        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 3, 2010

                 MARIO JOHNSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
          Nos. P-26556, P-26615, P-26637   Carolyn Wade Blackett, Judge


                No. W2009-01023-CCA-R3-PC - Filed October 5, 2010


Aggrieved of the Shelby County Criminal Court’s denial of post-conviction relief from his
convictions of first degree murder, especially aggravated robbery, and facilitation of first
degree murder, the petitioner, Mario Johnson, appeals and claims that his convictions were
infirm due to the ineffective assistance of trial counsel. We affirm, however, the order of the
criminal court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J.C. M CL IN, JJ., joined.

James P. DeRossit, IV, Memphis, Tennessee, for the appellant, Mario Johnson.

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

                                         OPINION

               In Shelby County Criminal Court case number 98-09944, a jury convicted the
petitioner of the September 19, 1997 first degree felony murder of Frankie Taylor. In his
direct appeal from the conviction, the petitioner raised only the claim of insufficient
evidence. This court affirmed the conviction after addressing the insufficiency claim as
follows:

                      In the present case, [Pedroza] Mays testified that he was
              present on the night in question. Mays stated that the
              [petitioner] jumped out of the vehicle, along with [Franklin]
              Carter, and chased a young male. Mays further testified that he
              heard someone yell “lay down” and then heard a gunshot. Mays
              then watched as the [petitioner] returned to the car with a
              sawed-off shotgun in his hand. The [petitioner] admitted that
              his intention was to rob the victim and that he had fired the gun.
              Carter’s girlfriend testified that she had overheard the
              [petitioner] planning to commit a robbery with Carter earlier that
              same day. Morever, inmate Jackson testified that he had
              previously overheard the [petitioner] admit that he had shot and
              killed a young male during a robbery when the young man fled.
              The testimony of Dr. [O.C.] Smith established that the victim
              died as a result of a gunshot wound to the back through the use
              of a shotgun. The medical examiner also testified that the marks
              on the body were consistent with someone who was standing or
              running at the time of the wound.

                     We find that the circumstantial evidence established at
              trial was such that a rational trier of fact could have drawn “no
              other reasonable inference save the guilt of the [petitioner]
              beyond a reasonable doubt.” Accordingly, we conclude that the
              evidence presented at trial was sufficient to support the jury’s
              verdict.

State v. Mario Johnson, No. W2001-00898-CCA-R3-CD, slip op. at 3-4 (Tenn. Crim. App.
Jackson, Jan. 16, 2002).

              In Shelby County Criminal Court case numbers 98-01761 and 98-01762, a jury
in a second trial convicted the petitioner of the September 20, 1997 especially aggravated
robbery and facilitation of the first degree murder of Oscar Barnes. In his direct appeal from
those convictions, the petitioner raised only the claim of insufficient evidence. This court
affirmed the convictions after addressing the insufficiency claim as follows:

                      In this instance, John Speer testified that he saw the
              [petitioner] flee from the residence of the victim immediately
              after several gunshots had been fired. Ms. [Bernadette] Carter
              testified that within two days of the shooting and robbery, the
              [petitioner] was in possession of a necklace, pendant, and Rolex
              watch similar to those owned by the [victim]. The victim’s
              mother identified the items in the [petitioner’s] possession as
              those which the victim possessed prior to his murder. Although

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               Ms. [Nikeesha] Cunningham may have qualified as an
               accomplice, her testimony that the [petitioner] and her former
               boyfriend, Franklin Carter, fled from the victim’s residence
               immediately after several gunshots had been fired and that the
               [petitioner] was in possession of the victim’s jewelry was
               sufficiently corroborated by other evidence in the trial. In our
               view, the evidence is sufficient to support convictions of
               facilitation to commit first degree murder and especially
               aggravated robbery.

State v. Mario A. Johnson, No. W2001-00372-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App.,
Jackson, Dec. 17, 2001).

              In 2002, the petitioner filed timely pro se petitions for post-conviction relief.
The post-conviction court appointed counsel to represent the petitioner and conducted a
consolidated evidentiary hearing.

               In the hearing, the petitioner testified that the same trial attorney represented
him in both trials. He testified that Franklin Carter fired the shot that killed Mr. Taylor and
that although the petitioner accompanied Mr. Carter, they had gone to the apartment complex
with the intention of visiting some women and not to rob anyone. The petitioner testified that
Mr. Carter carried a gun because they were not from the apartment complex in question and
that “animosity and . . . beef” existed between people from different apartment complexes.

              The petitioner testified that Mr. Carter “killed himself when the detectives
came to look for him.” The petitioner testified that although Mr. Carter was “like a radical”
and had “a reputation or whatever that he had to . . . live by,” the petitioner was surprised that
Mr. Carter shot the victim, that the shooting “just happened out of nowhere.” The petitioner
opined that the shooting was prompted by the “beef” between the residents of the apartment
complexes.

               The petitioner testified that his trial counsel did not communicate with him
“like he [was] supposed to on a monthly basis.” He said counsel “mainly came to speak with
[him] . . . two months before trial.” He also claimed that trial counsel failed to subpoena
Demetrius Lay, Pedroza Mays, and Nakisha Cunningham.1 The petitioner testified that he
did not testify in his own defense and that counsel called no other witnesses.




       1
        We derive the spelling of Ms. Cunningham’s given name from the evidentiary hearing transcript.
Apparently, she is the same person referred to in Mario Johnson as Nikeesha Cunningham.
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               The petitioner claimed that Demetrius Lay was sitting in the car with the
petitioner during both the shooting of Mr. Taylor and that of Mr. Barnes. He testified that
Mr. Lay could have testified that the petitioner had no gun during the Taylor homicide and
that he did not get out of the car during the Barnes homicide. The petitioner also opined that
trial counsel failed to object to the testimony of, or to effectively cross-examine, Mr. Mays
and Ms. Cunningham, who both testified for the State at trial. The petitioner referred to Mr.
Mays as “an unindicted co-conspirator” who, he believed, made “some kind of under the
table deal” with the prosecution. The petitioner testified that trial counsel failed to cross-
examine Mr. Mays and Ms. Cunningham about the possibility of leniency or forbearance in
exchange for testimony.

               The petitioner testified that he did not know Mr. Barnes but that Mr. Carter and
Ms. Cunningham knew him. He testified that Ms. Cunningham knew the victim through her
activity as a prostitute. He testified that he accompanied Mr. Carter and Ms. Cunningham
to the victim’s residence to purchase some marijuana, and that when they arrived, only Mr.
Carter and Ms. Cunningham went inside the residence. The petitioner testified that he and
Mr. Lay remained in the car, that he later heard gunfire, and that Mr. Carter and Ms.
Cunningham then ran from the residence. Mr. Carter admitted shooting the victim. The
petitioner testified that he had anticipated neither a robbery nor a shooting.

              The petitioner testified that trial counsel met with him “about five, six times”
on the Taylor case and other times on the Barnes case. He agreed that counsel had gone over
the evidence with him.

                On cross-examination, the petitioner admitted that he knew that an investigator
from trial counsel’s office had interviewed Mr. Lay prior to the petitioner’s trials. The
petitioner testified that he tried to subpoena Mr. Lay to testify in the post-conviction hearing
but that “for some strange reason, he’s a no show.” The petitioner admitted that Mr. Lay had
previously said that he knew nothing about the shootings, but he maintained that Mr. Lay was
prompted to claim his ignorance because he was scared.

               Trial counsel testified that he represented the petitioner in both of the trials.
He testified that he took advantage of the prosecution’s open-file discovery opportunity and
that he visited the petitioner in jail several times. He testified that the first “three or four
times” he went to the jail to see the petitioner, the petitioner would not come down to see him
because the petitioner was “upstairs playing basketball.” Counsel said that the petitioner’s
case was investigated by his predecessor in the case, by himself, and by his office’s
investigator. He stated that several witnesses were interviewed. The interviews of Mr. Mays
and Ms. Cunningham revealed that they would be prosecution witnesses, so the defense did
not subpoena them. Counsel explained, “[W]e don’t call witnesses to help the State.” He

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testified that they “were not exculpatory.”

               Counsel recalled that he cross-examined Ms. Cunningham extensively about
her three different pretrial statements. Counsel testified that he always asks his clients for
their input in jury selection and whether they wish additional questions to be put to any
witnesses.

               Trial counsel testified that his office’s investigator interviewed Mr. Lay while
he was in jail and that Mr. Lay told the investigator “in no uncertain terms that he was not
going to testify. He didn’t know anything about the case.” As a result, the defense did not
call him to testify.

               The post-conviction court entered an order in which it expressed conclusions
of law and findings of fact. It held that the petitioner failed to establish ineffective assistance
of trial counsel and denied relief. The petitioner filed an untimely notice of appeal.

                We utilize Tennessee Rule of Appellate Procedure 4(a) in this case to excuse
the late filing of the petitioner’s notice of appeal. That done, we address the petitioner’s
claims that his trial counsel was ineffective in failing to cross-examine prosecution witnesses
about agreements for leniency or forbearance, in failing to subpoena Mr. Lay to testify in the
trials, and in failing to adequately communicate with the petitioner.

               The post-conviction petitioner bears the burden of proving his allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court
accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these
findings are conclusive on appeal unless the evidence preponderates against them. 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). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that his
counsel’s advice or services were not “within the range of competence demanded of
attorneys in criminal cases,” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and second
that his counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show 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. Should the petitioner fail to
establish either deficient performance or prejudice, he is not entitled to relief. Id. at 697;

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Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be
followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               Claims of ineffective assistance of counsel are mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given
no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

              In the present case, the post-conviction court ruled that the petitioner failed to
establish any of his claims of ineffective assistance of counsel, and based upon the record,
we must agree. He did not establish that counsel performed deficiently in any of the claims
preserved on appeal.

              Accordingly, we affirm the order of the post-conviction court.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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