        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 13, 2010

              CHRISTOPHER SMITH v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Shelby County
                         No. P-28198    Paula Skahan, Judge


              No. W2009-01228-CCA-R3-PC - Filed September 28, 2010


The petitioner, Christopher Smith, appeals the denial of his petition for post-conviction relief.
On appeal, he argues that his trial counsel was ineffective and that his due process rights
were violated when the trial court failed to grant a severance. After careful review, we
affirm the judgment from the post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Christopher Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        The petitioner and his co-defendants were charged in connection with the especially
aggravated kidnapping of two victims and the subsequent murder of one of those victims.
The defendant, his co-defendants, and the victims were all members of the Gangster
Disciples in Memphis. The facts underlying this case can be found in the opinion by this
court on direct appeal in State v. Mickens, 123 S.W.3d 355, 365-68 (Tenn. Crim. App. 2003).
The facts involved testimony by a former member of the Memphis Gangster Disciples about
the organization of the gang. The events leading up to the kidnappings and murder involved
the victim showing disrespect for higher-ranking members of the gang. The kidnappings and
murder were punishment for the victim’s alleged transgressions.
        During the hearing on the petition for post-conviction relief, the petitioner testified
that he was tried and convicted with three co-defendants in 1999, after other co-defendants
had been tried and convicted for the same crimes. He filed a petition for post-conviction
relief after his attempts to appeal his convictions were unsuccessful. He asserted that he
received ineffective assistance of counsel. He testified that counsel failed to challenge the
testimony of Robert Walker, Timothy Aldridge, and the victim, Ricky Aldridge. The
petitioner also said that counsel was ineffective for failing to continue to question Walker
after he testified that he did not know the petitioner. The petitioner acknowledged that
counsel used a prior inconsistent statement in his examination of the victim but claimed that
counsel should have made a different argument to the jury.

       The petitioner testified that counsel should have conducted a background check on
each witness. He also said that counsel did not effectively cross-examine the victim as to his
alleged inability to choose the petitioner from a photograph array. He further testified that
counsel should have more effectively cross-examined the victim’s brother, an active gang
member and participant in the victim’s beating.

       The petitioner testified that counsel should have better articulated the reasons
supporting a severance of the petitioner from his co-defendants. The petitioner claimed that
counsel made no move to sever or request a mistrial until after a co-defendant showed a gang
sign to a witness.

       Trial counsel testified that he used a private investigator to interview people who
would speak to the defense. He said that he, as well as every other attorney who represented
a co-defendant in the petitioner’s trial, cross-examined Walker. When Walker admitted that
he did not know the petitioner, despite his leadership position in the gang, he deemed the
testimony beneficial and decided against further cross-examination of the witness. Counsel
cross-examined each State witness and reviewed their prior testimony from the other trial
involving these crimes. He testified that he would have challenged any inconsistent
testimony. He filed a motion for a severance that was denied by the trial court and also was
unsuccessful in his challenge of the denial of a severance on direct appeal.

       The post-conviction court denied relief and found that counsel’s decisions concerning
the cross-examination of the State’s witnesses and the motion to sever were not unreasonable
decisions.

                                           Analysis

       The petitioner raises two issues on appeal. First, he argues that counsel was
ineffective but makes no argument on appeal other than a boilerplate sentence on the basis

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of post-conviction relief and a statement that he relies on the trial testimony for his argument.
The State argues that this issue should be waived pursuant to Rule 10(b) of the Rules of the
Tennessee Court of Criminal Appeals. The petitioner does not cite to the record or raise any
new argument. Though waiver is appropriate, it is unnecessary because, based on the
petitions, the transcript of the hearing, and the record as a whole, the petitioner has failed to
show that trial counsel was ineffective.

        The right to effective assistance of counsel is safeguarded by the constitutions of both
the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn. Const. Art.
I, § 9. In order to determine the competence of counsel, Tennessee courts have applied
standards developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that the same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The United States
Supreme Court articulated the standard in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), which is widely accepted as the appropriate standard for all
ineffective assistance of counsel claims. The standard is firmly grounded in the belief that
counsel plays a role that is “critical to the ability of the adversarial system to produce just
results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standard is a two-prong test: First,
the defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that
this deficient performance prejudiced the defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id.
at 687, 104 S. Ct. at 2064. The Strickland court further explained the meaning of “deficient
performance” in the first prong of the test in the following way: In any case presenting an
ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was
reasonable considering all the circumstances. . . . No particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety of circumstances faced by
defense counsel or the range of legitimate decisions regarding how best to represent a
criminal defendant. Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that
counsel’s representation fell below an objective standard of reasonableness under prevailing
professional norms.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996)).

        As for the prejudice prong of the test, the Strickland court stated that “[t]he defendant
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.” 466 U.S. at 694, 104 S. Ct.
at 2068; see also Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner
failed to establish that “there is a reasonable probability that, but for counsel’s errors, the

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outcome of the proceedings would have been different”).

       The issues of deficient performance of counsel and possible prejudice to the defense
are mixed questions of law and fact and, thus, are subject to de novo review by the appellate
court. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). The reviewing court must indulge a strong presumption that the conduct
of counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, 104 S. Ct. at 2066, and may not second-guess the tactical and strategic choices
made by trial counsel unless those choices were uninformed due to inadequate preparation.
See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a strategy or tactic failed
or hurt the defense does not, alone, support the claim of ineffective assistance of counsel.
See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). Finally, a person
charged with a criminal offense is not entitled to perfect representation. See Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in Burns, 6 S.W.3d at 462,
“[c]onduct that is unreasonable under the facts of one case may be perfectly reasonable under
the facts of another.”

         We conclude that the record supports the post-conviction court’s dismissal of the
petition for post-conviction relief. During the hearing on the petition for post-conviction
relief, the post-conviction court accredited the testimony of trial counsel over the testimony
of the petitioner. Counsel testified that he prepared for trial by reviewing all the prior trial
testimony and by hiring a private investigator. He reviewed the private investigator’s work
with the petitioner. He also sought a severance for the petitioner, which was denied by the
trial court and affirmed by this court on appeal. The petitioner made no further argument on
appeal to support his position and failed to show that counsel’s performance was either
deficient or prejudicial. The petitioner is not entitled to relief on this issue.

        Next, the petitioner argues that the trial court should have granted him a severance
from his co-defendants. This court has previously determined this issue in the direct appeal
of this case. See State v. Mickens, 123 S.W.3d at 383-87. The Post-Conviction Procedure
Act precludes review of previously determined issues. T.C.A. § 40-30-106(g)-(h).
Tennessee Code Annotated section 40-30-106(h) states that a ground for relief is previously
determined “if a court of competent jurisdiction has ruled on the merits after a full and fair
hearing. A full and fair hearing has occurred where the petitioner is afforded the opportunity
to call witnesses and otherwise present evidence, regardless of whether the petitioner actually
introduced evidence.” Counsel sought a severance, but the motion was denied by the trial
court. Counsel unsuccessfully appealed the denial of the severance to this court. Therefore,
this issue is previously determined, and the petitioner is not entitled to relief on this issue.

                                          Conclusion

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       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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