        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                January 18, 2012 Session

           JAMES ALTON CAMPBELL v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Grundy County
                      No. 3972     Thomas W. Graham, Judge




                No. M2011-00434-CCA-R3-PC - Filed March 28, 2012


The petitioner, James Alton Campbell, appeals the partial denial of his petition for post-
conviction relief. In this appeal, the petitioner asserts that he was denied the effective
assistance of counsel at trial. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and C AMILLE R. M CM ULLEN, JJ., joined.

Paul Cross, Monteagle, Tennessee, for the appellant, James Alton Campbell.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsey Paduch Stempel, Assistant
Attorney General; J. Michael Taylor, District Attorney General; and Steve Strain, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               A Grundy County Circuit Court jury convicted the petitioner of aggravated
assault for stabbing the victim, George Byers, Jr., following an altercation at the Monteagle
Veterans of Foreign Wars (“VFW”). On direct appeal, this court summarized the relevant
facts as follows:

                     On Saturday, November 2, 2003, the victim, George
              Byers, Jr., went to the Monteagle VFW to drink and dance. The
              victim drank beer and visited with friends for a couple of hours
              before going outside for fresh air. Outside, he encountered the
              defendant, whom he had known for some time but had not seen
in several years. The victim explained that his family and the
defendant’s family “are married into each other[].” According
to the victim, the defendant approached him and asked if he
knew who the defendant was, and the victim replied that he did
and that he “wasn’t scared of him, or of his mama, or his daddy,
his brothers, sisters, or none of them.” At that point, the
defendant stabbed the victim twice in the abdomen and ran
away. The victim denied threatening the defendant and insisted
that he was not armed. The victim acknowledged consuming
four beers and one gin and tonic prior to the offense.

       After the stabbing, the victim, who did not initially
realize that he had been stabbed, experienced a great deal of
pain and difficulty breathing. After an evaluation at Emerald
Hodgson Hospital in Sewanee, the victim was airlifted to
Erlanger Medical Center in Chattanooga. The victim required
surgery followed by a nine-day hospital stay and nearly one
month of bed rest.

       ....

        Julia Meeks, a friend of the defendant, testified that she
went to the VFW with the defendant and others to dance. She
described the victim, whom she knew as “Snowball Boy,” as
“pretty well lit.” She explained that “[h]e was mouthy . . .
cussing a lot and flirty a lot.” Ms. Meeks recalled that the
victim was “throwing threats toward [the defendant’s wife]
about [the defendant].” She stated that the victim, who was
armed with a knife “like . . . you would skin a deer or something
with,” was standing outside when her party left the VFW. She
heard the victim say in a loud, threatening manner that “he’[d]
take care of [the defendant] and he’s tired of the Campbells, and
he’d had enough and he was going to show them.” Ms. Meeks
left before the stabbing.

              The defendant’s brother-in-law, Jimmy Dale
Nolan, testified that the victim “started bad mouthing” the
defendant while outside the VFW. He stated that the victim and
the defendant had a “quiet conversation” during which he
overheard the victim say “something about [the defendant’s]

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              daddy.” At that point, Mr. Nolan saw the victim “reach in his
              left pocket, look like the bulge of [a] gun in his pocket and he
              had a scabbard knife . . . on his right side.” Mr. Nolan admitted
              that it was against the rules to carry weapons inside the VFW.
              Although he insisted that he had seen the handle of the victim’s
              gun, he admitted that he left the scene before police arrived and
              never informed police that the victim had been armed. Mr.
              Nolan stated that he could not remember whether he had
              discussed the case with the defendant prior to trial because he
              “had a bad car wreck in 1993, and [his] memory comes and
              goes.”

State v. James Alton Campbell, No. M2006-01817-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim.
App., Nashville, Nov. 7, 2007), perm. app. denied (Tenn. Apr. 14, 2008). The trial court
imposed a Range III sentence of 15 years’ incarceration, and this court affirmed both the
conviction and accompanying sentence on direct appeal. See id., slip op. at 1.

               The petitioner filed a timely petition for post-conviction relief, alleging, among
other things, that he was denied the effective assistance of counsel at trial because his trial
counsel erroneously advised him not to testify at trial and because trial counsel waived a
valid challenge to his sentence via Blakely v. Washington, 542 U.S. 296 (2004).

                At the evidentiary hearing, the petitioner testified that he and the victim had
a troubled relationship and that the victim and the victim’s brothers had threatened the
petitioner’s life on at least two occasions prior to their exchange at the VFW. The petitioner,
who was on parole at the time of the offense, testified that he had tried to avoid the victim
and that he only went to the VFW on the night of the offense because his wife wanted to go.
He said that the victim arrived at the VFW approximately half an hour after the petitioner and
his wife arrived. He recalled that he was concerned about the victim’s presence given their
history, but he stayed at the establishment despite that he was worried that the victim might
attack him. The petitioner testified that as he left the VFW, the victim, who had been waiting
outside, approached him about “an incident about [his] brother or something,” and the two
men exchanged words. At that point, according to the petitioner, the victim “went for that
bulk in his pocket” that the petitioner believed to be a gun, and the petitioner stabbed him.
The petitioner said that although the victim did not actually possess a gun, he did brandish
a “case knife” with “about a seven inch blade.” He explained that he stabbed the victim
because “it was a do or die situation.”

           The petitioner said that he testified at his parole hearing that he was not at the
VFW because the terms of his release prohibited him from frequenting establishments that

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served alcohol. He testified that his trial counsel advised him that the State would use the
parole hearing testimony to impeach his credibility should he choose to testify at trial. The
petitioner could not recall whether his counsel ever prepared him for cross-examination, but
he testified that the decision whether he would testify was not made until the State rested its
case. The petitioner said that he would have testified if his counsel had advised him to do
so.

               During cross-examination, the petitioner acknowledged that he lied at the
parole hearing. He also admitted that he told the trial court during the Momon colloquy that
he had decided not to testify and that he persisted in that decision even after the trial court
warned him that “self-defense [is] much harder to make . . . out if you don’t take the stand.”
The petitioner conceded that the trial court explained that “even though your lawyer might
recommend it to you in the end you have to be the one . . . you’ve got to make judgment calls,
and this is one of those calls.” The petitioner admitted that he responded to the trial court’s
warnings by saying that he thought it “best for [him] not to testify.”

               The petitioner conceded that Mr. Nolan’s trial testimony established that the
victim started the heated verbal exchange, that the victim was armed with a large knife, and
that it appeared as though the victim was reaching for a bulky area in his pocket when the
petitioner stabbed him. The petitioner acknowledged fleeing the scene after he stabbed the
victim.

              The trial transcript, which was exhibited to the petitioner’s testimony,
established that the trial court informed the petitioner no fewer than four times that the
decision whether to testify was his alone to make, regardless of the advice of his attorneys.

                Sheila Nolan, the petitioner’s sister, testified that she and her husband, Mr.
Nolan, met the petitioner and his wife at the VFW on the night of the offense. She said that
the victim arrived after they did and that he went outside approximately 45 minutes before
they decided to leave. Ms. Nolan said that she witnessed the encounter between the
petitioner and the victim, explaining that the victim “was hollering at” the petitioner and that
the petitioner “was answering back at him” before the victim “come with a knife.” She
testified that she did not see the petitioner stab the victim and that she did not learn of the
stabbing until after she left the VFW. Ms. Nolan said that she did not talk to police and
admitted that she fled the scene following the offense.

               Jeffrey Scott Schaarschmidt, a criminal defense attorney from Chattanooga,
testified that in his opinion, trial counsel should have advised the petitioner to testify,
explaining, “[H]e should have taken the stand if he was to have any chance that a jury would
find self-defense.” Mr. Schaarschmidt opined that “there’s a reasonable likelihood that [the

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jury] could have come back with a different verdict” had the petitioner testified.

               Mr. Schaarschmidt conceded that Mr. Nolan’s testimony supported the theory
of the defense. He admitted that, had the petitioner chosen to testify, the State would have
impeached his testimony with his criminal record, which included felony convictions for
burglary, theft, and escape, and with the petitioner’s inconsistent testimony at the parole
hearing. Mr. Schaarschimdt acknowledged that he did not know what verdict the jury would
have returned had the petitioner testified. He conceded that trial counsel correctly warned
the petitioner about the potential for impeachment. He said, however, that he would have
placed greater weight “on the fact that you really need to know what’s going through [the
petitioner’s] head” and lesser weight on the potential for impeachment.

              Mr. Schaarschmidt testified that the State could have presented the petitioner’s
parole hearing testimony regardless of whether the petitioner took the stand. He claimed the
State “could have brought in whoever he made the statement to” to “put that forth” as an
admission by a party opponent.

                Following Mr. Schaarschmidt’s testimony, the petitioner rested, and the State
presented the testimony of lead trial counsel, the district public defender for Grundy County.
Lead trial counsel testified that he discussed with the petitioner the advantages and
disadvantages of his taking the stand as had been his “practice certainly for the last 20 plus
years.” Although lead trial counsel could not recall with any specificity his conversation with
the petitioner, he explained that in each case he reviews with his client the strengths and
weaknesses of the State’s case. He did recall that at the close of the State’s proof, he did not
believe that the State had “made out very much of a case.” Lead counsel said that he and
assistant counsel had discussed the ramifications of the petitioner’s parole hearing testimony
prior to the trial. According to lead counsel, his most vivid memory of the petitioner’s trial
was the petitioner’s behavior in the courtroom during voir dire. He said that the petitioner
had an “unsettling” exchange with “a young lady seated on the front row . . . about a baby
and bringing that baby to the courtroom.”

                Lead counsel testified that “it’s always the client’s decision” whether to testify
at trial. He disagreed with Mr. Schaarschmidt’s assessment that the jury would have been
more likely to return a different verdict had the petitioner testified, saying, “[A]nybody who
can predict a jury verdict or how 12 people are going to assess testimony is out of my league.
I can’t do it and I’ve been practicing law 37 years. I don’t ever answer that question to a
client, I have no clue what that jury’s thinking.” Lead counsel said that he felt he had made
out a defense of self-defense through the testimony of the other witnesses. He said that
although he could not recall the specifics of his conversation with the petitioner, he had
“never . . . in 21 years as the public defender [said] you will not testify. . . . [t]his is how it

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lays out, but you’ve got to make the call.” Counsel said that he and assistant counsel were
aware of the parole hearing testimony as well as the petitioner’s lengthy criminal record and
that “those things would be brought” to the petitioner’s attention. Counsel said that the
petitioner’s courtroom behavior would have also played a role in his advice to the petitioner.

               During cross-examination, lead counsel reiterated that he could not recall
making a specific recommendation to the petitioner but said that in every case he attempts
to provide the client with “the best information and assessment that [he] as a trial lawyer can
give [the client] of what [he] ha[s] observed and heard in that courtroom.” He said that it
was his practice to take a break to discuss the potential for the client to testify following the
close of the State’s proof and then again at the close of any defense proof. The record in this
case showed that he did, in fact, take those two breaks. Lead counsel said that “there was
nothing to be gained” by the State’s attempting to use the petitioner’s parole hearing
testimony in their case-in-chief.

                Assistant trial counsel testified that it was his “best recollection” that he and
lead counsel “reviewed the things that are proper to review about the previous testimony and
. . . talked to [the petitioner] again about his record, his previous statements to the parole
board, basically presenting the pros and cons about what he should do.” Although assistant
counsel could not recall whether they had made a specific recommendation to the petitioner,
he said that “if [they] made a recommendation it was to not testify probably based upon his
record, his previous inconsistent statements.” He stated that they “had tried to present a case
that showed bad blood between the parties” and that he believed that they had done so
through the testimony of the witnesses for both the State and the defense.

                At the conclusion of this proof, the post-conviction court concluded that trial
counsel did not perform deficiently by advising the petitioner against testifying at trial.
Further, the court ruled that the petitioner had failed to establish that the result would have
been different had he taken the stand and that it “probably would have been a weaker case
if he had taken the stand.” The court concluded that “in the end” the petitioner made the
decision not to testify. The post-conviction court denied post-conviction relief in the form
of a new trial based upon the ineffective assistance of counsel. The court asked for further
briefing on the issue whether the petitioner was entitled to limited relief based upon Blakely
error. In its later-filed written order, the post-conviction court granted the petitioner limited
relief in the form of a reduced sentence, but it denied his claims in all other respects.

               In this appeal, the petitioner reiterates his claim that trial counsel performed
deficiently by advising him not to testify at trial. We view the petitioner’s claim with a few
well-settled principles in mind. Post-conviction relief is available only “when the conviction
or sentence is void or voidable because of the abridgment of any right guaranteed by the

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Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103
(2006). A post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords
to the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim.
App. 1997). By contrast, the post-conviction court’s conclusions of law receive no deference
or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               Here, the petitioner complains that his trial counsel should not have advised
him against taking the stand in his own defense, claiming that his testimony was crucial to
establishing a viable claim of self-defense. The record establishes, however, that no matter
how crucial to his defense the petitioner’s testimony might have been, his taking the stand
was fraught with peril. Indeed, trial counsel noted, and the post-conviction court placed
special emphasis on, the petitioner’s testimony at a parole board hearing that he was not
present at the Monteagle VFW on the night the victim was stabbed. This testimony would
surely have been used by the State to impeach the petitioner’s trial testimony that he stabbed
the victim in self-defense and to generally impugn the petitioner’s veracity. Moreover,
although the petitioner claims on appeal that the danger of the parole board testimony being

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admitted into evidence existed regardless of whether the petitioner testified, the evidence was
not presented in the State’s case in chief, and we are unconvinced that it would have been
forthcoming unless the petitioner testified. Also, because the statement is exculpatory, it is
not relevant to any issue other than the petitioner’s credibility. Furthermore, the length and
breadth of the petitioner’s criminal history could not be ignored. Had the petitioner chosen
to testify, many of those convictions would have been used to further malign his credibility
before the jury. Under these circumstances, trial counsel did not perform deficiently by
advising the petitioner against taking the stand.

               Ultimately, the decision whether to testify was the petitioner’s alone, and the
record establishes that the petitioner was so instructed and that he alone made that decision.
That he made it upon trial counsel’s advice does not necessarily make the petitioner’s waiver
of his right to testify involuntary. That the petitioner viewed the decision as particularly
“hard” does not render the petitioner’s waiver involuntary any more than Mr.
Schaarschmidt’s testimony that he would have advised the petitioner to testify renders trial
counsel’s opposite advise deficient. Indeed, the Supreme Court has recognized that “[t]here
are countless ways to provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S.
at 689.

               Trial counsel did not perform deficiently by advising the petitioner against
taking the stand, and the record establishes that the petitioner’s waiver of his right to testify
was voluntary. Accordingly, the judgment of the post-conviction court is affirmed.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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