         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      July 13, 2004 Session

                    MARIA MACLIN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P-22833    Bernie Weinman, Judge



                  No. W2003-02667-CCA-R3-PC - Filed November 24, 2004


The petitioner, Maria Maclin, was convicted by a Shelby County jury of second degree murder. The
trial court sentenced the petitioner to twenty-two years in the Tennessee Department of Correction,
and a ten thousand dollar fine was imposed. Following an unsuccessful appeal of her conviction,
the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel at
trial. The petitioner now brings this appeal challenging the post-conviction court’s denial of her
petition. After reviewing the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN , JJ., joined.

C. Michael Robbins and James Thomas, Memphis, Tennessee (at trial), and William D. Massey and
Lorna McClusky, Memphis, Tennessee (on appeal), for the appellant, Maria Maclin.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Emily Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee

                                              OPINION

                                       I. Factual Background

        The facts of this case were set out in this court’s opinion on direct appeal:

                The [petitioner] and her family had been feuding with the victim,
                Glenn Taylor, and his family for many years. On the evening of
                January 26, 1996, the [petitioner], the victim, and members of each
                of their families attended a basketball game at East High School in
                     Memphis. The families sat on opposite sides of the arena and
                     gestured to each other throughout the game. At its conclusion, the
                     [petitioner] stood in the crowded school parking lot with her sister,
                     Latrice Woods, who accused Kena “Shea” Blakney, the older sister
                     of the victim, of having stolen $100.00 from her. In response, Ms.
                     Blakney accused Ms. Woods of slashing her tires. A fist fight
                     followed. When the victim saw his sister fighting, he intervened,
                     striking either Ms. Woods or the [petitioner] in the process. The
                     [petitioner] then drew her gun and, as the victim attempted to flee,
                     she shot him twice, killing him.

State v. Maria Maclin, No. 02C01-9710-CR-00383, 1998 WL 517839 (Tenn. Crim. App. at Jackson,
Aug. 21, 1998), perm. to appeal denied (Tenn. Mar. 8, 1999).

        The petitioner was convicted by a Shelby County jury of second degree murder. The trial
court sentenced the petitioner to twenty-two years incarceration, and a ten thousand dollar fine was
imposed. The petitioner subsequently filed a direct appeal, challenging the trial court’s charge to
the jury and the sentence imposed by the trial court. This court affirmed the petitioner’s conviction
and sentence. Id. Thereafter, the petitioner timely filed a pro se petition for post-conviction relief,
alleging numerous grounds of ineffective assistance of counsel at trial. The post-conviction court
appointed counsel to represent the petitioner,1 and amended petitions were filed, alleging additional
grounds of ineffective assistance of counsel and challenging the trial court’s charge to the jury.2

         On April 25, 2003, the post-conviction court held an evidentiary hearing at which the
petitioner, her mother, her sister, and trial counsel testified. The petitioner’s mother, LueTissue
Elliott, testified that she hired trial counsel to represent the petitioner. Elliott related that she
attended the petitioner’s meetings with trial counsel and that they met on only three occasions.
Elliott claimed that the petitioner informed trial counsel that she shot the victim in self-defense, but
trial counsel told her that there was no such defense.

        The petitioner’s sister, Latrice Woods, testified that she was also present at the meetings with
trial counsel. Woods claimed that the petitioner attempted to inform trial counsel of the facts of the
case and to discuss possible defenses. However, when the petitioner asked if she could plead self-
defense for coming to the aid of Woods, trial counsel replied that there was “no such thing as self-
defense in the State of Tennessee.”

       The petitioner testified that trial counsel was retained after her case was bound over to the
Shelby County Criminal Court. She claimed that prior to trial she had only three meetings with trial

         1
          The post-conviction court initially appointed Michael Scholl to represent the petitioner in seeking post-
conviction relief. However, Scholl was subsequently allowed to withdraw as counsel, and the post-conviction court
appointed W illiam D. Massey, who had assisted the petitioner in preparing her pro se petition for post-conviction relief.

         2
             On appeal, the petitioner alleges only the ineffective assistance of counsel at trial.

                                                              -2-
counsel and that each meeting lasted only twenty to twenty-five minutes. The petitioner testified that
she informed trial counsel at the outset of his representation that she shot the victim. She told trial
counsel that on January 26, 1996, following a high school basketball game, her sister, Latrice
Woods, and the victim’s sister, Kena Lashea Blakney, began fighting in the school’s parking lot.
The victim intervened in the fight, striking Woods twice. The petitioner observed that the victim
had a gun, so she “pulled [her] gun too,” shooting the victim. The petitioner claimed that she shot
the victim because she feared for her life and the life of her sister.

        The petitioner testified that when she told trial counsel that she shot the victim in self-
defense, trial counsel informed her that Tennessee did not have “self-defense law.” Trial counsel
further informed her that the theory of defense at trial would be based upon the State’s lack of
evidence, including the lack of fingerprints, ballistic evidence, and gunpowder residue. The
petitioner testified that she relied upon the advice of trial counsel, believing his theory of defense
was in her best interest. According to the petitioner, trial counsel never mentioned the theories of
self-defense or voluntary manslaughter.

        The petitioner testified that at their final meeting prior to trial, she informed trial counsel that
she wanted to testify, but trial counsel told her that “it would hurt [her] if [she] testified.” Again, the
petitioner relied on the advice of trial counsel. The petitioner related that if she had testified at trial,
she would have informed the jury that at the time of the shooting she feared for her life and the life
of her sister. The petitioner claimed that trial counsel did not visit her after she was confined in jail
between trial and sentencing. She further claimed that she did not know that she had a right to testify
at sentencing.

        The petitioner testified that no testimony was presented at trial that the victim was armed
when he struck Woods in the head. The petitioner claimed that although she informed trial counsel
that she knew of several witnesses who would have testified to this fact, trial counsel “[acted like]
[w]hatever we have that’s what we’re going to use.” According to the petitioner, trial counsel did
not speak with her during trial, and when he spoke with her during recesses the conversations were
“unimportant.”

        The petitioner testified that trial counsel informed her of the State’s plea offers of fifteen and
twelve years, but she told trial counsel that she wanted to proceed to trial because she had acted in
self-defense. The petitioner explained that she believed that trial counsel would present a theory of
self-defense; however, trial counsel failed to do so. When the petitioner told trial counsel that she
was upset that he had not presented the theory of self-defense, trial counsel acted “nonchalant.” The
petitioner claimed that she had no knowledge of criminal procedure, stating that she had been
arrested on only one prior occasion for forgery and had pled guilty to that charge.

        Trial counsel testified at the evidentiary hearing that his practice was limited to criminal law
and that he had previously represented defendants in murder trials. Trial counsel was unable to recall
the number of times he met with the petitioner; however, he denied meeting with her on only three
occasions, estimating that they met twenty times. Trial counsel recalled that the petitioner’s mother


                                                    -3-
and sister were present at several of the meetings. Trial counsel estimated that he spent ten hours
on the petitioner’s case, claiming, “I didn’t stay awake nights worrying about it, but I did as much
as I could do on this case.” Trial counsel also met and interviewed six witnesses whom he
subsequently called to testify on behalf of the petitioner. According to trial counsel, all six witnesses
testified that they did not observe the petitioner with a gun on the night of the shooting.

        Trial counsel denied telling the petitioner that “there was no such thing as self-defense in
Tennessee,” but explained that defending one’s sister did not constitute self-defense. Trial counsel
related that he did not believe that self-defense was a viable defense because the jury would not
likely believe that the petitioner was placed in fear by the fifteen-year-old victim whom she shot in
the back. He further related that defense of another was not an option because the petitioner denied
shooting the victim. Trial counsel explained that he had never presented a theory based upon the
defense of others and chose not to in the petitioner’s case.

        Trial counsel testified that the petitioner wanted to go to trial and rejected the State’s initial
plea offer of a fifteen-year sentence and a subsequent offer of twelve years. According to trial
counsel, the petitioner agreed to pursue a theory based upon the State’s inability to prove its case.
The victim claimed, “even if I did shoot [the victim], the State can’t pro[ve] it. They didn’t find the
weapon. . . . [T]hey didn’t take any fingerprints, didn’t do a lot of different stuff . . . .” Trial counsel
stated, “[S]ome of that stuff was true, . . . the police were lax in their investigation . . . , and that’s
the theory that we presented at trial.” At trial, trial counsel emphasized the State’s lack of fingerprint
and ballistic evidence and its failure to test the petitioner’s hands for gunshot residue. He also
attempted to discredit the content of the testimony of the State’s witnesses to “put some doubt in the
jury’s mind.”

         Trial counsel denied telling the petitioner that she did not have the right to testify at trial. He
claimed that he told the petitioner that she had an absolute right to testify, but she did not want to
testify. Trial counsel acknowledged that if the petitioner had testified, he would have argued that
she shot the victim in defense of her sister or in the heat of passion.

         On cross-examination, trial counsel acknowledged that the petitioner subsequently informed
him that she had shot the victim after she observed the victim assaulting Woods with a gun. The
petitioner informed trial counsel that at the time of the shooting she feared for her life and the life
of her sister. Trial counsel conceded that the State presented the testimony of witnesses who claimed
that the petitioner shot the victim; however, trial counsel disagreed that the State presented
overwhelming evidence that “put [the petitioner] in possession of a weapon.” Trial counsel noted
that the State also presented the testimony of witnesses who claimed that they did not observe the
petitioner with a weapon. Trial counsel testified that he considered presenting evidence of voluntary
manslaughter, but the petitioner denied shooting the victim and wanted to proceed on the theory that
the State had failed to prove its case. Trial counsel noted that the trial court instructed the jury on
voluntary manslaughter as a lesser-included offense of second degree murder.




                                                    -4-
        Trial counsel conceded that because the petitioner’s trial was in 1997, he was unable to recall
meeting with the petitioner between conviction and sentencing; however, he explained that it would
have been normal procedure to meet with her twice to inform her of what to expect at sentencing.3
Trial counsel was also unable to recall advising the petitioner of her right to testify at sentencing.
However, he noted that the petitioner made a statement to the trial court at the sentencing hearing.
According to trial counsel, the trial court asked the petitioner if she had anything to say before he
pronounced sentence, and the petitioner told the trial court that the State had failed to prove that she
shot the victim. Trial counsel claimed that he had been unaware that the petitioner had wanted to
make a statement to the trial court.

       In rebuttal, the petitioner testified that in the days following the shooting she provided the
police with two statements in which she claimed that she had shot the victim in self-defense and
defense of her sister. The petitioner claimed that trial counsel was the one who advised her that the
State would be unable to prove she shot the victim.

        At the conclusion of the testimony, the post-conviction court took the matter under
advisement. Subsequently, the post-conviction court held two additional hearings on the matter.
At a hearing on June 5, 2003, Janet Shipman, the assistant district attorney general who prosecuted
the instant case, testified that she and trial counsel discussed the case on many occasions. She
related that trial counsel visited her office several times to discuss plea offers, review the case file,
and learn of the State’s witnesses. Shipman recalled that the petitioner had given two statements to
the police, which statements were made available to trial counsel. Shipman testified that the State
did not enter the statements into evidence at trial because they were “self-serving” and
“contradictory.”

         Shipman testified that prior to sentencing, trial counsel filed a notice of mitigating factors
on behalf of the petitioner. In the notice, trial counsel noted the applicability of several factors which
were based upon the petitioner’s shooting the victim in order to defend her sister. Shipman related
that although trial counsel had been under no duty to disclose his theory of defense, she believed that
he had indicated that he would pursue a theory of defense of others. According to Shipman, trial
counsel had attempted to have the State admit that the victim was holding a gun at the time of the
shooting. Shipman recalled that at trial, trial counsel presented the theory of defense of another and
attempted to discredit the State’s evidence by noting inconsistencies in the testimony of the State’s
witnesses. Trial counsel also argued in the motion for new trial that the petitioner shot the victim
in order to defend her sister. Shipman recalled that although the petitioner did not testify at trial, she
did make a statement to the trial court at sentencing.

        Jane Sturdivant testified at the same hearing that she assisted trial counsel in defending the
petitioner at trial. She related that on the morning of trial, trial counsel asked for her assistance at
trial. When Sturdivant inquired as to the theory of defense, trial counsel responded that he had
several theories of defense, including presenting the theory of defense of others and challenging the


        3
            Trial counsel testified that he had been unable to locate his file on the petitioner’s case.

                                                             -5-
State’s lack of evidence. In order to determine how to proceed on defense, trial counsel waived
opening statement and allowed the State to present its case-in-chief. Sturdivant was unable to recall
which theory of defense trial counsel pursued, but claimed that there was nothing unusual in trial
counsel’s representation of the petitioner.

       LueTissue Elliott was recalled to testify on behalf of the petitioner. She testified that at the
close of the State’s case-in-chief, she attended a meeting between trial counsel and the petitioner.
According to Elliott, trial counsel commented, “[W]ow, they didn’t use those statement[s]. We got
it made.” On cross-examination, Elliott acknowledged that trial counsel was surprised that the State
did not introduce the petitioner’s statements. However, she claimed that trial counsel failed to
explain why the State’s failure to use the statements was “a good thing.” Elliott further
acknowledged that no defense witness testified that they had observed the petitioner shoot the victim.

         The final hearing on this matter was held on July 10, 2003. At that hearing, trial counsel
testified that since his previous testimony in this matter he had reviewed the petitioner’s case file.
He recalled that at trial there were two possible theories of defense. The first approach was to argue
that the State had not proven that the petitioner shot the victim. This theory was based upon the
State’s lack of fingerprint and ballistic evidence. The second approach was to present the theory of
defense of others by arguing that the petitioner shot the victim to protect Woods. Trial counsel
explained that before choosing the theory with which to proceed, he waived opening statement and
waited to see the evidence presented by the State. When the State chose not to introduce the
petitioner’s statements in which she told police that she had shot the victim, trial counsel believed
that the State had failed to prove its case, and he made the tactical decision to proceed with that
theory of defense. Trial counsel testified that he presented the testimony of six witnesses who
testified that they had not observed the petitioner with a gun nor had they observed the petitioner
shoot the victim.4 On cross-examination, trial counsel conceded that the petitioner’s statements to
the police raised the issue that the petitioner acted in defense of another.

       At the conclusion of the testimony, the post-conviction court again took the matter under
advisement. On October 8, 2003, the post-conviction court entered an order denying the petition,
finding,

                           [T]he trial attorney adequately investigated this case. He
                   interviewed all the defense witnesses prior to trial, met on numerous
                   occasions with his client and met with the prosecution on several
                   occasions in an attempt to persuade them that the victim had a gun
                   and to get the most favorable guilty plea.

                            The Court further finds that the defense attorney developed a
                   trial strategy that he felt would be the most effective for his client. He
                   was of the opinion that under the facts of this case self-defense or the


       4
           Our review of the trial transcript reveals that the defense presented the testimony of only five witnesses.

                                                           -6-
               defense o[f] another was not a viable defense. He felt from his
               investigation that the State could not carry its burden of proof and it
               appears that the attorney’s advice to his client not to testify was sound
               advice considering the entire strategy and the defendant’s previous
               statement[s] to the police. The Court further finds that the attorney
               consulted with his client concerning the trial strategy and she was in
               full agreement.

               ....

                       The Court does not find ineffective assistance of counsel
               because in hindsight another trial strategy may have been more
               effective than the one utilized.

The petitioner now brings this appeal challenging the denial of her petition for post-conviction relief.

                                             II. Analysis

        In a post-conviction proceeding, the petitioner bears the burden of proving the grounds raised
in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
“Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues
regarding the credibility of witnesses, the weight and value to be accorded their testimony, and the
factual questions raised by the evidence adduced at trial are to be resolved by the post-conviction
court as the trier of fact. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford
the post-conviction court’s findings of fact the weight of a jury verdict, with such findings being
conclusive on appeal absent a showing that the evidence in the record preponderates against those
findings. Id. at 578.

        On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and
fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As such, the post-
conviction court’s findings of fact are entitled to a presumption of correctness unless the evidence
preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). However,
a post-conviction court’s conclusions of law, such as whether counsel’s performance was deficient
or whether that deficiency was prejudicial, are subject to a purely de novo review with no
presumption of correctness. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).



                                                  -7-
                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 [petitioner] makes an insufficient showing of one
                component.

Id. at 370.

        To establish constitutionally deficient performance, the petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S.
at 687-88, 104 S. Ct. at 2064; Burns, 6 S.W.3d at 462. Specifically, the petitioner must show that
counsel’s performance was not within “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). On appeal, this court will neither
second guess the tactical and strategic decisions of defense counsel, nor measure the representation
by “20-20 hindsight.” Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). To establish prejudice,
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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S. Ct. at 2068; see also Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

        On appeal, the petitioner first contends that trial counsel rendered ineffective assistance of
counsel by failing to proceed on the theories of self-defense and defense of another and by failing
to present evidence of the lesser-included offense of voluntary manslaughter. Specifically, the
petitioner argues that in light of the “overwhelming” evidence presented by the State at trial that the
petitioner shot the victim, “it [was] patently unreasonable as a matter of law for trial defense counsel
to have maintained [the] theory of defense . . . that the prosecution could not satisfy its burden of
proof.” According to the petitioner, the only viable theories of defense were self-defense and
defense of another.

        As previously noted, this court will neither second guess the tactical and strategic decisions
of defense counsel, nor measure the representation by “20-20 hindsight.” Cooper, 849 S.W.2d at
746. “Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not, alone,
support a claim of ineffective assistance. Deference is made for sound trial strategy. However, this
deference to tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982)).

        In its order denying post-conviction relief, the post-conviction court found that trial counsel
“adequately investigated this case . . . [and] developed a trial strategy that he felt would be the most
effective for his client. . . . The Court does not find ineffective assistance of counsel because in
hindsight another trial strategy may have been more effective than the one utilized.” We agree.



                                                   -8-
        At the evidentiary hearing on July 10, 2003, trial counsel testified that prior to trial he
developed two possible theories of defense: (1) that the State had failed to prove its case beyond a
reasonable doubt and (2) that the petitioner had acted in defense of her sister when she shot the
victim. Trial counsel explained that the theory presented at trial depended upon the evidence
presented by the State. Accordingly, trial counsel waived opening statement in order for the State
to present its case-in-chief. When the State failed to introduce into evidence the petitioner’s
statements to police in which she confessed to shooting the victim, trial counsel made the tactical
decision to proceed on the theory that the State had not met its burden of proof. According to trial
counsel, the petitioner agreed to proceed to trial on that theory of defense. As the State notes, the
petitioner’s statement to the trial court at sentencing supports trial counsel’s testimony. At
sentencing, the petitioner told the trial court, “I didn’t mean to do whatever they say that I done, but
they hadn’t proved that I had done this, Your Honor, . . . because they didn’t take no fingerprints or
nothing that I had done -- to prove that I had done it.”

         Furthermore, contrary to the petitioner’s argument on appeal, the State’s evidence at trial,
although sufficient, was not “overwhelming.” The State lacked fingerprint and ballistic evidence,
failed to test the petitioner’s hands for gunshot residue, and chose not to introduce the petitioner’s
statements to police in which she admitted to shooting the victim. Moreover, trial counsel presented
the testimony of five defense witnesses present at the time of the shooting who testified that they had
not observed the petitioner with a gun nor had they observed the petitioner shoot the victim. Under
these circumstances, we are unable to conclude that trial counsel’s strategy was unreasonable.
Regarding the petitioner’s argument that trial counsel failed to present evidence of voluntary
manslaughter, we note that the jury was instructed on this lesser-included offense, but chose to
convict the petitioner of second degree murder. This issue is without merit.

        Next, the petitioner asserts that trial counsel failed to represent the petitioner at trial in a
manner consistent with the theory of defense. Specifically, the petitioner claims that trial counsel
(1) “permitted a witness to testify to a hearsay recitation from a third party to the effect that two
women shot the deceased, which statement described the women to include the petitioner”; (2) failed
to object when a photograph of the petitioner’s sister was admitted into evidence and described as
“a photograph of the sister of the shooter”; (3) questioned State witness Carey Blakney about
“whether he thought about trying to take the gun away from [the petitioner],” which question the
petitioner argues was contrary to trial counsel’s theory of defense at trial; and (4) failed to object to
the State’s “extensive outline of [its] case” during voir dire. According to the petitioner, “[a]ll of
the above instances of conduct of trial defense counsel militate strongly against the post conviction
court’s finding that trial defense counsel developed a trial strategy based upon adequate
investigation.”

        At the post-conviction hearing, trial counsel acknowledged that he did not object to Major
Schwill’s alleged hearsay testimony or the admission of the photograph of the petitioner’s sister.
However, he explained that he did not want to object “to everything Major Schwill was saying” and
Blakney and the victim’s family intended to identify the petitioner as the person who shot the victim.
Trial counsel also disagreed that by asking Blakney about taking the gun from the petitioner, he


                                                  -9-
established that the petitioner had a gun. Trial counsel asked the question “in response to
[Blakney’s] testimony that he’d seen her shoot and take off at a high rate of speed.” Regarding the
State’s comments during voir dire, trial counsel believed the comments were proper to ensure that
potential jurors were not acquainted with the witnesses. Although the post-conviction court did not
address these issues individually, the court found that counsel did not render ineffective assistance
of counsel at trial. The evidence does not preponderate against that finding.

        Next, the petitioner asserts that ten hours was a “woefully insufficient” amount of time to
prepare for a four-day second degree murder trial. Although trial counsel testified at the first
evidentiary hearing that he spent ten hours preparing for trial, he estimated that he met with the
petitioner twenty times. He testified that he discussed the various theories of defense with the
petitioner and interviewed six potential witnesses. Janet Shipman, the assistant district attorney
general who prosecuted the petitioner, testified that she and trial counsel met on numerous occasions
to discuss the case and for trial counsel to review the State’s case file. Based upon the foregoing,
we are unable to conclude that trial counsel was unprepared for trial.

         Finally, the petitioner contends that she was deprived of her right to testify at trial and
sentencing. The petitioner concedes that she agreed not to testify at trial, but argues that she relied
upon the uninformed and ill-founded advice of trial counsel. The petitioner alleges that had she
testified, she would have explained that she shot the victim in self-defense and in the defense of her
sister.

        It is well-established that the state and federal constitutions grant a criminal defendant the
fundamental right to testify at trial. Momon v. State, 18 S.W.3d 152, 161 (Tenn. 1999). The
decision to exercise or waive this right rests solely with the accused, not his attorney. Id.
“Generally, a right that is fundamental and personal to the defendant may only be waived if there is
evidence in the record demonstrating ‘an intentional relinquishment or abandonment of a known
right or privilege.’” Id. at 161-62 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019,
1023 (1938)). A waiver of this right may not be presumed by a silent record. Id. at 162.

         In Momon, 18 S.W.3d at 162, our supreme court outlined procedural safeguards to ensure
that a defendant’s knowing, voluntary, and intelligent waiver of the right to testify would be reflected
on the record. However, because Momon served to clarify and reiterate the existing right to testify,
the procedures adopted therein are not to be retroactively applied. Id. at 162-63. Moreover, the
procedural safeguards are prophylactic in nature and not constitutionally required. Id. at 163. As
such, “the mere failure to follow these guidelines will not in and of itself support a claim for
deprivation of the constitutional right to testify if there is evidence in the record to establish that the
right was otherwise personally waived by the defendant.” Id.

        The petitioner’s trial was held in February 1997, two years prior to the supreme court’s
decision in Momon. Therefore, there was no requirement that the petitioner’s trial counsel comply
with the procedures set forth in that case. Nevertheless, the petitioner had the right to testify at trial.
This court has previously observed that “[p]rior to the supreme court’s holding in Momon, a


                                                   -10-
petitioner’s claim that his counsel prevented him from testifying in his own behalf was treated like
any other ground asserted for a claim of ineffective assistance of counsel.” Allen Dale Cutshaw v.
State, No. E2002-00438-CCA-R3-PC, 2003 WL 147025, at *7 (Tenn. Crim. App. at Knoxville, Jan.
22, 2003), perm. to appeal denied (Tenn. 2003); see also Terrance L. Turner v. State, No. M2002-
02429-CCA-R3-PC, 2004 WL 587636, at *6 (Tenn. Crim. App. at Nashville, Mar. 25, 2004).

        Although the petitioner concedes that she agreed not to testify at trial, she argues that she
relied upon the uninformed and ill-founded advice of trial counsel. We are unable to conclude that
trial counsel’s advice was uninformed or ill-founded. As the post-conviction court found, “[Trial
counsel] felt from his investigation that the State could not carry its burden of proof and it appears
to the Court that the attorney’s advice to his client not to testify was sound advice considering the
entire strategy and the [petitioner’s] previous statement[s] to the police.” The evidence does not
preponderate against this finding.

         The petitioner also contends that she was deprived of the right to testify at sentencing. We
note that the trial court allowed the petitioner to make a statement at sentencing, in which statement
she argued that the State had failed to prove that she shot the victim. Nevertheless, the petitioner
argues that trial counsel failed to meet with her prior to sentencing or advise her that she had the
right to testify at sentencing. Although trial counsel was unable to recall meeting with the petitioner,
he testified that his normal practice was to meet with a defendant at least twice prior to sentencing.
Regardless, the petitioner offered no proof of what her testimony would have been had she testified
at sentencing. Accordingly, we conclude that the petitioner has failed to demonstrate prejudice. This
issue is without merit.

                                           III. Conclusion

       Based upon our review, we conclude that the petitioner has failed to demonstrate that she was
denied effective assistance of counsel at trial. Accordingly, we affirm the judgment of the post-
conviction court.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




                                                 -11-
