         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                   Assigned on Briefs at Knoxville, October 30, 2001

                CARLOS HAYWOOD v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-22299    Chris Craft, Judge



                  No. W2001-00451-CCA-R3-PC - Filed December 17, 2001


The Appellant, Carlos Haywood, appeals from the dismissal of his petition for post-conviction relief.
Haywood was convicted by a Shelby County Criminal Court Jury of felony murder and attempted
especially aggravated robbery, and was sentenced to life imprisonment plus ten years. On appeal,
Haywood argues that he received ineffective assistance of counsel. After review, we affirm the
judgment of the post-conviction court dismissing the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.

Marty B. McAfee, Memphis, Tennessee, for the Appellant, Carlos Haywood.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; William L.Gibbons, District Attorney General; and Elaine
Sanders, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

          On June 18, 1995, the fifteen-year-old Appellant, armed with a sawed-off shotgun, attempted
to carjack the victim, Barry Brodey. Brodey retrieved a handgun from inside his vehicle and aimed
it at the Appellant. The Appellant then fired upon Brodey, who was fatally wounded. The next day,
Al Pritchard, Appellant’s friend for ten years, informed the police of the Appellant’s participation
in the homicide. Additionally, “Pritchard while on the telephone line with a police detective, called
Appellant on a ‘three-way’ telephone call and discussed the crime while the detective listened.” As
a result of the information provided by Pritchard, a sawed-off shotgun was found during a search of
the Appellant’s home.
        The Appellant was arrested on June 20, 1995. He was then taken to the police station and
questioned. His grandmother, the Appellant’s legal guardian, was present at the station during
questioning. He first denied any involvement in the crime. According to the Appellant, the
detectives then “got heated, started cursing again, and said that you’re lying because we found the
shotgun in your house. And that’s when my – he looked at my grandmother and she just said start
telling the truth; they found a shotgun in the house. Don’t lie to them; tell the truth.” Shortly,
thereafter, he confessed.

        On January 30, 1996, following his transfer hearing from juvenile court, the Appellant was
indicted for felony murder and attempted especially aggravated robbery. After a trial by jury on May
8, 1997, the Appellant was convicted of the indicted offenses. He received a life sentence with the
possibility of parole for the homicide conviction and a consecutive twelve-year sentence for the
attempted especially aggravated robbery conviction. The Appellant’s sentence for attempted
especially aggravated robbery was reduced to ten years on direct appeal. See State v. Haywood, No.
02C01-9707-CR-00289 (Tenn. Crim. App. 1998 at Jackson, Dec. 11, 1998).

        On December 13, 1999, the Appellant filed a pro se petition for post-conviction relief. After
counsel was appointed to assist the Appellant, an amended petition was filed on March 27, 2000, and
a second amended petition on May 8, 2000. An evidentiary hearing was conducted on May 8, 2000,
and additional testimony was heard on June 28, 2000. The final amended petition for post-
conviction relief was filed on August 31, 2000. On February 20, 2001, the Appellant’s petition was
dismissed.

                                           ANALYSIS

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing
by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-
210(f) (1997). On appeal, the Appellant addresses four areas of deficient representation:

       (1) trial counsel did not properly challenge the circumstances of the [A]ppellant’s
       confession and/or the ‘three-way’ telephone call in which Appellant incriminated
       himself,

       (2) trial counsel failed to advise Appellant of the proper release date for life
       imprisonment, preventing Appellant from making a knowing and intelligent decision
       regarding whether to accept the [S]tate’s offer of life with the possibility of parole
       or go to trial,

       (3) trial counsel either failed to do proper investigation or failed to communicate the
       results of his investigation to Appellant, preventing Appellant from making knowing
       and intelligent decisions regarding his rights, and




                                                -2-
       (4) trial counsel failed to include the issues above in Appellant’s Motion for New
       Trial, thereby waiving said issues, and counsel on Appellant’s original appeal failed
       to raise said issues.

        To succeed in a challenge for ineffective assistance of counsel, the Appellant must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1)
deficient representation and (2) prejudice resulting from the deficiency.

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption of
correctness. Fields, 40 S.W.3d at 458.

                                A. Suppression of the Confession

        The first ineffectiveness issue presented by the Appellant is whether trial counsel failed to
“properly challenge the circumstances of the [A]ppellant’s confession and/or the ‘three-way’
telephone call in which [the] Appellant incriminated himself.” As articulated by the post-conviction
court, the Appellant’s suppression argument focuses upon: (1) allegations of police tactics of
harassment, coercion, intimidation, etc., which caused excessive fear and psychological and mental
suffering to the Appellant in the interrogation room, (2) an alleged illegal “three-way” phone call
which was used to intimidate him into confessing, and (3) the fact that the Appellant was only fifteen
years old at the time of the crime and did not understand his rights.

1. Police tactics of harassment, coercion, intimidation, etc., caused excessive fear and
psychological and mental suffering to the Appellant in the interrogation room.

        The post-conviction court concluded that the proof failed to establish that the Appellant’s
confession was obtained as a result of police harassment, coercion, or intimidation. In this regard,
the post-conviction court observed that the Appellant’s grandmother was present during questioning
and did not testify to anything improper occurring. Additionally, trial counsel testified that nothing
he learned from the Appellant during their discussions caused him to believe that a voluntariness
issue existed. Trial counsel explained:

       We went over that. I went over it with him to make sure that it wasn’t coerced, if he
       felt that he was under some sort of pressure to give a statement. In fact, he said he
       wasn’t. He gave it without anybody coercing him, and with his grandmother there.


                                                 -3-
        There just didn’t seem to be any basis, that I could find from talking to him, to
        contest the validity of the statement he gave.

         This court will not reweigh or reevaluate the evidence; nor substitute our inferences for those
drawn by the post-conviction judge, unless the preponderance of the evidence is otherwise. Fields,
40 S.W.3d at 858; see also Black, 794 S.W.2d at 755. Questions concerning the credibility of the
witnesses, the weight and value to be given their testimony, and the factual issues raised by the
evidence are resolved by the post-conviction judge, not this court. Black, 794 S.W.2d at 755. We
find that the post-conviction court obviously credited the testimony of trial counsel that the facts and
circumstances in the Appellant's case simply did not raise a voluntariness issue. Because we do not
revisit the issue of credibility on appeal, we defer to the post-conviction court's ruling in that regard.
Accordingly, we conclude that this issue is without merit because the evidence does not preponderate
against the findings of the post-conviction court.

2. An illegal “three-way” phone call was used to intimidate him into confessing.

       Specifically, the Appellant argues, “if the telephone call had been suppressed Appellant’s
confession and the search of his house would have been invalidated as ‘fruit of the poisonous tree.’”
The post-conviction court noted that “in Tennessee. . . there is nothing illegal about a police officer
monitoring a conversation between a non-custodial defendant and a consenting party.” The post-
conviction court points to State v. Vanderford, which reads,

        The Tennessee Supreme Court has held the recording of conversations between a
        confidential informant and the accused does not violate either the federal or the state
        constitution. State v. Jones, 598 S. W.2d 209, 221-24 (Tenn. 1980). In Jones, the
        agent was wired and the law enforcement officer monitored the conversation between
        the accused and the confidential agent. The court held these recorded conversations
        were admissible as evidence.

State v. Vanderford, 980 S.W.2d 390, 402 (Tenn. Crim. App. 1997).

        We agree with the post-conviction court that it was not illegal for a police officer, under the
facts presented, to monitor the conversation between the Appellant and the informant. At the time
of the conversation, the adversarial judicial process had not begun, and the Appellant was not in
custody. State v. Huddleston, 924 S.W.2d 666, 669 (Tenn. 1996) (citing Michigan v. Jackson, 475
U.S. 625, 629, 106 S. Ct. 1404, 1407 (1986)). Because monitoring of the telephone call was legal,
the Appellant’s “fruit of the poisonous tree” argument is meritless.

3. The Appellant was only fifteen years old at the time of the crime and did not understand
his rights.




                                                   -4-
       To determine the validity of a juvenile’s waiver of his constitutional rights, the
       waiver should be analyzed under a totality-of-the-circumstances test that requires
       consideration of the following factors: (1) consideration of all circumstances
       surrounding the interrogation including the juvenile’s age, experience, education, and
       intelligence; (2) the juvenile’s capacity to understand the Miranda warnings and the
       consequences of the waiver; (3) the juvenile’s familiarity with Miranda warnings or
       the ability to read and write in the language used to give Miranda warnings; (4) any
       intoxication; (5) any mental disease, disorder, or retardation; and (6) the presence of
       a parent, guardian, or interested adult.

State v. Callahan, 979 S.W.2d 577, 583 (Tenn. 1998). In the Appellant’s brief, he acknowledges
“that he signed the waiver of rights form, but testified that he did not know what it was, and that at
the time of his confession he was in ‘resource’ classes and had been scored with a third grade reading
level.” The Appellant’s grandmother, as previously noted, was present throughout questioning and
also signed the waiver of rights form. Additionally, both signed the Appellant’s confession,
initialing each page. The post-conviction court found that “although [the Appellant] testified at the
hearing that he didn’t actually read his rights before signing the waiver, he admitted on cross-
examination that they were read aloud to him.” The Appellant also testified that he was not under
the influence of an intoxicant or drug at the time he gave his statement to the police. Trial counsel
testified at the post-conviction hearing that the Appellant was “fairly intelligent,” and capable of
understanding everything that was discussed. The Appellant was also familiar with Miranda
warnings, having “been in and out of several juvenile facilities during the two years prior to the
murder.”

       The evidence does not preponderate against the post-conviction court’s findings of fact. The
post-conviction court, employing the totality-of-the-circumstances test, concluded that the
Appellant’s waiver was freely and voluntarily given. After a review of the record, we agree.

                                      B. Proper Release Date

         Second, the Appellant contends that trial counsel was ineffective for failing to advise him
of the proper release date for a sentence of life imprisonment. As such, he asserts that he was
prevented from making a knowing and intelligent decision regarding whether to accept the State’s
offer of life with possibility of parole or go to trial. At the time the offense was committed, June 18,
1995, those convicted of life sentences were eligible for parole after serving a minimum of twenty-
five calendar years in confinement. See Tenn. Code Ann. § 40-35-501(h)(1) (1991). On July 1,
1995, the law was amended to provide that those serving life sentences were not eligible for parole
for at least fifty-one calendar years. See Tenn. Code Ann. § 40-35-501 (i)(1), (2) (1997).

        The proof at the post-conviction hearing established that the State offered the Appellant a
sentence of life with parole upon the Appellant’s plea to first degree murder which would have
permitted parole eligibility after twenty-five years. No other plea negotiations were discussed with
regard to the remaining charge of attempted especially aggravated robbery. At the post-conviction
hearing, the Appellant testified:

                                                  -5-
       Q. Did you and he [trial counsel] ever talk about negotiating the case?

       A. Yes, sir. We spoke about – once he told me that the [S]tate had offered me life.
       I asked him how much time was life. He told me it was 50, 51 years or something
       like that. He didn’t know specific. He told me that he would get back to me on that.
       ...

       Q. Did he ever get back to you on that?

       A. No, sir. . . .

       Q. Did you want to work out the case?

       A. Well, he told me – when he came to me and told me that life was 50, 50-
       something years and that he would get back to me, that was the only offer that they
       were offering me; that’s what he told me. I said will they come down with anything
       else? He said, no, that’s what they offered. . . .

       Q. Would you have taken that offer if it had been possibility of parole after 25 years?

       A. Well, he wasn’t – he wouldn’t – didn’t necessarily explain about lesser time, I
       would have felt that it would have been under what I had been reading in the jail and
       what people had been telling me that it would have been after 10 years. . . .

       Q. But if you had understood at the time –

       A. Yes, ma’am.

       Q. – what you understand now –

       A. Yes, ma’am.

       Q. – that you have the possibility of parole after 25 years, would you have wanted
       to take that?

       A. Well, I guess – I guess speaking what I would probably understood now what –
       if I would have understood then what I understood now, I wasn’t on that level at that
       time. I can’t speak about that.

Trial counsel testified,
        We didn’t discuss parole eligibility before he was convicted, as I remember. I’m sure
        at the time I discussed with him what I knew to be the range for life in prison, or life
        without the possibility of parole. Also what I understood the range of punishment
        was for second degree murder and the lesser offenses of murder.

                                                  -6-
         To satisfy the first prong of Strickland, the Appellant in the present case must prove by clear
and convincing evidence that trial counsel did in fact erroneously advise him of parole eligibility.
 Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). “Once established, the burden still
remains on the [A]ppellant to show that but for trial counsel’s erroneous advice he would have . .
. pled guilty” rather than have proceeded to trial. Id.; see Hill v. Lockhart, 474 U.S. 52, 60, 106 S.
Ct. 366, 371 (1985). The post-conviction court concluded that the Appellant failed to prove by clear
and convincing evidence that he received erroneous advice from trial counsel regarding parole
eligibility. Furthermore, the post-conviction court concluded the Appellant failed to show by clear
and convincing evidence that but for trial counsel’s erroneous advice, he would have pled guilty
rather than have proceeded to trial. We defer to the findings of the post-conviction court, and agree
that the Appellant has failed to establish that trial counsel was ineffective for failing to advise him
of the proper release date for a sentence of life imprisonment.

                         C. Failure to Conduct Pre-Trial Investigation

        Third, the Appellant contends that trial counsel was ineffective for failing to investigate his
case thoroughly and communicate the results of any investigation with him, thereby preventing him
from making knowing and intelligent decisions regarding his rights. Specifically, the Appellant
asserts that he never saw or received copies of the discovery. The post-conviction court found that
trial counsel

        visited [the Appellant] in the jail five times, as well as at each court appearance,
        when he and the [Appellant] had fairly lengthy discussions, too, in the interview
        room outside of the court during his court appearances. He also talked to [the
        Appellant’s] step-mother quite a bit about the case, and drove to the federal detention
        facility in Mason, Tennessee, on August 13, 1996, to discuss the case with [the
        Appellant’s] father, who was serving time there, nine months prior to trial. He was
        present at a discovery conference with the prosecutor on May 6, 1996, a year prior
        to trial, at which time he reviewed all the witness statements and physical evidence.

The issue of credibility was resolved in favor of trial counsel. Again, because we will not revisit the
issue of credibility on appeal, we defer to the post-conviction court's ruling in that regard. Id.

        Furthermore, if the claim is based on a failure to properly investigate, then the evidence or
witness must be produced so that the post-conviction judge can properly evaluate the evidence or
the witness. See Id. at 757. The Appellant did not provide any witnesses or evidence to support his
assertion that he failed to receive discovery and, even if true, how such failure prevented him from
making decisions regarding his rights. There is nothing before us that preponderates against the
post-conviction court’s findings of fact. This issue is without merit.

                                     D. Motion for New Trial

        Fourth, the Appellant contends that trial counsel failed to include the above grounds of
ineffectiveness in the Appellant’s motion for new trial, thereby waiving these issues in the direct

                                                  -7-
appeal of his convictions. We have determined that the grounds asserted by the Appellant in his
petition for post-conviction relief are without merit. Therefore, trial counsel was not deficient in
failing to preserve these issues for appellate review.


                                         CONCLUSION

        Based upon the foregoing, we conclude that the proof does not preponderate against the
thorough and excellent findings of the post-conviction court that the Appellant was not denied the
effective assistance of counsel. Accordingly, we find dismissal of the Appellant’s petition for post-
conviction relief proper. The judgment is affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




                                                -8-
