         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 7, 2003

               QUINCY HENDERSON v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                            No. P-23965    W. Otis Higgs, Judge



                    No. W2002-02541-CCA-R3-PC - Filed March 15, 2004


The petitioner, Quincy Henderson, appeals the Shelby County Criminal Court’s dismissal of his
post-conviction petition, in which he claimed that his second degree murder conviction was
constitutionally infirm because of ineffective assistance of trial counsel. Upon our review of the
record, the parties’ briefs, and the applicable law, we affirm the denial of post-conviction relief.

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

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

Larry Copeland, Jr., Memphis, Tennessee; and Paul K. Guibao, Memphis, Tennessee, for the
Appellant, Quincy Henderson.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Reginald Henderson and Michelle Kimbrill,
Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                             OPINION

               A jury convicted the petitioner of the 1995 first degree premeditated murder of
Demetrius Moten. On appeal, this court modified the conviction to second degree murder and
remanded the case for resentencing. See State v. Quincy L. Henderson, No. 02C01-9706-CR-00227
(Tenn. Crim. App., Jackson, May 12, 1998) (Quincy Henderson I). On remand, the trial court
sentenced the petitioner to an incarcerative term of 20 years, and on appeal, this court affirmed the
sentence. See State v. Quincy Henderson, No. 02C01-9901-CR-00003 (Tenn. Crim. App., Jackson,
Nov. 29, 1999) (Quincy Henderson II) .

                The petitioner filed a petition for post-conviction relief, claiming constitutionally
deficient representation by trial counsel. Following an evidentiary hearing, the post-conviction court
denied relief, and the petitioner now appeals that determination.
             A summary of the convicting evidence is extracted from this court’s opinion in
Quincy Henderson I:

                     On July 7, 1995, Demetrius Moten . . . was observed at a
             neighborhood bar and grill, known by the local residents as “Sam’s
             Club.” While in the club, Julius Moten, Demetrius’ father, saw his
             daughter drinking a beer at the club with some of her cousins and
             friends. He recalled that he instructed his daughter to go home to her
             children.

                     Between 8:30 and 9:00 p.m., William Baker and Yolanda
             Cribbs each saw Demetrius and the appellant leaving Sam’s Club
             together. The two were walking toward the Dunnavant Manor
             Apartments. Demetrius was carrying a brown paper bag in her left
             hand. “[The appellant] put his arm around her . . . like . . . hugging,
             but no . . . she wasn’t hugging back.” From across the street, Baker
             overheard the two discussing a ten dollar bill and observed that the
             appellant appeared to be attempting to take the brown paper bag away
             from Demetrius. Ms. Cribbs stated that “they were not fighting or
             struggling in any way.” She explained that it appeared as if the
             appellant and Demetrius were hugging, and, because she knew they
             were friends, she did not think anything about it. Baker also noticed
             that the appellant was wearing white, black, and green Nike tennis
             shoes. Both Baker and Cribbs watched the two walk toward the
             Dunnavant Manor Apartments, but neither noticed whether they ever
             entered an apartment.

                    . . ..

                     The next morning, between 7:30 and 8:30 a.m., Jerry Herron
             and Orange Williams . . . search[ed] for Demetrius when they
             realized that she had never returned from Sam’s Club. The two men
             found the lifeless body of Demetrius Moten in the woods behind the
             Dunnavant Manor Apartments. The Memphis Police Department was
             then notified.

                    . . . Although there were no eyewitnesses to the apparent
             homicide, the information provided by the witnesses placed the
             appellant as the last person seen with Demetrius Moten the previous
             evening. Based upon this information, Memphis police officers
             proceeded to the appellant’s residence.



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                       Upon obtaining a consent to search by the appellant’s mother,
               Addie Henderson, police officers found a pair of white, green and
               black Nike tennis shoes soaking in a bucket of bleach and
               dishwashing liquid in the sink. They also discovered a bloody sock
               in a garbage can. The appellant was then transported to the homicide
               bureau of the Memphis Police Department.

                        After waiving his constitutional rights, the appellant provided
               a statement to the police in which he confessed to the murder of
               Demetrius Moten. In his confession, the appellant explained that he
               had asked Demetrius if she wanted to have sex and she responded
               that she did. The two then went into the woods behind the Dunnavant
               Manor Apartments. After engaging in sexual intercourse, the
               appellant asked Demetrius for a dollar, to which she responded,
               “Ain’t fixing to give you shit.” The appellant asked again, and this
               time, Demetrius gave the appellant what she thought was a one dollar
               bill, but was actually a ten dollar bill. When she realized her mistake,
               Demetrius asked the appellant to return the ten dollar bill. A fight
               ensued between the two.

                       That’s when I took the stick – the first time I hit her
                       with the stick. And after I hit her with the stick, I got
                       scared, and I didn’t know what to do. That was about
                       all by then. I got scared, continuously hitting her. So,
                       when I heard this dude – I heard some guy holler
                       “Peaches,” and I ran home.

                       He explained that, at the time of the encounter with
               Demetrius, he was under the influence of “[a] lot of alcohol, just a
               little weed.” The appellant, at some point later in the evening,
               purchased “some weed” with the money he took from the victim. In
               his statement, the appellant also informed the detectives of the
               location of the “stick” used in the murder. Subsequent police
               investigation confirmed the location of the “stick.”

                       An autopsy was performed on the victim’s body [and revealed
               that she had] suffered “blunt trauma to her head and neck,” resulting
               in her death.

Quincy Henderson I, slip op. at 2-6 (footnotes omitted).

                At the post-conviction hearing, Addie Henderson, the petitioner’s mother, testified
for the petitioner that she hired trial counsel to defend her son on the murder charge. She testified


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that counsel belatedly filed unspecified pretrial motions and neglected to call witnesses whose names
Ms. Henderson provided. She testified that she made a videotape of the murder scene that showed
an absence of blood at the scene and that trial counsel neglected to introduce it at trial. She claimed
that trial counsel neglected to inspect the physical evidence, including a sock found at the petitioner’s
home, and that trial counsel failed to exploit a letter written by the victim’s father in which he
allegedly opined that he disbelieved the petitioner was guilty. Ms. Henderson testified that counsel
failed to pursue Ms. Henderson’s claim that a bailiff had prejudicial conversations with the trial jury.
Ms. Henderson testified that she met with counsel “[a]bout a hundred times.”

                On cross-examination, Ms. Henderson admitted that at trial the state called the
witnesses whose names she had given to counsel. Ms. Henderson admitted she had testified at trial
as an alibi witness that the petitioner was at home with her at the time of the murder.

                The petitioner testified at the evidentiary hearing that he had a ninth-grade education;
he had trouble reading and dropped out of school at his mother’s request to care for a 100-year-old,
bedridden grandmother. His trial attorney did not inquire into his school history and did not discuss
with him the possibility of obtaining a psychiatric evaluation. He testified that counsel was unaware
that he had attempted suicide. He testified that prior to trial he met with counsel six or seven times.

                  On cross-examination, the petitioner testified that he completed high school through
a correspondence course while in prison; however, the petitioner admitted that his brother was “the
one who took the school for [him]. . . . He did the work for me.” The petitioner admitted that, at
trial, he testified that he had completed the correspondence course. The petitioner further denied that
he had confessed to the murder, and when shown the signed confession, he denied that the signature
was his.

                 On redirect examination, the petitioner testified that, at trial, he informed counsel that
a state witness, William Baker, had accosted the petitioner shortly before the victim’s murder about
the petitioner dating Baker’s girlfriend. He testified that counsel failed to cross-examine Baker about
the issue. Also, he testified that counsel failed to call an alibi witness, “O.W.,” who, the petitioner
testified, saw the petitioner going home on the night of the murder.

                Next, John Billings testified for the petitioner that he was a licensed private
investigator who worked for the defense on the petitioner’s murder case. He testified that he
reported to defense counsel that the victim had a reputation for using drugs and serving as a
prostitute. He also reported to counsel that the man who found the victim’s body had said that, prior
to finding the victim, he had dreamed that “she was out there among the cut.”1 Mr. Billings testified
that he was not directed to investigate the defendant’s background, school history, or psychological
status.



        1
         The “cut” was apparently the term used for the area behind the apartment building where the victim’s body
was found.

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                The petitioner’s trial counsel testified that, prior to the petitioner’s case, she had
handled no first degree murder cases, although she had “a lot of experience in felony work,” including
a sixteen-month trial in federal court. Although she did not want to take the petitioner’s case, one of
her partners asked her to do so. She testified that, when she took the case, the petitioner was firm that
he did not commit the crime and that his confession was coerced. She testified that this position
dictated her defense strategy.

                 She reviewed the state’s “discovery packet.” She admitted that she did not get the
photographs until the first day of trial, despite filing a motion for discovery materials including
photographs. Prior to trial, she was told that there were no photographs, but she was given
photographs on the first day of trial. She testified that the prosecutor argued that he had not been
obligated to furnish the photographs because the film had not been earlier developed. She testified
that the belated emergence of the pictures prompted her to file an “immediate and very lengthy motion
to suppress.”

                She testified that she was aware that the petitioner’s academic performance was poor
and that she explored the possibility of psychological mitigation via conversations with the petitioner,
his mother, and his brother. Following these conversations, she rejected the notion of pursuing
psychological evidence.

                Counsel testified that she did not pursue a negotiated plea settlement because the
petitioner and his mother were adamant that the petitioner was not guilty, although by the time of trial,
the petitioner admitted that he had signed the confession.

                She testified that she visited the scene of the crime three times and sent the investigator
to investigate the scene. She went “through . . . an apartment complex looking for witnesses.” She
reviewed the tape submitted by Ms. Henderson. Counsel rejected the idea that the defense could have
gained any advantage by her taking pictures of the crime scene. She testified that she visited the
medical examiner’s office to inquire about the possibility of vaginal secretions and other forensic
evidence that might have been obtained from the victim’s body, but she discovered none. Counsel
testified that when she proposed obtaining a handwriting expert to dispute the petitioner’s authorship
of the confession, the petitioner admitted writing and signing the confession.

                Counsel testified that “Addie Henderson wanted [her] to do a lot of things beyond
what [counsel] thought was appropriate. And [counsel] tried to keep in mind that [her] client was
Qunicy Henderson.” She testified that the strategy that the petitioner did not kill the victim was
mandated by the petitioner and his mother. Ultimately, the decision to proceed to trial was the
petitioner’s, but counsel believed that “he was very much under the control of his mother[, who]
totally believed in his innocence.”

               Counsel explained that she did not exploit claims that the victim was a prostitute and
a drug user because she had no evidence that the victim was “trading drugs for sex that night.” She



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explained that the investigator’s information about the victim was merely that of the victim’s
reputation.

               Counsel testified that she believed that she “did everything [she] could do.” She
opined that she handled the case well.

              In its order denying post-conviction relief, the lower court made the following
findings:

              1. The claim that counsel was ineffective in failing to pursue
              psychological evidence was not established; counsel inquired about
              the petitioner’s possible learning disability and concluded that a
              psychological examination was not warranted.

              2. No ineffective assistance of counsel was shown based upon the
              claim that she failed to file pretrial motions. On direct appeal, the
              appellate court found that counsel filed pretrial motions.

              3. The petitioner failed to show that counsel neglected to obtain
              discovery from the state; counsel’s testimony belied this claim.

              4. Counsel extensively investigated the case and properly utilized
              the information garnered. The failure to pursue certain impeachment
              strategies was grounded in professional judgment.

              5. The petitioner’s claim that counsel did not inform him of the
              results of discovery and pretrial investigation was belied by the
              evidence of extensive meetings with the petitioner and/or his mother.

              6. The petitioner’s claim that counsel failed to take steps to advance
              an alibi defense fails because the evidence showed that the defense
              interviewed all available witnesses. In any event, the petitioner failed
              to call any neglected witnesses to testify in the evidentiary hearing
              and, accordingly, failed to demonstrate any prejudice from the alleged
              failure to present witnesses at trial. Additionally, the petitioner’s
              mother and brother were allowed to present alibi evidence at trial.

              7. The petitioner failed to establish a claim that counsel was
              ineffective for failing to adequately cross-examine witnesses. He
              failed to show how he was prejudiced by any inadequate cross-
              examination.




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Based upon these findings, the lower court denied post-conviction relief. We hold that the record
supports that court’s findings and affirm the judgment.

                The law is settled that the post-conviction petitioner bears the burden of establishing,
at the evidentiary hearing, his allegations by clear and convincing evidence. Tenn. Code. Ann. §
40-30-210(f) (2003). Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence. Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n.3 (Tenn. 1992). An appellate court is bound by the trial court’s findings of fact
unless we conclude that the evidence in the record preponderates against those findings. Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

                 When a post-conviction petitioner raises the issue of ineffective assistance of counsel,
this court must determine if the evidence preponderates against the post-conviction court’s findings
(1) that counsel’s performance was within the range of competence demanded of attorneys in
criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and/or (2) that any deficient
performance did not prejudice the petitioner, Strickland v. Washington, 466 U.S. 668, 687-89, 104
S. Ct. 2052, 2064-69 (1984). See also Powers v. State, 942 S.W.2d 551, 557 (Tenn. Crim. App.
1996). Courts need not address these components in any particular order or even address both if the
petitioner fails to meet his burden with respect to one. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997).

                In sum, a defendant is not entitled to perfect representation, only constitutionally
adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other
words, “in considering claims of ineffective assistance of counsel, ‘we address not what is prudent
or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794,
107 S. Ct. 3114, 3126 (1987).

                 We agree with the post-conviction court’s conclusion that the petitioner failed to
establish his claims of ineffective assistance of counsel. An overriding factor in assessing many of
the lower court’s findings is that the lower court accredited counsel’s testimony. Although we do
not revisit credibility issues, we recall that the petitioner’s merit as a witness was certainly impugned
by his admission that he fabricated course work to obtain an equivalency diploma. By comparison,
counsel’s testimony was candid, articulate, and cogent.

                The claim of inadequate trial preparation, comprised of the allegations that counsel
failed to discover the state’s evidence, failed to interview or utilize witnesses, and failed to pursue
a psychological defense, was supported by neither proof of deficient performance nor of prejudice.
Counsel’s testimony established that she thoroughly prepared for trial by examining the state’s
discovery materials, interviewing witnesses, viewing the crime scene, exploring forensic issues, and
conferring with the petitioner and his mother. Additionally, with respect to the claim that witnesses
were not utilized, including witnesses who might have offered psychological evidence, the petitioner
failed to demonstrate prejudice; he did not present any such witnesses at the post-conviction hearing.



                                                  -7-
               When a petitioner contends that trial counsel failed to discover,
               interview, or present witnesses in support of his defense, these
               witnesses should be presented by the petitioner at the evidentiary
               hearing. As a general rule, this is the only way the petitioner can
               establish that (a) a material witness existed and the witness could
               have been discovered but for counsel’s neglect in his investigation of
               the case, (b) a known witness was not interviewed, (c) the failure to
               discover or interview a witness inured to his prejudice, or (d) the
               failure to have a known witness present or call the witness to the
               stand resulted in the denial of critical evidence which inured to the
               prejudice of the petitioner. It is elementary that neither a trial judge
               nor an appellate court can speculate or guess on the question of
               whether further investigation would have revealed a material witness
               or what a witness’s testimony might have been if introduced by
               defense counsel. The same is true regarding the failure to call a
               known witness. In short, if a petitioner is able to establish that
               defense counsel was deficient in the investigation of the facts or
               calling a known witness, the petitioner is not entitled to relief from
               his conviction on this ground unless he can produce a material
               witness who (a) could have been found by a reasonable investigation
               and (b) would have testified favorably in support of his defense if
               called. Otherwise, the petitioner fails to establish the prejudice
               requirement mandated by Strickland v. Washington.

Black, 794 S.W.2d at 757.

                We are unpersuaded, as was the lower court, by the petitioner’s claims that counsel
failed to timely or adequately file pretrial motions, failed to advance an alibi defense, failed to
effectively cross-examine state witnesses, and failed to exploit evidence of the victim’s character.
An alibi defense was presented at trial through the testimony of the petitioner’s mother and brother.
Not only do all of the other alleged shortcomings dwell within counsel’s ambit of professional
judgment, but also the petitioner established no prejudice from the claimed deficiencies.

              Finally, the record supports a finding that counsel adequately conferred with and
informed the petitioner. The petitioner’s mother, who with his apparent consent advocated the
development of his defense, admitted that she met with counsel about 100 times. Furthermore,
counsel pursued and explored the evidentiary leads that developed in the case, including those
provided by the petitioner and his mother.

               We conclude that the record supports the post-conviction court’s findings and
conclusions, and accordingly, we affirm that court’s denial of post-conviction relief.




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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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