                                                                                       05/09/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs March 14, 2017

     CHRISTOPHER LEE RICHARDSON v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Bedford County
                     No. 18169PC         F. Lee Russell, Judge
                     ___________________________________

                           No. M2016-00793-CCA-R3-PC
                       ___________________________________

A Bedford County jury convicted the Petitioner, Christopher Lee Richardson, of
attempted theft of property valued at $1,000 or more but less than $10,000, disorderly
conduct, possession of a schedule IV controlled substance for sale or delivery, resisting
arrest, possession of a Schedule VI controlled substance, and promotion of
methamphetamine manufacture. The trial court ordered an effective sentence of twelve
years. On appeal, this Court affirmed the convictions and sentence. See State v.
Christopher Lee Richardson, No. M2013-01178-CCA-R3-CD, 2014 WL 12651041, at *1
(Tenn. Crim. App., at Nashville, June 12, 2014), no perm. app. filed. The Petitioner filed
a post-conviction petition, and following a hearing the post-conviction court denied
relief. On appeal, the Petitioner maintains that he received the ineffective assistance of
counsel. After review, we affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

M. Wesley Hall IV, Unionville, Tennessee, for the appellant, Christopher Lee
Richardson.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION


      The Petitioner’s conviction for attempted theft of property valued at $1,000 or
more but less than $10,000 relates to his attempt to push a shopping cart of unpaid
merchandise out of a Walmart store on January 9, 2012. The remaining convictions stem
from events that occurred at a Rite Aid pharmacy during the Petitioner’s unsuccessful
attempt to purchase pseudoephedrine on February 23, 2012. This Court upheld the
Petitioner’s convictions and sentence on direct appeal. See Christopher Lee Richardson,
No. M2013-01178-CCA-R3-CD, 2014 WL 12651041, at *1 (Tenn. Crim. App., at
Nashville, June 12, 2014), no perm. app. filed.

        On direct appeal, this Court summarized the State’s evidence against the Petitioner
as to the attempted theft charge1 as follows:

              Doyle Hayes, who was working the third shift as an assistant
       manager at the Walmart in Shelbyville on January 8, 2012, testified that at
       some point he “heard the garden center alarm going off on one of [the
       exterior] exit doors.” Mr. Hayes went to the doors but did not see anyone
       inside the garden center. He did find “a shopping cart full of merchandise”
       in the garden center. He said that the alarm was emanating from one of the
       fire doors that opened directly onto the parking lot. The glass sliding doors
       had been closed, a gate had been lowered over them, and a chain and
       padlock secured the gate. Mr. Hayes took the cart to the “[l]oss prevention
       room” without altering the contents. Mr. Hayes said that the [Petitioner] did
       not have permission to take any items from the Walmart without paying for
       them.

              During cross-examination, Mr. Hayes acknowledged that he did not
       take an inventory of the merchandise in the cart and instead “just kind of
       looked at it to . . . see [the] stuff that was in it.” Mr. Hayes said that he left
       the shopping cart in the locked loss prevention office. He said that his shift
       ended at 8:00 a.m., that the day shift managers arrived at 7:00 a.m., and that
       the loss prevention staff arrived at 8:00 a.m.

              Jessica Frandsen testified that she performed “asset protection” for
       the Shelbyville Walmart. She said that when she arrived at work on
       January 9, 2012, she observed “[a] buggy full of merchandise” inside the
       loss prevention office. Ms. Frandsen said that she took the shopping cart to
       the service desk, where she scanned each item in the shopping cart to
       determine the dollar amount of the merchandise. She also photographed
       the cart full of merchandise and then photographed each item individually.
       She recalled that “[m]ost of the bulkier items were in the bottom of the

       1
        Some of the testimony at the post-conviction hearing refers to trial testimony as to the
attempted theft charge; thus, for clarity, we include the facts related to that charge only.
                                               2
       buggy and then there was a tote that was inside of the buggy. And the tote
       had merchandise stuffed inside of it and then there was stuff on top of it.”
       Ms. Frandsen testified that the total pre-tax value of the items was
       $1,505.85.

               After determining the value of the items, Ms. Frandsen returned the
       shopping cart and the merchandise to the loss prevention office and began
       reviewing the video surveillance from January 8, 2012. Upon reviewing
       the surveillance, she observed the [Petitioner] and another person enter the
       Walmart. She also observed the [Petitioner] pushing the same shopping
       cart that was later discovered abandoned in the garden center area. Another
       video showed the [Petitioner] attempting to exit the garden center with the
       shopping cart full of merchandise. When the security alarm sounded, the
       [Petitioner] left the store.

              Ms. Frandsen conceded that the [Petitioner] did not leave the store
       with the merchandise or push the shopping cart across the threshold of the
       store. She also conceded that the [Petitioner] did not run from the store.

               Gary Dodson testified that he drove the defendant to the Walmart on
       January 8, 2012, so that the [Petitioner] could “go get a few things for his
       old lady.” Mr. Dodson said that he entered the store with the [Petitioner]
       and then went to the restroom. He then returned to the car to wait for the
       [Petitioner]. He recalled that the [Petitioner] was in the store for more than
       an hour. At one point, Mr. Dodson telephoned the [Petitioner] to inquire
       about the delay, and the [Petitioner] told him “to move the car to the other
       end of the parking lot” “[d]own by the garden center.” Mr. Dodson refused
       to move the car, and when the [Petitioner] came out of the store, he was
       angry with Mr. Dodson. The [Petitioner] told Mr. Dodson that “they were
       following him around, that he left the buggy sitting there, and it was time to
       go.”

Christopher Lee Richardson, No. M2013-01178-CCA-R3-CD, 2014 WL 12651041, at
*1-2 (Tenn. Crim. App., at Nashville, June 12, 2014), no perm. app. filed.

       The Petitioner filed a petition seeking post-conviction relief asserting that his trial
counsel (“Counsel”) was ineffective. On appeal, he maintains three of his assertions: (1)
Counsel failed to excuse a juror the Petitioner requested be excused; (2) Counsel changed
the defense strategy without notifying him; and (3) Counsel did not allow him to testify at
trial. We summarize only the testimony from the hearing relevant to these issues.

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       At the post-conviction hearing on the petition, Counsel testified that she
represented the Petitioner during his trial in this matter. She described the process of
preparing for voir dire, saying that she first reviewed the jury list and identified any law
enforcement, relatives, extended family of law enforcement that the defense might want
to preclude from serving on the jury. Once they had compiled a list, they discussed it
with the Petitioner.

       Counsel testified that at voir dire, the Petitioner recognized Crystal Adams as a
former employer’s wife. Once identified, Counsel inquired as to whether the Petitioner
wanted Counsel to “strike her.” At this point, Counsel had “plenty” of preemptory
challenges still available. She recalled that the Petitioner was “insistent” that Ms. Adams
be kept on the jury, explaining that Ms. Adams would speak favorably of him. Counsel
did not think that Ms. Adams recognized the Petitioner but at some point she did, and the
parties briefly spoke about her presence on the jury. Ms. Adams assured the attorneys
that she had no “problem” with the Petitioner. Counsel relayed this information to the
Petitioner, and he was “adamant” that Ms. Adams should remain on the jury. The
Petitioner told her that he never had any issues with Ms. Adams’s husband, his employer,
and he believed she would speak favorably of him.

       Counsel testified that she did not change the trial strategy before trial and fail to
discuss the decision with the Petitioner. She agreed that during voir dire, as part of the
defense strategy, she raised the issue of the Petitioner’s drug addiction. Counsel
explained that the Petitioner was found with Xanax on his person so, to the jury pool, she
pointed out that being an addict was not a crime. She noted that, ultimately, the
Defendant was convicted of misdemeanor simple possession rather than possession for
resale. Based upon this, she believed her strategy to be successful.

        Counsel testified that she “absolutely” did not “forbid” the Petitioner from
testifying, although she acknowledged “strongly encourag[ing]” him not to do so. Upon
questioning by the post-conviction court, Counsel confirmed that the trial court
conducted a Momon hearing, during which the Petitioner testified that it was his decision
to not testify.

        On cross-examination, Counsel testified that she discussed with the Petitioner that
if he chose to testify all of his felony convictions and convictions related to dishonesty
would be admissible. Counsel stated that she was certain if the Petitioner had wanted to
testify at trial, he would have. Counsel confirmed that Ms. Adams, the juror, made it
“abundantly clear” that she could be fair, evaluate the evidence, and made a decision
based on the evidence. Furthermore, the Petitioner had made the decision to keep Ms.
Adams even before she recognized him.

                                             4
       Crystal Adams testified she notified the jury foreperson that she thought she knew
the Petitioner. She could not recall whether she had attended school with the Petitioner
but confirmed that he had worked for her husband. She stated that she was unaware that
the Petitioner owed her husband money. She was further unaware of the Petitioner’s
criminal history. Ms. Adams stated that she did not attempt to influence the jury
members during deliberation based upon her prior experiences with the Petitioner.

      The Petitioner testified that Counsel reviewed the jury list with him before trial
and that there was nothing noteworthy at the time. During voir dire, however, he
recognized one of the potential jurors, Crystal Adams. The Petitioner said that he told
Counsel that he did not think it would be a “good idea” for Ms. Adams to sit as a juror,
and Counsel told him that, based upon his prior bad behavior in court, the trial judge
“wasn’t going to go for anything.”

        The Petitioner testified that a particular defense strategy had been chosen but, once
at trial, Counsel employed a different strategy. He explained that the original defense
strategy was that he and “the lady” were playing “cat and mouse” at Walmart for an hour.
He said that he was walking around with a fully-loaded shopping cart, and she would
follow him.

        The Petitioner testified that Counsel “absolutely forbid and refuse[d] to let [him]
testify.” He stated that he wanted to testify at first, but Counsel “kind of really made it
look like that they was going to really drag me through the dirt.” Further, he believed
that he was “going to get no kind of play in this court.” Counsel made him “feel like it
wasn’t the right thing to do.” The Petitioner acknowledged that the trial court reviewed
with him his right to testify but, based upon his “past episodes in this court,” he did not
believe the trial court would give him any “leeway.” The Petitioner said that he was
scared to testify after speaking with Counsel.

       On cross-examination, the Petitioner testified that, regardless of Ms. Adams’s
post-conviction testimony that she had no bad feelings toward the Petitioner and did not
disclose any information about the Petitioner to the jury, he believed that she had “an
effect” on the jury. About his testifying at trial, the Petitioner agreed that Counsel
advised him not to testify but added that she also stated that the trial court would not
“like” for him to testify. He explained that this was significant because he knew the trial
court would be sentencing him after the trial. He acknowledged that he was told he had
the right to testify, but he explained that he did not feel “comfortable” testifying.

        After hearing the evidence, the trial court denied the Petitioner relief. It is from
this judgment that the Petitioner now appeals.

                                             5
                                       II. Analysis

       On appeal, the Petitioner maintains that Counsel’s representation was ineffective.
He asserts that Counsel was ineffective for: (1) failing to exclude a juror, Ms. Adams, at
his request; (2) changing the trial strategy without first discussing the change with the
Petitioner; and (3) preventing him from testifying. The State responds that the Petitioner
has not met his burden of showing that his attorney’s performance was deficient, or that
any alleged deficiency led to his conviction. We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate
the evidence below; all 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, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court’s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court’s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

              First, the [petitioner] must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the [petitioner] by
      the Sixth Amendment. Second, the [petitioner] must show that the
      deficient performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the [petitioner] of a fair trial,
      a trial whose result is reliable. Unless a [petitioner] makes both showings,
      it cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

                                             6
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly
deferential and “should indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally,
we note that a defendant in a criminal case 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 (1987) (quoting United States v.
Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).
“‘The fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate
preparation.’” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

        If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

                                              7
                      A. Peremptory Challenge of Juror Adams

      The Petitioner asserts that Counsel was ineffective for failing to exercise a
peremptory challenge against Juror Ms. Adams at the Petitioner’s request. In its order
denying relief, the post-conviction court made the follow findings as to this issue:

              At the evidentiary hearing on the PC, the Petitioner testified that it
      was a mistake to allow Ms. Adams to remain on the jury. The Petitioner’s
      first concern was that the juror would have inevitably known about his past
      misconduct and would have shared that knowledge with the other jurors.
      The Petitioner’s second concern was that because he owed the juror’s
      husband money, the juror would somehow be biased against him.

              [Counsel]’s testimony about the selection of this juror is found to be
      entirely credible. The [Petitioner] wanted Ms. Adams on the jury. The
      [Petitioner] never told [Counsel] about the alleged debt and never expressed
      to [Counsel] any concern about the juror’s knowledge of his past. Ms.
      Adams testified at the evidentiary hearing on the PC, and there is no
      indication that Ms. Adams was influenced by any knowledge of a debt or
      any knowledge of the [Petitioner]’s past misconduct. Indeed, it would be a
      bit unlikely that someone to whom money is owed would want the person
      sent to the penitentiary for years as incarceration would render repayment
      of the debt less likely not more likely.

        The evidence does not preponderate against the post-conviction court’s findings.
Counsel testified that she asked the Petitioner about excluding Ms. Adams, and the
Petitioner wanted Ms. Adams on the jury because he believed she would speak favorably
of him. This is consistent with Ms. Adams’s testimony that she was unaware of the
Defendant’s criminal history and the debt he owed to her husband. Further, Counsel
testified that, at the time the Petitioner identified Ms. Adams as his former employer’s
wife, Counsel still had preemptory challenges available and could have removed Ms.
Adams from the panel. When Ms. Adams recognized the Petitioner, she notified the jury
foreman and the issue was addressed by the trial court. After speaking with Ms. Adams
the trial court determined, with the agreement of the parties, that Ms. Adams could serve
as a fair and unbiased juror.

        Once Ms. Adams was identified, Counsel asked the Petitioner about recusing her,
and the Petitioner stated he did not wish to do so. With both parties in agreement and the
trial court determining that Ms. Adams could effectively serve as a juror, the trial moved
forward. Accordingly, Counsel was not ineffective for failing to exclude Ms. Adams

                                            8
under these circumstances. The Petitioner has failed to show by clear and convincing
evidence that Counsel was ineffective in this respect; therefore, he is not entitled to relief.

                                      B. Trial Strategy

       The Petitioner next argues that Counsel changed the trial strategy and failed to
notify the Petitioner of this change. In his brief, the Petitioner fails to identify the change
in strategy, and this issue is also unclear from the testimony at the post-conviction
hearing. At the hearing, Counsel denied changing the strategy. She acknowledged
mentioning the Petitioner’s drug addiction to the jury as an alternative explanation to
drug dealing as to why the Petitioner had drugs on his person. The Petitioner referred to
the defense strategy of “a woman” playing a “cat-and-mouse” game with him for an hour
throughout the Walmartstore. The Petitioner appears to be referring to Jessica Frandsen,
the Walmart employee, initially but then states that it was another unidentified female
employee.

        Counsel denied changing the strategy and the Petitioner has failed to, either
through his brief or his testimony at the hearing, identify specifically the change about
which he complains. Assuming that his complaint is that Counsel was not going to
mention the Petitioner’s drug addiction but then did at trial, Counsel’s decision to offer
the addiction as an explanation for his possession of drugs was an informed decision
based on the evidence. And as Counsel pointed out, this strategy may have resulted in a
reduced charge of possession rather than possession with intent to deliver or sell.
Accordingly, the Petitioner has failed to carry his burden of showing that Counsel was
ineffective in this respect or that this strategy prejudiced him; therefore, he is not entitled
to relief.

                                 C. Decision Not to Testify

        The Petitioner argues that Counsel was ineffective for “not allowing the [him] to
testify.” In the order denying relief, the post-conviction court made the following
findings:

               The Petitioner’s testimony at the evidentiary hearing on the PC
       varied as to [Counsel]’s role in his failure to testify at trial. At times he
       appeared to testify that [Counsel] prevented him from testifying. At other
       times his testimony seemed to be that she persuaded the [Petitioner] not to
       testify. It is undisputed that [Counsel] advised the [Petitioner] not to
       testify, at least in part because it would subject the [Petitioner] to cross-
       examination concerning a portion of his lengthy past criminal record. That
       was profoundly sound legal advice. The length of the [Petitioner]’s record
                                              9
       and the likely quality of the [Petitioner]’s explanation of events would
       likely ruin any chance of an acquittal. [Counsel]’s strategy was sound
       enough that the jury found the [Petitioner] not guilty of one indicted offense
       and only guilty of a lesser included offense under that count. Under the
       facts of this case, [Counsel] was entitled to a laurel wreath and a victory lap
       for that accomplishment.

               The choice as to whether to testify was entirely that of the
       [Petitioner]. To say the least, [the Petitioner] is a very strong personality
       who does not seem likely to be browbeaten by his attorney, either at trial or
       at an evidentiary hearing on a PC.

        The evidence does not preponderate against the trial court’s findings. Counsel
testified that she advised the Petitioner not to testify. This advice was largely due to the
Petitioner’s extensive criminal history, much of which would have been admissible had
he testified. Her advice was sound, informed, and based upon the facts and
circumstances of this case.

        The Petitioner acknowledged that his right to testify was explained to him during
the Momon hearing and that he declined to testify. Accordingly, we conclude that the
Petitioner has failed to show that Counsel prevented him from testifying. Therefore, he
has failed to carry his burden of showing that Counsel was ineffective in this respect. He
is not entitled to relief.

                                      III. Conclusion

      In accordance with the foregoing reasoning and authorities, we affirm the post-
conviction court’s judgment.


                                              ____________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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