          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                         JUNE 1998 SESSION
                                                 FILED
                                                  October 23, 1998

                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
TAVARUS U. WILLIAMS,        )
                            ) C.C.A. No. 02C01-9711-CR-00423
      Appellant,            )
                            ) Shelby County
V.                          )
                            ) Honorable Chris Craft, Judge
                            )
STATE OF TENNESSEE,         ) (Post-Conviction/First Degree Murder)
                            )
      Appellee.             )




FOR THE APPELLANT:             FOR THE APPELLEE:

C. Anne Tipton                 John Knox Walkup
Attorney at Law                Attorney General & Reporter
140 North Third Street
Memphis, TN 38103              Peter M. Coughlan
                               Assistant Attorney General
                               Cordell Hull Bldg., 2nd Floor
                               425 Fifth Avenue North
                               Nashville, TN 37243-0493

                               William L. Gibbons
                               District Attorney General

                               Daniel S. Byer
                               Assistant District Attorney General
                               201 Poplar Avenue, Third Floor
                               Memphis, TN 38103




OPINION FILED: ___________________


REVERSED; CONVICTION VACATED;
REMANDED FOR NEW TRIAL


PAUL G. SUMMERS,
Judge




                            OPINION
         In September 1991, fifteen-year-old Tavarus Williams, the appellant, shot

and killed Raymond Brooks outside of J.T.’s Lounge in Memphis, Tennessee.

He was tried as an adult and convicted by a jury of first degree premeditated

murder in the Shelby County Criminal Court. The court sentenced the appellant

to life imprisonment with the possibility of parole. The Court of Criminal Appeals

affirmed the judgment of the trial court. State v. Tavarus U. Williams, C.C.A. No.

02C01-9307-CR-00137 (Tenn. Crim. App., filed at Jackson June 29, 1994). The

appellant’s application for permission to appeal was denied.



         In November of 1995, the appellant filed a motion for post-conviction

relief. An amended petition was filed in August of 1996. After an evidentiary

hearing, the court denied the petition and this appeal followed. The following

issues are presented for our review:



         I. Whether the appellant’s counsel failed to adequately
         investigate and assess his case and effectively present the
         proof at trial.

         II. Whether the appellant was denied a fair and impartial
         jury of his peers because the trial court refused to excuse a
         juror who revealed information prejudicial to the appellant
         during the trial.

         III. Whether the appellant’s aunt, De Lois Jacocks,1 exerted
         undue influence over the appellant such that he could not
         properly confer with his attorney and make his own
         decisions regarding his case.



         Because we find that the evidence preponderates against the trial court’s

finding that the appellant failed to establish that his attorney was ineffective, we

reverse the lower court's judgment, vacate the appellant's conviction and remand

this matter for a new trial.




         1
         In the post-conv iction hearing trans cript, the appellant’s aun t’s name is spelle d “Jacocks.” In
the Court of Cr iminal Appea ls decision, her nam e is spelled “Jaco x.”

                                                    -2-
       In February of 1992, the court appointed assistant public defender

Samuel Perkins to represent the appellant. The case was set for trial on June

22, 1992. In 1992, the appellant’s father was in prison and his mother was in a

mental institute. The appellant’s aunt, De Lois Jacocks, accompanied the

appellant to his appointments with attorney Perkins. Ms. Jacocks told Perkins

that God had forgiven the appellant and would take care of him. She also told

Perkins that she was going to hire a “real lawyer” or ask for a different public

defender.



       Perkins reviewed the state's file and obtained a plea offer from the state.

The appellant rejected an offer to plead guilty to second degree murder in

exchange for a forty-year sentence. The appellant stated that he did not believe

the sentence fit the facts of the crime. With the assistance of different counsel,

the appellant had previously given a statement to the police in which he

described the shooting as one of self-defense. Since the state would not make

the appellant any other offers, he decided to proceed to trial.



       At the post-conviction hearing, Perkins testified that he did not request an

investigation from the public defender’s office because he wanted to do the

investigation himself. He testified that he had been to J.T.’s Lounge and knew

the people there. Perkins testified that, on March 20, 1992, he went to the

lounge and talked to three men and a lady who were in the bar. He also talked

to the disc jockeys. He testified that the people he had interviewed did not want

to get involved so he did not record their names. This effort is primarily the

extent of Perkins’ investigation into the appellant’s case.



       Attorney Perkins testified that he did not remember talking to the state’s

witnesses. He testified that his file did not contain any notations that he had tried

to contact the state’s witnesses prior to trial or that he had talked to those

witnesses. Attorney Perkins told the appellant to have his witnesses get in touch



                                         -3-
with the public defender’s office and set up an appointment so that Perkins could

take a statement from them. Perkins testified that this was his policy because

too many witnesses had surprised him at trial. He also stated that if the

witnesses would not come to his office then they would be unlikely to show up for

trial. Perkins never talked to the appellant’s witnesses. He did not subpoena

any witnesses to testify on the appellant’s behalf at trial.



       At the post-conviction hearing, attorney Perkins testified that he was ready

to go to trial on June 22. He testified that the trial court granted a one week

continuance because the appellant told the court that he had several witnesses

that he wanted Perkins to interview. At this point in the post-conviction hearing,

the court ordered a transcript of the June 22 hearing. The transcript was later

introduced as evidence at the post-conviction hearing. The transcript revealed

that, on June 22, Perkins was accompanied to court by the Assistant Director of

the Shelby County Public Defender’s office, attorney Robert Jones. Perkins

asked the court for a continuance because he had not completed his

investigation of the case. He told the court that he had talked to two of the

state’s seven or eight witnesses. The court responded that it was sure that

Perkins’ investigator had provided him with a complete report. Perkins told the

court that an investigation was not ordered because the appellant’s aunt had

said that she was going to hire a “real lawyer.” The court responded that it was

aware of Ms. Jacocks’ intentions to hire another attorney. The court stated,

however, that he had told Perkins four or five times that the case was going

forward to trial, regardless of whether the appellant wanted to substitute counsel.

Assistant Director Jones apologetically acknowledged that Perkins should have

been prepared to go to trial. Jones told the court that the appellant’s case had

not been fully investigated. The court granted a one week continuance, with the

trial set for Monday, June 29th. The court revoked the appellant’s bond so that

Perkins would have no trouble meeting with him. Perkins met with the appellant

one time, that being on the eve of trial.



                                            -4-
       On June 22, Shelby County Public Defender, A C Wharton, immediately

assigned his Supervising Investigator, Leah Abbott, to the appellant’s case. Ms.

Abbott was a nine-year veteran of the public defender’s office. At the post-

conviction hearing, Ms. Abbott testified that an investigator is usually allotted one

to one and one-half months to investigate a “serious” case. To begin her

investigation, Ms. Abbott was given the indictment and some of the discovery.

Ms. Abbott testified that she and Perkins did not have a chance to talk about the

theory of the defense. She testified that she was not provided with as much

information about the appellant’s case as she usually is at the beginning of the

investigation. Ms. Abbott contacted Perkins to find out how she could reach Ms.

Jacocks. Ms. Abbott interviewed the state’s witnesses. She interviewed every

potential defense witness that she could reach. She followed up on as many

leads as time permitted. Ms. Abbott prepared written summaries of her

interviews for Perkins. In her summaries, she gave her impressions about the

witnesses and made notations such as “we do not want this witness,” “talk to me

about this witness,” and “Important, read.”



       Ms. Abbott testified that she located a witness who was unrelated to the

appellant or the Jacockses. The witness, an older man, “felt very strongly” that

the victim had been pulling a gun on the appellant when the appellant shot him.

Ms. Abbott did not remember the name of the witness and did not have a copy of

the summary of his statement. Ms. Abbott placed the name of the witness and a

summary of his testimony, along with the results of her investigation, in Perkins’

“box” on the morning of the trial. The witness came to the appellant’s trial and

was available to testify on the appellant’s behalf. Perkins did not call the witness

to testify. Perkins testified that he was unaware of the witness.



       No explanation was presented as to why Ms. Abbott and Perkins did not

speak about this witness immediately prior to or during the trial. There appears

to have been no communication between Ms. Abbott and Perkins after Ms.



                                         -5-
Abbott submitted the results of her investigation. Indeed, Ms. Abbott testified

that she did not have a reasonable opportunity to discuss the results of her

investigation with Perkins. From her testimony, it appears that she and Perkins

did not discuss the case during the weekend prior to trial. They did not discuss

the case on the morning of trial. Ms. Abbott testified that Perkins never asked

her about any of the investigation and never tried to contact her during the trial.

Perkins testified that he spoke with Ms. Abbott three or four times during the

week before trial. He testified that they talked about what she had discovered

during her investigation and about the witnesses’ testimony. The import of Ms.

Abbott’s testimony is she never had any meaningful conversations about the

results of her investigation, if she had any discussion at all. Finally, Ms. Abbott

testified that she did not have enough time to interview the appellant, although

she did have his statement.



       The trial court dismissed the appellant’s petition. The court held that the

petitioner failed to establish that he was denied effective assistance of counsel.

The court found that the necessary investigation was complete prior to trial and

that at no time was Perkins taken by surprise by anything that was introduced at

trial. The court also held that, even assuming that Perkins’ representation was

ineffective, the petitioner failed to establish that he was prejudiced by the errors.



       The findings of fact of the trial judge on a petition for post-conviction relief

are conclusive on appeal, unless the evidence preponderates against those

findings. We do not reweigh or reevaluate the evidence, nor do we substitute

our inferences for those drawn by the trial judge. Questions concerning the

credibility of witnesses, the weight and value to be given their testimony, and the

factual issues raised by the evidence are to be resolved by the trial judge. See

Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). The appellant has the

burden of establishing that the evidence preponderates against the findings of

the trial court. See id.



                                          -6-
       To establish ineffectiveness, a petitioner must show that counsel's

performance fell below an objective standard of reasonableness under prevailing

professional norms; this requires the petitioner to demonstrate that counsel

made errors so serious that counsel was not functioning as "counsel" guaranteed

by the Constitution. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Henley, 960 S.W.2d at 579. A petitioner must also establish that the deficient

representation prejudiced the defense to the point of depriving the appellant of a

fair trial with a reliable result, calling into question the reliability of the outcome of

the trial. See Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 579. To

establish prejudice 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. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’ ” Henley, 960 S.W.2d at 579

(quoting Strickland, 466 U.S. at 694).



       Perkins’ failure to properly investigate the appellant’s case and prepare for

trial constitutes ineffective assistance of counsel. Perkins did not receive the

written results of Ms. Abbott’s investigation until the morning of his trial. We fail

to see how he had any meaningful opportunity to review these results. The

record reflects that he did not review all of the investigative findings with Ms.

Abbott. Ms. Abbott testified that she did not have time to conduct the

investigation in the usual manner, including locating defense witnesses who were

out of town. That Ms. Abbott was able to locate at least one unbiased defense

witness in the few days that she had to investigate the case indicates that

Perkins’ efforts at investigation were insufficient. Although Ms. Abbott completed

a large portion of the investigation prior to trial, it does not appear that she was

able to effectively communicate the results of her investigation to Perkins so as

to benefit the appellant.




                                           -7-
       The court below made no specific findings of credibility regarding either

Perkins or Abbott, although it relied heavily on Perkin's testimony when

contrasted with the appellant's. Although we defer to the trial court, we have

serious problems with Perkins’ credibility. Before the post-conviction court

ordered the transcript of the June 22 continuance request, Perkins blamed the

appellant for the need to have the trial continued. He stated that “I was ready.”

From reading the transcript of June 22, we fail to see how Perkins could have

forgotten that the Assistant Director of the Shelby County Public Defender’s

office, Robert Jones, accompanied him to court on the day of trial because

Perkins was not prepared for trial, despite the trial court’s repeated instruction to

be ready. In any event, we turn to Perkins’ investigation.



       Although Perkins had reviewed the state’s file and talked to the assistant

district attorney, this is not a substitute for an independent investigation into the

facts of this case. While there was no dispute that the appellant shot the victim,

there was a dispute as to whether the shooting was premeditated. Perkins’

investigation consisted of going to J.T.’s Lounge once and talking to the people

that just happened to be there when he arrived. He testified that he may have

interviewed two of the state’s witnesses. Perkins should have ordered an

investigation or interviewed all witnesses, including those furnished by the

appellant. As Perkins seemed to understand, the case involved a fifteen-year-

old charged with first degree murder. At one point in the hearing, Perkins

testified that he did not investigate the case because, up until the week before

trial, Ms. Jacocks continued to tell him that she was going to hire another

attorney. This is not a reasonable basis for Perkins’ failure to investigate the

appellant’s case. All attorneys must deal with difficult clients. This does not

excuse them from being prepared when in court on behalf of that client.

Furthermore, the trial court repeatedly told Perkins to be ready for trial.




                                          -8-
        In addition to finding ineffective assistance at the investigative stage of the

case, we hold that the appellant has also established prejudice resulting from

Perkins' representation. In determining whether a petitioner has established

prejudice, a court



        must consider the totality of the evidence before the judge or
        jury. Some of the factual findings will have been unaffected
        by the errors, and factual findings that were affected will
        have been affected in different ways. Some errors will have
        had a pervasive effect on the inferences to be drawn from
        the evidence, altering the entire evidentiary picture, and
        some will have had an isolated trivial effect....

Henley, 960 S.W.2d at 580 (quoting Strickland, 466 U.S. at 696-97).



            A review of the facts as found by this Court on direct appeal is necessary

to determine if the evidence presented at the post-conviction hearing establishes

a reasonable probability that the results of the appellant’s trial would have been

different if that evidence had been introduced at the appellant’s trial. The

transcript of the appellant’s trial is not in the record.2 The facts as found by this

Court on direct appeal are as follows:



        On September 14, 1991, appellant was at J. T.'s Lounge in
        Memphis, Tennessee. He began to argue with Raymond
        Brooks, the victim, concerning a woman to whom both were
        speaking. The men were separated by friends, and
        appellant left the lounge.

        Tony Jefferson was working at the lounge that evening and
        knew the victim well. After the argument with appellant, Mr.
        Jefferson took the victim to the back of the lounge and told
        him to go home. He thought the victim had calmed down
        until he heard him tell Darryl Dawkins that he was "going to
        go out there and slap [the appellant] like a whore." The
        victim and Mr. Dawkins then left the lounge. Outside, they
        approached the appellant. Testimony differs as what
        happened next. Tony Jefferson testified that the victim got
        in the appellant's face and asked, "What's up?" At that
        point, appellant drew a gun and shot him.

        A number of other individuals also witnessed the shooting.
        Patrick Mason was approximately one block away at the
        time. He heard the victim ask, "What's on your mind?"


        2
            Apparently the trial cou rt reviewed the tran script of the appellan t’s trial prior to making his
decision.

                                                  -9-
       before he got shot. After shooting the victim, appellant said,
       "Look at you now."

       David Monger was leaving a nearby lounge when he heard
       two gunshots. Looking around he saw the victim falling
       backwards and another man shooting at him. He stated that
       there was a hesitation between the shots and that the man
       appeared to be picking his places to shoot. After the
       shooting, he heard the man say, "I told you I was going to
       get you, boy."

       Willie Hayden, a security guard in the parking lot of the
       lounge, was about five yards away when the shooting
       began. After he heard the first shot he looked back to see
       what was happening. He stated that the victim was
       unarmed and had his hands to his side. Mr. Hayden
       identified appellant as the shooter.

       Eric Harris and Marcus Jacox, friends of the appellant, also
       testified as to the shooting that evening. Mr. Harris left the
       lounge with appellant and Marcus Jacox after the initial
       altercation with the victim. Later, the victim came outside
       and approached appellant. He asked, "You got something
       to say to me?" The victim then turned to a friend and said,
       "Give me that thing." At that point, appellant began
       shooting and Harris ran across the street to his car. He
       refused to give appellant a ride home.

       Marcus Jacox gave similar testimony. He heard the victim
       say to a friend, "Man, give me that thing so I can kill this
       bitch." The victim then leaned his hand towards his friend
       who pulled up his shirt to reveal a pistol. At that point,
       appellant shot the victim.

       Dr. Jerry Francisco, professor of pathology at the University
       of Tennessee, performed the autopsy. He stated that the
       victim died of multiple gunshot wounds to the head and
       chest. There were a total of four wounds to the head and
       two to the chest.



       In a statement to the police, the appellant stated that he overheard the

victim say that he, the appellant, was going to die tonight. The appellant stated

that he was approached by the victim and the victim’s friend outside the club.

The victim directed several epithets at the appellant and then asked his friend for

the “tone.” The victim’s friend raised his shirt and the appellant saw a pistol.

Seeing the gun, the appellant pulled out his pistol and shot the victim. He stated

that he kept on shooting because he was afraid for his life. The statement was

not introduced at trial but was introduced at the post-conviction hearing.




                                        -10-
         The evidence to support the appellant’s conviction of first degree murder

was not overwhelming. See Strickland, 466 U.S. at 696 (“a verdict . . . only

weakly supported by the record is more likely to have been affected by [counsel's

unprofessional] errors than one with overwhelming record support.”) The

appellant could have established prejudice by producing evidence at the post-

conviction hearing which created a reasonable probability that he would have

been convicted of a lesser degree of homicide or acquitted. We turn to the

evidence in the record of prejudice.



         Ms. Abbott testified that she had

              found . . . one witness . . . who was not related in any way
              to [the appellant] or the Jacocks. He was an older man.
              He felt very strongly that the victim was pulling a gun. He
              believed that the victim was pulling a gun.

Had this witness been called at trial, his testimony would have significantly

bolstered the appellant's theory of self-defense. And even if the testimony was

not successful in convincing the jury to acquit the appellant, it may well have

convinced them to convict him of something less than premeditated murder.

This missing testimony was so significant in the context of this particular case

that its exclusion undermines our confidence in the outcome of the trial. See

Strickland, 466 U.S. at 694. Accordingly, trial counsel's failure to produce this

witness constituted ineffective assistance of counsel which prejudiced the

appellant.



         The lower court's sole comments relating to this testimony go to the

appellant's failure to call this witness at the post-conviction hearing.3 But we are

perplexed as to how the appellant could have produced this witness. Ms. Abbott

found this gentleman on June 28, 1992. The appellant did not file for post-

conviction relief until more than three years later. Post-conviction counsel was



         3
           “Since petitioner at his hearing on this petition has failed to produce a single additional
witness to substantiate his claim of self-defense other than those actually called at trial, even after
having been g iven an additiona l setting to call additional witne sses, this Cour t will not assume tha t his
trial attorney could hav e done any better at trial.”

                                                     -11-
not appointed until July 11, 1996.4 Ms. Abbott testified in November 1996 that

she had no written record of the witness' name and could not recall it. She

further testified that she had given the witness' name and a summary of her

interview with him to Perkins. Perkins claimed to have never known about this

man, although he was waiting outside the courtroom to testify. We recognize

that this witness' proposed testimony should have been produced at the post-

conviction hearing under the general rule announced in Black v. State, 794

S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). However, we think it is

fundamentally unfair to hold this failure of proof against the appellant and,

therefore, find the Black rule inapplicable under the facts of this case. To hold

otherwise puts the appellant in a double bind from which he cannot escape: his

lawyer's ineffectiveness condemns him not only at trial but prevents him from

later proving that ineffectiveness at his post-conviction hearing.



          The best evidence that the appellant had of the crucial testimony was Ms.

Abbott, and he did produce that proof at the hearing. Accordingly, because he

produced independent proof of vital testimony that would have been available at

the hearing but for his trial lawyer's ineffectiveness (in never discovering the

witness, not calling him and losing all record of him), we hold that the appellant

has established both prongs of the Strickland test.



          With respect to the appellant’s second issue, it was previously determined

by this Court on direct appeal. Therefore, the issue is not cognizable in a post-

conviction petition. T. C. A. § 40-30-206(h). The appellant’s third issue is

without merit. The lower court, sua sponte, raised the issue of whether the

appellant’s aunt exerted undue influence over the appellant. The court found

that she had not exerted such an influence over the appellant and that the

appellant’s decision to reject the state’s plea agreement was made with




          4
              Prior post-conv iction counsel had been remov ed in June 1996, fo r repeated failures to
appear.

                                                      -12-
independence and sufficient maturity. The evidence does not preponderate

against the lower court’s findings.



       For the reasons set forth above, the judgment of the court below is

reversed, the appellant's conviction is vacated and this cause is remanded for a

new trial.




                                              _____________________________
                                              PAUL G. SUMMERS, Judge


CONCUR:




___________________________
DAVID H. WELLES, Judge




___________________________
JOE G. RILEY, Judge




                                       -13-
