        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 5, 2014

              MAURICE WILLIAMS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. 06-06805     W. Mark Ward, Judge




                 No. W2013-00883-CCA-R3-PC - Filed April 11, 2014


The petitioner, Maurice Williams, appeals from the denial of his petition for post-conviction
relief from his 2007 Shelby County Criminal Court jury convictions of carjacking and
aggravated robbery, claiming that he was deprived of the effective assistance of counsel.
Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Robert C. Brooks, Memphis, Tennessee (on appeal); and Valerie Corder, Memphis,
Tennessee (at trial), for the appellant, Maurice Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Pam Fleming, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               A Shelby County Criminal Court jury convicted the petitioner of carjacking and
aggravated robbery for his role in the August 16, 2004 taking of four pillowcases full of
cigarettes from a Mapco convenience market at gunpoint and the subsequent carjacking of
Charles Mestemacher in the parking lot of the Mapco. The facts, as summarized by this court
on direct appeal, established that while the co-defendant, Vario Talley, distracted the store
clerk by redeeming lottery tickets, the petitioner went into the storeroom and began “putting
cartons of cigarettes into pillowcases.” State v. Maurice Williams, No. W2008-01136-CCA-
R3-CD, slip op. at 2 (Tenn. Crim. App., Jackson, Jan. 20, 2010), perm. app. denied (Tenn.
June 17, 2010). When the clerk asked the petitioner what he was doing, the petitioner
pointed a gun at her and threatened to shoot her. The two men then fled toward the door with
four pillowcases filled with cigarettes, and the store clerk gave chase and attempted
unsuccessfully to retrieve one of the pillowcases. See id. In the parking lot, “an
African-American man ran out of the Mapco store and told [Mr.] Mestemacher to get out of
his truck or he would be shot.” Id., slip op. at 3. Fingerprint evidence connected the
petitioner to the cigarette cartons that remained in the storeroom, and the jury viewed video
surveillance recordings of the incident.

               This court affirmed the petitioner’s convictions and the accompanying 53-year
effective sentence. See id., slip op. at 8. The petitioner then filed a timely petition for post-
conviction relief, claiming, among other things, that he was deprived of the effective
assistance of counsel at trial. Following the appointment of counsel, the petitioner filed an
amended petition for post-conviction relief, adding new allegations to his claim of ineffective
assistance of counsel.

                At the January 23, 2013 evidentiary hearing, the petitioner testified that he
believed his counsel performed deficiently by failing to request a special jury instruction on
reasonable doubt, which, he claimed, would have better supported his theory of defense. He
also complained that counsel failed to adequately investigate the case and that counsel
specifically should have “investigated” the store clerk and an individual named Diablo
Rogers, who the petitioner claimed was originally arrested for the offenses along with the
petitioner and the co-defendant. He said that both the clerk and Mr. Rogers could have
testified “that it wasn’t a gun involved.” The petitioner admitted, however, that Mr. Rogers
left the Mapco before the offenses occurred.

                The petitioner testified that he and trial counsel never discussed the possibility
of presenting expert witness testimony on any issue. He also complained that trial counsel
failed to mount an adequate challenge to the audio portion of the Mapco surveillance video
on grounds that it was inaudible. The petitioner stated that counsel should have moved to
sever his trial from that of the co-defendant.

               The petitioner testified that counsel negotiated a plea agreement that included
a 10-year sentence but failed until the day of the plea submission hearing to inform the
petitioner that his testifying against the co-defendant was one of the terms of the agreement.
He said that counsel’s failure to alert him to the term caused him to distrust counsel and to
reject the plea agreement.

             The petitioner asserted that trial counsel failed to interview any of the State’s
witnesses in advance of trial. He said that counsel also failed to interview any of the

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petitioner’s family and friends for mitigation proof to present at the sentencing hearing. He
complained that counsel should have alerted the trial court that his previous conviction of
attempted aggravated assault “was an auto accident.” He said that it was his belief that
counsel misunderstood the law about sentencing, particularly the application of the
enhancement and mitigating factors.

               During cross-examination, the petitioner acknowledged that he did not
complain about his counsel’s performance before or during the trial. After being shown the
transcript of the jury instructions, the petitioner conceded that the trial court properly
instructed the jury regarding reasonable doubt. He also admitted that the transcript showed
that his counsel asked for a special instruction on reasonable doubt and that the trial court
denied the request. The petitioner acknowledged that the defense strategy was to establish
that the offense inside the Mapco was a theft rather than an aggravated robbery and that
counsel did his best to present this theory to the jury.

              The petitioner admitted that he and the co-defendant, along with Mr. Rogers,
worked together to steal the cigarettes. He denied having a weapon. The petitioner
acknowledged that because he admitted stealing the cigarettes, counsel’s hiring a fingerprint
expert would have been fruitless. Similarly, the petitioner conceded that because it was the
theory of the defense that the store clerk was not rendered unconscious at any point during
the offense, counsel’s hiring an expert in brain injury would not have helped his defense.

              The petitioner conceded that trial counsel negotiated the plea agreement that
included a 10-year sentence and that counsel urged the petitioner to accept the agreement.
He said that counsel warned him that he would be convicted at trial and that the agreement
was his best chance at a reduced sentence.

              The petitioner acknowledged that trial counsel tried to use an error in the
offense date contained in the indictment to the petitioner’s advantage, but he was
unsuccessful. He also conceded that he had pleaded guilty to an attempted aggravated assault
that was the result of a car accident.

               During redirect examination, the petitioner reversed course and claimed that
it was not the defense strategy that he had committed a theft but that the strategy was that the
petitioner had not committed any crime. Thus, he claimed that a fingerprint expert would
have assisted his defense.

               During recross-examination, the petitioner again changed his testimony with
regard to the defense trial theory, claiming that counsel had no theory. He then said that it
was, in fact, his theory of defense that he was guilty of theft but not guilty of aggravated

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robbery. He admitted that he was at the Mapco and that he stole the cigarettes, but he
maintained that he did not possess a weapon. The petitioner acknowledged that the jury saw
and heard the video surveillance recording and was permitted to determine what the video
showed.

               The petitioner called counsel as a witness at the hearing, but post-conviction
counsel declared that the petitioner would not ask any questions of counsel and would,
instead, rely upon the petitioner’s own testimony. The State, however, chose to question
counsel.

               Trial counsel testified that with regard to the plea agreement, the petitioner
engaged in what the trial court deemed a “game of cat and mouse,” whereby the petitioner
would indicate an intent to accept a plea offer but renege at the last minute. At one point,
after counsel succeeded in getting the State to reduce its agreed sentence offer from 20 years
to 12 years, the petitioner signed the paperwork, and both he and the co-defendant agreed to
plead guilty. Once the parties arrived in court, however, the co-defendant refused to plead
guilty unless the co-defendant’s counsel “went to the store and bought him some Newports.”
When the co-defendant’s counsel refused that request, the trial judge “said I’m not taking any
guilty plea paperwork from these two guys, we’re going to trial.” Counsel recalled that
“[e]arly on” he told the petitioner that agreeing to testify against the co-defendant “was his
best option,” but the petitioner “did not want to do that.”

               Counsel testified that after it became clear that the petitioner would not plead
guilty, he began a more thorough investigation of the case, traveling to the Mapco to take
photographs and interview an employee regarding the “set up.” He said that the clerk
victimized during the offenses had been transferred to a different store. Counsel said that he
telephoned the “director of Memphis Mapcos” in an attempt to locate her, but the director
refused to tell counsel “where she had been relocated to.” He said that he was unable to
locate the store clerk prior to trial.

               Counsel stated that the petitioner told him “from the beginning that this was
not a robbery, this was just a theft of property.” He said that this revelation was consistent
with the statement that the petitioner gave to police officers following his arrest. At one
point, he said, the petitioner asked him “to convey an offer of two counts of theft” to the
State, saying that “he’d be willing to serve each count consecutively to one another.”
Counsel testified that the most viable theory of defense was that the petitioner had committed
a theft but not an aggravated robbery.

             Counsel said that the petitioner was readily identifiable from the video
recording and from several still photographs taken from the surveillance video. Counsel

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recalled that the petitioner fled the scene in Mr. Mestemacher’s truck and absconded to
Missouri for two years before he was arrested. He described the video recording as “the best
video” he had seen at the time. He said, “It’s a digital video, it’s crystal clear. The sound
is excellent on it.” Counsel said that he did not believe that any portion of the video was
inaudible. He testified that the co-defendant can clearly be heard to ask the petitioner where
the gun is and then to shout “shoot him, shoot him, shoot him.” Counsel said that he “broke
[the video] down by the second. Everything that was said by second in the entire video.”

               Counsel testified that he visited the petitioner “in the jail on numerous times”
and that he “met with him in lockup here in the courtroom also, every court date.” Counsel
said that he also attempted to interview Mr. Rogers. He recalled that he learned that Mr.
Rogers was scheduled for a preliminary hearing on unrelated charges, so he went to court to
speak with Mr. Rogers and his appointed counsel. Mr. Rogers failed to appear for that
hearing, and his counsel “did not have a valid phone number” for Mr. Rogers. A warrant was
issued for Mr. Rogers’ arrest, and counsel testified that he had not previously had success in
persuading wanted individuals to come to court to testify on his client’s behalf. Additionally,
he said that Mr. Rogers had prior convictions of theft and aggravated burglary that could
have been used to impeach his credibility at trial.

               Following the State’s examination of the witness, post-conviction counsel
elected to question counsel. Counsel said that Mr. Rogers pleaded guilty to theft in relation
to this case “in 2004 and 2005” and that the petitioner was not arrested until 2006. By the
time counsel attempted to locate him, Mr. Rogers was no longer in custody. Counsel stated
that he obtained the video recording as part of the discovery materials and that he first
viewed it in October 2006. He said that he showed it to the petitioner in March 2007, eight
months prior to the trial. Counsel recalled that he did not have a method to play the video
for the petitioner at the jail, so he asked the trial court for a special setting so that the
petitioner could view the video in the courtroom. Counsel said that he did not argue that the
video was inaudible but did argue that “there was an issue as to the interpretation of what
was said.” He said that his objection was not to the video but to the State’s using equipment
designed to enhance that portion of the video where several voices are heard at the same
time. Counsel said that it was his opinion that the video supported the theory of defense.

               Counsel testified that the petitioner’s sentencing hearing lasted no longer than
one and one half hours and that he did not call any witnesses. He said that the petitioner
indicated that he did not wish to speak at the hearing and that the petitioner did not alert him
to any potential witnesses for the sentencing hearing.

             At the conclusion of the hearing, the post-conviction court took the petition
under advisement. In a written order, the court denied post-conviction relief, ruling that the

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petitioner had failed to establish his claims of ineffective assistance of counsel by clear and
convincing evidence. The court concluded that counsel adequately investigated the
petitioner’s case and developed a sound trial strategy based upon the evidence available to
him. The court noted that the petitioner’s claims that counsel should have presented the
testimony of Mr. Rogers and various expert witnesses failed because the petitioner failed to
present “a single witness nor a single piece of evidence” at the evidentiary hearing regarding
what the testimony of these witnesses might have been at trial. The post-conviction court
also concluded that counsel did not perform deficiently by failing to object to the video
recording on grounds that portions of it were inaudible because “[t]here was no basis upon
which an objection would have been sustained. It was up to the jury to determine whether
the audio was audible.” The court determined that the petitioner failed to establish deficient
performance with regard to counsel’s cross-examination of the store clerk by failing to call
the clerk as a witness at the evidentiary hearing. The post-conviction court ruled that the
petitioner failed to establish that counsel performed deficiently by failing to hire an
investigator because the petitioner did not present any witness or piece of potential evidence
that might have been uncovered by an investigator. The court concluded that the petitioner’s
claim that counsel failed to adequately convey the 10-year plea offer was “not supported by
the facts.” The court also determined that the petitioner failed to establish that counsel
performed deficiently by failing to argue at the sentencing hearing that the petitioner’s prior
conviction related only to an automobile accident because the petitioner failed to present any
such proof in the evidentiary hearing. Finally, the court ruled that the petitioner’s claim that
counsel failed to request a reasonable doubt instruction was “not factually true.”

              In this timely appeal, the petitioner contends that “the post-conviction court’s
conclusion that [the p]etitioner failed to prove ineffective assistance of counsel, or any other
violation which would warrant post-conviction relief, is entirely erroneous.” The petitioner
does not, however, specify exactly the error in the trial court’s ruling. The State asserts that
the court properly denied post-conviction relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A.§ 40-30-103 (2006). A post-conviction petitioner
bears the burden of proving his or her allegations by clear and convincing evidence. Id. §
40-30-110(f). On appeal, the post-conviction court’s findings of fact are conclusive unless
the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn.1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).



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

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

             In our view, the record supports the decision of the post-conviction court
denying post-conviction relief because the petitioner failed to establish any of his claims by
clear and convincing evidence.

               Although the petitioner claimed that trial counsel failed to conduct any
investigation in his case, the post-conviction court accredited counsel’s testimony that he
conducted a thorough investigation. The petitioner claimed that a better investigation would
have included interviews with Mr. Rogers and the Mapco store clerk, but the petitioner failed
to present either witness at the evidentiary hearing. As such, we cannot speculate what either
witness might have testified to at trial. See Black v. State, 794 S.W.2d 752, 757-58 (Tenn.
Crim. App. 1990). Moreover, counsel testified that he attempted to interview both witnesses,
but neither could be located.

               Similarly, although the petitioner claimed that counsel should have employed
the services of a private investigator, fingerprint expert, eyewitness identification expert, and
an audiologist, he failed to present any of these witnesses at the evidentiary hearing to
establish how their testimony might have helped in his defense. With regard to the
employment of a private investigator, the petitioner failed to allege any fact or witness that
an investigator might have uncovered that was not uncovered by counsel himself during his

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investigation of the case. With regard to the fingerprint expert, the petitioner acknowledged
after his arrest and at the evidentiary hearing that he stole the cigarettes as alleged and that
his only defense to the charge of aggravated robbery was that he was not armed.
Accordingly, employment of a fingerprint expert would not have availed him anything at
trial. The petitioner likewise failed to present an expert in eyewitness identification at the
evidentiary hearing to establish how the identifications of the petitioner might have been
challenged at trial. In addition, the record establishes that the jury watched the video
recording of surveillance from the Mapco and could easily have identified the petitioner as
the perpetrator from that recording. Moreover, it bears repeating that the petitioner did not
at any point suggest that he had been misidentified and instead freely admitted that he stole
the cigarettes from the Mapco. Finally, the petitioner failed to present an audiologist at the
evidentiary hearing to establish how such an expert might have assisted the jury in listening
to the video recording in this case. The post-conviction court properly found that the jury
was the appropriate arbiter of the contents of the recording.

              The petitioner’s claims that counsel failed to request a reasonable doubt
instruction and failed to adequately explain the plea offer to the petitioner were not borne out
by the record. Indeed, with regard to the plea offer, the petitioner admitted that it was his
decision to reject the offer, which would have resulted in his serving a total effective
sentence of 10 years instead of the 53 years imposed for his convictions after the trial.

                Stated succinctly, the record supports the post-conviction court’s conclusion
that the petitioner failed to establish any of his claims of ineffective assistance. Accordingly,
the judgment of the post-conviction court is affirmed.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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