        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 11, 2012

           DERRICK LEMON GOODE v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Bedford County
                            No. 12299 Robert Crigler, Judge



                   No. M2012-00780-CCA-R3-PC - Filed March 27, 2013


Petitioner, Derrick Lemon Goode, was convicted by a Bedford County jury of one count of
the sale of .5 grams of cocaine and one count of the delivery of .5 grams or more of cocaine.
State v. Derrick Lemon Goode, No. M2009-02259-CCA-R3-CD, 2010 WL 4674298, at *1
(Tenn. Crim. App., at Nashville, Nov. 17, 2010), perm. app. denied (Tenn. Apr. 13, 2011).
After the merger of the convictions, Petitioner was sentenced to twelve years. He was
unsuccessful on appeal. Id. Petitioner subsequently filed a petition for post-conviction relief
alleging that he was afforded ineffective assistance of counsel. After conducting a hearing,
the post-conviction court denied the petition. On appeal, Petitioner alleges that he received
ineffective assistance of counsel because trial counsel failed to adequately prepare for trial;
failed to adequately prepare, interview and call witnesses for trial; and failed to properly
investigate his addiction. After a thorough review of the record, we conclude that Petitioner
has not proven either that trial counsel’s representation was deficient, or that Petitioner was
prejudiced by trial counsel’s representation. Therefore, we affirm the post-conviction court’s
denial of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and A LAN E. G LENN, JJ., joined.

Andrew Jackson Dearing, Assistant Public Defender, Shelbyville, Tennessee, for the
appellant, Derrick Lemon Goode.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Charles Crawford, District Attorney General, and Michael Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                           OPINION

                                      Factual Background

       Petitioner was convicted in Bedford County of one count of the sale of .5 grams of
cocaine, and one count of the delivery of .5 grams or more of cocaine. Derrick Lemon
Goode, 2010 WL 4674298, at *1. The trial court merged the convictions and sentenced
Petitioner to twelve years. Id. Petitioner unsuccessfully appealed his convictions. Id.

       Petitioner filed a timely pro se petition for post-conviction relief. After the
appointment of counsel, an amended petition was filed. The petition argued that Petitioner
was afforded ineffective assistance of counsel. The post-conviction court held a hearing.

        Petitioner was the first witness at the hearing. He testified that he only spoke with
trial counsel about four times. He complained that trial counsel had not interviewed Aaron
Taylor, Roy Smith, John Bailey, and Karen Goode, Petitioner’s wife. He wanted these
individuals to be witnesses at his trial. Petitioner later admitted that trial counsel had
interviewed his wife and Mr. Bailey. He asserted, however, that trial counsel had not spoken
with the potential witnesses about the proper subject matter.

       Petitioner maintained that Mr. Taylor would have testified that Petitioner was not at
the drug house on the day in question. With regard to Mr. Smith, Petitioner stated that he
was Jessica Berry’s boyfriend and would have testified to her lack of credibility. Ms. Berry
was the confidential informant who was involved in Petitioner’s arrest. According to
Petitioner, he asked trial counsel to investigate Ms. Berry’s prior criminal history and her
work history. Trial counsel told him that Ms. Berry had a theft charge that had been
dismissed.

       Petitioner admitted that he received the State’s discovery response from trial counsel.
The discovery response included a list of witnesses who might have been called by the State.
Petitioner did not request that trial counsel interview the listed individuals because it was trial
counsel’s job to interview them. Petitioner stated that to his knowledge, trial counsel did not
interview these witnesses.

       Petitioner asserted that he wrote many letters to trial counsel naming potential
witnesses, but that trial counsel did not speak to these proposed witnesses. Petitioner
believed that trial counsel was not prepared to go to trial. He came to this conclusion
because trial counsel did not interview the “proper witnesses” who would have been able to
corroborate Petitioner’s version of events.



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       Petitioner stated that he at one point had a dependency on crack cocaine. Trial
counsel did not inquire about Petitioner’s mental state. Petitioner also stated that trial
counsel did not explain trial procedures to him despite of the fact that it was the third time
he had been on trial. Petitioner stated that he testified at trial. However, trial counsel did not
discuss his testimony with him before he testified. Trial counsel did tell him that he did not
have to testify. Petitioner stated that trial counsel did not discuss possible cross-examination
by the State about his prior convictions. The trial court had ruled that the State could not ask
about the prior convictions, but when he testified, the State nevertheless asked about them.

       Petitioner also requested that trial counsel file various motions on his behalf.
Petitioner testified that trial counsel filed the motions, but the trial court denied them.
Petitioner also stated that after the motions were denied, trial counsel did not bring them back
up.

       Petitioner and trial counsel also discussed an audiotape that allegedly had Petitioner’s
voice on it. Petitioner testified that trial counsel played the tape for him. They discussed
what was on the tape.

        Petitioner stated that there was a question about one of the jurors. Petitioner stated
that one of the jurors said that he thought Petitioner was guilty before trial even started.
Petitioner told trial counsel that he wanted that juror off the panel. However, the juror in
question was not in the initial group of jurors at voir dire. By the time the juror in question
got up for voir dire in the jury box, Petitioner was out of peremptory strikes. The trial court
asked the juror in question if he could set aside his opinion that Petitioner was guilty and
listen to the evidence presented at trial. The juror replied that he could.

        Petitioner also complained that trial counsel did not request Jencks material. He stated
that trial counsel filed a motion prior to trial requesting Jencks material. However, trial
counsel did not make a request for Jencks material after each witness testified.

        Petitioner stated that he told trial counsel that he did not commit the crime. He wanted
trial counsel to look into whether someone else had committed the crime, namely Mr. Bailey.
He stated that trial counsel spoke with Mr. Bailey and he said he would not testify because
he might incriminate himself. Trial counsel took no other actions with regard to Mr. Bailey.

        Petitioner’s wife, Karen Goode, also testified at the hearing. She stated that
Petitioner’s attorney did not contact her. She stated that had he contacted her she would have
testified that her husband was with her buying a car on the day in question. She stated that
he was with her all day. On cross-examination, she admitted that she had also been charged
with a crime around the same time and was represented by counsel. Her case was settled

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after her husband’s charges in this case. She was incarcerated at the time of Petitioner’s trial.
Prior to that, Petitioner was incarcerated on previous charges. She admitted that she did not
tell her attorney that she could have been an alibi witness for Petitioner.

      Trial counsel also testified at the hearing. He stated that he started practicing
corporate law in the Phillipines in 1981. He moved to the United States in 1991. He passed
the Tennessee bar examination in 1998 and began practicing criminal law in Tennessee in
2000.

        Trial counsel stated that he had several meetings with Petitioner. He said Petitioner
wrote him many letters. Trial counsel stated that one of the letters insisted that he interview
Mr. Bailey, Mr. Taylor, Hazel Bailey, and Mr. Smith. Petitioner’s wife was not listed as a
potential witness. Trial counsel saw her in a holding cell and asked her if she would come
testify at the trial. Trial counsel wanted Ms. Goode to identify Petitioner’s voice on the audio
recording of the sale. She refused to testify.

        Petitioner told trial counsel that the State should test the voice on the audiotape to
determine whether it was him. Petitioner maintained that there were several Derrick Goodes
in the county, and it could be any one of them. Trial counsel believed that it would be better
to have a family member identify the voice on the tape.

        Trial counsel testified that he attempted to interview the other witnesses listed in the
letter. He said he spoke with Mr. Bailey, who is Petitioner’s brother-in-law. Trial counsel
asked him if he would be willing to testify. Petitioner maintained that Ms. Berry, the
confidential informant, had been in a sexual relationship with Mr. Bailey and, therefore, Ms.
Berry was covering for Mr. Bailey. Mr. Bailey refused to testify for fear of incriminating
himself. At that time, Petitioner, Ms. Goode, and Ms. Bailey, who is Mr. Bailey’s mother,
were all in jail.

       Trial counsel asked Mr. Bailey about Mr. Taylor, who was also on Petitioner’s list of
witnesses. Mr. Bailey told trial counsel that Mr. Taylor is Ms. Bailey’s boyfriend. Mr.
Bailey told trial counsel that Mr. Taylor was an old man who was drunk most of the time.
Mr. Bailey refused to help trial counsel locate Mr. Taylor. Mr. Bailey also told trial counsel
that Ms. Bailey did not want to talk to him. Mr. Smith also refused to speak with trial
counsel. Trial counsel testified that he did not subpoena those witnesses because he did not
know what the witnesses were going to say. Trial counsel told Petitioner about his
conversation with the potential witnesses.

       Trial counsel testified that he and Petitioner had a great deal of communication. He
said that he met with Petitioner every time he came to court. In addition, trial counsel went

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to the penitentiary to speak with Petitioner about his letters. Trial counsel stated that they
listened to the audio recording together. He stated that he felt that he was very prepared for
trial.

       Trial counsel testified that Petitioner had a good understanding of the criminal justice
system. Trial counsel presented letters to the court in which Petitioner cited cases and
statutes and urged trial counsel to read them.

        Trial counsel stated that he requested all Jencks material prior to trial. The trial court
denied his request. Trial counsel included this as one of the issues on appeal. It was
unsuccessful. Trial counsel stated that the State did not present any evidence that he was not
expecting. Petitioner also complained that Ms. Berry made statements that were exculpatory
to Petitioner and should have been disclosed as Brady material. Trial counsel testified that
the statement to which Petitioner referred to was that the Drug Task Force paid Ms. Berry
to be a confidential informant and paid for her to relocate to Florida. However, trial counsel
stated that Ms. Berry testified to these facts in trial. The Brady issue was also raised
unsuccessfully on appeal.

        With regard to the problematic juror, trial counsel testified that he remembered the
situation very well. He stated that initially the juror said that he thought Petitioner was
already guilty from what the attorneys had said so far. The trial court questioned the juror
and the juror said he could wait until he heard all the evidence to make a determination. Trial
counsel testified that he had been to a seminar and read several books on jury selection. He
stated that he wanted the juror because he was “aggressive” and not afraid to give reasons
for his decision. Trial counsel told Petitioner he would like to keep the juror in question.
Petitioner said no. Trial counsel said that Petitioner essentially picked the jury. When they
got to the juror in question, Petitioner had used all his peremptory strikes.

       Trial counsel testified that the State offered a plea deal of eight years with a thirty
percent release eligibility. Trial counsel advised Petitioner to take the deal and warned him
that he would likely receive twelve years. Petitioner refused the deal.

      At the conclusion of the hearing, the post-conviction court concluded that Petitioner
had not met the standards to prove ineffective assistance of counsel. Therefore, the post-
conviction court denied the petition. Petitioner filed a timely notice of appeal.

                                          ANALYSIS

       On appeal, Petitioner argues that the post-conviction court erred in denying his
petition for post-conviction relief. Petitioner’s argument consists of the following

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statements: “Trial counsel failed to adequately prepare, interview and call witnesses told to
him by his client. Further trial counsel failed to adequately prepare his case for Trial.
Petitioner further alleges his counsel failed to properly investigate his addiction.”

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                            Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d 572, 580 (Tenn. 1997).

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.




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        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       Petitioner argues that trial counsel was ineffective in failing to present several
witnesses at trial. “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). Generally, presenting such witnesses in the post-conviction
hearing is the only way a petitioner can establish that “the failure to discover or interview a
witness inured to his prejudice . . . or . . . the failure to have a known witness present or call
the witness to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.” Id. Accordingly, even a petitioner who establishes that trial
counsel deficiently performed by failing to investigate or call witnesses is entitled to no relief
“unless he can produce a material witness who (a) could have been found by a reasonable
investigation and (b) would have testified favorably in support of his defense if called.” Id.
at 757-58.

        In the case at hand, Petitioner did not present any other witnesses at the hearing other
than himself and his wife. Petitioner did not call any of the witnesses he listed in his letters
to trial counsel during the preparation for trial. As stated above, if a petitioner has not
presented the witnesses whom he believes trial counsel should have presented, Petitioner
cannot prove prejudice.

        Petitioner did present his wife, Ms. Goode, at the hearing. Trial counsel testified that
he asked Ms. Goode to testify at Petitioner’s trial, and she refused. In addition, the post-
conviction court concluded that Ms. Goode’s testimony concerning the events on the day in
question contradicted Petitioner’s testimony at trial. His testimony did not mention that he
was with Ms. Goode, and he also testified that he was using the car that Ms. Goode said they
bought that day. Petitioner has not proven that trial counsel’s failure to call Ms. Goode as
a witness prejudiced his case. Her testimony at the post-conviction hearing has not shown
that the outcome would have been any different had she been presented as a witness at trial.

       Petitioner argues that trial counsel was not prepared for trial. His brief does not
include any specific allegations as to how trial counsel was not prepared for trial. We have
reviewed the record on appeal and conclude that Petitioner has not shown that trial counsel

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was not prepared. The post-conviction court found that Petitioner had not satisfied the
prongs set out in Strickland. In making such a conclusion, the trial court clearly found trial
counsel to be more credible than Petitioner. Trial counsel testified that he met several times
with Petitioner both at court and at the penitentiary. He responded to Petitioner’s letters and
attempted to interview and locate witnesses.

        He filed motions for Jencks material that were denied by the trial court, and the denial
was later upheld on appeal. Derrick Lemon Goode, 2010 WL 4674298, at * 3-4. Petitioner
did not present any evidence that there were any statements made by witnesses that would
have been turned over as Jencks material. Therefore, there was no evidence to support the
conclusion that he was prejudiced by the failure of this motion so as to meet the second prong
of Strickland.

        There was also the issue of a Brady violation raised during the hearing. He argued
that trial counsel was ineffective because the fact that Ms. Berry was paid by the Drug Task
Force to be a confidential informant and paid for her to live in Florida constituted Brady
material. This issue was also raised unsuccessfully on appeal. Id. at *4-5. Our opinion on
direct appeal states that this information came out at trial. Witnesses at the hearing on the
petition also testified to this fact. Therefore, even assuming counsel deficiently performed,
Petitioner cannot demonstrate prejudice because the information in question was presented
to the jury. Therefore, Petitioner cannot meet both prongs of Strickland.

        The juror issue was also raised on direct appeal. Id. at *2-3. This Court determined
that “the trial court did not abuse its discretion by refusing to exclude [the juror].” Id. at *3.
This Court on direct appeal, and the post-conviction court after the hearing, both concluded
that the juror in question understood his duty to wait to make a decision after all the evidence
was submitted by both sides. There is nothing in the record that preponderates against this
finding. We conclude that trial counsel was not deficient in his dealing with the question of
the juror’s impartiality and that, even if it was deficient representation, Petitioner has not
proven any prejudice.

       Finally, on appeal, Petitioner argues that trial counsel was ineffective by not
investigating Petitioner’s addiction. However, in his petition, Petitioner states that trial
counsel was ineffective for not investigating his mental competency. Mental competency
and drug addiction are not necessarily the same issue. Furthermore, the only evidence
presented at trial on this point was Petitioner’s testimony that he was addicted to crack
cocaine at some point. He did not testify that this addiction affected his ability to understand
what was happening during trial. Trial counsel also saw no signs during his representation
of Petitioner that Petitioner was having any problems understanding the trial procedure.
Therefore, we conclude that Petitioner has not proven that trial counsel was ineffective in not

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investigating either his mental competency or his addiction and that even if it was ineffective
assistance of counsel, Petitioner has not demonstrated prejudice as a result of trial counsel’s
actions.

          These issues are without merit.


                                       CONCLUSION

          For the foregoing reasons, we affirm the denial of the petition for post-conviction
relief.


                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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