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

                 ANTHONY VEASLEY v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                            No. P-23908    W. Otis Higgs, Judge



                  No. W2002-02806-CCA-MR3-PC - Filed February 17, 2004


The petitioner, Anthony Veasley, was convicted by a Shelby County jury of aggravated robbery, a
Class B felony. The trial court sentenced the petitioner as a Range II multiple offender to nineteen
years in the Tennessee Department of Correction. Following an unsuccessful appeal of his
conviction, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance
of counsel at trial. The petitioner now brings this appeal challenging the post-conviction court’s
denial of his petition. After reviewing the record and the parties’ briefs, we affirm the judgment of
the post-conviction court.

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

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

Jake Erwin, Memphis, Tennessee, for the appellant, Anthony Veasley.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Greg Gilluly, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION
                                      I. Factual Background

        The petitioner was convicted by a Shelby County jury of aggravated robbery. The trial court
sentenced the petitioner as a Range II multiple offender to nineteen years incarceration. The
petitioner subsequently filed a direct appeal, asserting that the State had failed to present sufficient
evidence to support his conviction for aggravated robbery. This court affirmed the conviction. State
v. Anthony Veasley, W1999-1977-CCA-R3-CD, 2000 WL 204909 (Tenn. Crim. App. at Jackson,
Feb. 10, 2000).
        Thereafter, the petitioner timely filed a pro se petition for post-conviction relief. The post-
conviction court appointed counsel to represent the petitioner, and an amended petition was filed,
alleging that the petitioner received ineffective assistance of counsel at trial. The post-conviction
court subsequently held an evidentiary hearing at which the petitioner and his trial counsel testified.
At the conclusion of the testimony, the post-conviction court took the matter under advisement. On
February 13, 2002, the post-conviction court entered an order denying the petition, finding that the
petitioner failed to prove his allegations by clear and convincing evidence. The petitioner now
brings this appeal challenging the post-conviction court’s denial of his petition for post-conviction
relief.

                                                II. Analysis

        In a post-conviction proceeding, the petitioner bears the burden of proving the grounds raised
in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997).1
“Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998). Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved by the
post-conviction court as the trier of fact. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).
Therefore, we afford the post-conviction court’s findings of fact the weight of a jury verdict, with
such findings being conclusive on appeal absent a showing that the evidence in the record
preponderates against those findings. Id. at 578.

        On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and
fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As such, the post-
conviction court’s findings of fact are entitled to a presumption of correctness unless the evidence
preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). However,
a post-conviction court’s conclusions of law, such as whether counsel’s performance was deficient
or whether that deficiency was prejudicial, are subject to a purely de novo review with no
presumption of correctness. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).
                Because a petitioner must establish both prongs of the test, a failure
                to prove either deficiency or prejudice provides a sufficient basis to
                deny relief on the ineffective assistance claim. Indeed, a court need
                not address the components in any particular order or even address


        1
            In 1995, former sections 40-30-101–124 were repealed and the chapter renumbered the sections 40-30-
201–222. 1995 Tenn. Pub. Acts, ch. 207, § 1. The 2003 bound volume of Tennessee Code Annotated designates the
sections as 40-30-101–122.

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               both if the [petitioner] makes an insufficient showing of one
               component.
Id. at 370.

        To establish constitutionally deficient performance, the petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S.
at 687-88, 104 S. Ct. at 2064; Burns, 6 S.W.3d at 462. Specifically, the petitioner must show that
counsel’s performance was not within “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). On appeal, this court will neither
“second guess” the tactical and strategic decisions of defense counsel, nor measure the representation
by “20-20 hindsight.” Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). 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.” Strickland, 466 U.S. at 694, 104
S. Ct. at 2068; see also Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

       On appeal, the petitioner first complains that trial counsel was ineffective for failing to
subpoena alibi witness, Bill Aldridge. At the evidentiary hearing, the petitioner testified that he
provided trial counsel with Aldridge’s name, address, and telephone number, but Aldridge was never
subpoenaed. The petitioner related that Aldridge was a former employer who would have
“exonerate[d]” him. The petitioner stated, “I know for a fact that if Bill Aldridge had . . . been
subpoenaed to testify, I would have walked out of the courtroom a free man.”

        Trial counsel conceded that “[t]here was an alibi witness that we attempted to locate that I
believe was going to be able to state . . . that [the petitioner] was at work at the time this crime
occurred.” Trial counsel further related that the petitioner had given him Aldridge’s phone number
and address. However, numerous attempts to locate Aldridge were unsuccessful, and trial counsel
decided not to have a subpoena issued, believing it was “improper” to ask the court to issue a
subpoena for an individual whose address he had been unable to verify. Moreover, trial counsel
stated that he did not want to subpoena a witness without knowing what the witness’s testimony
would be.

        “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.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). A petitioner
is not entitled to relief 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.” Id. at 758. The only witnesses to testify at the evidentiary hearing were the
petitioner and trial counsel. The petitioner failed to present the testimony of Bill Aldridge, the
alleged alibi witness. Accordingly, the petitioner is not entitled to relief on this ground.

        Next, the petitioner asserts that trial counsel was inadequately prepared for trial. We note
that the petitioner was initially represented by Diane Thackery, an assistant public defender with the


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Shelby County Public Defender’s Office. However, three months prior to trial, Thackery was
transferred to the Public Defender’s Capital Defense Team, and trial counsel was substituted to
represent the petitioner.

         At the evidentiary hearing, the petitioner testified that he believed three months was not a
sufficient amount of time to prepare for a trial. The petitioner further claimed that trial counsel met
with him only twice prior to trial. Trial counsel visited the petitioner at the jail on one occasion prior
to trial and again in court on the day of trial, discussing the case four minutes prior to the selection
of the jury. The petitioner testified that he sent letters to trial counsel, but trial counsel never
responded.

        The petitioner testified that trial counsel made no effort to prepare a defense or develop a
strategy for trial. The petitioner stated that he filed motions to have trial counsel removed as
counsel, asserting that “he wouldn’t talk to me about my case.” According to the petitioner, trial
counsel “didn’t care if I was guilty or innocent. All he wanted to do was take me to court and get
me convicted [because] I didn’t cop out to what the State was offering me.” Trial counsel had
advised the petitioner that the State was offering a sentence of twelve years, but the petitioner said
he “wouldn’t take twelve seconds.” The petitioner stated, “[I]f [trial counsel] had took his time and
studied the case, . . . we could have beat this case.”

        Trial counsel testified at the evidentiary hearing that when he was substituted to represent
the petitioner, the case was already set for trial. Prior to trial, he met with the petitioner “a couple
of times,” including a visit at the jail. Trial counsel related that although Thackery told him that “she
didn’t believe it was[] a matter . . . to be settled,” he was obligated to advise the petitioner of the
State’s plea offer, which offer the petitioner refused.

        Trial counsel testified that he was adequately prepared for trial. According to trial counsel,
Thackery had received discovery and thoroughly investigated potential witnesses and defenses.
Thackery provided trial counsel with a “well-prepared file,” which trial counsel reviewed. Trial
counsel also met with Thackery two or three times prior to trial, discussing the facts of the case and
all plausible defenses. Trial counsel stated, “[W]e [decided] to argue that the victim basically stole
the videotape, took money, and then claimed there was a robbery when in fact there was not.”

        We conclude, as did the post-conviction court, that the petitioner has failed to demonstrate
that trial counsel’s performance was deficient. Trial counsel testified that he reviewed the
petitioner’s case file and discussed the case with Thackery, who had investigated potential witnesses
and defenses. Moreover, the testimony at the evidentiary hearing did not support the petitioner’s
allegation that trial counsel did not prepare a defense for trial. Trial counsel testified that he
presented the only plausible defense by suggesting that the victim had fabricated the robbery. Based
upon the foregoing, we are unable to conclude that trial counsel’s performance was not within the
range of competence demanded of criminal defense attorneys. Because the petitioner failed to
demonstrate deficient performance on the part of trial counsel, we need not address prejudice.



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         Next, the petitioner complains that because the photographic lineup presented to the victim
at trial was unduly suggestive, trial counsel should have filed a motion to suppress the lineup. At
the evidentiary hearing, the petitioner claimed, “I [was] the lightest person on the lineup, and . . . the
only light-skinned person in the courtroom . . . . [The victim could] do nothing but identify me if
she is looking at my picture and I’m sitting in the courtroom.” Trial counsel testified that in his
opinion, the photographic lineup was not overly suggestive and, thus, a motion to suppress was not
warranted. Trial counsel further stated that the victim had been able to identify the petitioner
because she allegedly knew him.

         In its order denying the petition for post-conviction relief, the post-conviction court found
that the petitioner failed to prove by clear and convincing evidence that trial counsel’s failure to file
a motion to suppress constituted deficient performance. The post-conviction court accredited the
testimony of trial counsel, noting that trial counsel “cannot file a motion to suppress unless
reasonable grounds exist.” On appeal, the petitioner merely asserts that “the photo spread was overly
suggestive, and trial counsel’s failure to attempt to have the evidence suppressed was per se
ineffective assistance of counsel.” Moreover, the petitioner failed to include the photographic lineup
in the record on appeal. Accordingly, we conclude that the petitioner has failed to demonstrate that
the evidence preponderates against the findings of the post-conviction court.

        In his final contention, the petitioner alleges numerous instances of ineffective assistance of
counsel at trial, namely the failure to effectively cross-examine the victim, the failure to “emphasize”
that no fingerprints were taken at the scene, the failure to “emphasize” that the victim did not notice
the petitioner’s tattoo, the failure to subpoena potential witness David McMahon or obtain his
statement, and the failure to adequately investigate the petitioner’s case.2 Addressing each of these
allegations in turn, the post-conviction court found that the petitioner had failed to meet his burden
of proving the allegations by clear and convincing evidence. The evidence does not preponderate
against the post-conviction court’s findings.

         At the evidentiary hearing, trial counsel testified that because the victim was credible, he
decided not to ask her on cross-examination if she had fabricated the robbery, fearing her denial
would damage the defense. As previously noted, this court will not “second guess” the tactical and
strategic decisions of counsel. Cooper v. State, 849 S.W.2d at 746. Trial counsel also related that
at trial he questioned the detective about fingerprints, but the detective was unable to recall if the
scene had been processed for fingerprints. Both the petitioner and trial counsel testified that trial
counsel questioned the victim about the tattoo on the petitioner’s hand, and when the victim testified
that she did not notice a tattoo, the petitioner was allowed to display the tattoo to the jury.

        Regarding trial counsel’s failure to subpoena David McMahon or obtain his statement, we
note that trial counsel testified that the State subpoenaed McMahon, who had allegedly witnessed


         2
          In his petition for post-conviction relief, the petitioner also argued that trial counsel was ineffective for failing
to subpoena pertinent employment records and advising the petitioner not to testify at trial. However, these contentions
were not pursued on appeal.

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the robbery. Regardless, the petitioner failed to present the testimony of McMahon at the evidentiary
hearing. Accordingly, this issue is without merit.

        Finally, when a petitioner claims that trial counsel was ineffective for failing to adequately
investigate, the petitioner is obligated to show what a reasonable investigation would have revealed.
Richard Leonard Mendoza v. State, M2001-01855-CCA-R3-PC, 2003 WL 1610824, at *17 (Tenn.
Crim. App. at Nashville, Mar. 28, 2003), perm. to appeal denied (Tenn. Sept. 2, 2003) (citing Owens
v. State, 13 S.W.3d 742, 756 (Tenn. Crim. App. 1999)). The petitioner failed to introduce testimony
or other evidence to show how he would have benefitted from further investigation by trial counsel.
We conclude that the petitioner has failed to demonstrate that the evidence preponderates against the
post-conviction court’s findings.

                                          III. Conclusion

       For the foregoing reasons, we affirm the judgment of the post-conviction court.




                                                       ____________________________________
                                                       NORMA McGEE OGLE, JUDGE




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