           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                      June 3, 2008 Session

                   ANTHONY BROWN v. STATE OF TENNESSEE

                         Appeal from the Circuit Court for Obion County
                          No. C06-410     William B. Acree, Jr., Judge



                   No. W2007-02402-CCA-R3-PC - Filed November 5, 2008


The petitioner, Anthony Brown, was denied post-conviction relief by the Circuit Court for Obion
County from his convictions for first degree murder, especially aggravated robbery, and especially
aggravated burglary and the resulting effective sentence of life without parole in the Department of
Correction. He appeals and contends that he is entitled to post-conviction relief because (1) he was
denied the effective assistance of counsel, and (2) the state engaged in improper closing argument.
We affirm the trial court’s judgment.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which ALAN E. GLENN and D. KELLY
THOMAS, JR., JJ., joined.

James T. Powell, Union City, Tennessee, for the appellant, Anthony Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

          The facts underlying the petitioner’s convictions were summarized by this court on direct
appeal:

                         On the morning of May 1, 2003, Hilon Pruitt, the victim in
                 this case, did not show up for work. Concerned, Jerry Sherrill, Sr.,
                 and William Crowell (“Mustard”), two co-workers and friends of the
                 eighty-one-year-old victim, went to his residence where they
                 discovered his body lying face up in the living room. A console
                 television was turned over and lying on his legs, butcher knives were
                 sticking out of his abdomen and neck, and an ice pick protruded from
                 the center of his neck. A portable television that had been smashed
down on his head was lying beside his body. Sherrill and Mustard
lifted the television off the victim’s legs and called the police.

         Police officers, Tennessee Bureau of Investigation (T.B.I.)
Agent Joe Walker, and the county medical examiner, Dr. Allen C.
Gooch, soon arrived at the scene. Inside the home, Agent Walker
searched for fingerprints left by the assailant, finding a blood pattern
in the dining room and a palm print on the back of the television. The
pattern in the print on the television indicated that the assailant had
worn gloves. The unidentified assailant left the kitchen utensil
drawer open and the victim’s billfold lying beside his body. Although
the billfold contained no cash, approximately $900 was found in the
victim’s front right shirt pocket. A trigger guard and a firing
mechanism also [lay] next to the victim’s body, but no gun was ever
recovered.

       Based upon the condition of the victim’s body, Dr. Gooch
determined the time of death to have been between 7:00 p.m. and
12:00 a.m. on the previous night of April 30, 2003. An autopsy
revealed that the cause of death was the result of multiple injuries,
including eight major stab wounds to the victim’s body as well as
blunt injuries to his head and neck. Dr. O.C. Smith, who was
responsible for performing the autopsy, could not determine whether
an unfound item may have caused some of the injuries or whether
more than one assailant perpetrated the crime.

        The defendant was charged with the crimes based upon the
testimony of several witnesses. However, initially, several other
suspects were considered due to their histories, including Scott
Haynes. Haynes was stopped by police officers for questioning
regarding a separate home invasion that occurred in Crockett County
two nights after the murder of the victim in this case. This home
invasion also involved the assault of an older man. When stopped,
Haynes took off running. An inventory search of Haynes’ vehicle
uncovered a glove with a weave pattern similar to the weave pattern
in the print found at the victim’s home. However, the glove was a
common “stock variety glove,” and the palm print was never checked
against that of Haynes. Because no physical evidence connected
Haynes to the crime, Agent Walker ultimately disregarded Haynes as
a potential suspect. Furthermore, Haynes had an alibi: his
stepdaughter, Joyce Cavness, stated that Haynes was having a
cookout the night of April 30, 2003, and that she was there until 8:30
p.m. or 9:00 p.m.



                                  -2-
        At trial, the victim’s daughter, Linda Brown, testified that her
father would have been asleep by 9:00 p.m. and that he did not leave
her house on the night of April 30, 2003, until about 7:15 p.m.
Milton Snow testified that he received a call from his nephew, the
defendant, around 8:40 p.m. on the evening of the murder. Snow,
who stated that he was babysitting at the time, testified that the
defendant confessed to killing the victim. Snow stated that the
defendant admitted to stabbing the victim and to pushing a television
onto his head. Snow stated that the defendant showed him twelve
dollars stained with blood which he stated that he had stolen from the
victim.

         Joshua McElrath testified that he saw the defendant on the
basketball courts on Nash Street at about 8:30 p.m. on the night of the
victim’s murder. Contrary to Snow’s testimony that he was
babysitting, McElrath stated that Snow was at the basketball courts
with him and the defendant. The defendant looked “like he had just
got out of the shower or something . . . he was nervous.” McElrath
testified that the defendant then confessed the crime to him, stating
that “the old man jumped on his back” and that he just “snapped and
he killed him.” At first McElrath did not believe the defendant, so he
followed the defendant over to the victim’s house and saw “the old
man laying on the floor with some knives in him.” McElrath stated
that the defendant did not implicate anyone else in the crime.

        Robbie Walker testified that [she] saw the defendant coming
from the side of the victim’s house about four days prior to the
murder and that he appeared nervous and sweating. She remembered
overhearing the defendant recount the murder while she pretended to
be asleep. Walker stated that the defendant admitted that “he got high
off some pills, and he didn’t have nothing to do, so he went over there
and he beat the old man till his arms got tired, then he started sticking
the old man.” Walker stated that the defendant referred to the victim’s
blood as red “Kool-Aid,” the defendant’s favorite color. Contrary to
Walker’s belief that the defendant was speaking to Snow and “Tie
Dye,” an alleged nickname for Stacey Parham, Parham denied ever
being present. Parham stated it was only later that he asked the
defendant about the crime and was told “stay out of my business.”

        During the course of the trial, the State also introduced several
witnesses who testified that, while in jail, the defendant admitted his
involvement in the crime. Timothy McPherson, who stated that he
was in the same jail pod with the defendant, testified that the
defendant told other inmates that he had messed up his life because
he killed a man over twelve dollars.

                                  -3-
         Joseph Isbell testified that the defendant was showing crime
scene pictures that he had received from his lawyer around in jail.
Isbell stated that the defendant admitted to the crime, but implicated
a second assailant. Isbell testified that the defendant admitted to
getting the knives out of the victim’s drawer and that he was
retaliating because the “man was calling the police and stuff on him
saying they was trafficking and stuff, a lot of trafficking.”

       Jerry Sullivan also testified to overhearing the defendant
admit to the murder while in jail. Sullivan stated:

       [The defendant] told about how they got together, him
       and this dude got high, snorted some powder, smoked
       some weed, and told the dude they was going to get
       him. So he snuck up on him in his house, and dude
       was bending over looking at the television, or doing
       something, and he snuck up on the dude and told the
       dude, “Hey, what did I tell you about what I was
       going to do to you?” So when the dude turned
       around-see, I didn’t know it was an old man at that
       time. I thought it was a young dude about like our
       age, that he was trying to interfere with dude’s
       business out there on the street . . . . So when dude
       turned around, he said, “Didn’t I tell you what I was
       going to do to you,” the old man said, “Whatcha
       doing here,” and he stabbed him in the stomach.

Sullivan also testified that the defendant implicated another assailant
in the crime.

         Timothy Carr was also in the same jail pod with the
defendant. Carr testified that the defendant “admitted to doing some
of it, but he said he didn’t act alone.” Carr stated that the defendant
implicated McElrath as the other assailant. Carr further testified that
the defendant has threatened him and asked him to ensure that Snow
and Walker were not available to testify. According to Lieutenant
Rick Kelly of the Union City Police Department, the defendant is
affiliated with the Vice Lords, whereas Carr is affiliated with a rival
gang, the Gangster Disciples.

        The defense argued that T.B.I. forensic scientists, Darrin
Shockey and Donna Nelson, were not able to match any physical
evidence from the scene to the defendant. The only DNA present
under the victim’s fingernails and at the scene was either the victim’s
own or matched to an unknown person. The defense urged the jury

                                 -4-
               to consider the possibility that the crime was committed by one of the
               other initial suspects. Kay Perkins, who lived near the victim,
               testified to seeing Haynes and another man riding up and down the
               streets in the neighborhood “a couple of days to a week prior to the
               murder.” Nolan Simms also testified to seeing Haynes in the area
               near the time of the murder, at Jerry Sherrill’s salvage yard. Ann
               Sellers, another neighbor, saw a “strange car” pull into the
               neighborhood on the night of the victim’s murder. Sellers testified
               that two white males “dressed like womens” exited the car and then,
               about twenty or thirty minutes later, “left like they was in a hurry.”

                      The defense also attempted to introduce the testimony of Pam
               Byrd, and the State requested “a jury-out hearing on the relevance.”
               Byrd was stabbed about twelve years ago by her ex-husband, Robert
               Kimmons, another initial suspect in this case. The defense sought to
               introduce her testimony because “it demonstrates that one of the two
               suspects . . . had a tendency to use a knife.” The trial judge sustained
               the State’s objection to the testimony, stating: “she will not be
               allowed to testify to something that Mr. Kimmons did 12 years ago.
               There’s nothing to tie Mr. Kimmons to this case.”

State v. Anthony Dwayne Brown, No. W2004-01139-CCA-R3-CD, Obion County, slip op. at 1-4
(Tenn. Crim. App. Apr. 18, 2005) (footnote omitted), app. denied (Tenn. Oct. 24, 2005).

        The petitioner filed a petition for post-conviction relief, and counsel was appointed. The
court conducted a hearing on the petition. The evidence at the hearing related to the petitioner’s
allegation that trial counsel had not provided him with the effective assistance of counsel in the
conviction proceedings.

         At the hearing, trial counsel testified that he met with the petitioner several times and
received the names of potential witnesses. He said he had information that before his involvement
in the case, the authorities suspected individuals named Scotty Haynes and Robert Kimmons of
committing the crimes. He said he spoke with Special Agent Joe Walker about these individuals and
learned that Haynes had been arrested in Minnesota and Kimmons was in the Crockett County Jail.
He said his investigators were unable to talk to Kimmons because his attorneys would not allow it.
He said he encouraged Rick Kelly of the Union City Police Department to talk to Kimmons, as well,
but that he did not think Kelly ever did so despite his having talked to Kelly on a near-daily basis
for several weeks. He said he also attempted to convince Walker and Kelly to go to Minnesota and
obtain a palm print from Haynes for comparison with one found at the crime scene but that they
would not do so. He said he thought it would have been a waste of time to subpoena Kimmons for
trial because Kimmons’ lawyers probably would have been successful in having the trial court rule
that Kimmons would not testify and that even if Kimmons did take the stand, he would probably
invoke his Fifth Amendment privilege. Counsel acknowledged that he knew the authorities had
discovered a bloody glove print in the victim’s home as well as a glove with the same pattern in
Haynes’ car.

                                                 -5-
        Trial counsel testified that he presented evidence of a woman who had seen two white men,
one of whom was identified as Haynes, driving around the neighborhood where the victim lived a
week or two before the murder. He said there was evidence Haynes was at a cookout on the evening
of the crimes but that he was able to show that Haynes nevertheless had the opportunity to commit
the crimes after he left the cookout.

        Trial counsel testified that he presented evidence that Kimmons had a friend whose father
was a friend of the victim. He said he did this in an attempt to connect Kimmons and Haynes to the
victim’s murder.

       Trial counsel testified that he talked to the victim of a similar crime committed by Haynes
and Kimmons. Counsel said the victim claimed that a twelve-year-old Mexican boy who told him
that Haynes had said he thought he had committed a murder and needed to get out of town. He said
he was able to get a deputy sheriff to speak with the child but that the child “was not at all helpful.”

        Trial counsel testified that the petitioner identified Tanika Brown, Frederick Pirtle, and
Laretha Bledsoe as alibi witnesses. He said that to the best of his recollection, he investigated Mr.
Pirtle and Ms. Bledsoe and both were “dead ends.” He said that to the best of his memory, Ms.
Brown had given a statement to the authorities which was inconsistent with what the petitioner told
him she would say. He said he had a memorandum which reflected that Ms. Brown told the
authorities that she did not remember being with the petitioner on April 30 or May 1, 2003. He said
that he had investigated Ms. Bledsoe and that he thought he recalled that she was the petitioner’s
girlfriend and that she had been with him beginning at midnight or 1:00 a.m. on the night of the
crimes and through the rest of the night. He said the petitioner told him that he spent the night with
Laretha Bledsoe but that he gave accounts which varied the time the petitioner and Ms. Bledsoe got
together from 10:00 p.m. until 1:00 a.m. He said that based upon the evidence about when the
murder occurred, these witnesses would not have helped the defense because they could not account
for the petitioner’s whereabouts during all of the relevant time period. He stated that the petitioner
provided him with inconsistent information about the identity of his alibi witnesses and that for this
reason, he had listed only Tanika Brown on the Notice of Alibi.

        Trial counsel testified that he did not specifically recall having talked with the petitioner
about the petitioner’s right to testify. He said he did not recall what advice he gave the petitioner
about whether he should testify and admitted he might have advised the petitioner not to testify. He
said, however, that despite his lack of memory, he thought he would remember had the petitioner
had any objection to not testifying or any lack of understanding of his rights.

       The petitioner testified that he gave trial counsel the names Frederick Pirtle and Tanika
Brown as potential alibi witnesses. He said trial counsel told him he had his investigator speak to
Ms. Brown and that she remembered being with the petitioner but could not recall at what time. He
claimed at one point that counsel did not contact Mr. Pirtle, but he said later that counsel told him
he had contacted Mr. Pirtle. He said counsel told him the witnesses would not be helpful if they
could not establish the exact times they were with the petitioner on the night of the crimes. He said
he was with Mr. Pirtle and Ms. Brown from about dark until 11:00 p.m. or 12:00 a.m. The petitioner
denied trial counsel’s assertion that the petitioner had changed his alibi information. He stated that

                                                  -6-
he had always told counsel that he was with both Mr. Pirtle and Ms. Brown and that he had never
mentioned an additional person or said that Mr. Pirtle or Ms. Brown were not present. He said
counsel also failed to call Laretha Bledsoe as a witness, who could verify that he was with Mr. Pirtle
and Ms. Brown and that he was with her afterwards. He said he had identified Ms. Bledsoe to
counsel but that counsel did not call her as a witness.

        The petitioner testified that he wanted to testify but that counsel told him he had an attitude
problem and would not be believed. He said counsel did not explain to him his right to testify. He
said he did not testify because counsel advised him not to do so. He believed, however, that his
testimony would have been beneficial to the defense. The petitioner acknowledged that he was
asked on the witness stand whether he wanted to testify and that trial counsel asked the court to be
allowed to talk with him further. He admitted that after talking with counsel, he returned to the
stand, where he acknowledged that he had been advised of the advantages and disadvantages of
testifying and stated that he did not want to testify. He testified at the post-conviction hearing,
however, that he had answered the questions about whether he would testify as trial counsel had
instructed, rather than giving accurate responses.

        Laretha Bledsoe testified that she had known the petitioner for years and that she had seen
him on the night of the victim’s murder. She said that no one from the public defender’s office
talked to her around the time of trial, although she had spoken with a police officer, whom she told
she saw the defendant with his cousin Tanika and Fred Pirtle around 8:30 or 9:00 p.m. She said she
and the petitioner “called each other back and forth” after that and that the petitioner picked her up
and took her to his house around 11:00 p.m. or midnight, where she stayed with him until the
following afternoon. She said that she was subpoenaed for trial by the state but that she was never
called as a witness. She said that had she been called to testify at trial, she would have testified in
accord with her testimony at the post-conviction hearing.

        Ms. Bledsoe acknowledged, however, that she had given a statement to the authorities saying
that on April 30 between 11:00 p.m. and midnight, she had seen the petitioner and Tanika Brown
riding around. She said she did not say anything in this statement about Fred Pirtle being in the car
with the petitioner and Ms. Brown because she had not been asked. She admitted that in this
statement, she said that the petitioner came to get her at 1:00 or 2:00 a.m. She testified she was not
sure exactly what time the events happened.

        Frederick Pirtle testified he was with the petitioner on the night of the murder. He said they
had been “moseying around” the neighborhood drinking from 8:00 p.m. until about 2:30 or 3:00 a.m.
He said he was never interviewed by anyone from the police department or the public defender’s
office. He acknowledged that he had been interviewed by the police after the petitioner’s conviction
but denied that he remembered that he told them he actually might have been with the petitioner the
night before the crimes.

       The trial court found that the petitioner failed to prove his claims by clear and convincing
evidence. The court denied relief. This appeal followed.



                                                 -7-
        The petitioner claims that he is entitled to post-conviction relief because (1) he received the
ineffective assistance of trial counsel and (2) the state made improper closing argument at trial. The
burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief by clear
and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial court’s
findings of fact unless we conclude that the evidence in the record preponderates against those
findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457. Post-conviction relief may only be given if a conviction
or sentence is void or voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

                                                  I

        We consider first the petitioner’s claim that counsel was ineffective. He argues that counsel
failed to interview witnesses and other suspects and that counsel erroneously advised him against
testifying.

        Under the Sixth Amendment to the United States Constitution, when a claim of ineffective
assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance
was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to show that
the counsel’s representation fell below an objective standard of reasonableness or “outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The
prejudice prong requires a petitioner to demonstrate that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id., 104 S. Ct. at 2068. Failure to satisfy either prong results in the
denial of relief. Id. at 697, 104 S. Ct. at 2069.

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference


                                                 -8-
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

A.     Witnesses: Tanika Brown, Fred Pirtle, and Laretha Bledsoe

        The petitioner complains that trial counsel failed to interview Tanika Brown, Fred Pirtle, and
Laretha Bledsoe. He argues that counsel relied on information from others to discount Ms. Brown
as a witness and did not have anyone contact Mr. Pirtle or Ms. Bledsoe. He also argues that although
Ms. Bledsoe had been subpoenaed by the state and was present at trial, counsel failed to call her as
a witness when the state did not do so.

         Mr. Pirtle and Ms. Bledsoe testified at the post-conviction hearing. Ms. Brown did not. The
trial court found that counsel interviewed Ms. Brown but that she said she did not remember being
with the petitioner on the night of the crimes. The court found that Mr. Pirtle was not a credible
witness and that his testimony conflicted with that of Ms. Bledsoe. Further, the court found that if
either Mr. Pirtle’s or Ms. Bledsoe’s testimony were accredited, the petitioner would not have
established an alibi because under either scenario, he still had time to commit the crimes before
meeting these people. Likewise, the court noted the overwhelming evidence of the petitioner’s guilt
at trial. The court found that the petitioner failed to establish his claim by clear and convincing
evidence. We hold that the evidence does not preponderate against the trial court’s findings.

B.     Suspects: Scott Haynes and Robert Kimmons

        The petitioner also complains that counsel failed to interview potential suspects Haynes and
Kimmons, failed to investigate their involvement, and failed to call them as witnesses. The trial
court found that the petitioner had failed to demonstrate that Haynes and Kimmons were responsible
for the crimes and noted that there had been evidence at the petitioner’s trial that they had been
considered but eliminated as suspects. The court found that the petitioner had failed to demonstrate
any prejudice from counsel’s course of action. We hold that the evidence does not preponderate
against the trial court’s findings.

C.     Advice About Testifying

        The petitioner claims that counsel failed to explain the advantages and disadvantages of
testifying. He argues that despite his declaration that he wanted to testify, counsel told him he
should not because he had an attitude problem. The petitioner contends that counsel made an
“apparent unilateral decision” about the petitioner’s wish to testify. The trial court found that the
petitioner wanted to testify but that trial counsel convinced him otherwise. The trial court also
reviewed the record of trial and found that the petitioner knowingly waived his right to testify at a
hearing conducted pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999). Thus, the court
rejected the claim. On appellate review, the evidence does not preponderate against the trial court’s
findings.

       The petitioner is not entitled to post-conviction relief based upon his ineffective assistance
of counsel claims.

                                                 -9-
                                                 II

       The petitioner also contends that the state made an improper closing argument at trial:

                       The third count would be felony murder, first degree murder
               in the perpetration of a theft. If for whatever reason you didn’t feel
               that there was sufficient proof to show that there was a robbery, there
               certainly was a theft, because that twelve dollars was taken.

                       Now, we’re asking you to consider both of these [two counts
               of felony murder] and return a verdict on both of these simply for
               purposes of appeal. Because if you convict of both, the Court of
               Criminal Appeals could later reverse one of those, but the other one
               stands on its own. So that prevents needless retrials. So, that’s why
               we’re asking you, even though it’s going to take a little longer, we’re
               asking you to consider both of those counts.

The trial court found that the petitioner failed to demonstrate that the argument affected the outcome
of the trial or in any way affected the petitioner. On appeal, the petitioner has not articulated any
constitutional basis upon which he claims entitlement to post-conviction relief. See T.C.A. § 40-30-
103 (providing for post-conviction relief “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States”). We hold that the petitioner has not demonstrated any error in
the trial court’s ruling denying him relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




                                                -10-
