        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Argued on Briefs July 8, 2014

                VERNON MOTLEY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 09-06801   Honorable Lee V. Coffee, Judge


                No. W2013-01185-CCA-R3-PC - Filed October 3, 2014


The Petitioner, Vernon Motley, appeals the Shelby County Criminal Court’s denial of post-
conviction relief from his conviction for first degree premeditated murder and his sentence
of life imprisonment. On appeal, he argues that the State’s Brady violation rendered
counsels’ assistance ineffective. Upon review, we affirm the judgment of the post-conviction
court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS, J., and R OBERT L. H OLLOWAY, J R., S P. J., joined.

R. Todd Mosley (on appeal) and James P. DeRossitt, IV (at hearing), Memphis, Tennessee,
for the Appellant, Vernon Motley.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Leslie Rainey, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                         OPINION

       Facts. This court summarized the evidence presented at trial in its opinion on direct
appeal:

               The [Petitioner] was charged with first degree premeditated murder
       after the mother of his child’s new boyfriend and father-to-be of her baby, Eric
       Deon Brown, the victim, was shot and killed outside a home at 2164 Hubert
       Circle in Memphis.
       At trial, Tyrone Jackson, the victim’s brother, identified photographs
of the victim for the record.

        Kendrick Buckley testified that he visited his cousin, Shaka Jones, on
February 22, 2008 at the home of Jones’s grandmother on Hubert Circle. The
two went to get pizza and then sat across the street from Jones’s grandmother’s
house in Buckley’s truck, talking. While they were sitting in the truck, the
[Petitioner] pulled up in front of the house, and “about that time [Jones] was
telling [him] to pull off” or leave. As he was leaving, Buckley saw the
[Petitioner] get out of his car and walk up to the porch of Jones’s
grandmother’s house. Buckley drove to his house approximately thirty
minutes away. As he was driving, Jones received calls on her cell phone,
which made her “upset, real excited, real upset. Constantly hollering and
screaming.” He recalled that Jones was exclaiming that the victim had been
shot. The next day, the police had Buckley view a photographic array from
which he identified the [Petitioner] as the man he saw “walk up to the porch
[at Hubert Circle].”

        Shaka Jones testified that she and the [Petitioner] were involved in an
“off and on” relationship for fourteen years and had a child together. Their
relationship ended and, in the latter part of 2007, Jones began dating the
victim. She was pregnant with the victim’s baby on February 22, 2008. The
[Petitioner] was not happy about Jones’s pregnancy and had threatened “to kill
[her], [her] baby, [the victim] and [Jones’s] other kids.” Jones had not told the
[Petitioner] that the victim was the father of her unborn baby, but she
“guess[ed] he took it upon himself to assume that’s who the baby’s daddy
was” because of his having observed the two together and conducting his own
investigation.

         Jones testified that, on January 19, 2008, her and the [Petitioner]’s
almost twelve-year[-]old son, “Lil Vernon,” called from his visit with the
[Petitioner] and “told [her] that [she] needed to bring him all of his belongings
. . . because [the Petitioner] was taking him and [she] wasn’t going to get him
back[.]” “Lil Vernon” also relayed that the [Petitioner] threatened to kill him,
Jones, and Jones’s other son if Jones did not comply. Jones eventually sought
help from the [Petitioner]’s mother who was able to get “Lil Vernon” back.
After that, Jones stayed away from the [Petitioner] and even moved without
letting anyone know where she was living because of the [Petitioner]’s threats.
Jones also stayed away from the victim “because [she] took heed into what
[the Petitioner] had said.”


                                       -2-
       Jones testified that, on February 22, 2008, she was sitting with her
cousin, Kendrick Buckley, in Buckley’s truck outside her grandmother’s house
on Hubert Circle waiting for her children to come home from a Mardi Gras
celebration at school. She saw the [Petitioner] pull up in his mother’s Chrysler
Pacifica, get out of the car, and walk up to her grandmother’s porch at “[a] fast
pace.” Alarmed because of the threats the [Petitioner] had made, Jones told
Buckley to drive away. Jones called her grandmother to see if the [Petitioner]
was in her house, and her grandmother informed her that he was not. A few
minutes later, Stephanie Blanton, Jones’s grandmother’s next-door neighbor,
called and told Jones that the victim had been shot and was bleeding to death
on her front porch. Jones acknowledged that neither the victim, Torre Smith,
nor anyone else was around when the [Petitioner] arrived at Hubert Circle.
Later, Jones gave a statement to the police and identified the [Petitioner] in a
photographic array as the person she saw at her grandmother’s house the night
of the murder.

       Torre Smith, the victim’s cousin, testified that he accompanied the
victim to Hubert Circle on February 22, 2008. The victim drove the two of
them in Smith’s car. The victim stopped in front of a white house, got out, and
walked up to the front porch. He knocked on the front door, looked in the
window, and then walked to the house next door, all the while talking on his
cell phone. As the victim was walking to the house next door, “a car c[a]me
speeding up behind [Smith’s] car and a gentleman jumped out, running with
a pistol and saying, ‘I’ve been waiting to catch you,’ and he shot right when
he got by [Smith’s] window, but he was running and [the victim] took out
running.” The victim ran behind the houses, and the gunman chased him.
Smith moved into the driver’s seat and drove down the street to see if he could
intercept the victim. However, he heard more gunshots and did not see the
victim, so he drove back to the original location in time to see the gunman
getting into a Chrysler Pacifica. Smith followed the gunman and got a partial
license plate number, which he relayed to 911. Smith drove back to Hubert
Circle where he saw the victim lying on the front porch “convulsing.” Later,
Smith told the police what he had seen, including a description of the gunman,
but he was unable to identify the gunman in a photographic array.

        Akil Payne testified that he lived on Hubert Circle next door to Jones’s
grandmother. Payne knew the victim because the victim had dated both
Payne’s sister, Kimberly Blanton, and Shaka Jones. Payne knew the
[Petitioner] as well, who was usually referred to as “V” or a few times as “Lil
V.” On the evening of February 22, 2008, Payne was in his house with his


                                       -3-
stepfather, Rickey Dunlap, when he heard gunshots outside. Payne looked out
the window and saw a blue Chrysler Pacifica, which he recognized as the
[Petitioner]’s mother’s car, parked in front of Jones’s grandmother’s house.
When the shooting stopped, Payne’s sister knocked on the door and said that
the victim had been shot. Payne opened the door and saw the victim lying on
the front porch. Payne knelt down, held the victim in his arms, and asked him
what had happened. The victim told him, “V shot me.” Payne asked if he
meant “Shaka’s baby daddy,” and the victim confirmed that it was. The victim
told him that the [Petitioner] shot him “[o]ver Shaka.” The victim said, “I
don’t think I’m going to make this one” and began praying.

       Officer Russell Mooney with the Memphis Police Department testified
that he responded to the dispatch call to the scene that evening. When he
arrived, he saw the victim lying on the front porch of the house. He called for
an ambulance and secured the crime scene. He noticed some shell casings on
the ground and pointed them out to the crime scene officers.

      Officer Jeffrey Garey with the Memphis Police Department Crime
Scene Unit testified that he reported to the Regional Medical Center where he
photographed the victim and tagged his property.

        Sergeant James Smith with the Memphis Police Department Crime
Scene Unit testified that he photographed the crime scene and collected
evidence. Among the evidence collected were three spent forty-five caliber
shell casings: one on the sidewalk in the front of the house and two near the
back porch of the house. He also found a red Samsung cell phone in the grass
at the front of the house.

       Gwendolyn Motley, the [Petitioner]’s mother, testified that the police
came to her house the night of February 22, 2008, looking for the [Petitioner]
and asking about her 2005 Chrysler Pacifica. The [Petitioner] had been to her
house earlier that evening, but she was not sure where he was when the police
arrived. She acknowledged that the [Petitioner] drove her car at times but did
not recall whether he had driven it that evening. The car was at her house
when the police arrived.

      Shelva Stafford of the Shelby County Clerk’s Office testified that
Tennessee license plate 755NLL was registered to Gwendolyn Motley.




                                      -4-
       Detective Patrick Parson with the Memphis Police Department testified
that, as an officer on the criminal apprehension team, he was one of the
officers who went to Gwendolyn Motley’s house looking for the [Petitioner]
that night. Motley was very nice and responsive and gave Detective Parson
consent to search her home, but the [Petitioner] was not in the house. Motley
told Detective Parson that the [Petitioner] had driven her Pacifica that day,
including when he went to the store around 6:00 p.m. and again around 7:00
p.m. when “he left the house . . . and she had no whereabouts on where he
was.” She did not know how her vehicle got back in her driveway where it
was when the officers arrived.

       Sergeant Anthony Mullins with the Memphis Police Department
Homicide Bureau testified that he was the case coordinator in this case.
Sergeant Mullins interviewed Shaka Jones, Kendrick Buckley, Torre Smith,
and Akil Payne. Based on what the witnesses told him, he determined that
Jones and Buckley were on Hubert Circle but left when the [Petitioner]
arrived. The victim and Smith arrived after Jones and Buckley had gone, and
then the [Petitioner] “pull[ed] up after [the victim] g[o]t[ ] out, but they’re on
opposite sides of the street in different times.” Sergeant Mullins did not
suspect Jones of having played a role in the murder. He did not request
gunshot residue testing on the victim because there was no indication that he
had a gun. Sergeant Mullins obtained a warrant for the [Petitioner]’s arrest,
but, despite receiving numerous tips, the police were unable to find him until
April 2009.

        Officer Billy Byrd with the Memphis Police Department’s Criminal
Apprehension Team testified that he was part of the team that arrested the
[Petitioner] at a Microtel Inn in Memphis. The team had to break down the
motel room door and the bathroom door to apprehend the [Petitioner].

        Dr. Karen Chancellor, chief medical examiner for Shelby County,
testified that she performed the autopsy on the victim. Dr. Chancellor observed
a gunshot wound to the left side of the victim’s body with the bullet still inside
the body. The bullet passed through the victim’s left kidney, pancreas, and
liver and damaged the inferior vena cava, causing the victim to bleed to death
internally. She noted that the victim had “some superficial abrasions on the
forehead,” which she speculated may have been caused when the victim fell
after being shot. Dr. Chancellor recovered the bullet from the victim’s right
chest cavity and tagged it as evidence.



                                       -5-
              Agent Cervinia Braswell, a firearms examiner for the Tennessee Bureau
       of Investigation, testified that she examined the ballistics evidence in this case.
       Agent Braswell determined that the cartridge cases found at the crime scene
       were all fired from the same firearm. She determined that the bullet recovered
       from the victim’s body was the same caliber as the casings and consistent with
       the manufacturer of the casings.

             After the conclusion of the proof, the jury convicted the [Petitioner], as
       charged, of first degree premeditated murder.


State v. Vernon Motley, No. W2010-01989-CCA-R3-CD, 2012 WL 1080479, at *1-4 (Tenn.
Crim. App. Mar. 29, 2012), perm. app. denied (Tenn. Aug. 16, 2012).

        On direct appeal, the Petitioner argued that the trial court erred when it did not grant
a mistrial after the State committed a Brady violation by not disclosing Shaka Jones’s
statement to police until it was disclosed as Jencks material following Jones’s testimony at
trial. Id. at *6-7. In her statement, Shaka Jones said Stephanie Blanton and Rickey Dunlap
informed her that the Petitioner and the victim had gotten into a fistfight and when the victim
gave up and stopped fighting, the Petitioner shot him. Id. at *7. In its opinion on direct
appeal, this court concluded that the State had “arguably committed a Brady violation by not
disclosing evidence of the fight between the victim and [the Petitioner]” but that the failure
to disclose this evidence was harmless beyond a reasonable doubt given the “overwhelming”
evidence of premeditation. Id. On October 11, 2012, the Petitioner filed a timely post-
conviction petition and later filed an amended petition alleging, in part, ineffective assistance
of counsel.

        Post-Conviction Hearing. The Petitioner testified that the first attorney appointed
to his case in criminal court was allowed to withdraw after he filed a complaint against him
with the Board of Professional Responsibility. His second attorney, who was also appointed,
represented him at trial. He said he spoke to trial counsel, who was the lead counsel, only
two times prior to trial and spoke to co-counsel, who was an inexperienced attorney, the rest
of the time. The Petitioner wrote numerous letters to trial counsel, which were admitted into
evidence. In these letters, the Petitioner insisted on pursuing an alibi defense and became
angry when trial counsel questioned how he was going to reconcile an alibi defense with the
fact that witnesses had seen him in his mother’s car at the crime scene and had seen him run
into the yard and shoot the victim. The Petitioner asserted that he had three or four alibis for
the crime and claimed that trial counsel never provided him with any documents obtained
through discovery.



                                               -6-
        Although he had consistently insisted on an alibi defense in the aforementioned letters,
the Petitioner asserted at the post-conviction hearing that he shot the victim in self-defense.
He then provided a detailed explanation of what he claimed had occurred. He said he told
trial counsel the first time he met him that he had been provoked and had acted in self-
defense when he shot the victim, but trial counsel refused to pursue these defense theories.
He said trial counsel informed him that in order to present evidence of a fight, he was going
to have to testify, which would have disastrous results because the State would cross-
examine him about the statements he had made to investigators in the Jesse Dodson murder
case and would cross-examine him about his brother’s prior criminal case. The Petitioner
said that at the beginning of trial he intended to testify but that trial counsel later told him it
would not be in his best interest to testify, and he gave up taking the stand to present
evidence of the fight.

        Prior to trial, when trial counsel presented several defense theories to which he could
not agree, the Petitioner suggested that the defense strategy should be to make the State prove
its case and say nothing at all. He said that trial counsel should not have mentioned during
his opening statement that he anticipated the Petitioner would testify that he was not present
at the time of the crime because the proof, including Shaka Jones’s statement to police that
was the subject of the Brady violation, showed that he was present at the scene of the crime.
The Petitioner also claimed that he had wanted to testify at trial, even though he clearly stated
during his Momon hearing that he did not wish to testify.

        Gwendolyn Motley, the Petitioner’s mother, testified that the Petitioner had wanted
to testify at trial.

        Tara Motley, the Petitioner’s sister, testified that she typed the Petitioner’s letters to
trial counsel from the Petitioner’s handwritten letters. She also stated that the Petitioner had
intended to testify at trial.

       Trial counsel testified that he had been licensed in Tennessee for thirteen years. He
said that at the time of the Petitioner’s case, he had handled forty first degree murder cases
and was certified as a criminal trial expert in Tennessee and Arkansas. Trial counsel stated
that he was the primary attorney working on the Petitioner’s case and that co-counsel, an
associate at his firm, assisted him with the case even though co-counsel was not separately
appointed to represent the Petitioner. He also stated that his investigator assisted him with
the Petitioner’s case. Trial counsel said that because he knew of the Petitioner’s complaints
about his first attorney, he responded promptly to each of the Petitioner’s many letters to him.
He also met with the Petitioner at each monthly report date and gave the Petitioner everything
“pertinent, important, material” regarding his case.



                                                -7-
        Trial counsel stated that the Petitioner, almost immediately, wanted him to file a
notice of alibi and never told him that he was present when the victim was shot. He said he
was “shocked” that the Petitioner had just testified that he told trial counsel he was present
at the crime scene. Trial counsel asserted that he and the Petitioner discussed whether the
Petitioner would testify and discussed possible defenses that could be raised on his behalf.
He also stated that they discussed whether a self-defense argument would be in the
Petitioner’s best interest:

                [The Petitioner] had discussed the issue of self-defense. I–again, we
       discussed whether or not the facts and evidence that I believed would come out
       at trial would support the charging of self-defense from the Court, and/or
       worst-case scenario, if the Court did charge that, what the requirements to
       meet . . . [the] self-defense definition would be, and how you’ve taken a case
       in which you may be able to argue for a lesser-included [offense] and made it
       a . . . “all or none” case. If you argue self-defense, you’re saying, “Yes, I did
       it. I killed him, but I was justified in doing it.” You’re kind of . . . asking the
       jury to say . . . [e]ither yes, it was self-defense, or no, it’s first-degree.

              You can–and I do it on the right cases. I do it where I will argue self-
       defense, hoping that some of the jurors will have a strong feeling [about] that,
       others may not, and eventually, they’ll . . . find the right verdict and come back
       with a lesser-included.

               But in this case, because of the–what I believed the facts at trial to be,
       asking for a self-defense instruction I thought would have been very damaging
       to the case and expressed that to [the Petitioner].

Trial counsel said that even though the Petitioner had not told him he was present at the
scene, he knew that the State’s witnesses “were going to testify that he jumped out of the car,
saying, ‘There you are, I’ve been looking for you,’ and ran off and engaged the soon-to-be
victim . . . and under self-defense, you kind of can’t be the initial aggressor.” Trial counsel
stated that he would have liked to have had Shaka Jones’s statement to police because it
would have been one more thing to justify arguing that the Petitioner was guilty of only a
lesser included offense:

       The Court of Criminal Appeals found that [the State’s failure to disclose Shaka
       Jones’s statement to police] was a Brady violation; it just was harmless. We
       didn’t have or were not provided names of those witnesses until days before
       trial, maybe a–maybe a week, week and a half, with no indication of who they
       were. They obviously weren’t on the indictment. They . . . were not provided


                                               -8-
       to us in discovery, because in this case, as the State has a right to do under
       Rule 16, they did not provide . . . trial witness statements, Jencks material, if
       you will. However, the review of the Jencks material, in my opinion, and I
       think the Court of Appeals said, also, that it contained Brady material, and that
       was not provided to us.

              [The Petitioner] had always contended that he was not there and that we
       were just going to sit there and listen to the evidence and not do anything. And
       so because of that–I would have preferred, I would have liked, as a trial
       attorney, to have had that information because then it would have been one
       more thing I could have shown [the Petitioner] to justify what I felt was in his
       best interest, which was to argue for voluntary manslaughter or a lesser-
       included, a provocation case.

        Trial counsel said the Petitioner informed him that if he argued any defense other than
an alibi defense, he would take the stand and testify that he was not present at the time of the
offense:

       [I]n those days and weeks leading up to trial, [the Petitioner] instructed us not
       to run any defense other than he was not there and that if we did anything other
       than he wasn’t there, he was going to take the stand and . . . undermine our
       entire case . . . .

              But when your client’s sitting there telling you he’s about to undermine
       everything you’re about to do, it’s hard to . . . go in and argue to a jury, with
       any hopes of success, that he was there, and . . . it was provocation, . . . and it
       wasn’t meant to be a killing and then your client come[s] back and testif[ies]
       that he wasn’t there [when the crime was committed].

                . . . [W]e felt that there was no chance of winning if we didn’t adopt his
       strategy. It was an absolute train wreck if we didn’t. There was no way–we
       spent many, many days with him trying to talk him out of it. Even throughout
       trial, trying to talk him out of that, even up to the point of right before we
       started trial, [we] thought we could talk him out of it. And then it wasn’t until
       the opening–and I had to get up and just make the call whether I was going
       with the opening we had [regarding the Petitioner’s guilt of a lesser included
       offense] or changing on the fly [to] say he wasn’t there, and . . . that’s why the
       opening is he wasn’t there. . . . [T]he defense that was appropriate to this case
       that I felt was in my client’s best interest, my client . . . was going to
       undermine it, and I just–I had no choice.


                                               -9-
Trial counsel also stated that he talked to the Petitioner “about his decision to testify, the
impact of his decision, how the jury would see it, how it would impact his trial, the pros and
cons, strategy, negatives, positives–more than I have talked to any other client I have ever
tried, ever. Probably combined.” He stated that the Petitioner made a voluntary decision not
to testify.

        Trial counsel admitted that if the State had turned over Shaka Jones’s statement to
police in a more timely fashion, he might have been able to persuade the Petitioner to pursue
a defense strategy other than an alibi:

       [Shaka Jones’s statement to police] backed up everything that we had been
       telling him the entire time we were preparing for trial. It backed up what we
       told him that we believed, that no matter what trial, somewhere in this trial,
       we’re going to find a Brady error. Didn’t expect one that big. And it went
       directly to the issues we were having with client control.

               And when I say, “client control,” I mean convincing the client that we,
       A, know what we’re talking about; B, have done this and have been around the
       block a couple of times; and C, know how to try a case. It backed up . . . the
       very things that we had been saying to him and would have fit perfectly with
       the defense strategy that [co-counsel] and I had developed and spent weeks
       trying to–probably really months because it started from the very beginning,
       but once . . . all the investigation was done, we were preparing for the case and
       having long sit-downs with him, it was the defense.

              . . . It was . . . after that when we got the . . . Jencks material [regarding
       Shaka Jones’s statement to police], took it back and were able to show [the
       Petitioner], “Look. Here . . . it is on paper. We told you this is what you
       should have done.” Then he said, “Oh, yeah, I guess you were right.”

Trial counsel said that by the time he received Jones’s statement to police as Jencks material,
he felt his hands were tied because he had already told the jury in his opening statement that
the evidence was going to show the Petitioner was not present at the time of the victim’s
death. He said his opening and closing arguments were completely different because in the
opening he argued that the Petitioner was not present at the time of the crime and in his
closing he argued that the Petitioner shot the victim during a fight. Trial counsel said that
if he had known about the Brady material, his opening and closing statements would have
argued that the Petitioner killed the victim during a fight and was only guilty of a lesser
included offense. However, trial counsel denied that the Brady violation made it impossible
to be effective in advising the Petitioner regarding trial strategy:


                                               -10-
                I can’t say that [the Brady violation made it impossible for me to be
       effective in advising the Petitioner about trial strategy] because it didn’t
       change my advice. I think it would have given me one extra tool in convincing
       him, but my advice was the same all the way through. . . . I mean, I had the
       discovery, I had my theme theory, I had the idea what had happened, I just
       didn’t have that little bit of plus which was, “Oh, by the way, sure enough,
       there are witnesses out there who were available–who possibly would have
       said, if we’d had them timely, to say that there was a scuffle beforehand.” And
       that’s all [Jones’s statement said was] there was a scuffle.

Trial counsel stated that even though he wanted to pursue the lesser included offense theory,
the Petitioner insisted that he was not present at the scene. He acknowledged that there were
no eyewitnesses, other than the victim, who could positively identify the Petitioner as the
shooter at trial, although there were witnesses who placed him at the scene and there was the
victim’s dying declaration that identified the Petitioner as the shooter. Trial counsel said the
Petitioner wanted him to locate “Frayser Boy” to support his alibi and to not cross-examine
any of the State’s witnesses because he believed that none of them could identify him as the
shooter.

       Co-counsel testified that he had been licensed a little over a year at the time of the
Petitioner’s trial. He said that he had trial experience and had handled second degree murder
cases at that time but that the Petitioner’s case might have been the first first degree murder
case he handled. Co-counsel stated that the evidence, including the medical evidence,
showed that the victim had been involved in a fist fight. The evidence also showed that the
Petitioner was present at the crime scene, which meant that an alibi defense would not have
been effective at trial. Co-counsel believed that the Petitioner was so insistent on an alibi
defense because he was suspicious of the judicial system and was nervous about admitting
he had been present at the scene. He said the defense team could not risk presenting a lesser
included offense theory or a self-defense theory and then have the Petitioner testify that he
was not present when the victim died.

        At the end of the evidentiary hearing, the post-conviction court denied relief and later
entered a written order to that effect. In its extensive oral findings, the court determined that
the Petitioner was “the engineer of his own demise” because he insisted on an alibi defense
even though trial counsel and co-counsel had repeatedly advised him that a self-defense
theory or a lesser included offense theory, which were sound defense strategies, would have
been more effective. The court found that the Petitioner told counsel if they even suggested
that he was present at the crime scene, he would sabotage his defense by taking the stand and
telling the jury that he was not present when the crime occurred. It further found that
because of the Petitioner’s insistence on an alibi defense, trial counsel argued in his opening


                                              -11-
statement that the Petitioner was not present at the time of the crime and that he anticipated
that the Petitioner would testify that he was not present when the victim was shot. The court
added that counsel were not ineffective in presenting one defense theory in opening statement
and then changing that theory during trial as the case evolved. Moreover, the court
determined that it was the Petitioner’s decision not to testify at trial and that his testimony
to the contrary was not credible. The court also found that the Petitioner never admitted that
he had fought with the victim until Shaka Jones’s statement to the police was disclosed at
trial. It emphasized that the proof of the Petitioner’s guilt in this case was overwhelming.
Ultimately, the court held the Petitioner failed to establish that counsels’ performance was
deficient or prejudicial, asserting that “not only did [the Petitioner] receive effective
representation, he received outstanding representation on a case that was absolutely
indefensible.”

                                        ANALYSIS

        The Petitioner argues that “the State’s Brady violation [regarding Shaka Jones’s
statement to the police] interfered with the attorney-client relationship” by preventing trial
counsel from advising him about a defense strategy based upon self-defense or a lesser
included offense, which negatively affected the outcome of trial. He claims that because he
was not receptive to a defense theory that involved him struggling with the victim until after
he was shown Jones’s statement, the State’s Brady violation kept him from testifying that the
victim confronted him prior to the fight and prevented the defense from “present[ing] an
emotional case to the jury that allowed them to understand how a person could come to kill
another person.” The Petitioner asserts that had the State’s Brady violation not rendered
counsel’s assistance ineffective, the jury likely would have acquitted him of all charges or
found him guilty of a lesser included offense. To buttress this argument, he asserts that he
was distrustful of the criminal justice system, he did not have an attorney of his choosing but
was appointed counsel, and he did not understand that an alibi theory and a self-defense
theory conflicted with one another. He also claims that he did not understand the
significance of circumstantial evidence, erroneously believed he could not be convicted
without an eyewitness identification, and did not understand a defense theory that placed him
at the crime scene. We conclude that the Petitioner is not entitled to relief.

       Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,


                                             -12-
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted); see Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010). “The petitioner bears the
burden of proving factual allegations in the petition for post-conviction relief by clear and
convincing evidence.” Vaughn, 202 S.W.3d at 115 (citing T.C.A. § 40-30-110(f); Wiley v.
State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and convincing
when there is no serious or substantial doubt about the accuracy of the conclusions drawn
from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (citing Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted). “Government
violates the right to effective assistance when it interferes in certain ways with the ability of
counsel to make independent decisions about how to conduct the defense.” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citing Geders v. United States, 425 U.S. 80, 88-91
(1976) (trial court’s order prevented the defendant from consulting with his attorney during
an overnight recess); Herring v. New York, 422 U.S. 853, 858-65 (1975) (statute allowed
trial courts to deny defense counsel the opportunity to make a closing argument during bench
trial); Brooks v. Tennessee, 406 U.S. 605, 612-13 (1972) (statute required defendants
desiring to testify to be first defense witness); Ferguson v. Georgia, 365 U.S. 570, 593-96
(1961) (defendant denied the right to have his attorney question him to elicit his unsworn
statement pursuant to statute making defendants incompetent to testify under oath on their
own behalf)). Certain types of state interference with counsel’s assistance are presumed to
be prejudicial because they “involve impairments of the Sixth Amendment right [to effective
assistance of counsel] that are easy to identify and, for that reason and because the
prosecution is directly responsible, easy for the government to prevent.” Id. at 692; see State


                                              -13-
v. Timothy Tereze Dewalt, No. W2001-00168-CCA-R3-CD, 2002 WL 1482722, at *2
(Tenn. Crim. App. Feb. 4, 2002).

        In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Strickland, 466 U.S. at 687;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell below “an objective standard of reasonableness
under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688; Baxter,
523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the petitioner
establishes “‘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.’” Id. at 370 (quoting Strickland, 466
U.S. at 694).

        The Petitioner essentially argues that the State’s Brady violation rendered counsel’s
assistance ineffective because it prevented counsel from advising him about a defense
strategy based upon self-defense or a lesser included offense. “The effective assistance of
counsel necessarily requires counsel to ‘conduct appropriate investigations, both factual and
legal,’ and to assert defenses ‘in a proper and timely manner.’” Wiley, 183 S.W.3d at 331-32
(quoting Baxter, 523 S.W.2d at 932, 935). However, a defendant’s statements to counsel
should be considered in determining whether counsel performance is deficient:

               The reasonableness of counsel’s actions may be determined or
       substantially influenced by the defendant’s own statements or actions.
       Counsel’s actions are usually based, quite properly, on informed strategic
       choices made by the defendant and on information supplied by the defendant.
       In particular, what investigation decisions are reasonable depends critically on
       such information. For example, when the facts that support a certain potential
       line of defense are generally known to counsel because of what the defendant
       has said, the need for further investigation may be considerably diminished or
       eliminated altogether. And when a defendant has given counsel reason to
       believe that pursuing certain investigations would be fruitless or even harmful,
       counsel’s failure to pursue those investigations may not later be challenged as


                                              -14-
       unreasonable. In short, inquiry into counsel’s conversations with the
       defendant may be critical to a proper assessment of counsel’s investigation
       decisions, just as it may be critical to a proper assessment of counsel’s other
       litigation decisions.

Strickland, 466 U.S. at 691 (citation omitted).

        “In evaluating an attorney’s performance, a reviewing court must be highly deferential
and should indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999)
(citing Strickland, 466 U.S. at 689). Moreover, “[n]o 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.” Strickland, 466 U.S. at 688-89. However, this “‘deference to matters
of strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad,
938 S.W.2d at 369).

         The evidences does not preponderate against the extensive findings of fact made by
the post-conviction court. The Petitioner was not denied effective assistance of counsel by
an act of the trial court or the State. See Timothy Tereze Dewalt, 2002 WL 1482722, at *3.
Counsel properly investigated the Petitioner’s case, informed him of possible defenses, and
adequately prepared for trial. Counsel and the Petitioner were aware prior to trial that the
State would present evidence that the Petitioner was at the crime scene, had previously made
threats against the victim, and had been identified as the shooter by the victim in a dying
declaration. Despite knowing about this evidence, the Petitioner never admitted to trial
counsel that he was present at the scene of the crime and insisted on pursuing an alibi
defense, even though his attorneys believed that a lesser included offense strategy would
have been more effective. Moreover, the Petitioner told trial counsel and co-counsel that if
they tried to present a defense theory other than alibi at trial, he would take the stand and
testify that he was not present when the crime occurred, thereby sabotaging his own defense.
The Petitioner’s insistence, at all costs, on pursuing an alibi defense effectively tied counsels’
hands, resulting in an opening statement that argued the alibi defense and indicated that the
Petitioner would testify he was not present when the crime occurred and a closing statement,
following the admission of Shaka Jones’s statement to police, that argued the Petitioner was
only guilty of a lesser included offense because he killed the victim during a fight. Compare
King v. State, 989 S.W.2d 319, 331-32 (Tenn. 1999) (concluding that trial counsel’s decision
to change trial strategy in response to surprise testimony, which was admitted over his
objection, did not constitute ineffective assistance), with State v. Zimmerman, 823 S.W.2d
220, 224 (Tenn. Crim. App. 1991) (holding that trial counsel’s sudden and unjustified


                                              -15-
“abandonment of the pre-established and reasonably sound defense strategy” was deficient).

        Although the Petitioner claims that the State’s Brady violation prevented him from
taking the stand to testify in his own defense, we conclude that the Petitioner’s decision not
to testify following the admission of Jones’s statement to police was a voluntary one,
necessitated by his insistence on an alibi defense, and not the result of ineffective assistance
of counsel. Cf. Zimmerman, 823 S.W.2d at 228 (concluding that trial counsel’s
recommendation to defendant not to testify after counsel had commented in its opening
statement that the jury would hear from the defendant was deficient because nothing occurred
at trial requiring an “an abrupt change of strategy”). The Brady violation did not render
counsels’ assistance ineffective because trial counsel and co-counsel had advised the
Petitioner to pursue a lesser included offense strategy from the very beginning of the case
based on the evidence they had received. The fact that the Petitioner could not be convinced
as to the most effective defense strategy prior to trial does not make counsels’ performance
deficient or prejudicial, particularly in light of the overwhelming evidence of premeditation.
Because the Petitioner has failed to establish that the State’s Brady violation rendered
counsels’ performance ineffective, he is not entitled to relief.

                                      CONCLUSION

      The Petitioner has failed to establish that he received ineffective assistance of counsel.
Accordingly, the judgment denying post-conviction relief is affirmed.




                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                              -16-
