        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 7, 2013

                 BOBBY JACKSON v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                     No. 08-00127     J. Robert Carter, Jr., Judge


                  No. W2012-01125-CCA-R3-PC - Filed May 30, 2013


The petitioner, Bobby Jackson, appeals the denial of his petition for post-conviction relief,
arguing that he received ineffective assistance of trial counsel at trial. Following our review,
we affirm the post-conviction court’s denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and N ORMA
M CG EE O GLE, JJ., joined.

James A. Greene, Memphis, Tennessee, for the appellant, Bobby Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Lessie Rainey, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

       In 2009, the petitioner was convicted of first degree felony murder and especially
aggravated robbery and was sentenced to life imprisonment. This court affirmed his
convictions on direct appeal, and our supreme court denied his application for permission to
appeal. State v. Bobby Jackson, No. W2009-02232-CCA-R3-CD, 2011 WL 1849096, at *1
(Tenn. Crim. App. May 11, 2011), perm. app. denied (Tenn. Sept. 21, 2011).

       The underlying facts of the case were recited by this court on direct appeal:
        Aurelia Guillen testified that in January 2007, she lived in Memphis,
Tennessee, and was separated from the victim, Carlos Guillen, with whom she
had two children. She said that the last time she saw the victim was December
31, 2006, when he picked up their children from her house. Guillen testified
that the victim owned a Chevrolet Trailblazer.

       Jose Leon testified that the Shelby County District Attorney’s office
employed him as a victim witness coordinator for the Hispanic community.
He said that he met Martin Sanchez, a witness in this case, at the preliminary
hearing in 2007. At that time, Sanchez gave Leon his local contact
information and informed Leon that he planned to return to Mexico. Leon
said that Sanchez gave him the number to a phone booth in his village in
Mexico. Leon testified that he attempted to locate Sanchez through the local
contact information and through the Mexican phone number but was
unsuccessful in finding him before trial.

        Detective Ronald Goodwin testified that he was a criminal investigator
for the Shelby County District Attorney’s office. He said that he attempted to
locate Sanchez using the information from his statement to police, utility
company records, motor vehicle records, and his wife’s records. Detective
Goodwin said that he went to the local address he found, but no one at that
location knew where Sanchez had gone. Detective Goodwin stated that he
used a nationwide database to determine whether any agency had arrested
Sanchez or his wife, but the search did not reveal any arrests.

      On cross-examination, Detective Goodwin testified that he was
unaware of whether federal authorities had issued a visa or work permit for
Sanchez.

        The state played the videotape of Sanchez’s testimony from the
[petitioner’s] preliminary hearing. On direct examination, Sanchez testified
that on January 5, 2007, he was in the parking lot of the Willow Oaks
Apartments when the victim asked whether he wanted to purchase any CDs.
Sanchez said that after he purchased a CD and received change from the
victim, two black men approached the victim’s vehicle. He said that one man
was taller than the other, and the taller man told the victim to get out of the
vehicle. The taller man pulled the victim out of the vehicle and pointed a gun
at him. The shorter man hit the victim, and the victim fell to the ground.
When the victim tried to get up, the taller man shot him. The men drove away
in the victim's vehicle. Sanchez testified during cross-examination that he was

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twenty meters away from the vehicle and could see and hear everything
clearly. He said that police showed him photographs, but he did not identify
either of the two suspects from the photographs.

       Memphis Police Officer David Reed testified that on January 5, 2007,
he responded to a shooting at 2749 Ketchum Road in the Willow Oaks
apartment complex. When he arrived, he found a male Hispanic laying on the
ground. Officer Reed testified that he took witness reports and held the scene
until detectives arrived.

       Memphis Police Sergeant Alisa Mitchell testified that in January 2007,
she was a crime scene investigator. She said that on January 5, 2007, she
made the scene at 2749 Ketchum Road and observed that the victim was lying
on his back with his arms above his head. She recalled that he had a gunshot
wound to the chest. Sergeant Mitchell testified that she photographed the
scene and collected three nine millimeter Luger Winchester shell casings.

       On cross-examination, Sergeant Mitchell testified that the victim was
carrying a wallet with $44 inside. She said that she collected the wallet as part
of the victim’s personal belongings.

      On re-direct examination, Sergeant Mitchell testified that she did not
recover the victim’s keys at the scene.

       Tracy Rivers testified that she lived in the Willow Oaks apartment
complex. She said that on January 5, 2007, she was walking through the
apartment complex with her fourteen-year-old cousin when two young black
males tried to speak to her cousin. Rivers said that she had never seen the
males before that day. She stated that the males were between sixteen and
nineteen years old and that one was taller than the other. Rivers testified that
she had just walked into her apartment approximately five minutes after
encountering the males when she heard three gunshots. Rivers said that she
looked out of the door and saw a “bluish greenish truck speed out.” She also
described the vehicle as a jeep.

       On cross-examination, Rivers testified that she was unable to identify
the two males in a photospread shown to her by police on January 7, 2007.

       Memphis Police Officer Randall Davis testified that on January 6,
2007, he was patrolling his precinct when he observed a blue Chevrolet SUV

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parked in the driveway of an empty house. He ran the vehicle identification
number on his computer, which indicated that the vehicle was stolen. Officer
Davis recalled that a white cross was hanging from the rearview mirror. He
said that the police department towed the vehicle to the investigative hold
unit. The parties stipulated that the 2002 Chevrolet Trailblazer was registered
to the victim.

       Varreous Thomas testified that he was the co-defendant’s brother. He
said that on January 5, 2007, he was with the defendant at the Hillview
Apartments, and he heard the defendant say that he had shot someone.
Thomas stated that he saw a blue Chevrolet Trailblazer that day on Alcy Road
behind an abandoned house, which was a five minute walk from the Hillview
Apartments. He said that he had not seen the defendant with that vehicle
before that day. Thomas agreed that he told police that the defendant had
some keys that Thomas believed were for the Trailblazer, but he said that he
was “under pressure” when he said that.

      On cross-examination, Thomas testified that the defendant never told
him anything about a Trailblazer.

      Officer Vivian Massey testified that she was a corrections officer at
201 Poplar Avenue. She said that on June 9, 2009, Officer Tyrone Mourning
gave her a letter, which she in turn gave to her lieutenant. She recognized
Exhibit 22 as the letter that Officer Mourning gave her.

       Officer Mourning testified that he was a corrections officer at 201
Poplar Avenue. He said that on June 9, 2009, the defendant gave him a letter,
which he identified as Exhibit 22, to give to David Hamilton, the
co-defendant. Officer Mourning stated that he gave the letter to Officer
Massey.

        The state read the letter into evidence, paraphrasing at times. The full
letter read as follows:

       What’s up lil bro. You straight down their [sic]. [L]ook I been
       hearing you suppost [sic] to be testyfying [sic] against me. Why
       you wanna do that bro. So you want me to spend the rest of my
       life [in] jail from my 3 kids. You know I [expletive] with you
       bro like a lil brother but why you want to get both of our life
       [sic] [expletive] off. Cause both of us gone do some time

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      regardless. We were together lil Dave bro. [T]he reason they
      want you to testyfied [sic] is because they don’t have the
      shooter[.] [I]f they don’t got [sic] that[,] they don’t have
      [expletive] on us[,] meaning they don’t got [sic] no case. Why
      you think we been [sic] here so long bro. [I]f you don’t
      testyfied [sic] we go home. [Expletive] you said you ready [sic]
      to go home right. Well let’s make this [expletive] happen. You
      need to get in that law work bro [and] stop fighting [expletive]
      cause that type of [expletive] make you look bad in court. I go
      to trial July 6. I don’t want you to testyfied [sic] against me bro,
      cause I want to go home to [sic]. We both need our freedom.
      [T]hen look if both of us get charge[d] it’s gone [sic] get broke
      down to [i]nvoluntary manslaughter. [I]f you look in your law
      work you will see that [i]nvoluntary manslaughter is a homicide
      committed under such circumstances that it plainly appears that
      neither death nor bodily harm was intended by the party doing
      the killing, but that death was accidentally caused by some
      unlawful act, or by some act not strictly unlawful in itself, but
      done in an unlawful manner and without due caution and that
      death was natural and probable result of such act. So
      [r]emember I told them that we got into a fight of the gun [and]
      it went off[,] but at the same time we tried to robb [sic] that man
      to [sic]. So we still gone [sic] have to do some time bro. So are
      you shure [sic] you want to testyfied [sic]. [I]f so you must
      gone [sic] take the Especially [sic] Aggravated robbery. [N]ow
      that goes back when I said we were together[.] I can’t take both
      of the charges bro real talk. We need to fight this [expletive]
      together. Once again[,] no shooter, no case, don’t never [sic]
      forget that bro. [I]f you don’t listen to [nobody] else listen to
      me because I’m reading on this [expletive]. Don’t testyfied
      [sic] lil Dave. I love you bro. [R]eal talk even though I talk
      bad about you[,] but I still [expletive] with you because you my
      young [expletive] [and] you don't understand this [expletive].
      [B]ut we can beat these people.

      [Signed] Murder Man A.K.A. get down or laydown B.K.A. lil
      Bobby To lil Dave

       On cross-examination, Officer Mourning stated that he did not recall
the exact date in June when the defendant gave him the letter nor what time

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of day it was. He said that he was not familiar with the defendant’s
handwriting and did not see the defendant write the letter. He agreed that the
defendant had a cell mate.

        Francis Donald Carpenter testified that he was retired from the
Memphis Police Department, where he was a crime scene and fingerprint
technician. He testified that he processed fingerprints from a coffee cup found
inside the victim’s vehicle and from the vehicle itself. The parties stipulated
that the fingerprints matched the victim’s.

        Tennessee Bureau of Investigation Special Agent Cervinia Braswell
testified that she was a forensic scientist in the firearms identification unit.
She said that the Memphis Police Department provided her with a bullet, three
nine millimeter cartridge cases, a box of Winchester .380 caliber ammunition,
a Cobra .380 automatic pistol, and seven other Winchester .380 caliber
cartridges. Agent Braswell testified that the three nine millimeter cartridges
were fired from the same weapon. She said that the .380 pistol would not
have been able to fire nine millimeter bullets. Agent Braswell said that the
bullet provided to her was a nine millimeter.

        Memphis Police Sergeant Anthony Mullins testified that he interviewed
Varreous Thomas in connection with this case. According to Sergeant
Mullins, the robbery bureau was interviewing Thomas about several cases
when he indicated that he had information about a homicide. Thomas agreed
to speak with homicide detectives and gave a witness statement. Sergeant
Mullins said that Thomas told him that the defendant had told him that he shot
the victim after Thomas saw a blue Trailblazer on Alcy Road. Thomas
identified a picture of the victim’s Trailblazer as the vehicle he saw. Thomas
told him that he went to the Trailblazer with Jeffrey Turner, who took some
CDs out of the vehicle. Thomas said that the defendant had a set of keys with
“a little thing hanging on them” that had “Mexican words” written on it.
Thomas assumed the keys belonged to the Trailblazer because the vehicle’s
steering column was not broken and because the defendant did not own a
vehicle.

        Sergeant Mullins further testified that he interviewed the defendant on
February12, 2007, because Thomas’[] statement and another witness’s
statement implicated the defendant. In the defendant’s written statement, the
defendant admitted that he was responsible for the victim’s death. He said
that he fired one or two shots from a nine millimeter. The defendant said that

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       “Dave” was with him and was armed with a .22 caliber weapon but did not
       fire any shots. The defendant stated that he shot the victim because the victim
       tried to take his gun. The defendant said that he got the nine millimeter from
       a person named Octavious, and he returned the gun to Octavious after
       shooting the victim. He said that Dave drove the Trailblazer away from the
       scene, and the defendant later drove it to a location near his house on Sugar
       Creek Road. Sergeant Mullins testified that, at the time that the police booked
       the defendant and his co-defendant into the jail, the defendant was two inches
       taller and fifty pounds heavier than his co-defendant.

               On cross-examination, Sergeant Mullins testified that Thomas initially
       told him that the defendant did not tell him anything about his involvement.
       He further testified that he knew that the defendant was a juvenile at the time
       of his interview and that his mother was in Memphis. He agreed that he did
       not contact the defendant's mother. Sergeant Mullins said that the defendant
       indicated that he had completed the tenth grade and had been in special
       education classes. Sergeant Mullins stated that the defendant initially did not
       understand his rights, so Sergeant Mullins and his partner “went over each of
       his rights with him.”

              On re-direct examination, Sergeant Mullins testified that the defendant
       was in custody in the Shelby County Jail rather than in the juvenile system;
       therefore, he treated the defendant as an adult. Sergeant Mullins said,
       “[A]pparently he had been involved in so many encounters with the law that
       the juvenile system felt there was nothing they could do to rehabilitate him or
       anything else.”

              Dr. Lisa Funte, an assistant medical examiner, testified that the victim
       died from a gunshot wound to his chest. She further testified that stippling
       around the entrance wound indicated that the muzzle of the gun was “within
       a few inches to a few feet.”

Id. at *1-5.

      In December 2011, the petitioner filed a pro se petition for post-conviction relief, in
which he raised, among other things, various allegations of ineffective assistance of counsel.
Counsel was appointed, and an amended petition was filed on March 2, 2012. The post-
conviction court conducted an evidentiary hearing on April 5, 2012.

       At the hearing, the petitioner testified that he was seventeen years old and on

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probation at the time of the instant offenses. He said that he was incarcerated for a new
aggravated robbery charge when he was interviewed by homicide detectives on February 12
or 13, 2007, for the instant case. He admitted that he denied “about three or four times” any
knowledge of the victim’s murder. Asked if he requested an attorney during the interview,
the petitioner said, “I didn’t know what I needed at that time because my mind wasn’t right
at that moment.” He admitted that he told the detectives he had tried to rob the victim of his
car and that the victim was accidentally shot during the ensuing struggle. He further
admitted that the statement was in his handwriting, but he could not remember if he signed
it.

        The petitioner said that he was placed in special resource classes as a child and that
he had been diagnosed with mild retardation. He could not recall if he gave this information
to the detectives during his interview. He said he was placed on suicide prevention while
awaiting trial because he attempted to hang himself and had cut his arm and wrists with a
razor. He recalled going to a mental health institution after being released from the hospital.
He had been prescribed two medications but was not currently taking them.

        The petitioner said he asked trial counsel about trying to suppress his statement, but
counsel said it would be denied or would not help. He said that trial counsel met with him
at the jail one time and sent co-counsel most of the time. He said that the “man that they said
that was on video tape” should have been called as a witness at trial. The petitioner said that
he felt “like . . . [he] could of got a deal in there. I feel like – because my charge partner, I’m
trying to see how I end up getting all this time and my charge partner got thirty-five years
but I got life plus twenty.” He said trial counsel told him he had “a no deal case.”

       During examination by the post-conviction court, the petitioner said he told trial
counsel everything he knew about the case. He acknowledged that his life sentence and
twenty-year sentence were concurrent. He said he was sentenced to three years for the
aggravated robbery charge. He maintained that he was “just trying to carjack” the victim,
but the victim fought back and got shot.

       Trial counsel, who had tried approximately thirty cases and represented other clients
charged with first degree murder, testified that he was appointed to represent the petitioner
in August 2007 and also represented the petitioner on an aggravated robbery case. Another
attorney, who had ten years experience, was also appointed for the petitioner. Trial counsel
represented the petitioner until August or September 2009 but could not recall how many
times he met with the petitioner. However, his investigator met with the petitioner regularly.
Counsel did not think co-counsel met with the petitioner but said she resembled the
investigator, which may have caused the petitioner’s confusion about who met with him.


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       Trial counsel said he did not file a motion to suppress the petitioner’s statement
because he litigated the petitioner’s statement as to the aggravated robbery charge and
realized how futile suppressing his statement would be because the petitioner had a lengthy
criminal history and his statement was largely “self-serving.” Counsel said that a few days
before trial, the petitioner sent a letter, which he signed as “murder man,” to his co-
defendant in the jail. Counsel filed a motion to suppress the letter, but it was denied.
Counsel said the petitioner was evaluated at Midtown Mental Health Institute and found to
be competent to stand trial.

        On May 3, 2012, the post-conviction court entered an order denying post-conviction
relief, and this appeal followed.

                                         ANALYSIS

       The petitioner argues that he received the ineffective assistance of trial counsel
because counsel failed to suppress his statement or object to the admission of the letter he
signed as “murder man” and sent to his co-defendant. The State responds that the petitioner
has failed to meet his burden of proof as to his claims. We agree with the State.

       Post-conviction relief is available to a petitioner who establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden of
proving his allegations by clear and convincing evidence. Id. § 40-30-110(f). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
post-conviction court “are entitled to substantial deference on appeal unless the evidence
preponderates against those findings.” Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see
also Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review is of
purely factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a post-conviction
court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo,
with a presumption of correctness given only to the post-conviction court’s findings of fact.
See Fields, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

        The right to effective assistance of counsel is safeguarded by the Constitutions of both
the United States and the State of Tennessee. See U.S. Const. amend. VI; Tenn. Const. art.
I, § 9. Ordinarily, to establish that he was denied the effective assistance of counsel, the
petitioner has the burden to show both that trial counsel’s performance was deficient and that
counsel’s deficient performance prejudiced the outcome of the proceeding. Strickland v.

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Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland standard
is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
reviewing court must indulge a strong presumption that the conduct of counsel falls within
the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices
were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

       The prejudice prong of the Strickland test is satisfied by showing a reasonable
probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

       In its order denying the petition for post-conviction relief, the court found that trial
counsel’s decision to not seek suppression of the petitioner’s statement was a “valid tactical
decision” in view of the petitioner’s record and the fact that the statement was largely self-
serving, as testified to by trial counsel. The court noted that trial counsel unsuccessfully

                                               -10-
litigated the letter the petitioner sent to his co-defendant. The court also noted that, at the
evidentiary hearing, post-conviction counsel and trial counsel agreed that trial counsel “had
very little to work with.” The court concluded:

       Petitioner has failed to prove that his trial attorney was deficient. Trial
       counsel was fully prepared and argued [the] [p]etitioner’s case as well as he
       could. Petitioner still does not see how the shooting death of an individual
       during the course of stealing the individual’s vehicle can be a murder.

              Counsel was able to persuade the trial judge to order concurrent
       sentences. Petitioner simply has not put forth any evidence of what his
       attorney should have done beyond that which was done.”

       The record fully supports the post-conviction court’s findings that the petitioner
received effective assistance of counsel. Trial counsel testified that he did not file a motion
to suppress the petitioner’s statement because the petitioner had a lengthy criminal history,
including another aggravated robbery conviction, and the statement was largely “self-
serving,” which would allow the petitioner to get his version of the facts to the jury without
exposing him to cross-examination. Counsel’s decision to not seek suppression of the
petitioner’s statement was a tactical decision we will not second-guess on appeal. We
cannot conclude that counsel performed deficiently. With regard to the letter the petitioner
sent to his co-defendant, counsel testified that he filed a motion to suppress the letter, but
it was denied. The petitioner now insinuates that counsel should have sought redaction of
portions of the letter. However, we cannot conclude that counsel’s acts or omissions fell
below an objective standard of reasonableness, given that counsel sought suppression of the
letter but was unsuccessful.

                                      CONCLUSION


       Based on the foregoing authorities and reasoning, we affirm the denial of the petition.



                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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