it is not the province of this court to reweigh or
reevaluate such a determination. See Henley, 960 S.W.2d at 579. Regardless, the petitioner failed
to put forth evidence of any discovery material which was not timely received that would have aided
in his defense. With regard to his argument that trial counsel filed only one single motion in the
case, the petitioner has likewise failed to present proof that any such motion would have inured to
his benefit. In fact, the record establishes that multiple motions were filed by the petitioner and
denied by the trial court.

       Likewise, with regard to the petitioner’s assertion that trial counsel only interviewed
witnesses immediately prior to trial, trial counsel gave a valid explanation as to why this occurred,


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which the post-conviction court again accredited based upon its findings. According to trial counsel,
the petitioner failed to provide them with enough information to locate the witnesses. Immediately
after the trial court instructed the petitioner to provide the information, trial counsel and an
investigator began interviewing the witnesses. Trial counsel cannot be held responsible for the
petitioner’s failure. Moreover, both trial counsel and second-chair counsel testified that the
witnesses they interviewed were not eyewitnesses to the crime and were unable to provide any useful
information to the defense. Because the petitioner failed to present these witnesses at the post-
conviction hearing, both this court and the post-conviction court are unable to determine what their
testimony would have been. It is the petitioner’s burden to present such witnesses. See Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

        The petitioner also contends that trial counsel was ineffective in failing to investigate the
victim. However, he offered no proof of what such investigation would have revealed. See Black,
794 S.W.2d at 757. Moreover, trial counsel testified that she did review statements made by the
victim, as well as the victim’s prior criminal history. After adequate preparation, trial counsel chose
to pursue a valid strategy of impeachment based upon inconsistencies in the victim’s statements,
which was apparently successful at trial. See Cooper, 847 S.W.2d at 528. This issue is without
merit.

II. Adequate Communication

         Next, the petitioner contends that trial counsel failed to adequately communicate with him,
based upon their poor working relationship, and asserts that trial counsel was “scared of her client.”
While the petitioner testified that trial counsel rarely met with him and failed to respond to his
correspondence, the post-conviction court, again accrediting the contradictory testimony given by
trial counsel, found that trial counsel had sufficiently met with the petitioner. The record supports
this finding, as trial counsel testified that she met with the petitioner on at least two occasions at the
jail, another four or five times in the courtroom on non-report dates, and wrote the petitioner several
letters advising him of the status. Trial counsel also testified that between December of 2002 and
March of 2003, she met the petitioner “at least a couple of times a month.” While trial counsel
acknowledged that she and the petitioner had a poor working relationship, she continued to represent
him. Moreover, following the petitioner’s complaint to the trial court, a hearing was held at which
the petitioner eventually agreed that she should continue with her representation. Based upon the
record before us, we are unable to conclude that the record preponderates against the post-
conviction’s courts finding that the petitioner failed to establish how trial counsel acted below an
objective reasonable standard.

III. Appellate Issues

        The petitioner also contends that his attorneys failed to properly preserve grounds for appeal,
specifically, by failing “to object to alterations made to the jury instruction, to include all issues in
the motion for new trial, and further to properly investigate all grounds for appeal.” He also
contends that appellate counsel was ineffective by failing to “fully familiarize himself with the client


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and with the technical record before filing the appeal.” However, nothing preponderates against the
post-conviction court’s findings with regard to this issue. All the attorneys involved in the
petitioner’s representation testified that the alteration of the charge inured to his benefit by requiring
an additional element to be proven by the State. Moreover, the petitioner was not convicted of the
crime for which the charge was amended. Thus, the petitioner cannot show prejudice based upon
the amendment or how counsel was deficient for failing to preserve or raise the issue. Furthermore,
the petitioner has pointed to no other issues which would have been meritorious if raised on appeal;
indeed, he has pointed to no other appealable issues. The petitioner bears the burden of establishing
the merits of a claim, which was not appealable, in order to be entitled to relief. Carpenter v. State,
126 S.W.3d 879, 887 (Tenn. 2004). This issue is without merit.

        Finally, the petitioner, conceding “that [while] each alleged deviation perhaps does not
individually warrant a determination of ineffective assistance of counsel[,] [t]he cumulative effect
of these errors, however, illustrates prior counsel’s ineptitude.” We disagree. The petitioner has
failed to carry his burden that his counsel deviated from the required standard of assistance. Thus,
there can be no cumulative effect.

                                           CONCLUSION

        Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                         ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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