                                                                                          03/12/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 6, 2018

               ANTHONY WILSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                    No. 13-00998       W. Mark Ward, Judge
                     ___________________________________

                           No. W2017-02270-CCA-R3-PC
                       ___________________________________


The Petitioner, Anthony Wilson, filed a post-conviction petition seeking relief from his
convictions of first degree premeditated murder and attempted first degree murder and his
accompanying effective life sentence. In the petition, the Petitioner alleged that his trial
counsel was ineffective by failing to (1) hire an investigator, (2) meet with the Petitioner
and keep him adequately informed about the case, (3) file motions “to challenge the
evidence,” (4) seek a jury instruction regarding the defense of others, (5) properly cross-
examine witnesses, and (6) raise objections at trial. After a hearing, the post-conviction
court denied the petition, and the Petitioner appeals. Upon review, we affirm the
judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT H. MONTGOMERY, JR., JJ., joined.

John Catmur (on appeal) and Kirk Stewart (at trial), Memphis, Tennessee, for the
Appellant, Anthony Wilson.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Amy P. Weirich, District Attorney General; and Glenda Adams, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

      The Petitioner and two co-defendants, Deangelo Taylor and Alfred Robinson,
were charged with the first degree murder of Lyle King, attempted first degree murder of
Julian Williams, and employing a firearm during the commission of a dangerous felony.
State v. Anthony Wilson, No. W2014-01054-CCA-R3-CD, 2015 WL 8555599, at *1
(Tenn. Crim. App. at Jackson, Dec. 11, 2015). After a joint trial, the Petitioner and
Taylor were convicted of first degree murder and attempted first degree murder, and the
trial court dismissed the employing a firearm charge. Id. at *1, 12. Robinson was found
not guilty of all charges. Id. at *1.

          On direct appeal, this court stated:

                   [the Petitioner’s] case concerns a large street fight that
                   erupted in Memphis, Tennessee. The altercation began
                   because Ronisha[1] believed that Stefanie had stolen a camera
                   from someone’s home. Multiple members of each girl’s
                   family became involved in the argument, which escalated to a
                   physical altercation on McMillan Street on October 20, 2010.
                   Initially, the fight only involved the women of each family;
                   however, male members of the families and males who were
                   observing the fight soon joined the fray. Lyle King and
                   Julian Williams joined the altercation on behalf of Stefanie’s
                   family members, and [the Petitioner, Taylor, and] Robinson
                   sided with Ronisha’s family. The physical altercation
                   ultimately led to a shootout, causing the death of the victim,
                   Lyle King, and the injury of Julian Williams and . . . Taylor.

Id. (footnote omitted). The trial court sentenced the Petitioner to concurrent sentences of
life for the murder conviction and twenty years for the attempted murder conviction. Id.
at *12. On direct appeal, this court affirmed the Petitioner’s convictions and sentences.
Id. at *1.

       Subsequently, the Petitioner filed a pro se petition for post-conviction relief. An
attorney was appointed to represent him, and two amendments were filed. In pertinent

1
    On direct appeal, this court explained:

                            Because several parties and witnesses share the same last name,
                   for clarity, we will refer to everyone with the last names “King,”
                   “Johnson,” and “Carter” by their full name or by their first name only. It
                   is also the policy of this court to protect the identity of minors; as such,
                   we will refer to any known minors by their first names. In doing so, we
                   mean no disrespect.

Anthony Wilson, No. W2014-01054-CCA-R3-CD, 2015 WL 8555599, at *1 n.1.

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part, the Petitioner alleged that his trial counsel was ineffective by failing to (1) hire an
investigator, (2) meet with the Petitioner and keep him adequately informed about the
case, (3) file motions “to challenge the evidence,” (4) seek a jury instruction regarding
the defense of others, (5) properly cross-examine witnesses, and (6) raise objections at
trial.

       At the post-conviction hearing, the Petitioner’s trial counsel testified that he had
been practicing law since 1992 and that eighty percent of his practice was criminal
defense. He met with the Petitioner at the jail and in the courtroom. Trial counsel did not
recall any favorable plea offers from the State; accordingly, he always knew the case
would proceed to trial.

       Trial counsel said that he obtained discovery from the State, which included
witness statements, and reviewed it with the Petitioner. Trial counsel said that the
Petitioner “was not very verbal” and that their conversations usually revolved around trial
counsel’s explaining the Petitioner’s rights, the pending proceedings, and the evidence
against him. Trial counsel asked the Petitioner to provide the names of any witnesses,
such as alibi witnesses, that might need to be called at trial; however, the Petitioner never
provided any such names.

       Trial counsel said that nothing from his conversations with the Petitioner led him
to believe hiring an investigator was necessary. Trial counsel acknowledged that the co-
defendants’ attorneys had hired investigators and that Taylor’s attorney had called four
witnesses at trial who were not on the State’s witness list. Trial counsel did not recall
trying to find witnesses who were not on the State’s witness list. Trial counsel stated that
he did not know what an investigator could have found that was not in the witnesses’
statements provided in discovery.

        Trial counsel said that most of the testimony at trial did not concern the Petitioner.
Only three witnesses ever “put [the Petitioner] at the scene.” Two of those witnesses had
identified the Petitioner in their pre-trial statements, but they “changed their story on the
stand.” Specifically, trial counsel recalled that a woman named Chris Williams testified
that she was “high on cocaine or -- and/or drunk, and/or had been using Xanax and/or
marijuana” when she gave her statement to the police but that she was “clean” at the time
of trial. Counsel said that a “gentleman” testified that he was drunk and had been
smoking marijuana at the time he gave his statement identifying the Petitioner to the
police. Counsel testified that Boyce, “a third gentleman who was . . . at the time a
juvenile who we thought would have been charged as a co-defendant but he wasn’t[,] . . .
came in and just reversed on everything that he said with regard to [the Petitioner] being
culpable for anything.”


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        Trial counsel recalled that another witness, Jocelyn Key, initially identified
someone other than the Petitioner from a photograph lineup. During her testimony, Key
stated that she had been confused about what she was supposed to do after looking at the
lineup. Trial counsel recalled that Key said she had seen a “second shooter,” but trial
counsel did not think she identified the Petitioner as the second shooter. Trial counsel
thought Key was a helpful witness because Key said the second shooter was wearing a
silver or gray shirt, and other witnesses who claimed the Petitioner was at the scene
described him “wearing something else.”

       Trial counsel stated that the only witness who testified at trial that the Petitioner
was at the scene was “a victim that lived.”2 Trial counsel said that part of his strategy
was to show that Mr. Williams was the only person who said he saw the Petitioner with a
gun and that Mr. Williams was not credible because he was angry due to the shooting.

       Trial counsel said that he did not cross-examine the State’s witnesses about any
favorable statements they made at trial, explaining, “Any time I’m trying a case and some
witness says something that’s going to help my client whether they intend to or not[,] my
strategy is always . . . just to shut up.” Trial counsel said that if he had cross-examined a
witness about favorable testimony, the witness might have “had some recall” and given
unfavorable testimony.

       Trial counsel said that he had three or four discussions with the Petitioner about
whether he would testify at trial and that the Petitioner did not want to testify. The
defense strategy, which was that the Petitioner was not present at the scene and did not
have a gun, did not depend on the Petitioner’s testimony.

       Trial counsel said that he had discussions prior to trial with the co-defendants’
attorneys; some of the discussions concerned motions, but most of the discussions were
to “bounce things off of each other.” Trial counsel orally joined in a couple of the
motions filed by the co-defendants’ attorneys to “mak[e] sure [the Petitioner] was
covered,” but trial counsel did not think “there was any real substance to the motions with
regard to” the Petitioner.

       Trial counsel said that because his theory of defense was that the Petitioner was
not at the scene and did not have a gun, he did not want to put forward an alternative
theory of defense of others. Trial counsel said that in order to argue successfully that the
Petitioner acted in defense of others, the Petitioner essentially would have had to admit
he was at the scene with a gun. Further, trial counsel thought the only person the

        2
          On direct appeal, this court identified the surviving victim as Julian Williams. Id. at *1.
Because this opinion refers to another individual with the same surname, we will refer to this witness as
Mr. Williams. No disrespect is intended.
                                                  -4-
Petitioner could have been defending was Taylor, whom trial counsel thought “was guilty
as hell.” Because of Taylor’s clear guilt, trial counsel wanted to “dig a ditch between”
the Petitioner and Taylor and did not want to employ the same strategy as Taylor’s
attorney by pursuing a defense of others strategy. Moreover, trial counsel did not think
the evidence supported Taylor’s claim of defense of others. Trial counsel explained that
in order to assert a valid claim of defense of others, a defendant must not be acting
illegally; however, Taylor was acting illegally by being a convicted felon in possession of
a gun.

       On cross-examination, trial counsel said that he thought the witnesses testified
mostly in the Petitioner’s favor. Trial counsel did not attack any testimony he perceived
as favorable. Trial counsel agreed that the trial strategy did not “depend on what the co-
defendants were doing at all.” Trial counsel said that he and the Petitioner agreed to
pursue the strategy that the Petitioner was not at the scene and that he did not have a gun.
Trial counsel reiterated that he did not want to pursue a strategy of defense of others
because it would put the Petitioner “in the middle of that stuff.” Trial counsel thought the
better practice was to raise uncertainty regarding whether the Petitioner was at the scene.

        Trial counsel noted that one witness testified that the second shooter was tall with
light skin and “locks, dreads or plaits.” Trial counsel said that only Taylor and Taylor’s
brother fit that description, which called into question the Petitioner’s identity as the
second shooter. Trial counsel thought the Petitioner’s case “was going a lot better than
the verdict indicated.” Trial counsel agreed that he “challenged testimony that needed to
be challenged” and “bolstered the testimony that needed to be bolstered.”

        Trial counsel said that Mr. Williams was the only witness who never wavered in
his assertion that the Petitioner was at the scene. When cross-examining Mr. Williams,
trial counsel did everything “within bounds” to “upset” and “agitate” him so the jury
would that see that Mr. Williams was angry because he had been shot and wanted to
implicate the Petitioner who was a named defendant.

       The Petitioner testified that he had been indicted and was in jail when he met trial
counsel for the first time. The Petitioner maintained that trial counsel visited him in jail
infrequently. The Petitioner acknowledged that trial counsel showed him the discovery
but asserted that they did “[n]ot really” discuss trial strategy. The Petitioner said that trial
counsel did not ask him about any potential witnesses other than those who were on the
State’s witness list and that trial counsel never consulted with the Petitioner about
whether to hire an investigator. The Petitioner asserted that trial counsel “was afraid, just
wasn’t objecting to anything you know what I’m saying as far as in my defense.”
However, the Petitioner said, “I’m not here to say [trial counsel] wasn’t or he was”
prepared to try the Petitioner’s case. The Petitioner said that his complaints about trial

                                             -5-
counsel concerned “[t]he investigation as far as investigating certain individuals on my
behalf” and trial counsel’s “failure to cross examine witnesses.”

       On cross-examination, the Petitioner agreed that trial counsel had relied on the
Petitioner to tell him about any potential witnesses. The Petitioner acknowledged that he
did not need to provide trial counsel with the contact information of any potential
witnesses because “the witnesses that the State ha[d on the witness list were] the
witnesses that [the Petitioner] wanted [trial counsel] to contact.” The Petitioner
acknowledged that the witnesses “never spoke on [him]”; therefore, trial counsel “left
those witnesses alone.” Nonetheless, the Petitioner maintained that trial counsel was
“supposed to investigated [sic] the whole witnesses.” The Petitioner agreed that the State
had three witnesses who initially had put the Petitioner at the scene and that two of those
witnesses recanted their claim at trial. Nevertheless, he asserted that further investigation
“would have done a whole lot.”

        The Petitioner acknowledged that trial counsel tried to distance him from Taylor in
order to establish the Petitioner’s innocence and that the jury’s failure to believe the
Petitioner was innocent was not trial counsel’s fault.              The Petitioner further
acknowledged that trial counsel cross-examined witnesses and bolstered witnesses’
testimony whenever necessary. The Petitioner complained that trial counsel did not
object “to a lot of stuff,” but he could not specify any objections that should have been
made. The Petitioner agreed that after witnesses testified the Petitioner was not at the
scene, trial counsel did not need to object to their testimony. The Petitioner agreed that
trial counsel cross-examined Mr. Williams about his assertion that the Petitioner was at
the scene of the shooting. Finally, the Petitioner agreed that trial counsel “protected [the
Petitioner’s] rights throughout that trial.”

       After the hearing, the post-conviction court issued an order, stating that the
petitions for post-conviction relief “allege in true ‘shotgun’ form a multitude of
allegations.” The post-conviction court held that the Petitioner failed to establish
ineffective assistance of counsel and denied post-conviction relief. The Petitioner
appeals this ruling.

                                       II. Analysis

       To be successful in a claim for post-conviction relief, the Petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
                                            -6-
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. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

        When the 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 (1984)). To establish deficient performance, the Petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 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. Moreover,

              [b]ecause [the 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 both if the [Petitioner]
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

      The Petitioner alleges that the post-conviction court erred by ruling that his trial
counsel was ineffective by failing to (1) hire an investigator, (2) meet with the Petitioner
and keep him adequately informed about the case, (3) file motions “to challenge the
evidence,” (4) seek a jury instruction regarding the defense of others, (5) properly cross-
examine witnesses, and (6) raise objections at trial. The State responds that the post-
conviction court correctly denied post-conviction relief.

      On appeal, the Appellant focuses on trial counsel’s failure to hire an investigator.
The Petitioner notes that Taylor’s attorney discovered “four witnesses for her client” but
                                           -7-
concedes that trial counsel was not “required by law” to find a specific number of
witnesses. The Petitioner further concedes that he had not found any additional witnesses
and did not have any witnesses testify at the post-conviction hearing. The Petitioner
contends that the post-conviction court “erred in failing to find [trial counsel] as
ineffective because his strategy and tactical choices were both uninformed and not based
upon adequate preparation.” The Petitioner “submits that as a matter of law, the post-
conviction court erred in failing to find [trial counsel’s] performance deficient for not
hiring an investigator in a first-degree murder case.” In other words, the Petitioner
essentially claims that because of counsel’s failure to hire an investigator, this court
should presume that counsel was ineffective.

        Regarding the Petitioner’s claim that trial counsel failed to properly investigate the
case, the post-conviction court found that the Petitioner “failed to identify any specific
information or witnesses that could have been discovered; and, more importantly no such
additional witnesses were called to testify in the post-conviction evidentiary hearing.”
The evidence does not preponderate against this finding. See William T. Minton v. State,
No. E2015-00986-CCA-R3-PC, 2016 WL 2605782, at *6 (Tenn. Crim. App. at
Knoxville, May 4, 2016). “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). As we stated, the Petitioner acknowledged that he did
not locate or present any additional witnesses. We may not speculate on what benefit any
witness(es) might have offered to the Petitioner’s case, nor may we guess as to what
evidence further investigation may have uncovered. Id. The Petitioner is not entitled to
relief in this regard.

       The Petitioner contends that trial counsel failed to meet with the Petitioner and
“keep him informed about defense strategy, the work being performed on the case, the
strength of the evidence and possible defenses.” Trial counsel testified that he met with
the Petitioner at the jail and in the courtroom. Trial counsel further testified that he
reviewed the discovery with the Petitioner, informed the Petitioner of his rights, talked
with the Petitioner about whether he should testify, and that they discussed strategy. The
post-conviction court found that the Petitioner’s testimony regarding the number of times
he met with trial counsel was unclear and that the Petitioner acknowledged trial counsel
provided him with discovery. The post-conviction court also found that the Petitioner’s
“vague and non-specific testimony” provided no “real evidence” suggesting that trial
counsel was deficient or that the Petitioner suffered any prejudice. We agree. The
Petitioner is not entitled to relief in this regard.

       The Petitioner summarily contends that trial counsel was ineffective by failing to
file “‘motions to challenge the evidence,’” “fail[ing] to properly cross-examine Jocelyn

                                            -8-
Key, Robert Wilkie, and other witnesses,” and failing to make objections at trial. This
court previously has stated:

              It is well settled that when [the] Petitioner in post-conviction
              proceedings asserts that counsel rendered ineffective
              assistance of counsel by failing to call certain witnesses to
              testify, or by failing to interview certain witnesses, these
              witnesses should be called to testify at the post-conviction
              hearing; otherwise, [the] Petitioner asks the [c]ourt to grant
              relief based upon mere speculation. Black[], 794 S.W.2d [at]
              757 . . . . The same standard applies when [the] Petitioner
              argues that counsel was constitutionally ineffective by failing
              to file pre-trial motions to suppress evidence. In order to
              show prejudice, [the P]etitioner must show . . . that (1) a
              motion to suppress would have been granted and (2) there
              was a reasonable probability that the proceedings would have
              concluded differently if counsel had performed as suggested.
              Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing
              Strickland, 466 U.S. at 687 . . . ).

Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436, at *8 (Tenn.
Crim. App. at Nashville, Sept. 12, 2011). “In other words, it is incumbent upon [the
P]etitioner to prove that what he says trial counsel should have done would have had
merit and produced admissible, relevant evidence.” Demarcus Sanders v. State, No.
W2012-01685-CCA-R3-PC, 2013 WL 6021415, at *4 (Tenn. Crim. App. at Jackson,
Nov. 8, 2013).

        The Petitioner did not explain any specific motions trial counsel should have filed,
the evidence that should have been challenged, the questions that should have been asked
of the witnesses, or the objections that should have been made. Notably, the Petitioner
failed to mention Wilkie at all during the post-conviction hearing. The post-conviction
court held that the Petitioner failed to prove that trial counsel was deficient or that the
Petitioner suffered prejudice as a result of trial counsel’s representation. The Petitioner is
not entitled to relief in this regard.

        The Petitioner contends that trial counsel was ineffective by failing to present
proof regarding a defense of others or to seek an instruction regarding the defense of
others. The post-conviction court found that the Petitioner did not present any proof
regarding a defense of others. Further, the post-conviction court implicitly accredited
trial counsel’s testimony that the evidence did not support a defense of others and that he
chose not to pursue a defense of others as a matter of trial strategy because it would
require the Petitioner to admit being one of the shooters at the scene. “On a claim of
                                            -9-
ineffective assistance, ‘the [P]etitioner is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings.’” Dellinger v.
State, 279 S.W.3d 282, 295 (Tenn. 2009) (quoting Thompson v. State, 958 S.W.2d 156,
162 (Tenn. Crim. App. 1997)). The Petitioner is not entitled to relief in this regard.

                                      III. Conclusion

       Finding no error, we affirm the judgment of the post-conviction court.


                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE




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