        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 4, 2015


              ANTHONY WILLIAMS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 1102277    J. Robert Carter, Jr., Judge




                No. W2014-02313-CCA-R3-PC - Filed August 18, 2015
                         _____________________________

Petitioner, Anthony Williams, was convicted of first degree murder and especially
aggravated robbery and sentenced to an effective sentence of life in prison. State v.
Anthony Williams, No. W2012-00014-CCA-R3-CD, 2012 WL 5355706, at *4 (Tenn.
Crim. App. Oct. 31, 2012). Petitioner now alleges that his trial counsel was ineffective
for: (1) failing to test the victim‟s jacket for soot and gunpowder; (2) failing to inquire
into a deal that was struck between the State and a witness; (3) failing to object to the trial
court‟s giving a jury instruction on flight; (4) failing to show petitioner a video recording
prior to trial; and (5) failing to impeach a witness. Following our review of the parties‟
briefs, the record, and the applicable law, we affirm the judgment of the post-conviction
court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Anthony Williams, Henning, Tennessee, Pro Se.

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

                                            I. Facts

                                      A. Facts from Trial

        The victim suffered multiple gunshot wounds outside of a store on December 26,
2010, causing him to bleed to death. Id. at *1. Surveillance cameras recorded the
shooting, and witnesses identified petitioner as the shooter. Id. Reginald Williams,1
petitioner‟s cousin, testified that the victim offered to sell Mr. Williams and petitioner
marijuana. Id. The victim and petitioner got into a fight, and then petitioner removed
something from the victim‟s pocket and shot the victim multiple times. Id. Mr. Williams
explained that after the shooting, petitioner ran from the scene. Id. Lisa Barnes, Ms.
Barnes‟ fourteen-year-old son S.B.,2 and thirteen-year-old F.M. witnessed the shooting
and identified petitioner as the shooter. Id. at *2. The jury convicted appellant of first
degree murder and especially aggravated robbery. The trial court sentenced appellant to
life in prison for the murder conviction and to fifteen years for the robbery conviction,
aligning the convictions concurrently, for a total effective sentence of life in prison.

                           B. Facts from Post-Conviction Hearing

        Petitioner was appointed counsel prior to his post-conviction hearing, but
petitioner decided to proceed pro se at both the post-conviction hearing and on appeal.
Although it appears from the record that the post-conviction court heard and considered
testimony from an evidentiary hearing on October 17, 2013, the appellate record only
contains the transcripts of multiple report dates3 and a hearing that was conducted on
June 27, 2014. Accordingly, our summary of the facts from the post-conviction hearing
is limited to the evidence presented on June 27, 2014.


       1
          Because Anthony Williams (petitioner) and Reginald Williams share the same last
name, to avoid confusion, we will refer to Anthony Williams as “petitioner” and Reginald
Williams as “Reginald Williams” or “Mr. Williams” throughout the body of this opinion.
       2
         In furtherance of this court‟s policy to protect the identity of minors, we will refer to
the minors associated with this case by their initials.
       3
           In its order, the post-conviction court specifically refers to a November 21, 2013
hearing. This transcript was included in the appellate record. However, during the hearing, the
parties merely discussed potential issues that petitioner wanted to include in his petition,
petitioner‟s desire to dismiss his appointed attorney, and a missing witness. Therefore, because
no relevant evidence was presented at this hearing, we have not included it in our summary of
the facts.
                                               -2-
        Trial counsel testified that he did not know if Reginald Williams and the State had
made any type of agreement and that he did not know if Mr. Williams had ever been a
defendant in the case. Trial counsel agreed that Mr. Williams may have been a suspect
during the police investigation but acknowledged that he never inquired about an alleged
agreement between the State and Mr. Williams. Trial counsel stated that he did not have
the victim‟s jacket tested for soot and gunpowder because he had no “legal reason” to
submit it for testing. Trial counsel stated that his strategy at trial was to prove that
petitioner was not the perpetrator of the shooting. Trial counsel stated that he could not
recall if F.M. was incarcerated at the time of petitioner‟s trial and explained that unless
F.M. had a criminal conviction, trial counsel could not have impeached F.M. with his bad
conduct. Trial counsel asserted that he showed petitioner and petitioner‟s parents the
surveillance video recording of the shooting prior to trial and that petitioner watched the
video several times. Trial counsel explained that based on the facts of the case ―
petitioner‟s fleeing the scene of the shooting and later arrest by law enforcement ― he
did not believe that there was a sufficient legal basis to object to a jury instruction on
flight.

       During cross-examination, trial counsel stated that he conducted his cross-
examination of witnesses based on his knowledge of the facts of the case. Trial counsel
also testified that a juvenile witness could not be impeached with juvenile incarceration.
Trial counsel agreed that testing the victim‟s jacket was irrelevant to the case and did not
conform to the trial strategy. Trial counsel testified that there was proof presented at
petitioner‟s trial that the perpetrator of the shooting ran from the scene and was not
located soon thereafter.

       Petitioner testified that he did not see the surveillance video of the shooting until
trial. Following the hearing, the post-conviction court denied the petition. This appeal
follows.

                                        II. Analysis

        Petitioner argues that his trial counsel was ineffective for: (1) failing to test the
victim‟s jacket for soot and gunpowder; (2) failing to inquire into a deal that was struck
between the State and a witness; (3) failing to object to the trial court‟s giving a jury
instruction on flight; (4) failing to show petitioner a video recording prior to trial; and (5)
failing to impeach a witness. The State responds that trial counsel was not ineffective.

                                   A. Standard of Review

       To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
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States.” Tenn. Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of
proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann.
§ 40-30-110(f). “„Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.‟”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the post-conviction court‟s determination of the
credibility of witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing
R.D.S. v. State, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of
witnesses is a matter entrusted to the post-conviction judge as the trier of fact. R.D.S.,
245 S.W.3d at 362 (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-
conviction court‟s findings of fact are conclusive on appeal unless the preponderance of
the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011)
(citing 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)). However, conclusions of law receive no presumption
of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001)).
As a mixed question of law and fact, this court‟s review of petitioner‟s ineffective
assistance of counsel claims is de novo with no presumption of correctness. Felts v.
State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

       The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution require that a criminal defendant receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose,
523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective
assistance of counsel, he must demonstrate both that his lawyer‟s performance was
deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation
omitted). It follows that if this court holds that either prong is not met, we are not
compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn.
2004).

       To prove that counsel‟s performance was deficient, petitioner must establish that
his attorney‟s conduct fell below an objective standard of “„reasonableness under
prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006)). As our supreme court held:

      “[T]he assistance of counsel required under the Sixth Amendment is
      counsel reasonably likely to render and rendering reasonably effective
      assistance. It is a violation of this standard for defense counsel to deprive a
      criminal defendant of a substantial defense by his own ineffectiveness or
                                            -4-
       incompetence. . . . Defense counsel must perform at least as well as a
       lawyer with ordinary training and skill in the criminal law and must
       conscientiously protect his client=s interest, undeflected by conflicting
       considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial
counsel‟s performance, this court “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel‟s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).

        To prove that petitioner suffered prejudice as a result of counsel‟s deficient
performance, he “must establish a reasonable probability that but for counsel‟s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As
such, petitioner must establish that his attorney‟s deficient performance was of such
magnitude that he was deprived of a fair trial and that the reliability of the outcome was
called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463
(Tenn. 1999)).

                       B. Ineffective Assistance of Counsel Claims

                               1. Testing the Victim‟s Jacket

        Petitioner argues that trial counsel should have had the victim‟s jacket tested for
soot and gunpowder because the absence of these substances would show that the
shooting was not close range, which was the State‟s assertion. At the post-conviction
hearing, trial counsel stated that he did not have the jacket tested because he had no
“legal reason” to submit it for testing. Trial counsel stated that his strategy at trial was to
prove that petitioner was not the perpetrator of the shooting; therefore, testing the
victim‟s jacket was irrelevant to petitioner‟s defense and did not conform to the trial
strategy. Petitioner concedes that the victim‟s pants were tested and were free of soot and
gunpowder. Based on this information, petitioner has failed to prove that trial counsel
was deficient. Trial counsel had a clear and reasonable trial strategy to challenge the
identity of the perpetrator. Whether the shooting was close range was not determinative
of this theory and is especially unavailing given that the jury saw a video of the shooting
occur. Petitioner is without relief as to this issue.




                                             -5-
                              2. Deal with Reginald Williams

        Petitioner argues that trial counsel was ineffective for failing to inquire into a deal
that was made between the State and Reginald Williams. However, a petitioner in a post-
conviction case bears the burden of proving all factual allegations by clear and
convincing evidence, Tenn. Code Ann. § 40-30-110(f), and petitioner has failed to
provide any proof that such a deal was even made, much less that trial counsel was
deficient in failing to investigate such an agreement. Petitioner is not entitled to relief in
this instance.

                                  3. Flight Jury Instruction

       Petitioner also argues that trial counsel was deficient in failing to object to a jury
instruction on flight. “It is well-settled that a defendant has a constitutional right to a
complete and correct charge of the law, so that each issue of fact raised by the evidence
will be submitted to the jury on proper instructions.” State v. Dorantes, 331 S.W.3d 370,
390 (Tenn. 2011) (citations omitted). It is the duty of the trial judge to properly instruct
the jury as to the law governing the issues fairly raised by the evidence introduced at trial
and the nature of the proceedings. Id. (quoting State v. Teel, 793 S.W.2d 236, 249 (Tenn.
1990)). To properly charge the jury regarding flight, there must be sufficient evidence of
“„both a leaving of the scene of the difficulty and a subsequent hiding out, evasion or
concealment in the community, or a leaving of the community for parts unknown.‟” State
v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998) (emphasis omitted) (quoting State v.
Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989)).

        Petitioner asserts that he did not attempt to hide from police and that he was found
in his mother‟s house. However, petitioner presented no evidence of this fact at the post-
conviction hearing. A petitioner in a post-conviction case bears the burden of proving all
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
Trial counsel testified at the post-conviction hearing that based on the facts of the case, he
did not believe that there was a sufficient legal basis to object to a jury instruction on
flight in petitioner‟s case. The evidence at trial showed that the shooter ran from the
scene of the shooting. See Anthony Williams, 2012 WL 5355706, at *1. One of the
investigating police officers also testified at trial that petitioner was found as a result of a
Crime Stoppers‟ tip. Id. at *3. Petitioner‟s assertion that he was found at his mother‟s
house does not negate the propriety of a flight instruction in these circumstances.
Therefore, trial counsel was not deficient in failing to object to the flight jury instruction.
Furthermore, petitioner has failed to prove prejudice because even if the flight instruction
had not been given, there were still four eyewitnesses that identified petitioner as the
shooter, which shows that even without the instruction, there was not a reasonable
probability that the trial would have had a different outcome. Petitioner is not entitled to
relief.
                                              -6-
                                     4. Video Recording

        Petitioner also argues that trial counsel failed to show him the video recording of
the shooting prior to trial. However, at the post-conviction hearing, trial counsel asserted
that he had shown both petitioner and petitioner‟s family the video and that petitioner
viewed the video several times prior to trial. Furthermore, even if petitioner‟s assertion is
true, petitioner has failed to establish a reasonable probability that but for counsel‟s errors
the result of the proceeding would have been different given the four witness
identifications of him. Petitioner has failed to show that trial counsel was deficient or
that he suffered any prejudice; therefore, he is not entitled to relief.

                                  5. Impeachment of F.M.

        Lastly, petitioner argues that trial counsel was ineffective for failing to inquire into
F.M.‟s incarceration during trial and any alleged deal F.M. had made with the State,
which would have allowed trial counsel to impeach F.M. with this information.
However, petitioner failed to present any proof that F.M. was incarcerated during his trial
or that any deal was made with the State. A petitioner in a post-conviction case bears the
burden of proving all factual allegations by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f). At the post-conviction hearing, trial counsel testified that he could
not recall if F.M. was incarcerated during petitioner‟s trial but asserted that he could not
have impeached F.M. with evidence of juvenile incarceration. Tennessee Rule of
Evidence 609(d) states that evidence of a juvenile adjudication is generally not
admissible but that a court “may, however, allow evidence of a juvenile adjudication of a
witness other than the accused in a criminal case if conviction of the offense would be
admissible to attack the credibility of an adult and the court is satisfied that admission in
evidence is necessary for a fair determination in a civil action or criminal proceeding.” In
light of all of this information, petitioner has failed to show that trial counsel was
deficient in failing to impeach F.M. with any alleged juvenile adjudication or inquire into
any alleged transaction with the State. As such, petitioner is not entitled to relief.

                                      CONCLUSION

      Based on the parties‟ briefs, the record, and the applicable law, we affirm the
judgment of the post-conviction court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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