         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 15, 2005 Session

    CEDRIC DAVIS aka CEDRIC BOOKER v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-20799    John P. Colton, Jr., Judge



                   No. W2004-02505-CCA-R3-PC - Filed January 24, 2006


The petitioner, Cedric Davis aka Cedric Booker, appeals from the post-conviction court’s denial of
his petition for post-conviction relief. On appeal, he argues that the post-conviction court erred in
finding that he received the effective assistance of counsel. Following our review of the record and
the parties’ briefs, including the petitioner’s reply brief, we affirm the judgment of the post-
conviction court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and NORMA
MCGEE OGLE, JJ., joined.

Robert C. Brooks, Memphis, Tennessee, for the petitioner, Cedric Davis aka Cedric Booker.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Phyllis Gardner and Paul Thomas Hoover, Jr.,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                         BACKGROUND

       A brief synopsis of the facts of this case is set out in this court’s decision on direct appeal.
See State v. Cedric Davis, No. 02C01-9610-CR-00352, 1997 WL 576483 (Tenn. Crim. App., at
Jackson, Sept. 16, 1997) perm. app. denied (Tenn. Apr. 13, 1998). The facts are as follows:

              [A]t approximately 5:30 p.m. on April 30, 1993, defendant, Kedrick Crutcher
       (“Pokey”) and Kavious Jenkins (“Teddy Bear”) were traveling in an automobile
       looking for Phillip Thomas. Both defendant and Jenkins were carrying weapons.
       They asked a group of people if Phillip Thomas lived in the home at 219 Silver
       Maple. One person in the group, Marcel Pratcher, identified the defendant as the
        person who was armed with what appeared to be a TECH-9 weapon and who stated,
        “tell Phillip I’m going to kill his momma and then he’s going to be next.”

                Defendant, Crutcher and Jenkins pulled into the driveway at 219 Silver
        Maple. Two of the men jumped out of the car and began shooting. Laura Warren,
        Phillip Thomas’ grandmother, was shutting the front door when she was hit by one
        of the bullets. She died of a gunshot wound to the chest. The victim’s granddaughter
        and another person in the neighborhood identified the defendant as one of the
        gunmen.

               Defendant offered an alibi defense at trial. His wife, Teresa, testified that
        defendant was with her at the Wilson Inn on American Way at the time of the
        incident. She presented a receipt from the hotel which showed a check-in time of
        5:54 p.m. on the day of the shooting. Furthermore, Yolanda Aikens testified that
        defendant hit her car as she was leaving the hotel at approximately 5:30 p.m. on April
        30.

               Jenkins also testified on behalf of the defense. He claimed that defendant was
        not involved in the incident and insisted the shooting was carried out by Crutcher,
        himself and a man named “Butter.”

                On rebuttal, the state presented a letter written to Crutcher. In the letter, the
        writer asks Crutcher to assist, along with “Teddy Bear,” in a plan to blame the
        shooting on a man named “Butter.” A handwriting expert testified that the writing
        in the letter was consistent with that of the defendant’s. Additionally, Cindy
        Mahoney, an employee of Wilson Inn, testified that there was no record of
        defendant’s staying at that hotel on April 30.

              Defendant testified on surrebuttal. He denied writing the letter to Crutcher.
        The state then asked defendant about ten (10) prior felony convictions for
        impeachment purposes.

               The jury returned a verdict of guilty of murder in the first degree. Defendant
        was sentenced to life imprisonment.

Id. at 1.

        The petitioner filed a motion for a new trial, which the trial court denied, and the petitioner
appealed. On direct appeal, this court affirmed the petitioner’s conviction, and the Tennessee
Supreme Court subsequently denied his application for permission to appeal. The petitioner filed
a timely petition for post-conviction relief and later an amended petition, alleging more than thirty
grounds for relief. The post-conviction court conducted at least four evidentiary hearings, during



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which the petitioner presented the testimony of several witnesses.1 Although the record on appeal
contains four volumes of post-conviction testimony, we limit our recitation to the testimony relevant
to the petitioner’s allegations on appeal.

        John Wright, a legal investigator and process server, was the first to testify at the hearings.
Wright testified that he assisted defense counsel in investigating the petitioner’s case. According
to Wright, he interviewed the petitioner, the petitioner’s wife (girlfriend at the time), Anthony
Bernard Phillips, Yolanda Aikens, and Ron Gene, and did everything else counsel instructed him to
do. Wright also testified that he and counsel “spent some time, probably an hour or so” examining
the prosecutor’s extensive file and making copies. Included in the file was a stapled packet, which
had “Copy of the homicide file do not take apart” written on it. Wright stated that he believed that
this examined file was the entire case file for the prosecution. However, Wright acknowledged that
he did not personally have a conversation with the prosecutor regarding the issue. Wright recounted
that the statements from Marcel Pratcher and Brenda Granger, two eyewitnesses, were in the
discovery materials counsel received.

        Defense counsel was the next to testify at the hearings. Counsel testified that upon
undertaking representation of the case he talked to the petitioner and the petitioner’s family, checked
the records in the criminal court clerk’s office, talked with the previous attorneys on the case, and
did “whatever [he] thought was necessary to be done.” Counsel stated that he examined the police
reports and all the motions the previous attorneys had filed. According to counsel, he was not
informed that Brenda Granger and Belinda Robinson, two of the eyewitnesses, had failed to identify
the petitioner in a photographic lineup prior to trial. However, counsel admitted that information
was in the discovery materials.

        During his examination, counsel could not recall personally interviewing Granger, but stated
he believed Granger had been interviewed by Investigator Wright. Counsel also could not recall
whether he questioned Granger and Robinson during the trial about their failed identification of the
petitioner. When asked about whether he had a strategic or tactical reason for not examining the
witnesses about their failed photographic identification of the petitioner, counsel replied, “I thought
the [petitioner] was in the motel at the time these shootings occurred.” Counsel further testified that
he contacted the previous attorneys and discovered the preliminary hearing tape had been lost;
therefore, he was unable to investigate whether Granger identified the petitioner at the hearing.

         Counsel recalled that the attorney for co-defendant Crutcher turned over a letter to the
prosecutor allegedly written by the petitioner, and the prosecutor filed a motion requesting
handwriting exemplars from the petitioner. Counsel testified that he told the petitioner “[d]on’t give
it to them because . . . I don’t think they know what they’re talking about[,]” but the petitioner
wanted to provide the sample. Counsel testified that he talked to the handwriting expert prior to trial
and researched the law on handwriting experts as best as he could. The expert informed counsel that


         1
            The fourth post-conviction hearing transcript indicates that there was going to be a fifth hearing; however, a
fifth transcript is not in the record on appeal, and the parties do not mention any further hearing.

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the petitioner wrote the letter, but counsel did not believe “twelve reasonable men and women would
believe hocus-pocus [handwriting analysis].” According to counsel, his research indicated that
handwriting analysis is pure opinion. Counsel testified that he did not file a motion to suppress the
handwriting exemplars because the judge had ordered it done. Although counsel had never had a
case involving forensic handwriting analysis before, he “looked up what [he] thought was
important.” When questioned whether he prepared jury instructions in the case, counsel responded
“I’ve always found the [j]udges know what they are doing [so I ] let them do what they’re paid to
do.” On cross-examination, counsel was shown the supplementary offense report and read aloud
where some witnesses identified the petitioner, though others did not.

         James Lammey, Assistant District Attorney was the next to testify. Lammey testified that
several other prosecutors were involved in the case prior to his involvement. According to Lammey,
the district attorney’s office received a letter reportedly written by the petitioner. After looking at
his file, Lammey recalled that a preliminary hearing was conducted, but the tape of the hearing was
lost. Lammey recalled that there were discussions about the missing preliminary hearing tape, but
he did not recall whether any motions were filed. Lammey recounted that he was not at the
preliminary hearing. Therefore, he did not know whether any of the witnesses identified the
petitioner. However, Lammey noted that there was nothing in his file to indicate there were
identification problems at the hearing.

        When asked, Lammey recalled that a couple of the witnesses were not able to pick the
petitioner out of a photographic lineup, and this information was made available to defense counsel
via the discovery materials. Lammey noted that the petitioner’s photograph, used in the lineup, was
taken two years prior to the incident and showed the petitioner with his eyes closed. Lammey also
pointed out that Carlos Taylor, an eyewitness, was able to identify the petitioner from the
photographic lineup.

         Lammey testified that defense counsel alleged at trial that he did not receive a copy of the
handwriting expert’s report, but Lammey maintained that counsel received a hand-delivered copy
of the report at least a month before trial. When asked, Lammey could not recall whether counsel
filed any motions challenging the admissibility of the handwriting expert’s report or the letter
allegedly written by the petitioner. However, Lammey did remember that counsel argued the report
and the letter were inadmissible. Lammey recalled that the petitioner was identified in the
photographic lineup by those witnesses who knew the petitioner. Lammey also recalled that one of
the co-defendants gave a lengthy statement implicating the petitioner but could not remember
whether the other co-defendant gave a statement. Lammey noted that Marcel Pratcher testified at
trial, so he assumed he spoke with Pratcher beforehand. Lammey stated that he was aware Pratcher
took an officer to a residence believed to be “Cedric’s,” but in fact the residence was not the
petitioner’s residence. Lammey asserted, however, he did not understand how the mistake related
to the reliability of Pratcher’s identification of the petitioner. Regarding counsel’s performance,
Lammey testified that counsel was abrupt and hard to get along with, but he believed counsel had
provided effective assistance to the petitioner.



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         Former crime scene bureau captain, Golay Allen, testified at the hearings. Allen recalled his
activities at the crime scene, including taking fingerprints, drawing sketches, and collecting evidence.
Ronnie Williams, formerly with the Memphis Police Department, was also called to testify.
Williams reviewed the supplementary offense report prepared by another officer; however, after
looking at the report, Williams was unable to recollect any pertinent details of the investigation.

        After the hearings, the post-conviction court entered an order denying post-conviction relief.
The post-conviction court found that the petitioner failed to prove his allegations of ineffective
assistance by clear and convincing evidence. The petitioner appealed.

                                    STANDARD OF REVIEW

        In order for a petitioner to succeed on a post-conviction claim, the petitioner must prove the
allegations set forth in his petition by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s findings unless
the petitioner proves that the evidence preponderates against those findings. State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings is de novo
with a presumption that the findings are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn.
2001). Our review of the post-conviction court’s legal conclusions and application of law to facts
is de novo without a presumption of correctness. Id.

         To establish ineffective assistance of counsel, the petitioner must show that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense rendering the
outcome unreliable or fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient performance is shown if
counsel’s conduct fell below an objective standard of reasonableness under prevailing professional
standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)
(establishing that representation should be within the range of competence demanded of attorneys
in criminal cases). Prejudice is shown if, but for counsel’s unprofessional errors, there is a
reasonable probability that the outcome of the proceeding would have been different. Strickland,
466 U.S. at 694. If either element of ineffective assistance of counsel has not been established, a
court need not address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996). Also, a fair assessment of counsel’s 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 also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). The fact that a
particular strategy or tactical decision failed does not by itself establish ineffective assistance of
counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy and tactical decisions
only if the decisions are informed ones based upon adequate preparation. Id. (citations omitted).

                                             ANALYSIS




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        On appeal, the petitioner argues that he received the ineffective assistance of counsel.
Specifically, the petitioner asserts that his counsel was ineffective for (1) failing to cross-examine
and impeach the state’s witness, Brenda Granger, regarding her previous inability to identify the
petitioner; (2) failing to request a proper eyewitness identification instruction; and (3) failing to
properly investigate the testimony of handwriting expert Thomas Vastrick.

                                         IMPEACHMENT

        The petitioner first argues that his counsel was ineffective for failing to cross-examine and
impeach Brenda Granger regarding her inability to identify him from a photographic lineup and at
the preliminary hearing. According to the petitioner, the credibility of Granger’s eyewitness
identification testimony was a critical issue at trial because of his alibi defense. The petitioner
asserts that the police report, which indicated Granger’s failed identification, was readily available
to counsel and should have been used to impeach Granger’s testimony after she positively identified
him at trial. The report, in part, stated:

       On Tuesday, May 4, 1993, at 9:55 a.m., the writers went to [the crime scene] and had
       Brenda Granger view three photo line-ups of the suspects, marked “A, B, & C”.
       Brenda Granger did not make an identification at this time. She said the one that she
       saw had a fade.

The petitioner also asserts that because the tape of the preliminary hearing was lost, counsel was
ineffective for failing to secure witnesses who were present at the hearing to testify to Granger’s
inability to identify him at the hearing.

        We begin our review by reiterating that the petitioner must show both deficiency and
prejudice in order to succeed on an ineffective assistance of counsel claim. See Strickland, 466 U.S.
at 687. Even assuming counsel was deficient for failing to cross-examine and impeach Granger
regarding her alleged failed identifications of the petitioner, the petitioner has not demonstrated how
he was prejudiced by counsel’s error. If prejudice is absent, there is no need to examine allegations
of deficient performance. Id. at 697. First, the petitioner has failed to show that there was a
reasonable probability the outcome of the trial would have been different had counsel discredited
Granger’s in-court identification. The record reflects that Granger was not the only person who
implicated the petitioner in the shooting. The police report, which the petitioner urges should have
been used to impeach Granger, also reveals that Carlos Deon Taylor witnessed the shooting and gave
a statement to the police. According to Taylor, he saw three individuals, “Cedric, Kavious Jenkins,
and Poky” pull into the victim’s house; Cedric got out of the car and started shooting. Taylor
identified Cedric from a photographic lineup. The same police report also showed that Phillip
Thomas, the intended victim, identified the petitioner as the person he knew as Cedric. Both co-
defendants gave lengthy statements to the police implicating the petitioner. Additionally, Marcel
Pratcher testified at trial that he saw the petitioner, “Teddy Bear,” and “Pokey” in a car around the
corner from the victim’s house just before the shooting. According to Pratcher, the petitioner pulled
up and said, “tell Phillip I’m going to kill his momma and then he’s going to be next.” The car


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pulled away, and ten seconds later he heard shots. In sum, the petitioner has failed to prove how
discrediting Granger’s trial testimony with the police report would have overcome the wealth of
other identification evidence against him, resulting in a different outcome at trial.

         Second, we note that other than the petitioner’s allegation that Granger was unable to identify
him at the preliminary hearing, the petitioner failed to present proof supporting this allegation. At
the post-conviction hearing the petitioner did not present any witnesses to testify that Granger did
in fact fail to identify him at the preliminary hearing. As a general rule, the presentation of these
witnesses at the post-conviction hearing is necessary to prove that counsel’s failure to utilize these
witnesses resulted in prejudice to the petitioner. See Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). Neither the post-conviction court nor this court may speculate on what a witness’
testimony might have been if introduced by counsel. Id. On the other hand, the state presented
testimony, that suggested that Granger was able to identify the petitioner. According to prosecutor
Lammey, the usual practice of the district attorney’s office was to note if a witness was unable to
identify a defendant at a preliminary hearing for future reference. Lammey testified, however, that
no such notation existed on the prosecutor’s case sheet. Consequently, without any proof of
prejudice, the petitioner is not entitled to relief on this issue.

                                      JURY INSTRUCTION

        The petitioner next argues that counsel was ineffective for failing to request an eyewitness
identification jury instruction in accordance with State v. Dyle, 899 S.W.2d 607 (Tenn. 1995).
Specifically, the petitioner argues that he was prejudiced by counsel’s cumulative errors of not
requesting a jury instruction on identification and not impeaching Granger’s in-court identification.

        In Dyle, our supreme court held whenever the identity of a defendant constitutes a material
issue in the case, and defense counsel requests an identification instruction, such instruction must
be given. Id. at 612. Otherwise, the failure to give the identification instruction is plain error. Id.
However, the court determined that if defense counsel fails to request the instruction when identity
is a material issue, then such failure is to be reviewed under a harmless error standard. Id.; See Tenn.
R. Crim. P. 52(a). The court noted that the defendant’s identity becomes a material issue “when the
defendant puts it at issue or the eyewitness testimony is uncorroborated by circumstantial evidence.”
Dyle, 899 S.W.2d at 612 n.4.

        Although defense counsel did not request the Dyle instruction on identity, the trial court gave
a lengthy and detailed instruction, much more specific than the pattern charge disfavored by our
supreme court in Dyle. The jury instruction given by the trial court in this case was:

              The Court charges you that the identity of the defendant CEDRIC DAVIS,
       must be proven in the case on the part of the State to your satisfaction, beyond a
       reasonable doubt. In other words, the burden of proof is on the State to show that the
       defendant now on trial before you is the identical person who committed the alleged
       crime with which he is charged. In considering the question of the identity of a


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        person, the Jury may take into consideration the means and opportunity of
        identification, if any; whether it was light or dark; the distance intervening; the dress
        or clothing worn; the character and color of same; the size, height, and color of the
        individual; whether known to him, and if so, how long, and if seen before, under
        what circumstances; whether running or moving rapidly, standing still, walking fast
        or show [sic] at the time claimed to the person testifying; the color of the hair; hat
        worn; facial expression or features and appearance; whether with or without
        mustache and beard; whether person said to be identified was white, black, dark,
        yellow, or light color; masked or not; the voice and speech.

                All these things when shown in the proof may be considered by the Jury in
        determining the question of identity. The word identity means the state or quality of
        being identical, or the same; it means sameness; Identification means the act of
        identifying or proving to be the same. The word “identity” means to establish the
        identity or to prove to be the same as something described, claimed or asserted.

                The Court charges you that if you are satisfied from the whole proof in this
        case, beyond a reasonable doubt, that the defendant, CEDRIC DAVIS, committed the
        crime charged against him, and you are satisfied, beyond a reasonable doubt that he
        has been identified as the person who committed the crime charged, then it would be
        your duty to convict him. On the other hand, if you are not satisfied with the identity
        from the proof, or you have a reasonable doubt as to whether he has been identified
        from the whole body of the proof in the case, then you should return a verdict of not
        guilty.

        Assuming arguendo that counsel’s failure to request the Dyle instruction was deficient, we
cannot conclude that the petitioner has established prejudice. The petitioner was obliged to prove
by clear and convincing evidence a reasonable probability that the outcome of the trial proceeding
would have been different had the instruction been given. See Stickland, 466 U.S. at 694. We note,
there is no indication that the jury based its decision solely on Granger’s eyewitness identification,
and the record contains ample evidence on which the jury could have reasonably determined that the
petitioner was the shooter. The record indicates that more than one eyewitness placed the petitioner
at the scene of the shooting. There was testimony at trial that “Cedric” was in the victim’s
neighborhood ten seconds before the shooting. In a statement to the police, one of the intended
victims identified the petitioner as the “Cedric” he knew. Also, the two co-defendants gave
statements implicating the petitioner. Furthermore, even though the petitioner offered “several
witnesses who testified consistently in support of [his] alibi defense,” the state offered strong rebuttal
proof aimed to discredit the petitioner’s alibi defense. In view of this evidence and the thorough
identification instruction given by the trial court, we are unconvinced that the petitioner was
prejudiced by counsel’s failure to request the Dyle instruction on identity. Accordingly, the
petitioner is not entitled to relief on this issue.

                                    HANDWRITING EXPERT


                                                   -8-
         The petitioner finally argues that counsel was ineffective for failing to call an expert witness
to counter the testimony of the state’s handwriting expert, Thomas Vastrick. In support of his
argument, the petitioner notes that handwriting analysis is a valid subject of expert testimony;
therefore, counsel should have investigated the facts and attempted to introduce expert proof to
counter the state’s expert. See e.g., State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992); State v.
Zimmerman, 823 S.W.2d 220, 227 (Tenn. Crim. App. 1991). However, our review of the record
indicates that counsel researched Vastrick’s credentials and conducted a lengthy examination of his
methodology and conclusions. The method used to examine and discredit the analysis of an expert
is a tactical decision within the purview of counsel. As a reviewing court, we will not second guess
tactical choices made by trial counsel. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Tolliver
v. State, 629 S.W.2d 913, 914 (Tenn. Crim. App. 1981). Additionally, assuming counsel was
deficient for failing to obtain an expert witness, the petitioner has failed to show prejudice. The
petitioner had the opportunity to present expert testimony at the post-conviction hearing to contradict
Vastrick’s conclusion that the petitioner wrote the damaging letter to the co-defendant. The
petitioner did not offer any such proof. Without proof that another expert would have testified
differently, we cannot determine that the petitioner was prejudiced by counsel’s failure to obtain an
expert witness. Accordingly, the petitioner is not entitled to relief on this issue.

                                           CONCLUSION

        The evidence does not preponderate against the findings of the post-conviction court. The
petitioner has not shown that he was prejudiced by any of the alleged deficiencies of counsel. The
petitioner thus failed to establish that he is entitled to post-conviction relief on the basis of
ineffective assistance of counsel. We affirm the judgment of the post-conviction court.




                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




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