        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                      March 6, 2012 Session

                 TAMAINE WORKS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                         No. 04-02321    Chris Craft, Judge




                  No. W2011-00209-CCA-R3-PC - Filed July 20, 2012


The Petitioner, Tamaine Works, appeals from the Shelby County Criminal Court’s denial of
post-conviction relief from his conviction for first degree premeditated murder and resulting
life sentence. On appeal, the Petitioner contends that he did not receive the effective
assistance of counsel and that the assistant district attorney general committed prosecutorial
misconduct at his trial. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.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.

Joseph S. Ozment (on appeal), and Larry Copeland (at post-conviction hearing), Memphis,
Tennessee, for the appellant, Tamaine Works.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy Weirich, District Attorney General; and Chris West, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

        The facts related to the Petitioner’s conviction were stated by this court in the appeal
of his conviction:

                    The conviction in this case stems from the October 9,
              2003 murder of Mr. Keon McChristian 2 (the “victim”) in an

                      2
                          The indictment recites the victim’s last name as “McChristain.”
apartment complex in Memphis. The Defendant, Tamaine
Works, confronted the victim in a second floor hallway at the
Peppertree Apartments about 10:30 at night and fired four shots
from an assault-type weapon, hitting the victim twice. The
victim died from his wounds. The Defendant fled the scene but
was arrested by police at the same apartment complex several
months later. In March of 2004, the Defendant was indicted by
a Shelby County grand jury on one count of first degree,
premeditated murder. The Defendant received a jury trial,
which was conducted over the course of several days in
February and March, 2005.

         Before the jury was seated, the trial court took up several
preliminary matters. The State presented a motion to exclude
the Defendant from introducing testimony concerning the
victim’s alleged involvement in the death of a friend of the
Defendant a few hours prior to the murder at issue in this case.
The State argued that any evidence of this prior killing was not
relevant. The Defendant presented a motion to exclude the prior
testimony of a State witness who was unavailable to testify at
trial, alleging that the statement, although made under oath at a
preliminary hearing, was unreliable. The trial court granted the
State’s motion and excluded testimony concerning the prior
homicide but denied the Defendant’s motion and allowed the
prior testimony of the unavailable witness.

        At trial, the State’s lead witness, Ms. Kimberly Pruitt,
testified that on the night of the murder, she was staying with
her cousin at the Peppertree Apartments. As she exited her
cousin’s apartment with her six-year-old son sometime after
10:00 in the evening on October 9, 2003, she passed the
Defendant in the hallway on the second floor of the apartment
complex building. She recognized the Defendant as someone
she had seen around the complex for several years and who was
a friend of “Brian,” the man her cousin was dating at the time.
As the Defendant passed her in the hallway, Ms. Pruitt’s cousin,
who was immediately behind her, asked: “Tam[a]ine, what you




                                -2-
fixin’ to do?”3 Ms. Pruitt stated the Defendant replied, “Shhh,”
indicating the two women should remain quiet.

       Ms. Pruitt stated that at the time, the Defendant was not
wearing a shirt, had on black or dark-colored jeans, and was
carrying a large gun only partially concealed in a garbage bag.
She further stated that the Defendant was only three or four feet
from her when they passed in the hallway, and she saw his face.
The Defendant walked toward the apartment next door, the
residence of a man known as “V.” Ms. Pruitt walked the
opposite direction toward the stairs, and her cousin went back
inside her apartment and closed the door. Ms. Pruitt testified
that she then saw the Defendant shoot the victim, which she
described as follows: the victim came out of “V”’s apartment;
the Defendant shot the victim two times; the victim fell to the
floor; the Defendant shot the victim two more times; the
Defendant then fled.


        Ms. Pruitt testified that after the Defendant fled, she ran
to the victim, who said: “He shot me.” Ms. Pruitt stated that she
called 911 from her cellular phone and reported the incident.
She also stated that approximately five or ten minutes after the
shooting, “V” came and asked her who shot the victim, but she
declined to answer. She further stated that when “V” heard the
police arrive, he took off. Ms. Pruitt also testified that the
victim did not have a gun. When the police arrived, she was
forced to place her hands in the air, but when they learned she
was not a threat, she was allowed to leave and did not give a
statement to the police the night of the murder.

       Ms. Pruitt also testified that she began to receive threats
over her cellular phone from the Defendant’s friend, who would
call and tell her that she did not “need to be testifying against his
friend and that something’s going to happen to [her] and [her]
children if [she] do[es] come forward.” Because of these



        3
         The record reveals that Ms. Pruitt’s cousin could not be located at
the time of the trial.

                                    -3-
threats, Ms. Pruitt did not make a statement to the police until
several weeks later when she was in the hospital.


       On cross-examination, Ms. Pruitt admitted she had a
felony record. She stated that she did not tell “V” who shot the
victim because she was “paranoid.” She also stated that “V” did
not take anything from the victim, but that “V” was carrying a
hand gun. Ms. Pruitt also clarified that while she did not make
a statement to the police the night of the murder, she did leave
an anonymous tip on the 528-CASH tip-line the following day.
However, she then began to receive threats over the phone and
therefore did not talk to the police until several weeks later
when she was in the hospital suffering from anxiety attacks and
no longer wanted to “hold it in.” The police came to her
hospital room and she gave them a statement. She also admitted
that during this meeting she was shown a photographic line-up
but could not identify the Defendant’s photo because she was on
medication that caused blurred vision 4 . However, she did
identify the Defendant’s photo at trial. She also identified the
Defendant in court as the man she witnessed shoot the victim.


         Ms. Memorie Noel, the victim’s aunt, also testified at
trial, stating that she lived in the same apartment complex and
heard four gunshots on the evening of the incident at
approximately 10:30. Shortly thereafter, a neighbor came to her
door and informed her that her relative had been shot. She
rushed to the victim, who was lying on the ground, and noted
that also at the scene was “a girl” and “V,” whom she identified
as Vincent Sulton, who also went by the moniker “Big V” and
“V Dog.”

       Sergeant Gene Hulley, an Investigator with the Memphis
Police Department Felony Response Squad, testified that he


        4
          Sergeant Barry Hanks of the Memphis Police Department also
testified at trial that he showed Ms. Pruitt the photographic line-up while
she was in the hospital, but she stated she could not see well due to
medication.

                                   -4-
assisted the crime scene investigators on this case. Although the
victim had been removed by the time he arrived, he stated that
he observed at the crime scene bullet holes on the building
walls, spent shell casings, and a blood stain on the floor. He
described the shell casings as consistent with a “large caliber,
automatic weapon.”


        Officer Ellason Flagg of the Memphis Police Department
testified that on January 24, 2004, she received a report that the
Defendant was at the Peppertree Apartments. There was a
warrant for the Defendant’s arrest. Officer Flagg stated that
when the Defendant saw the uniformed officers, he fled. The
officers pursued, eventually captured the Defendant, and placed
him under arrest.

       An audio tape of Memphis Police Officer Sergeant Sims’
testimony at the Defendant’s March 4, 2004 preliminary hearing
was played for the jury at trial and entered into evidence5 . Sgt.
Sims testified that he attempted to take a statement from the
Defendant after his arrest, but the Defendant, after he was
advised of his rights, elected to not make a formal statement.
However, the Defendant did remark to Sgt. Sims that “wasn’t
nobody going to make it to testify against him in the
courtroom.” Sergeant Sims also stated that the Defendant
refused to sign the advice of rights form.


        Dr. Karen Chancellor, the Chief Medical Examiner for
Shelby County, was certified as an expert in the field of forensic
pathology, and testified that the victim suffered from a gunshot
wound to the lower abdomen that did “extensive damage,” and
one gunshot wound to the leg. Dr. Chancellor opined that the
gunshot wound to the abdomen was the cause of death because
it severed two large blood vessels and caused massive bleeding.




       5
       The record reveals that Sergeant Sims of the Memphis Police
Department was deceased at the time of trial.

                               -5-
       Mr. Anton Armour, an acquaintance of the Defendant,
was subpoenaed by the State and testified at trial, admittedly
against his will, that at some point after the murder he was with
the Defendant. They were talking about the past, and the
Defendant made the following statement: “Man, you know I’m
a real nigger, I’m a killer, you can ask them niggers in the
Peppertree about me.” On cross-examination, Mr. Armour
admitted he was a convicted felon.

        The Defendant, properly advised of his rights, elected not
to testify on his own behalf. The defense [called] Sergeant
Timothy Cooper of the Memphis Police Department, who
testified that when he arrived at the crime scene shortly after
midnight, there was no one there who witnessed the crime and
was willing to talk to him. Officer William Merritt of the
Memphis Police Department testified that he interviewed the
Defendant along with Sgt. Sims, and stated that the Defendant
did sign the advice of rights form 6 . Officer Merritt also stated
that the Defendant never made any incriminating or threatening
statements while in his presence, but admitted on
cross-examination that there were times when the Defendant
was alone with Sgt. Sims.

       The defense also called Mr. Vincent Sulton, a.k.a. “V.”
Mr. Sulton testified that in his initial statement to the police,
made about four days after the crime, he stated that he had no
personal knowledge of the events on the evening of the murder
but knew the Defendant shot the victim because the Defendant
had communicated threats, warning him not to talk. However,
Mr. Sulton later made a second statement to police in which he
recounted that he and the victim were away from the apartments
the day of the murder when the victim informed Mr. Sulton he
was going to go to his apartment at Peppertree. Mr. Sulton
informed police that the victim arrived first, he followed, and he
was just coming up the stairs when he heard shots and saw the
Defendant with a gun. The Defendant pointed the gun at him
and then ran off. Mr. Sulton then informed the police that he


        6
       A copy of the advice of rights form, bearing the signatures of the
Defendant, Sgt. Sims and Officer Merritt, was entered into evidence.

                                  -6-
               was unarmed, went to the victim, took a handgun from the
               victim, threw it onto the roof, and ran when he heard the police.

                      On cross-examination, Mr. Sulton gave a third version of
               the events of the evening, testifying that he in fact did not come
               up the stairs, but rather was in his apartment when he heard the
               shots fired, and then came out. He maintained that he did not
               have a gun until he took one off of the victim, and he then
               chased after the Defendant. Mr. Sulton further stated that the
               Defendant called him “not even an hour afterwards” and
               threatened to kill him. Mr. Sulton also denied having ever told
               Ms. Turner, Mr. Nelms or Ms. Noel that the gun he had was his
               and that he retrieved it from off the television set in his
               apartment.

                       The State called three rebuttal witnesses: Ms. Roshunda
               Turner, the victim’s aunt; Mr. Damen Nelms, the victim’s uncle;
               and Ms. Memorie Noel, another aunt of the victim and a
               previous witness. All three testified that they saw Vince Sulton
               a day after the murder, and he told them that after the shooting
               he went into his apartment and got a gun which was located on
               his television set.

State v. Tamaine Works, No. W2005-01048-CCA-R3-CD, Shelby County, slip op. at 2-5
(Tenn. Crim. App. May 26, 2006), perm. app. denied (Tenn. Nov. 6, 2006).

        At the post-conviction hearing, trial counsel testified that he represented the Petitioner
in the conviction proceedings. He estimated that he was retained or appointed ten to twelve
months before the trial. He said the Petitioner was one of his favorite clients. He said he was
never informed of a potential alibi defense. He said the Petitioner never denied shooting the
victim. He recalled that he realized the Petitioner was the shooter when the Petitioner
became very upset with Kimberly Pruitt, who testified at the preliminary hearing as an
eyewitness, because the Petitioner said she was not the person who opened a door and saw
him outside an apartment with a big gun.

       Trial counsel testified that there were two alternative strategies available. First, the
defense might pursue a voluntary manslaughter theory based upon the Petitioner’s killing the
victim after learning that the Petitioner’s best friend had been killed hours earlier. He said
the prosecutor seemed to agree with this theory because the prosecutor made a second degree
murder plea offer. The second theory was that Ms. Pruitt was lying and that she did not

                                               -7-
identify the Petitioner when the police showed her photographs while she was hospitalized,
even though she had known him for a long time. He said the Petitioner identified another
woman as the person who saw him outside the apartment, but the Petitioner could not recall
the woman’s name. He said that at every meeting before the trial, he and the Petitioner
discussed the Petitioner’s contention that Ms. Pruitt was lying. He said he talked to Ms.
Pruitt at the preliminary hearing and at the trial but did not think he talked to her between
them.

        Trial counsel testified that he wanted to talk to a man who had been inside the
apartment and who had given conflicting statements, but he was not able to do so because
the man was represented by counsel. He agreed that he did not do any further investigation
of the information disclosed by the State. He said that he did not go to the crime scene to
take photographs but that photographs were provided to him. He said he saw no reason to
“waste the State’s money to send somebody out there to verify what [he] believed to be true.”
He said that misidentification due to lighting or other conditions was not an issue because
Ms. Pruitt claimed to have seen the Petitioner at the door from two to three feet away.
Counsel acknowledged that he never looked on the roof at the scene, even though there was
evidence that the gun and a liquor bottle were on the roof. He said he did not know about
the gun on the roof at the preliminary hearing stage because there was nothing in the affidavit
of complaint about it. He said he did not obtain a mental evaluation of a client if he did not
appear to need one. He said there were no alternative theories of how the shooting occurred.

        Trial counsel testified that it was apparent to him early in his representation that either
the Petitioner was present when the Petitioner’s best friend was killed or the Petitioner
received the information about the killing from someone. He said the Petitioner was adamant
that he was not present. Counsel said he wanted to interview any witness who told the
Petitioner about the killing and asked the Petitioner if there were any witnesses he should
investigate. He said they discussed this “very paramount issue” before the trial. He said the
Petitioner did not want him to call any witnesses relative to a heat of passion defense. He
said that the prosecutor seemed to understand that the crime occurred in the heat of passion
and that they attempted to negotiate a plea agreement, but the Petitioner was not interested.
He said he intended to present a heat of passion defense, but the trial judge ruled that the
defense could not present this theory unless the Petitioner or another witness provided
relevant testimony. He said he argued that the ruling infringed upon the Petitioner’s Fifth
Amendment right not to give evidence against himself. Counsel said that his conversations
with the prosecutors involved the heat of passion defense and that he did not anticipate they
would ask the court to exclude evidence of a heat of passion defense unless the Petitioner
testified. He said that until the day of the trial, he assumed that the heat of passion defense
could be developed through his cross-examination of witnesses and that he would not need
other witnesses on this point. It never occurred to him that the State would object to

                                                -8-
evidence of a heat of passion defense. He thought the question of relevance occurred to one
of the prosecutors on the Friday before the trial began on Monday when he said that the
Petitioner might not testify.

        Trial counsel testified that after the court ruled that the defense must establish the
relevance of a heat of passion defense, he talked to the Petitioner. He advised the Petitioner
to consider the plea offer or to tell him where to find the woman who told the Petitioner
about the earlier shooting. He said that he wanted to call the woman as a witness but that the
Petitioner “absolutely did not want to do that.” He thought that at the time, the Petitioner did
not want to disclose that he was the shooter. He said, however, that the Petitioner never
affirmatively said he was the shooter. Counsel said the only eyewitnesses were the woman
in the apartment and Mr. Sulton, who did not see the shooting but removed the victim’s gun.

       Trial counsel testified that the State decided not to call Vincent Sulton7 to testify in
order to avoid evidence about the prior shooting. He said that although he could not use Mr.
Sulton to establish the prior shooting, he called Mr. Sulton as a defense witness to show that
Mr. Sulton took a gun from the victim. He agreed that self-defense could have been a
defense theory but said it was not considered because it was clear that the Petitioner shot the
victim to avenge his best friend’s killing.

       Trial counsel testified that he presented the testimony of a police officer who
canvassed the area near the scene to show that no one had any information about the
shooting. He presented this evidence to rebut the testimony of the State’s witnesses who said
they had been at the scene ready to talk to the police. He said he also called Detective Merritt
to rebut a police officer’s prior testimony that was unfavorable to the Petitioner. He said that
he unsuccessfully opposed admission of the prior testimony as unreliable but that the court
admitted it because the officer died before the trial.

       On cross-examination, trial counsel testified that before representing the Petitioner,
he had represented about thirty defendants in murder cases. He said he had more jury trial
experience in first degree murder cases than other cases. He was a former law clerk for a
court of criminal appeals judge, and he did criminal trial and appellate work once he entered
private practice.




                      7
                       Vincent Sulton’s surname is spelled “Sultan” and “Sutton”
              in the post-conviction hearing transcript. We have used “Sulton,” the
              spelling that appears in this court’s opinion in the Petitioner’s direct
              appeal.

                                                -9-
        Trial counsel testified that self-defense was not a viable option. He said the viable
options were a voluntary manslaughter defense and establishing reasonable doubt by showing
that the State’s main witness lied. He acknowledged that he was somewhat thwarted by the
State’s late tactical move. He reiterated that the Petitioner did not provide any information
about an alibi. He said the Petitioner told him repeatedly about crying as the Petitioner’s best
friend was taken away in an ambulance, to die later.

        Trial counsel testified that he hired investigators in murder cases when there was a
need for an investigation or if there were things a client told him that were not covered by
the discovery materials. He said there was not a need for an investigator in this case and
noted that the Petitioner’s account was consistent with the State’s facts. He said that a
substantial amount of time elapsed before he received Mr. Sulton’s statement about the gun
and that he did not think an investigator would have found the gun after he learned of the
statement. He also said he did not know how he would be able to establish after one and one-
half years that the gun was the victim’s. He said that for the first six months of his
representation, the Petitioner maintained that Ms. Pruitt’s account could not be correct, but
that the Petitioner did not admit he was at the scene. He said the Petitioner eventually
admitted the type of gun he had, the garbage bag over the gun, and what he was trying to do.
Counsel acknowledged that his cross-examination of Ms. Pruitt was unsuccessful but
asserted that he made his best effort. He said that his trial strategy included emphasis on Ms.
Pruitt’s previous failure to identify the Petitioner and that a motion to suppress evidence of
the identification procedure would have been counterproductive.

       Trial counsel testified that the State’s first settlement offer was for twenty years. He
said he reviewed the offer, the sentence, and the required percentage of service with the
Petitioner. He discussed the State’s second offer for fifteen years with the Petitioner. He
said the State made an offer for thirteen and one-half years during the trial, which the
Petitioner refused. He said that he and the Petitioner felt good about the trial when the
Petitioner turned down the third offer. He said he was used to clients refusing good offers
and denied getting angry at the Petitioner or treating him differently.

       Trial counsel testified that the Petitioner was one of his favorite clients because the
Petitioner was communicative about what he did and did not want. He said the Petitioner
agreed with the direction of the case. He said he had good rapport with the Petitioner’s
mother, as well.

       With respect to the appeal, trial counsel testified that he reviewed his notes and the
transcript to determine the appellate issues. He said his appellate strategy was not to raise
every possible issue because doing so detracted from the issues which offered the best
possibility for relief. He said he maintained communication with the Petitioner throughout

                                              -10-
the appellate process, although there were not many occasions for updates. He said the
appeal was unsuccessful, which was not unusual in criminal cases.

        Trial counsel acknowledged that he may have prompted one of the prosecutors to
realize that the State could challenge the defense’s ability to cross-examine witnesses about
heat of passion evidence. He said he “joked” with one of the prosecutors before the trial by
indicating the Petitioner might not testify. He said it was not unusual to be equivocal with
a prosecutor about whether a defendant would testify. He said that had he known the State
would challenge the admissibility of cross-examination evidence of the prior shooting, he
would not have relied on the State to call Mr. Sulton as a witness or expected to be able to
cross-examine Mr. Sulton about the prior shooting. He said he met with the Petitioner after
the trial court’s ruling and advised him that the fifteen-year offer was “not such a bad offer
any more.” He said the Petitioner was adamant that he would not accept the plea offer and
that he wanted counsel to challenge Ms. Pruitt’s testimony that she was at the scene. He
advised the Petitioner that they could make the prior homicide relevant if the Petitioner had
a witness who would testify that he or she saw it and told the Petitioner about it. He said the
Petitioner, however, did not want to get “her” involved. He stated that after the court ruled
against the defense, he was concerned about the defense and determined that the options
were for him to convince the Petitioner to plead guilty, for the Petitioner to testify, or for him
to convince the jury that the State failed to sustain its burden of proof.

        On redirect examination, trial counsel acknowledged that he pursued the voluntary
manslaughter theory even though he knew the Petitioner did not want to testify. He thought
the reason and state of mind for the killing would be clear to the jury even if the Petitioner
did not testify. He said one of the prosecutors acknowledged to him that the verdict might
be voluntary manslaughter. He identified his billing records, which he said were created
when he prepared his billing statement about one year after the case concluded. He identified
an entry which showed he delivered the fifteen-year offer two months and two days before
the trial and said it probably was the same day he received the offer. He said there had been
a previous twenty-year offer when he received the discovery information.

        Sherrill Royston, the Petitioner’s mother, testified that she was present at the
Petitioner’s trial. She said that after Mr. Sulton was questioned about the location of the
victim’s gun, she overheard one of the prosecutors tell other State’s witnesses that they must
testify that the gun was on a television set, not thrown on the roof, in accord with Mr.
Sulton’s testimony. She said that afterwards, one of the victim’s family members testified
to that effect. She thought the witnesses involved were family members of the victim, but
she could not identify them by name.




                                              -11-
         On cross-examination, Ms. Royston testified that the prosecutor said, “[Y]ou’re going
to have to say exactly word for word what the first witness has said. . . . [Y]ou’re going to
have to say that.” She said that four or five of the people testified. She said she had stepped
out of the courtroom to pray when she heard the prosecutor instruct the witnesses about their
testimony. She said she was holding her Bible but was not reading it. She acknowledged her
prior statement to a defense investigator in which she said she was reading her Bible when
she overheard the prosecutor’s instructions. She said she mentioned the prosecutor’s actions
to trial counsel but did not recall when she told him about it.

        On redirect examination, Ms. Royston testified that she had not had the opportunity
to review the statement she gave the defense investigator or to correct any misinterpretations.
She said she had her Bible open and was praying when she overheard the prosecutor’s
instructions to the witnesses.

        Summer Hampton testified that she married the Petitioner after he was in prison. She
recalled the date of the crime because it was the same day that Derrick Robertson, the
Petitioner’s friend, was killed. She said that she learned of Robertson’s killing about 7:30
p.m. that day but that she did not tell the Petitioner. She did not know if the Petitioner knew
of the incident. She said the Petitioner came home to the Petitioner’s aunt’s apartment about
8:30 p.m. and did not leave the apartment that night. She claimed the Petitioner was with her
when the victim in the Petitioner’s case was killed. She said her three children were with
them at the apartment. She said that the Petitioner’s aunt, Mary Barnes, came home about
9:00 p.m. and that Ms. Barnes was now deceased. She said she and the Petitioner went to
bed before 10:00 p.m. and awakened the next morning around 6:30. She said that no one
ever asked her about the evening of the victim’s homicide.

        On cross-examination, Ms. Hampton testified that neither she nor the Petitioner was
working at the time of the crime. She was about twenty-five and the Petitioner about twenty-
two at the time. She said they awakened at 6:30 a.m. in order to get her son ready for school.
She maintained that they went to bed around the same time every night. She said they
discussed Mr. Robertson’s homicide that night. She was not present when Mr. Robertson
was killed and did not know where the Petitioner was before he came home. She said
Kimberly Longmeyer told her about Mr. Robertson’s death.

       The Petitioner testified that trial counsel failed to communicate with his alibi
witnesses. He said he tried to talk to counsel about the witnesses and denied that he told
counsel not to talk to them. He said the alibi witnesses were Summer Hampton, Mary Cole
Shelby, Latoya Banks, and Mary Barnes. He said Mr. Robertson took him to see Ms. Shelby,
his parole officer, around 4:00 or 5:00 p.m. He said Ms. Banks was a resident of the
apartment complex where Mr. Robertson was killed and could have testified about what

                                             -12-
happened there. He claimed counsel told him that the State made a settlement offer of twenty
years at eighty-five percent and that they would have to go to trial if he did not accept the
offer because the State would not budge. He said counsel never communicated a fifteen- or
thirteen-year offer to him. He claimed he asked counsel to see if the State would accept a
fifteen-year offer. He said that after the trial, he asked counsel about the fifteen-year offer
and that counsel said he thought he told the Petitioner about it and apologized if he did not.

        The Petitioner testified that trial counsel advised him not to testify and said the State
would question him about his “charges.” He claimed he wanted to testify but said he
deferred to counsel’s wisdom from experience. He denied that trial counsel reviewed the
evidence with him. He stated that he asked counsel to hire an investigator but that counsel
said he was going to rely on the State’s information. He said he wanted an investigator to
make photographs from different angles than the State’s photographs and to look on the roof
for the gun. He also wanted an investigator to search for a woman named Ranita, whom he
said may have provided information to Ms. Pruitt. He stated that counsel assumed he was
present when the victim was killed but that he was not. He said he tried to tell counsel that
counsel could show that Ms. Pruitt was not truthful about being present when the victim was
killed.

      The Petitioner testified that had he testified at his trial, he would have said he had
nothing to do with the crime. He said he would have testified that he was at Graceland Farms
with Ms. Hampton, Ms. Barnes, and the children.

       On cross-examination, the Petitioner testified that he complained to trial counsel in
person about counsel’s performance. He acknowledged a letter he sent counsel on January
26, 2006, which was after the Petitioner’s March 2005 trial, in which he said that counsel
was doing his job. He said he was appreciative of the “little things” counsel did at the time.
He also acknowledged a September 2005 letter in which he asked if he could take the fifteen-
year offer, even though this was after his trial.

        The Petitioner testified that trial counsel gave him the discovery materials. He said
he did not receive some of the materials, such as the preliminary hearing transcript, until after
his trial. He denied that he and counsel reviewed the discovery materials together or that
counsel discussed them with him. He said it was counsel’s decision, not his, that he not
testify, but he acknowledged that he heeded the advice of counsel in this regard.

       On redirect examination, the Petitioner testified that he wanted to testify about his
alibi defense at his trial. He said Ms. Hampton could have corroborated his alibi. On
recross-examination, the Petitioner testified that Ms. Hampton was present outside the
courtroom during his trial. He thought he came home around 8:00 or 8:30 on the night of the

                                              -13-
crime. He said he bathed, ate, and went to bed. He did not recall what time he went to bed.
He said that they watched a movie and that they did not talk about anything.

        Assistant District Attorney General Dean DeCandia testified that he participated in
the Petitioner’s trial. He said he spoke with witnesses before the trial and denied that he
advised them how to testify. He specifically denied that he told the witnesses how to testify
during the rebuttal proof. He said that he might leave the courtroom to get something from
his office or to use the restroom but that he would not leave to talk to a witness who had not
yet testified.

       On cross-examination, General DeCandia testified that at some point, some of the
witnesses made the prosecutors aware that Mr. Sulton’s statements made after the crime were
inconsistent with his trial testimony. He did not recall whether he advised defense counsel.
He said Mr. Sulton gave conflicting statements to the police, first claiming he was not
present for the shooting and only heard about it, but later saying he came to the scene after
he heard shots and took a gun from the victim. He said that during cross-examination, Mr.
Sulton first claimed he had not been at the scene but later said he was in his apartment when
the shooting happened and took a gun from his television stand and went toward the
Petitioner.

       General DeCandia testified that the fifteen-year offer was made during the trial. He
saw trial counsel lean over and speak to the Petitioner. He stated that almost immediately
thereafter, counsel advised him that the Petitioner rejected the offer.

        The trial court denied relief in a detailed order. The court discredited the testimony
of the Petitioner and accredited that of trial counsel. The court found that the Petitioner was
not denied the effective assistance of counsel. The court did not, however, address the
allegation that the Petitioner was entitled to a new trial due to prosecutorial misconduct. This
appeal followed.

                                               I

        The Petitioner contends that trial counsel provided ineffective assistance in the trial
proceedings. The State contends that the trial court correctly determined that the Petitioner
failed to prove this claim. We agree with the State.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

                                              -14-
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

       Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland
standard has been applied to the right to counsel under article I, section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that the counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id.

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were
“within the range of competence demanded of attorneys in criminal cases.” Further, the court
stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974), and United States v. DeCoster,
487 F.2d 1197, 1202–04 (D.C. Cir. 1973). Baxter, 523 S.W.2d at 936. Also, in reviewing
counsel’s conduct, a “fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not,
alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they are



                                            -15-
informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201; Hellard,
629 S.W.2d at 9.

        The Petitioner argues that trial counsel provided ineffective assistance by failing to
investigate the case and prepare adequately for the trial. The trial court accredited trial
counsel’s testimony over that of the Petitioner and his wife. Counsel testified that the
Petitioner never mentioned an alibi defense, that the Petitioner eventually admitted his
involvement, that he and the Petitioner had a good working relationship, that they reviewed
the evidence together, that he communicated the plea offers to the Petitioner, that he met with
the prosecutors to discuss the case, and that he was prepared for the trial. Although counsel
acknowledged that he did not conduct an independent investigation, he said that the facts
were not in dispute and that the Petitioner did not identify any witnesses he should
investigate. He stated that he urged the Petitioner to identify the person who told him the
Petitioner’s friend had been shot but that the Petitioner insisted he did not want to involve
her. The court found that counsel did not reveal any confidential or privileged information
by suggesting that the Petitioner might not testify and that the experienced attorneys involved
in the case were familiar with a defendant’s Fifth Amendment privilege not to testify. The
court rejected the claim that counsel’s performance was deficient. The court likewise found
that the defense strategy was sound, given the facts of the case. The evidence does not
preponderate against the trial court’s findings. Those findings support the trial court’s
determination that the Petitioner failed to establish that counsel’s performance was deficient
or that the Petitioner was prejudiced by the performance. The Petitioner is not entitled to
relief.

                                              II

       The Petitioner contends that he should receive a new trial due to prosecutorial
misconduct because one of the prosecutors improperly advised a witness of the substance of
another witness’s testimony and instructed the witness to testify consistently. The State
acknowledges that the trial court did not make credibility findings with respect to the
conflicting evidence regarding this issue but contends that the Petitioner waived
consideration of the issue by failing to raise it on direct appeal.

       We agree with the State’s contention that the issue is waived because it was not raised
on direct appeal. See T.C.A. § 40-30-106(g) (2006) (“A ground for relief is waived if the
petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been
presented” subject to certain exceptions.); e.g., Brimmer v. State, 29 S.W.3d 497, 530 (Tenn.
Crim. App. 1998) (holding that prosecutorial misconduct claim was waived in post-
conviction action because it was not raised on direct appeal). We note that Ms. Royston did

                                             -16-
not recall when she told trial counsel about the alleged prosecutorial misconduct. Because
the record does not establish that counsel was unaware of the alleged misconduct at the time
of the direct appeal, the issue is waived.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -17-
