                                                                                       02/28/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs July 11, 2017

                CEDRIC TAYLOR v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 13-00173       J. Robert Carter, Jr., Judge
                     ___________________________________

                          No. W2016-01710-CCA-R3-PC
                      ___________________________________


The Petitioner, Cedric Taylor, filed a post-conviction petition, seeking relief from his
convictions of aggravated robbery, aggravated burglary, and employment of a firearm
during the commission of a dangerous felony. In the petition, the Petitioner alleged that
his trial counsel was ineffective by calling an alibi witness whose testimony was not
favorable to the Petitioner. The post-conviction court denied the petition, and the
Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Monica A. Timmerman, Bartlett, Tennessee, for the Appellant, Cedric Taylor.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Dru Carpenter,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       On direct appeal, this court summarized the following pertinent facts adduced at
the Petitioner’s trial:

             [The victim testified that on] June 23, 2012, [she] lived on
             Longfellow Road in Memphis. That night, a friend picked
             her up at her home to go dancing at a club called “Eclipse.”
Thereafter, the women had dinner at a restaurant, and the
victim arrived at her residence between 4:00 and 4:30 a.m. on
June 24. As the victim opened the outer black iron door and
entered her home, her friend drove away. The victim reached
behind her to close the outer door, and she observed two
black males, one pointing a gun at her. The male who held
the gun pushed her through her open inner door and into her
house. She called out to “Mario,” one of the individuals with
whom she lived at the time, but the male struck her in the
head with the gun and instructed her to “shut up.” At that
point, the second male entered the residence. They “grabbed”
the victim, “pushed” her, and then took her handbag. The
victim was bleeding from the attack.

       After the two males stole the victim’s purse, they fled
from the residence, and the people with whom she lived
entered the room. They called the police and an ambulance,
and the victim was later transported to the hospital via
ambulance. The victim stated that she required staples in her
head as a result of being struck with the gun.

        The victim stated that the perpetrator who held the gun
and struck her was dressed all in black with white lettering on
his shirt. He also had long hair with dreadlocks, a braid in the
back of his hair, a goatee, and a beard. She believed him to
be between twenty-three and twenty-seven years of age. The
other male was also dressed in black and had short hair with a
“line” and acne on his face.

        A few days later, the victim spoke with Detective Ivan
Lopez who showed her a photograph array from which she
identified the perpetrator who had wielded the weapon and
struck her on the head. She testified at trial that she was “a
hundred percent sure that it [was] him[sic]” whom she
recognized from the photograph.

       ....

       Detective Lopez with the Memphis Police
Department’s robbery division testified . . . that on June 26,
[the Petitioner] became a suspect in the investigation, which
caused him to create a photograph array for the victim to
                             -2-
view. He showed the array to the victim on June 27, and she
positively identified [the Petitioner] from the array. Detective
Lopez identified [the Petitioner] in court and explained that
[the Petitioner] had cut his hair and no longer had dreadlocks.

        [The Petitioner] called [his girlfriend,] Tamika
Farmer[,] as his first witness, who provided an alibi for [the
Petitioner] for the day and time of the robbery. She testified
that he was present with her at the home where they resided
with [the Petitioner’s] cousin[, Andre Jones,] and his cousin’s
wife[, Josephine Jones]. She stated that they ate dinner,
watched movies, and stayed up late talking and “being
intimate” and that they did not go to sleep until at least
around 5:00 a.m. She was certain of the time because one of
the other individuals in the residence had to wake up early for
work, which caused Ms. Farmer to check the clock and
confirm that it was around 5:00 a.m. Ms. Farmer stated that
the next morning they smelled breakfast cooking and went to
the kitchen to eat with everyone else. She said that the events
were clear in her mind because “that was the last time [she]
actually had time to spend with . . . the love of [her] life.”

        [The Petitioner] then testified in his own defense. He
said that on Saturday June 23, he was at home watching
television.   A family member who was visiting from
California[, “Keoke”,] came over and brought her three-
month-old son. At one point, [the Petitioner] and his cousin
walked to the grocery to purchase items for dinner and for
breakfast the following morning. He recalled that his cousin
and cousin’s wife prepared the evening meal, and they “sat
around and watched [television].” [The Petitioner] stated that
around 8:00 or 9:00 p.m., each couple retired to their
respective bedrooms, where [the Petitioner] and Ms. Farmer
continued to watch television, talk, and be “intimate” with
each other. [The Petitioner] testified that the following
morning, [the Petitioner] and Ms. Farmer arose between 7:00
and 8:00 a.m. and joined his cousins in the kitchen to help
prepare breakfast. They relaxed and enjoyed the rest of the
day together.

       ....

                             -3-
                      [The Petitioner] called Josephine Jones, the wife of
              [the Petitioner’s] cousin and one of the people with whom
              [the Petitioner] and Ms. Farmer lived, as his next witness. Ms.
              Jones testified that she had the only key to her home at the
              time [the Petitioner] and Ms. Farmer resided with her and her
              husband. On cross-examination, Ms. Jones stated that when
              defense counsel first met with her, she felt “like he was
              leading [her] to say things.” She acknowledged that she was
              supposed to testify in court that she recalled having a big
              breakfast with her husband, [the Petitioner], and Ms. Farmer
              on the morning in question but that she had no recollection of
              having done so. Furthermore, the cousin who lived in
              California was not visiting at the time and was not present in
              their home. Ms. Jones confirmed that the breakfast to which
              Ms. Farmer and [the Petitioner] testified did not happen. She
              also said that she did not work on Sundays, so she did not
              leave the house as Ms. Farmer had stated. Ms. Jones stated
              that although she possessed the only key to the residence, one
              did not require a key to leave the house.

                     ....

                     Following the close of the defense’s proof, the jury
              deliberated and found [the Petitioner] guilty as charged of
              aggravated robbery, aggravated burglary, and employing a
              firearm during the commission of a dangerous felony. In a
              subsequent sentencing hearing, the trial court sentenced [the
              Petitioner] to nine years for aggravated robbery, five years for
              aggravated burglary, to be served concurrently with each
              other, and six years for the firearm conviction to be served
              consecutively to the five-year sentence, for an effective
              sentence of eleven years to be served in the Tennessee
              Department of Correction.

State v. Cedric Taylor, No. W2014-00329-CCA-R3-CD, 2015 WL 127869, at *1-4
(Tenn. Crim. App. at Jackson, Jan. 8, 2015).

     Thereafter, the Petitioner filed a timely petition for post-conviction relief, alleging
numerous claims of ineffective assistance. Post-conviction counsel was appointed, and
no amended petition was filed. However, at the hearing, the post-conviction court


                                           -4-
allowed the Petitioner to orally amend his motion1 to allege that trial counsel was
ineffective by calling Ms. Jones as an alibi witness.2

       At the post-conviction hearing, the Petitioner testified that he was arrested on July
9, 2012; that trial counsel was appointed to represent him; and that trial counsel visited
him in jail. The Petitioner told trial counsel that he was innocent of the charges, that he
was not at the victim’s home at the time of the crimes, and that he was instead at home in
bed with his girlfriend, Ms. Farmer. At trial, trial counsel called Ms. Farmer and Ms.
Jones as alibi witnesses.

       The Petitioner said that between the time of the crimes and his trial, his cousin,
Mr. Jones, was murdered by Ms. Jones’s son. The Petitioner repeatedly told trial counsel
that he did not think Ms. Jones’s testimony would be helpful to his defense, explaining
that he thought she would “do anything by any means necessary to get her son out of
trouble[.]” Nevertheless, trial counsel insisted that Ms. Jones should testify because she
was at her residence when the Petitioner claimed to be there. The Petitioner said that
when Ms. Jones testified at trial, she contradicted the alibi established by the Petitioner’s
and Ms. Farmer’s testimony and had trouble remembering what happened on the night of
the crimes. The Petitioner thought Ms. Jones’s testimony negatively affected the
outcome of the trial.

       On cross-examination, the Petitioner said that he provided trial counsel with the
names of alibi witnesses and that trial counsel found some, but “not all,” of them. The
Petitioner said that he did not want Ms. Jones to testify because he thought she would lie
because her husband had been murdered.

       Upon questioning by the post-conviction court, the Petitioner said that he and Ms.
Farmer testified that he was at home with her at the time of the crimes. The court asked
what the jury would think if the Petitioner and Ms. Farmer testified they were at Ms.
Jones’s house, but Ms. Jones did not testify, and the Petitioner responded, “The truth.”
The Petitioner acknowledged that trial counsel advised him that if he were putting on an
alibi defense, he needed to call the people who were present at the place where he
claimed to be at the time. However, the Petitioner claimed that Ms. Jones’s testimony
was “conflicted when she can have a vendetta or anything just to try and get her son off
the murder charge[.]” The post-conviction court asked the Petitioner to explain how Ms.
Jones’s testimony at the Petitioner’s trial would help her son. At that point, the following
colloquy occurred:

       1
           See Tenn. Sup. Ct. R. 28, § 8(D)(5).

       2
         The Petitioner has abandoned the remainder of his issues on appeal. Accordingly, we have
chosen to limit our recitation of the facts to those pertinent to the Petitioner’s issue.
                                                  -5-
             [The Petitioner:] . . . I’m saying I didn’t want her to be my
             alibi witness because of that situation. And she just want –
             she wasn’t credible because she – then she stated that she was
             hit in the head during this incident with my cousin and her
             son which led her – she had memory loss. So if she had
             memory loss, how could she say these things did not happen?
             If we didn’t have the breakfast and I wasn’t – and she – and I
             didn’t go to work with her when she explained to my lawyer
             when my lawyer did talk to her in the beginning of the case
             that she remembered all of that and then get to the trial and
             then say she can’t remember. And I just knew that she was
             going to probably do that because she wanted some help.

                     [The post-conviction court:] That’s what I’m curious
             about. How did you know she was going to do that? You’re
             telling me you brought this all out in advance and told [trial
             counsel] don’t call Ms. Jones because you think she might
             testify different than what she’s already told you and told
             [trial counsel]?

                     [The Petitioner:] It was a conflict because of the
             situation that was going on within the family, with the murder
             of my cousin and which is her husband, and it just was
             conflict of interest.

      Trial counsel testified that he worked in the Shelby County Public Defender’s
Office and that he had been practicing law for seven or eight years when he was
appointed to represent the Petitioner. Trial counsel met with the Petitioner “many times,”
and he thought the Petitioner was innocent. The Petitioner suggested that Ms. Farmer
and Mr. and Ms. Jones could be alibi witnesses.

        Trial counsel said that the defense’s investigator, Al Gray, took a statement from
Ms. Jones in which she was “forthcoming and corroborat[ed] everything that [the
Petitioner] and [Ms. Farmer] had told us about what happened, the living conditions and
the situation and the key and not having access and being able to exit at times.” Trial
counsel spoke with his co-counsel and some other people in his office, and he decided to
subpoena Ms. Jones in order to get her to testify “about whether there could have been
access without her being involved and whether [the Petitioner] lived there and the
situation that morning was he at home that morning.” When trial counsel spoke with Ms.
Jones “outside of court” immediately prior to trial, she reiterated the information
contained in her statement. However, during her testimony, “she scuttled the case” and
                                          -6-
was “a very difficult witness,” often responding that she did not know or could not
remember what happened. Trial counsel and co-counsel “made a decision based on her
issues and her difficulty that the jury would likely discard [her testimony] and see it as a
tactic by her for what reason I don’t know, to, you know, to do whatever.” Trial counsel
acknowledged that he and the Petitioner discussed the Petitioner’s desire not to call Ms.
Jones, noting that they discussed all of the witnesses. Trial counsel asserted, “I made a
decision during the trial to call her as a witness, just to corroborate [Ms. Farmer’s] and
[the Petitioner’s] statement that they didn’t have a key and they couldn’t come and go as
they pleased”; however, at trial Ms. Jones “was hesitant to confirm that.”

        Trial counsel said that he was aware that Mr. Jones had been murdered prior to
trial. Nevertheless, he noted that Ms. Jones “was a religious woman” and that she “swore
to tell the truth.” Trial counsel said that he did not ask Ms. Jones many questions, only
“whether [the Petitioner and Ms. Farmer] had a key, whether they had breakfast that
morning, and she was just reluctant to even – I mean, to even go into that area.” Trial
counsel said that he was surprised when Ms. Jones testified that she “felt as if she was
being led by [him],” noting that he only wanted her to reiterate the information in the
statement she had given.

       On cross-examination, trial counsel said that his co-counsel had over twenty years
of experience with the public defender’s office. He noted that both he and co-counsel
spoke with Ms. Jones prior to trial and that they decided it would be in the Petitioner’s
best interest if she testified. Trial counsel said that “from a tactical perspective,” he
thought he could focus her testimony on whether the Petitioner had a key to the house.
He and co-counsel discussed the issue with each other, with their immediate supervisor,
and with the public defender’s “appellate attorney.” Trial counsel said that the Petitioner
and his mother cautioned that “[w]e may have an issue with [Ms. Jones],” but trial
counsel saw nothing definitive that concerned him, and he knew that Ms. Jones’s
statement corroborated the Petitioner’s and Ms. Farmer’s version of events. Trial counsel
said that when Ms. Jones testified, “it was like a new person.” Trial counsel was
“shocked” and asked the trial court for permission to treat Ms. Jones as a hostile witness.
Although he asked her direct questions, she was “nonchalant” and “avoiding.”

       Trial counsel said that he met with the Petitioner on numerous occasions, that he
prepared the Petitioner to testify, and that he kept the Petitioner advised of the
developments in the case.

        Upon questioning by the post-conviction court, trial counsel said that the defense
investigator informed him that “Ms. Jones’s sons were arrested for the homicide related
to [the Petitioner’s] cousin.”


                                           -7-
       At the conclusion of the hearing, the post-conviction court held that the Petitioner
had failed to establish that trial counsel was ineffective. On appeal, the Petitioner
challenges this ruling.

                                       II. Analysis

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is 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. Moreover,

                      [b]ecause 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 [petitioner]
                                           -8-
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

        On appeal, the Petitioner maintains that the post-conviction court erred by finding
that trial counsel was not ineffective by calling Ms. Jones as an alibi witness at trial. The
Petitioner contends that he warned trial counsel that Ms. Jones’s testimony “would be
adverse to the defense” and that her testimony ultimately prejudiced the outcome of the
trial. The State responds that trial counsel made “an informed and strategic decision to
call [Ms.] Jones as a witness” and that he could not have reasonably anticipated that her
testimony would deviate from the information given in her statement. The State
contends, therefore, that the trial court correctly concluded that the Petitioner failed to
prove that trial counsel was ineffective. We agree with the State.

        The post-conviction court found that trial counsel decided that if he did not call
Ms. Jones as a witness, the jury would question the credibility of the Petitioner’s alibi
defense. Moreover, although the Petitioner warned trial counsel that Ms. Jones might not
be a favorable witness, a defense investigator interviewed Ms. Jones, and she gave a
statement that corroborated the Petitioner’s and Ms. Farmer’s version of events. Further,
when trial counsel spoke with Ms. Jones immediately prior to trial, she appeared willing
to testify in conformity with her statement. Accordingly, trial counsel was “surprised” by
Ms. Jones’s testimony. The post-conviction court held that trial counsel made a
reasonable, tactical decision to call Ms. Jones as a witness and that the “jury resolved the
conflicts in the testimony in favor of the [S]tate.” We agree. This court has stated that,
“[w]hen reviewing trial counsel’s actions, this court should not use the benefit of
hindsight to second-guess trial strategy and criticize counsel’s tactics.” Irick v. State, 973
S.W.2d 643, 652 (Tenn. Crim. App. 1998). On appeal, this court may not second-guess
the tactical or strategic choices of counsel unless those choices are based upon inadequate
preparation, nor may we measure counsel’s behavior by “20-20 hindsight.” See State v.
Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). Moreover, “[a]llegations of ineffective assistance
of counsel relating to matters of trial strategy or tactics do not provide a basis for post-
conviction relief.” Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991). The
post-conviction court did not err when it held that the Petitioner failed to establish that
trial counsel was ineffective.

                                      III. Conclusion

       The judgment of the post-conviction court is affirmed.


                                           ____________________________________
                                           NORMA MCGEE OGLE, JUDGE
                                            -9-
