             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                     Assigned on Briefs June 5, 2007

               MARCILLO C. ANDERSON v. STATE OF TENNESSEE

                      Direct Appeal from the Criminal Court for Shelby County
                               No. 02-00660-B    Chris Craft, Judge



                      No. W2006-02231-CCA-R3-PC - Filed September 21, 2007


The petitioner, Marcillo C. Anderson,1 appeals the denial of his petition for post-conviction relief.
He argues that counsel was ineffective due to his failure to: (1) adequately communicate with him
concerning his case; (2) provide him with discovery materials regarding his case; (3) adequately
investigate the case; and (4) adequately present proof that he was acting in self-defense. After
review, we affirm the denial of his petition for post-conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Vicki M. Carriker, Memphis, Tennessee, for the appellant, Marcillo C. Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                       OPINION

       Following a jury trial, the petitioner was convicted of second degree murder and sentenced
to twenty years as a Range one, standard offender. He was classified as a violent offender which
required service of one hundred percent of his sentence. The facts, as stated on direct appeal, are as
follows:
         Maurice Telford and the appellant spent a portion of the day on August 19, 2001,
         shooting dice at an apartment complex in Memphis. Mr. Telford had known the
         appellant for approximately eight years. During the dice game, Frederick Hill, a

         1
          The petitioner has spelled his name two different ways in the record below. W e will proceed with his name
spelled “Marcillo” as it was on his first petition for post-conviction relief and on the record prior to his post-conviction
hearing.
resident of the apartment complex, walked up to the appellant and Mr. Telford and
asked if he could join in on the game. The appellant told Mr. Hill “No” and Mr. Hill
replied, “Come on, let me shoot.” The appellant continued to refuse, and the two
started “tussling.” Mr. Telford could not tell who started the altercation, but saw Mr.
Hill put the appellant in a “choke hold” before finally letting him go. The appellant
then smacked Mr. Hill. The altercation broke up without outside intervention. Mr.
Hill and the appellant left the area, going their separate ways, without saying
anything to each other.

On August 20, 2001, at approximately 9:00 a.m., Mr. Hill visited his mother at her
home, which was located close to his apartment complex. He seemed nervous,
constantly walking around the house and looking out the windows. At one point, he
took the phone out of his mother’s bedroom and walked out the front door, around
the house and then back inside through the kitchen door. While her son was outside,
Mr. Hill’s mother noticed a green Maxima automobile with tinted windows outside
her house. Although the window to the car was cracked and she saw a man inside,
she could not identify the driver. When Mr. Hill came back into the house, he sat
down for a few minutes. He dropped and shook his head while he was sitting. Mr.
Hill then told his mother he was going back to the apartment he shared with his
girlfriend to fix their front door. Mr. Hill walked out the front door, got on a bicycle
and rode off toward his apartment.

While on the way to his apartment, Mr. Hill encountered the appellant. Cleotria
Norman, who worked at the apartment complex, was repairing a window on a nearby
apartment when he heard an argument. Mr. Norman looked in the direction of the
voices and saw Mr. Hill sitting on his bicycle with his hands on his handlebars. The
appellant was pointing a gun directly at Mr. Hill. Mr. Norman heard Mr. Hill say,
“Get the pistol out of my face” to which the appellant replied, “No, I’m going to
shoot you.” Immediately thereafter, the appellant shot Mr. Hill. After hearing the
gunshot, Mr. Norman ran to call 9-1-1. While he was running he heard another
gunshot. When Mr. Norman returned to the scene of the incident, Mr. Hill was
laying on the ground.

Andre Nelson and David Meyer, two officers with the Memphis Police Department,
were called to the scene of the shooting. When they arrived, Mr. Hill was laying face
down on the ground next to the bicycle, gasping for breath. Mr. Hill’s eyes then
rolled to the back of his head, and he expired at the scene. The paramedics attempted
to resuscitate Mr. Hill when they arrived, but their attempts were unsuccessful. No
weapons were found near Mr. Hill’s body. A baseball cap, a bicycle and two empty
.9 millimeter shell casings were found at the scene.

An autopsy was performed on Mr. Hill by the Shelby County Medical Examiner, Dr.
O’Brien C. Smith. According to his testimony, a .9 millimeter bullet entered the left


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       side of Mr. Hill’s chest, passing through his left lung, spine, spinal cord, right lung,
       and ribs. The bullet was recovered on the opposite side of Mr. Hill’s body. Dr.
       Smith opined that the cause of death was a gunshot wound to the chest.
State v. Marcillo Anderson, No. W2003-00013-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 31,
at *2-4 (Tenn. Crim. App. at Jackson, Jan. 13, 2004).

        During the post-conviction hearing, the petitioner testified that he retained trial counsel
before he was arrested. Counsel represented him during his preliminary hearing and at trial. The
petitioner said that the only time he had spoken to counsel was on the day he retained him. The
petitioner testified that counsel never visited him in jail prior to the preliminary hearing and that he
never received any discovery material from counsel. He indicated that he did not request the
discovery from counsel because he thought his attorney was “doing what he’s supposed to do.” He
said that their last conversation was one day prior to his trial when counsel came to tell him that they
were going to trial. The petitioner claimed that he spoke to counsel about witnesses he believed
would be helpful but doubted that counsel contacted them. He did not ask counsel to file any
motions because he did not understand what was going on at that time. The petitioner said that he
thought counsel should have asked more questions of the prosecution’s witnesses and that counsel
should have called more witnesses on his behalf.

        On cross-examination, the petitioner acknowledged that he shot the victim and then hid for
a few days. He said that he hired trial counsel and made arrangements to surrender to police but was
arrested in the parking lot at counsel’s office. After his arrest, he gave a statement to the police in
which he admitted killing the victim in self-defense. The petitioner argued that counsel should have
filed a motion to raise the defense of self-defense. Counsel for the State attempted to explain to the
petitioner that attorneys do not have to file motions to raise self-defense theories; they can simply
ask the court to instruct the court to give a jury instruction on self-defense. He said that the trial
court should have instructed the jury as to self-defense. He again stated that counsel only met with
him on one occasion prior to trial.

         The petitioner said that he was released on bond prior to the preliminary hearing but later
failed to appear in court, was again arrested, and remains in custody. He testified that, while he was
in custody awaiting trial, counsel did not visit him or review the discovery materials with him. The
petitioner testified that counsel should have called Latisha Fields to testify on his behalf but
acknowledged that she was not present at the shooting. He also acknowledged that counsel called
Maurice Telford as a witness even though he was not present at the shooting. This witness was
present when the defendant and the victim engaged in an argument prior to the shooting. The
petitioner said that counsel should have called his fiancé and his parents to testify on his behalf.

       He agreed that Cleotria Norman, a maintenance man in the apartment complex where the
shooting occurred, was the only eyewitness to the incident. He acknowledged that counsel
thoroughly cross-examined this witness about what this witness actually observed and the
inconsistencies between his statement to police and his trial testimony. The petitioner said that



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counsel came to him with an offer of a fifteen-year sentence prior to trial, but he rejected it. He said
that it was his decision not to testify at trial.

        Next, trial counsel testified that he represented the petitioner at both the General Sessions and
Circuit Court levels of the case. Counsel said that he previously represented the petitioner and that
his notes reflected that he met with the petitioner at least three times in the jail. The petitioner told
him about the argument the day before the shooting, and counsel issued a subpoena for Mr. Telford
so he could interview him and prepare for trial. Counsel said that he reviewed the discovery with
the petitioner and specifically reviewed the testimony of the eyewitness. Counsel did not go to the
scene of the shooting. He said that he wanted to put in the jury’s mind that the petitioner’s actions
were self-defense and to show that the argument between the petitioner and the victim was not just
a fight. He thought it was important to show that the victim started the fight and got the petitioner
into a head lock during the altercation. Counsel said that he thought the court was wrong in not
instructing the jury on self-defense though the court gave him ample opportunity to argue his
position. He opined that voluntary manslaughter was a more plausible, factual determination for the
jury than self-defense.

        Counsel testified that the petitioner wanted a trial from the very beginning. Counsel tried to
negotiate a plea down to voluntary manslaughter, but the State would not accept that arrangement.
Counsel did not investigate the backgrounds of the State’s witnesses in order to impeach their
credibility nor did he call the petitioner’s proposed witness, Latisha Fields, because counsel did not
feel her testimony was relevant. He did not want to appear to the jury as if he was grasping for
straws.

         On cross-examination, counsel again said that he met with the petitioner at least three times.
He said that his practice was to conduct the initial interview, review the facts with his client, and
then, at a later time, review the facts with the client again to see if the story had changed in any way.
Counsel testified that the petitioner’s story basically remained the same, that he was acting in self-
defense based on a fight that occurred the previous day.

        The post-conviction court later issued a written order denying the petition for post-conviction
relief and found therein that the petitioner failed to carry his burden of proof that his counsel was
ineffective.

                                               Analysis

        On appeal, the petitioner contends that counsel was ineffective in four areas: (1) counsel
failed to adequately communicate with him concerning his case; (2) counsel failed to provide him
with discovery materials regarding his case; (3) counsel failed to adequately investigate the case; and
(4) counsel failed to adequately present proof that the petitioner was acting in self-defense. Since
the petitioner alleged ineffective assistance of counsel, it was the petitioner’s burden in the post-
conviction court to prove the allegations by clear and convincing evidence in order to get relief.
T.C.A. § 40-30-110(f). We are required to affirm the post-conviction court’s findings unless the


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petitioner proves that the evidence preponderates against those findings. State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999).

         For a petitioner to successfully overturn a conviction based on ineffective assistance of
counsel, the petitioner must first establish that the services rendered or the advice given was below
“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an
adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not entitled
to relief. Our supreme court described the standard of review as follows:
         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 both if the defendant makes an insufficient showing of one
         component.
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at
2069). The petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy, and may not criticize a sound, but unsuccessful, tactical decision made after
adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
see Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        The petitioner bears the burden of proving his allegations by clear and convincing evidence.
T.C.A. § 40-30-110(f). The findings of fact made by the post-conviction court are conclusive and
will not be disturbed unless the evidence contained in the record preponderates against them. See
Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

         The petitioner’s first contention is that counsel did not adequately communicate with him
concerning his case. He testified during the post-conviction hearing that counsel only met with him
on the day before trial and that they only discussed that the matter was going to trial. Counsel
testified that his notes revealed that he met with the petitioner at least three times while the petitioner
was incarcerated and that they reviewed the case during each meeting. The post-conviction court
resolved the issue of credibility against the petitioner and believed counsel. The court further found
that the petitioner failed to show additional visits would have made a difference in the outcome of
the trial and dismissed the issue for lack of credible proof. We agree. The petitioner has not shown
that additional meetings would have been beneficial or that the meetings that did occur were
inadequate. We conclude that the petitioner has not proven his allegations by clear and convincing
evidence.

        Next, the petitioner argues that counsel failed to provide him with discovery materials.
Counsel testified that he received and reviewed the discovery materials with the petitioner. The post-
conviction court also resolved this issue in favor of counsel’s testimony. Again, the petitioner has
failed to prove his allegations by clear and convincing evidence. The findings of fact made by the
post-conviction court are conclusive and will not be overturned unless the evidence preponderates


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against them. The petitioner has provided nothing to support his argument; therefore, we must
affirm the judgment from the post-conviction court.

         Third, the petitioner contends that trial counsel failed to adequately investigate and
specifically asserts that counsel should have called additional witnesses at trial. However, the
petitioner did not call these additional witnesses during the post-conviction hearing. “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); see also Scott v. State, 936 S.W.2d
271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the only way the petitioner can establish
that (1) a material witness existed who could have been discovered but for counsel’s negligent
investigation of the case; (2) a known witness was not interviewed; (3) the failure to discover or
interview the witness caused him prejudice; or (4) the failure to present a known witness resulted
in the denial of critical evidence which caused the petitioner prejudice. Black, 794 S.W.2d at 757.
Neither the trial court nor this court can speculate on what a witness’s testimony might have been
if introduced by counsel. Id. The petitioner has also failed to demonstrate how counsel visiting the
crime scene would have been beneficial to his case. The petitioner admitted that he was responsible
for shooting the victim. He argues that counsel did not interview potential witnesses. However,
counsel was unable to interview an alleged eyewitness because the petitioner did not know his real
name or where to locate him. The petitioner has failed to meet his burden of showing that counsel
did not adequately investigate the case because he fails to present any evidence that might have been
discovered had more investigation been conducted.

        Finally, the petitioner argues that trial counsel failed to adequately present proof that the
petitioner was acting in self-defense. Essentially, he contends that counsel failed him by his inability
to prove something for which there was no evidentiary basis. This court has previously concluded
that the record did not justify an instruction on self-defense. See State v. Marcillo Anderson, 2004
Tenn. Crim. App. LEXIS 31, at *6-8. The petitioner has not provided any evidence to refute this
conclusion. Therefore, we conclude that the petitioner has not met his burden of proof.

                                             Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the post-
conviction court.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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