         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 15, 2004

    KYNASTON SCOTT a.k.a. KYNASTON L. OLAWUMI v. STATE OF
                          TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2000-D-2256    Seth Norman, Judge



                   No. M2004-00809-CCA-R3-PC - Filed Janaury 11, 2005


The petitioner appeals the dismissal of his petition for post-conviction relief in which he asserted
various instances of ineffective assistance of counsel. We affirm the dismissal of the post-
conviction petition because the record supports the post-conviction court’s findings.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE, JJ., joined.

Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Kynaston Scott a.k.a Kynaston L.
Olawumi.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Lisa A. Naylor, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                 Facts and Procedural History

        The petitioner, Kynaston L. Scott, appeals the Davidson County Criminal Court’s
dismissal of his petition for post-conviction relief in which he challenged his convictions of one
count of felony murder and one count of first degree murder. After a jury rendered verdicts of
guilty, the trial court merged the two counts and imposed an effective sentence of life in prison
with the possibility of parole. The conviction and sentence were affirmed by this Court on direct
appeal. See State v. Kynaston L. Scott, No. M2001-00707-CCA-R3-CD, 2002 Tenn. Crim. App.
LEXIS 1102 (Tenn. Crim. App., at Nashville, Dec. 20, 2002), perm. to appeal denied (Tenn.
2003). In his post-conviction petition, the petitioner makes several claims of ineffective
assistance of trial counsel. We have reviewed the record, the briefs of the parties, and the
applicable law. Accordingly, we affirm the post-conviction court’s dismissal of the petition.
       On appeal, the petitioner claims the following instances of ineffective assistance of
counsel:
       (1) Failure to investigate the case, factually or legally, in a manner sufficient to be
           prepared to go forward with all possible defenses and procedures for the
           petitioner’s jury trial;
       (2) Errantly advising the petitioner that he should not testify at trial;
       (3) Failure to interview and subpoena Eric Jones, Tracy Jenkins, and Rudy
           Vaughn as witnesses;
       (4) Failure to meet with the petitioner for a sufficient amount of time or on a
           sufficient number of occasions in order to develop a strategy or trial tactic;
       (5) Failure to request a continuance of the trial in order to further prepare or to
           resolve issues with witnesses; and
       (6) Failure to meet with the petitioner in order to develop a possible alibi defense
           and locate and interview and/or subpoena potential alibi witnesses.

       The facts of the conviction offenses were gleaned from this Court’s direct appeal
opinion. See Kynaston Scott.
       In the early morning hours of March 29, 1998, the victim, Melvin Sharp, was
       found slumped behind the wheel of his vehicle in the Second Street area of
       Nashville. [The victim] had been shot in the head and was dead at the time his
       body was discovered by police. The [petitioner] was subsequently charged with
       one count of first degree murder and one count of felony murder.

       At trial, Lori M. Sharp testified that in March 1998 she and her husband [the
       victim] worked at the McDonald's restaurant at 1201 Broadway in Nashville. Lori
       Sharp was the general manager and [the victim] was her first assistant. The
       Sharps made the restaurant's bank deposits each day at First American Bank on
       McGavock Pike. In preparation for deposit, the money was placed in First
       American deposit bags and each manager had a drop key which was required to
       make the deposit. However, the couple had only one drop key, which they kept on
       a separate key ring at their home. The one on duty usually took the key when
       leaving for work. On March 28, 1998, [the victim] left for work around 4:00 a.m.
       He did not take the key to work with him that day.

        Lori Sharp last spoke with [the victim] around 6:00 to 8:00 p.m. that evening
        when he called from work to tell her that he planned to stop by his brother’s
        house to eat fish. Lori Sharp related that she and her husband owned a 1995
        Mazda 626 which was a “burgundy, reddish color.” Her husband had driven the
        car to work that day. The victim did not carry a wallet, but kept his money,
        driver’s license, Social Security card, and health insurance card in a small
        “daytimer.” After his death, his watch, a cigarette lighter, and sixty to eighty
        dollars ($60 to $80) were returned to Lori Sharp.
Eyewitnesses Jeffrey Pinchon and Joe Vaughn later identified the petitioner from a photographic
lineup as the gunman; a warrant was then issued for the petitioner’s arrest.

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        At the post-conviction hearing, the petitioner stated that he wanted to testify at trial in
order to explain an incriminating letter written by the petitioner to his brother. However, the
petitioner stated, counsel told him that he felt they had a good chance of winning and that he did
not feel the petitioner should testify because that testimony and the State’s cross-examination
might hurt the defense.

        The petitioner also stated that he asked trial counsel about locating Eric Jones as a
witness for the defense and that counsel told the petitioner that someone would attempt to get in
touch with Jones; however, he never heard anything further regarding the status of Jones as a
defense witness. As pertaining to potential witness Rudy Vaughn, the petitioner testified that he
requested that counsel file a continuance in order to have time to locate him, but trial counsel
failed to do so. The petitioner also testified that he requested that Tracy Jenkins and Yolanda
Ursery be called as witnesses for the defense because their statements, combined with other
evidence, “would have caused reasonable doubt on [his] behalf.” However, these witness were
likewise not called on behalf of the petitioner.

       The petitioner further avers that, although he met with trial counsel a few times, the two
never discussed how they would “go about defending the case when the trial came.” Moreover,
the petitioner complains that, after receiving a plea offer that he felt was unacceptable, trial
counsel failed to relay any counteroffer on his behalf.

        The petitioner also argues that trial counsel did not have enough time to prepare for trial.
The petitioner testified that trial counsel errantly failed to request a continuance, even though the
petitioner felt more time was necessary to locate all potential witnesses and to adequately
prepare for trial. Finally, the petitioner avers that he discussed a potential alibi defense with trial
counsel; however, counsel failed to develop an alibi theory and opted not to call the petitioner’s
father, a potential alibi witness, to the stand.

        On cross-examination, the petitioner admitted that there were several continuances for
various reasons from the time of his arrest until trial. He further affirmed the fact that he had a
number of different attorneys represent him up to the time of trial and that all prior counsel
provided the work they had done on his case to trial counsel. The petitioner further admitted
that, among the work done by previous attorneys and turned over to trial counsel, was an
investigation of the case and an interview conducted with eyewitness Jeffrey Pinshon. Finally,
the petitioner acknowledged that the State intended to call Eric Jones, Yolanda Ursery, and
Tracy Jenkins as witnesses against the petitioner at trial.

        Trial counsel stated at the post-conviction hearing that he was appointed in December
before the trial in February 2001. He testified that, in an effort to gain information on the case,
he spoke with the petitioner’s previous counsel on the matter and conducted his own
investigation with the aid of Investigator Pat Wells. As part of his independent investigation,
counsel testified that he located and interviewed several witnesses and spoke with the petitioner
on numerous occasions. Trial counsel further noted that he had a good grasp of the evidence and
felt he was well prepared for trial.


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        Pertaining to the issue of the petitioner testifying, trial counsel stated that he was
concerned about going to trial based on the overwhelming nature of the State’s evidence.
Specifically, counsel testified that he was concerned about the petitioner being cross-examined
about the incriminating letter written by the petitioner to his brother; he stated that he told the
petitioner that it would not be in his best interest to testify at trial.

         Although trial counsel stated that he did not remember Eric Jones, he testified that he
attempted, along with the State, to locate Rudy Vaughn. Despite efforts to locate him through
the Department of Children’s Services, trial counsel stated that he was unable to find him.
Counsel further testified that he met with the petitioner “many times,” estimating that he visited
the petitioner eight to ten times, and possibly more. He further stated that he conveyed his
concerns about the strength of the State’s case “as clearly as [he] could” and that he discussed
his trial strategy of attempting to discredit the State’s witnesses with the petitioner. Finally, he
testified that, although he discussed the State’s settlement offer with the petitioner, the petitioner
had “a gut feeling that he was going to be able to win this case at trial or that he was going to put
his faith in the Lord . . . He was convinced that we were going to be able to win this case at
trial.”

         Although counsel testified that he did not recall requesting a continuance in the case, he
acknowledged on cross-examination that he was aware that the prosecution wanted to expedite
the trial and that the State planned to call two out-of-state witnesses. Regarding the existence of
a possible alibi defense, trial counsel initially testified that he could not recall if the petitioner
raised the possibility of an alibi defense in their conversations. He further stated that he did
locate and interview the petitioner’s parents, both of whom the petitioner avers could have
supplied an alibi. However, counsel testified that he remembered having a conflict with the
introduction of that testimony, although he could not recall the particular conflict at the time of
the hearing. Counsel further affirmed that he would have called the petitioner’s father to the
stand if he had felt he was a legitimate alibi witness.

        The petitioner’s parents also testified on his behalf at the post-conviction hearing. The
petitioner’s mother testified that she recalled the petitioner arriving at home at approximately
10:00 p.m. on the night of the murder but “could not tell [post-conviction counsel] anything else
after that.” She further testified that she discussed these matters with trial counsel, but that the
issue of her testifying “didn’t even come up.” She admitted on cross-examination that she
suffered from grand mal and petit mal seizures, which affected her short-term and long-term
memory. She also contradicted her earlier statement on cross-examination by testifying that she
was unable to verify that trial counsel did, indeed, meet with her.

       The petitioner’s father testified that the petitioner had arrived home at approximately
10:00 p.m. and, to the best of his knowledge, had not left thereafter. He also stated that he left
for work shortly before 5:30 a.m. the next morning and that he believed the petitioner was still at
home at that time.

       The post-conviction court found that trial counsel had adequate time to prepare for trial
considering the fact that the petitioner’s previous attorney provided trial counsel with all

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research and other work conducted on the case to that point. The court further found that
counsel used appropriate discretion in advising the petitioner not to testify. Although the
petitioner admittedly knew of his right to testify, he opted to follow the advice of trial counsel,
who was fearful that he would be exposed to rigorous cross-examination. The court also found
that, despite a diligent effort by both trial counsel and the State, they were unable to locate
potential witness Rudy Vaughn. Moreover, the court noted that the State intended to call Eric
Jones and Tracy Jenkins to testify against the petitioner; therefore it stood to reason that their
presence would not have aided the defense. Finally, the court found that it could not find trial
counsel ineffective in light of the fact that the witnesses in question were not called to testify at
the post-conviction hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

        In answering the petitioner’s last contention, the court found that, although counsel
interviewed the petitioner’s parents, he was “unable to craft an alibi defense based on the
testimony of petitioner’s parents.” Further, the court noted that the petitioner’s father testified at
the post-conviction hearing that his son was definitely at home at the time of the murder, which
contradicted an earlier statement given to police, in which he stated that he could not verify the
presence of the petitioner at the time of the murder. The court thus found that it could not hold
trial counsel ineffective for failing to present the statement which conflicted with the existing
evidence at the time of the trial.

                                              Analysis

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment,
the burden is upon the complaining party to show that (1) counsel’s performance was deficient,
and (2) the deficiency was prejudicial in terms of rendering a reasonable probability that the
result of the trial was unreliable or the proceedings fundamentally unfair. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the services be
rendered within the range of competence demanded of attorneys in criminal cases. In reviewing
counsel’s conduct, a “fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Nichols v. State, 90 S.W.3d 576, 587 (Tenn.
2002).

        It is unnecessary for a court to address deficiency and prejudice in any particular order or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466
U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish 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.’” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068) (citations omitted).

        The petitioner bears the burden of proving the factual allegations that would entitle the
petitioner to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2004).

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We review the post-conviction court’s factual findings underlying a claim of ineffective
assistance of counsel under a de novo standard with a presumption that those findings are correct
– unless the preponderance of the evidence establishes otherwise. Burns, 6 S.W.3d at 461.
However, the post-conviction court’s conclusions of law – such as whether counsel’s
performance was deficient or whether that deficiency was prejudicial – are reviewed under a de
novo standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn.
2001) (citations omitted).

        We conclude that the record supports the post-conviction court’s findings and its
dismissal of the petition. First, the petitioner failed to establish that trial counsel inadequately
investigated the case or was unprepared to proceed with all possible defenses. We agree with the
post-conviction court that previous counsel had performed ample investigation and research and
that work was passed on to trial counsel. Moreover, counsel prepared independently, with the
aid of an investigator, by interviewing witnesses, visiting the crime scene, and formulating the
best possible defense for the petitioner.

        As to the petitioner’s second contention, we conclude that trial counsel was not
ineffective in advising the petitioner not to testify at trial. Again, we agree with the post-
conviction court that counsel used proper discretion in advising the petitioner in this way when
he was concerned with the detrimental effect of the petitioner’s testimony and the likely
stringent cross-examination of the petitioner. We further note that the petitioner knew he had the
right to testify but chose instead to follow the advice of his attorney. We hold that trial counsel
was not ineffective in this regard.

        Third, we conclude, as did the post-conviction court, that trial counsel was not ineffective
for failing to locate and subpoena potential witnesses, Rudy Vaughn, Eric Jones, and Tracy
Jenkins. The record reflects that every effort was made to locate Rudy Vaughn; however,
despite the best efforts of both the State and trial counsel, he was never found. As to Eric Jones
and Tracy Jenkins, the petitioner failed to present their testimony at the post-conviction
proceedings. As such, we cannot “speculate or guess . . . what a witness’s testimony might have
been if introduced by defense counsel.” Black v. State, 794 S.W.2d at 757. Moreover, we note
that the State intended to call these two witnesses to testify against the petitioner. We agree with
the post-conviction court that it “does not follow that their presence would have assisted the
petitioner in his defense.”

        Regarding the petitioner’s contention that counsel did not adequately meet with the
petitioner, we again agree with the post-conviction court that counsel was not ineffective with
respect to this issue. Counsel met with the petitioner at least eight to ten times within the span of
the two months he represented the petitioner prior to trial. Further, the post-conviction court
credited trial counsel’s testimony that he adequately discussed the trial strategy, the State’s
evidence, and the prosecution’s plea offer in his meetings with the petitioner. We conclude that
trial counsel amply met and communicated with the petitioner; therefore, he was not ineffective.

       Next, the petitioner contends that trial counsel was ineffective in failing to request a
continuance to further prepare his case. We reiterate the fact that trial counsel was given the

                                                -6-
benefit of prior counsel’s research and investigation. Moreover, counsel had two months in
which he was able to conduct his own investigation, interview witnesses, and form a trial
strategy. We further note that several continuances had already been granted prior to trial
counsel’s appointment and that the prosecution was eager to present its case, which included two
out-of-state witnesses. Considering all of these facts, we conclude that trial counsel was able to
sufficiently prepare and that the case was ready to go forward. Therefore, any failure to request
a continuance did not amount to ineffective assistance of counsel.

        Finally, the petitioner asserts that trial counsel was ineffective for failing to interview
potential alibi witnesses and failing to develop an alibi theory for trial. However we, like the
trial court, conclude that counsel did properly interview the supposed alibi witnesses but could
not “craft an alibi defense based on the testimony of the petitioner’s parents.” The record shows
that the petitioner’s mother suffered from petit mal and grand mal seizures which affected her
memory. In fact, the petitioner’s mother contradicted her own direct examination testimony on
cross-examination during the post-conviction hearing. Although the defendant’s father testified
that he believed his son was at home when the murder occurred, this testimony contradicts an
earlier statement given by the petitioner’s father to police, in which he stated that he could not
verify that the petitioner was at home when the crime was committed. Like the post-conviction
court, we hold that counsel cannot be held ineffective for failing to present evidence that was
contrary to evidence existing at the time of trial.

        In conclusion, it appears from the record that trial counsel made every effort to provide
the petitioner with the best defense possible. Counsel testified that he attempted to impeach
witnesses, suppress statements made by the petitioner, and present exculpatory reasons for the
petitioner’s questionable departure out-of-state on the day after the murder. By all accounts,
counsel was concerned about the prospects of taking the case to trial due to the overwhelming
amount of evidence against the petitioner. However, because the petitioner wanted to go to trial,
trial counsel made every effort to form a sound trial strategy. As the post-conviction court
noted: “Simply because counsel’s strategy proved unsuccessful does not constitute ineffective
assistance of counsel.” See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).

                                           Conclusion

        Because the record supports the post-conviction court’s findings that the petitioner failed
to establish his claims by clear and convincing evidence, we affirm the dismissal of the post-
conviction petition.




                                                     ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE



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