        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                        April 8, 2014

                  JEREMY JARVIS v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Montgomery County
                      No. 40800726      Michael R. Jones, Judge


                  No. M2013-01640-CCA-R3-PC - Filed May 14, 2014


The Petitioner, Jeremy Jarvis, appeals the denial of post-conviction relief, alleging ineffective
assistance by counsel. Petitioner alleges that trial counsel was unaware of the law concerning
self-defense until trial and was ineffective by asserting the defense of self-defense with
regard to the death of an innocent third person; and was ineffective by failing to attempt to
negotiate a settlement of the case short of trial. Finding that the court properly denied
post-conviction relief, we affirm the judgment of the post-conviction court.

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

J OE H. W ALKER, III, S P.J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Roger E. Nell, Clarksville, Tennessee, for the appellant, Jeremy Jarvis.

Robert E. Cooper, Jr., Attorney Gneral and Reporter; Clark Bryan Thornton, Assistant
Attorney General; John W. Carney, District Attorney General; and Steven Garrett, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                          OPINION


        Petitioner was found guilty by jury of the second degree murder of Willard Ross, a
Class A felony; the attempted second degree murder of Jovan Dixon, a Class B felony; one
count of reckless endangerment, a Class E felony; and one count of possession of a weapon
with the intent to go armed, a Class A misdemeanor. The trial court sentenced Petitioner as
a Range I, standard offender to twenty-five years for his murder conviction, twelve years for
his attempted murder conviction, two years for his felony reckless endangerment conviction,
and eleven months, twenty-nine days for his misdemeanor conviction. The trial court ordered
Petitioner to serve his sentence for attempted second degree murder consecutively to his
sentence for second degree murder and the remaining sentences concurrently with each other
and with his sentence for second degree murder, for an effective sentence of thirty-seven
years. On appeal, Petitioner argued that the evidence was insufficient to support his
convictions of second degree murder and attempted second degree murder. The convictions
were upheld. State v. Jeremy A. Jarvis, No. M2008-02711-CCA-R3-CD, 2010 Tenn. Crim.
App. LEXIS 838 (Tenn. Crim. App. Oct. 1, 2010) perm. app. denied (Tenn. Jan. 13, 2011).

        Petitioner filed a timely pro se petition for post-conviction relief alleging that his
retained trial counsel was ineffective. Counsel was appointed for the post-conviction
proceeding. The petition was amended and after a hearing the post-conviction court denied
relief. This appeal followed.


Facts at trial:


        The facts of the case were summarized in the opinion on direct appeal. As pertains to
the issues on post-conviction, they may be stated as follows: Petitioner and four others drove
to Wal-Mart at approximately 1:00 p.m. on June 25, 2007. Petitioner was armed at the time.
One of the passengers entered the store as Javon Dixon was exiting. There was a verbal
confrontation with Dixon and racial slurs were exchanged. Dixon sat down in his vehicle and
started the ignition. Petitioner exited his vehicle. Dixon pulled out a gun and began firing as
he drove away. Petitioner ducked down and then reached inside his vehicle for his weapon.
Petitioner fired several shots at Dixon’s vehicle as he drove toward the fireworks stand
through the crowded parking lot. Petitioner fired his weapon at Dixon in the direction of the
fireworks tent where Mr. Willard Ross was standing. Ross was killed by a bullet from
Petitioner’s gun. State v. Jeremy A. Jarvis, 2010 Tenn. Crim. App. LEXIS 838, at *2-14.

Post-conviction hearing:


        At the post conviction hearing, trial counsel and Petitioner testified. Trial counsel had
been in practice in criminal defense for over twenty-five years. He was retained to represent
Petitioner and spent over one hundred hours on the case. He interviewed Petitioner multiple
times in formulating a defense. He visited the scene and interviewed numerous witnesses and
officers. Petitioner had made a statement to police describing the shooting at Dixon as
“retaliation.” Counsel agreed that his theory was self-defense because Petitioner was
shooting back at Dixon, who shot at him first. Petitioner was charged with first degree

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murder and counsel’s goal was to “convince the jury that my client wasn’t guilty of felony
murder or second degree murder.” Counsel hired two other attorneys to help with legal
research and to provide advice. He presented several theories to the jury, including mutual
combat, in an effort to provide the jury with several alternatives to finding the petitioner
guilty of the most serious charge of first degree murder.


        Counsel admitted that his notes concerning the case did not include reference to
Tennessee Code Annotated section 39-11-604, which precludes the use of self-defense as a
defense when the use of force recklessly injures or kills an innocent third party, and that he
was pursuing a defense of self-defense during the trial. Counsel admitted that during closing
argument, he told the jury that Petitioner was acting in self-defense, and perhaps he was
guilty of criminal negligence with regard to Mr. Ross. He testified he was trying to convince
the jury to find something less than felony murder.


        Petitioner testified that trial counsel came to see him at the jail a few times. He
acknowledged receiving letters from counsel and that he told counsel what occurred on the
day of the shooting. Petitioner testified he was not told of any plea offers until the day of trial
and that he rejected that offer.

                                          ANALYSIS

         Petitioner alleges that trial counsel was ineffective because (A) he was unaware of the
law concerning self-defense until trial and was ineffective by asserting the defense of
self-defense as to an innocent third person; and (B) by failing to attempt to negotiate a
settlement of the case short of trial. Petitions for post-conviction relief are governed by the
Post-Conviction Procedure Act. Tenn. Code Ann. §§ 40-30-101 to -122 (2010). To obtain
relief, the petitioner must show that his conviction or sentence is void or voidable because
of the abridgement of a constitutional right. Tenn. Code Ann. § 40-30-103. The petitioner
must prove his factual allegations supporting the grounds for relief contained in his petition
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(2)(f); see Dellinger v. State,
279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is clear and convincing when there is no
substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks v.
State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

        The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence in the record preponderates against them. See State v. Nichols, 90 S.W.3d 576, 586
(Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)); see also Fields v.
State, 40 S.W.3d 450, 456-57 (Tenn. 2001). The petitioner has the burden of establishing that

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the evidence preponderates against the post-conviction court’s findings. Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or reevaluate the evidence or
substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d at
586. Furthermore, the credibility of the witnesses and the weight and value to be afforded
their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973
S.W.2d 615, 631 (Tenn. Crim. App. 1997).

       Article I, section 9 of the Tennessee Constitution provides “[t]hat in all criminal
prosecutions, the accused hath the right to be heard by himself and his counsel . . . .”
Similarly, the Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the [a]ssistance of
[c]ounsel for his defen[s]e.” These constitutional provisions guarantee a criminal defendant
the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686
(1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective assistance of counsel, a petitioner must prove both that counsel’s performance
was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S.
at 687; Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011).

        Establishing deficient performance requires showing “that counsel’s representation
fell below an objective standard of reasonableness,” a standard which is measured by
“professional norms” prevailing at the time of the representation. Strickland, 466 U.S. at 688;
see also Baxter, 523 S.W.2d at 932-33. Counsel’s performance is not deficient if the advice
given or the services rendered “are within the range of competence demanded of attorneys
in criminal cases.” Baxter, 523 S.W.2d at 936; see also Strickland, 466 U.S. at 687 (“[T]he
proper standard for attorney performance is that of reasonably effective assistance.”).
However, courts may not judge counsel’s performance using “20-20 hindsight.” Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). Rather, every effort should 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.” Strickland, 466
U.S. at 689; see also Mobley v. State, 397 S.W.3d 70, 81 (Tenn. 2013); Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment,” Strickland, 466 U.S. at 690, and “the burden to ‘show that counsel’s performance
was deficient’ rests squarely on the [petitioner],” Burt v. Titlow, 571 U.S. — , — , 134 S. Ct.
10, 17, 187 L. Ed. 2d 348 (2013) (quoting Strickland, 466 U.S. at 687); see also Burns, 6
S.W.3d at 462 (“[A] reviewing court must be highly deferential and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.”).




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        The second part of an ineffective assistance of counsel claim-prejudice-requires a
petitioner to prove “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; see also
Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006); Goad, 938 S.W.2d at 370.

A. SELF-DEFENSE

       Petitioner was on trial for the attempted murder of Jovan Dixon and murder of Mr.
Ross. The facts as relayed to trial counsel by Petitioner were that Petitioner was in the
crowded parking lot of Wal-Mart and Jovan Dixon fired a pistol in his direction. Petitioner
admitted to police that he “retaliated” and fired a pistol at Dixon. Petitioner testified at the
post-conviction hearing he observed Dixon reach under the seat of his car and knew
something was going on. Petitioner got out of his car with a pistol and, after Dixon fired,
Petitioner returned fire. Petitioner testified: “[S]omebody was trying to take me out for no
reason. And I was trying to defend myself, man.”

         The fact that Dixon fired first in the direction of Petitioner presented an issue for the
jury to determine whether Petitioner acted in self-defense as to Dixon. It was not ineffective
assistance of counsel for trial counsel to pursue self-defense with the jury. Petitioner asserts
that if self-defense was argued as to the attempted murder of Dixon, it should not have been
asserted as to the murder of Mr. Ross due to Tennessee Code Annotated section 39-11-604,
of which trial counsel was unaware until trial began.

        Tennessee Code Annotated section 39-11-604 states that “[e]ven though a person is
justified under this part in threatening or using force or deadly force against another, the
justification afforded by this part is unavailable in a prosecution for harm to an innocent third
person who is recklessly injured or recklessly killed by the use of such force.” The
Sentencing Commission Comments state that “[t]his section provides that a defendant may
be justified in using force against another person but criminally responsible if that use of
force recklessly injures a third person. The underlying principle is that a defendant’s
culpability is to be measured independently for each victim. The section is designed to deter
reckless conduct that could harm innocent third persons.”

      However, the jury rejected the theories of self-defense and reckless or negligent
conduct. As stated in the opinion on direct appeal from the conviction:

       Based on our review, we conclude that a rational trier of fact could find beyond a
       reasonable doubt that Defendant knowingly, and not with criminal negligence, fired
       his weapon at Mr. Dixon in the direction of the fireworks tent where Mr. Ross was

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       standing. See Millen v. State, 988 S.W.2d 164, 168 (Tenn. 1999) (holding that if a
       defendant knowingly fires his weapon at a specific person, and an innocent bystander
       is killed, the element of intent as to the criminal liability for the death of the bystander
       is satisfied).

State v. Jeremy A. Jarvis, 2010 Tenn. Crim. App. Lexis 838, at *18-19.

       Even if trial counsel was unaware of the provisions of Tennessee Code Annotated
section 39-11-604, which is designed to deter reckless conduct that could harm innocent third
parties, the trial strategy used was not ineffective assistance of counsel. The post-conviction
court found that if trial counsel’s lack of knowledge of the statute was deficient, there was
no showing that his lack of knowledge was below the range of competence demanded in this
type of trial. That is, trial counsel’s performance was not deficient. In addition, if it was
deficient, there was no showing of prejudice. Petitioner certainly has not shown that if trial
counsel had known about the statute that the result of the proceeding would have been
different.

       The post-conviction court made the following findings:


       The only deficiency is that counsel did not know that self defense was not a defense
       to reckless homicide involving an innocent third party. There is no showing that his
       lack of knowledge was below that of the range of competence demanded in this type
       of trial. The defendant was charged with felony murder with the felony being attempt
       to commit first degree murder. Counsel focused his defense in an effort to avoid
       conviction for felony murder. The choice for the jury ranged from felony murder to
       criminally negligent homicide. Counsel focused on the mental state of the Petitioner
       from voir dire through closing statement. “It was seconds not minutes.” Prior to final
       argument certainly counsel was aware that he had no total defense to Mr. Ross’
       homicide. Counsel took the road of telling the jury that the Petitioner had made
       mistakes, he is guilty of criminally negligent homicide and find him guilty of the
       offense that he committed. This court does not believe that the Petitioner has
       established by clear and convincing evidence that [trial counsel] provided ineffective
       assistance of counsel. Even if the court were to find that [trial counsel] provided
       ineffective assistance of counsel by not knowing that self-defense was not a defense
       to reckless homicide of Mr. Ross, the Petitioner is unable to satisfy the second prong.
       Courts assume juries follow the instructions provided. The court provided an Order
       of Consideration for the jury to follow. . . The order of consideration told the jury to
       consider the indicted offense first and then provided all lesser included. The jury
       found the Petitioner guilty of a “knowing” act. The jury then did not consider

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       voluntary manslaughter, reckless homicide or criminally negligent homicide. The jury
       rejected self-defense.

Petitioner has failed in the burden of establishing that the evidence preponderates against the
post-conviction court’s findings. Petitioner is not entitled to relief with regard to this issue.


B. FAILING TO ATTEMPT TO NEGOTIATE A SETTLEMENT

        Petitioner next alleges that trial counsel was ineffective by failing to attempt to
negotiate a settlement of the case. The testimony at the post-conviction hearing established
that trial counsel did attempt to negotiate a settlement of the case without a jury trial. Trial
counsel testified he met with the district attorney on a couple of occasions to attempt to
resolve the case and get a settlement offer. He testified his job was to get the best offer he
could get for Petitioner and “that’s what [trial counsel] did.” He did not remember getting
a plea offer. Trial counsel testified that due to the victim’s reputation in the community, the
State did not make an offer. Trial counsel then attempted to negotiate a plea offer by
proposing to the State a plea to voluntary manslaughter or “something along those lines for
ten to twelve years.” The State declined.

        Petitioner was aware the State was not making a plea offer before trial. Petitioner
testified at the post-conviction hearing that a plea offer was made the day of trial. He rejected
the offer. He testified:

       like, you know, I guess he wanted me to just cop out to 25. I mean, I’m like hell no,
       I mean, I’d rather go to trial, you know what I’m saying, I ain’t about to just, you
       know, sign over for no 25 years, man, you got to be crazy.
       Q: And so was any settlement offer extended to you -- were you given an opportunity
       to settle this case before that time you’ve just described?
       A: None. They wasn’t offering it.
       Q: Did you --
       A: That what I was told.


The post-conviction court found that there was no evidence that the State ever made any type
of offer to resolve the case. The evidence does not preponderate against this finding by the
post-conviction court.

        We conclude that trial counsel was not deficient in this regard. The proper standard
for attorney performance is that of reasonably effective assistance. In this case, Petitioner has

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failed to show factual allegations supporting the grounds for relief by clear and convincing
evidence, failed to prove trial counsel’s performance was deficient, and failed to show trial
counsel’s performance prejudiced the defense. Petitioner is not entitled to relief on this
claim.

                                     CONCLUSION


       For the foregoing reasons, we affirm the judgment of the trial court.




                                                   _________________________________
                                                   JOE H. WALKER, SPECIAL JUDGE




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