         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 6, 2002

                  LEE O. ANDERSON v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Fayette County
                          No. 4786    Jon Kerry Blackwood, Judge



                   No. W2001-02951-CCA-R3-PC - Filed September 5, 2002


The petitioner, Lee O. Anderson, appeals the Fayette County Circuit Court’s denial of his petition
for post-conviction relief from his convictions for delivery of one-half gram of cocaine and delivery
of less than one-half gram of cocaine. This court affirmed the judgments of conviction. See State
v. Lee O. Anderson, No. W2000-00671-CCA-R3-CD, Fayette County (Tenn. Crim. App. Feb. 9,
2001), app. denied (Tenn. June 25, 2001). The petitioner claims that he received the ineffective
assistance of counsel because his trial attorney (1) failed to present evidence of the petitioner’s
treatment for drug addiction in order to support a casual exchange defense and (2) failed to raise an
insufficiency of the evidence claim on appeal of his convictions. We affirm the judgment of the trial
court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JOHN
EVERETT WILLIAMS, JJ., joined.

Shana McCoy-Johnson, Somerville, Tennessee, and Didi Christie, Brownsville, Tennessee for the
appellant, Lee O. Anderson.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Ryan D. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

       This court’s opinion in the petitioner’s appeal of his convictions recounts the following facts:

                      On November 21, 1998, the defendant was approached by an
               undercover police officer who was working as part of a drug sting
               operation that was being conducted by law enforcement officials.
               During the first of three sales the defendant made to the undercover
               police officer, the defendant sold $35 worth of crack cocaine to the
               undercover officer, which was later tested and found to weigh .1
               grams.

                       On November 25, 1998, the same undercover officer made
               contact with the defendant a second time and asked the defendant to
               sell him $60 worth of crack cocaine. The defendant told the
               undercover officer to drive his car to the same area where the
               defendant had sold crack cocaine to the officer four days earlier.
               After a brief wait, the defendant met the officer and sold the officer
               $60 worth of crack cocaine. To play the role of a thankful drug user
               who appreciated the defendant getting the crack cocaine for him, the
               undercover officer gave the defendant some of the drugs. When the
               crack cocaine was later tested, it weighed .3 grams.

                        Finally, on November 28, 1998, the same undercover officer
               was flagged down by the defendant. On this third occasion, the
               defendant and the undercover officer returned to the area where the
               previous two drug transactions occurred. When the two arrived, the
               undercover officer told the defendant that he wanted to buy $100
               worth of crack cocaine. The defendant then got out of the undercover
               officer’s car, left for a short time, and then returned. When the
               defendant returned with the crack cocaine, the defendant found
               someone else in the car with the undercover officer. The defendant
               proceeded to run the other person off, telling that person that the
               undercover officer was “his customer.” The transaction then
               occurred, ending with the undercover officer again giving the
               defendant some of the crack cocaine. When the crack cocaine was
               later tested, it weighed .5 grams.

                      On July 26, 1999, the defendant was indicted by a Fayette
               County Grand Jury for two counts of delivery of a controlled
               substance in an amount less than .5 grams, to wit cocaine, and one
               count of delivery of a controlled substance in an amount equal to .5
               grams, to wit cocaine. The defendant was subsequently arrested . . .
               .

         A jury convicted the petitioner of delivery of one-half gram of cocaine, a Class B felony;
delivery of less than one-half gram of cocaine, a Class C felony; and simple possession of cocaine,
a Class A misdemeanor. The trial court sentenced him as a career offender to concurrent sentences
of thirty years for the delivery of one-half gram of cocaine conviction; fifteen years for the delivery
of less than one-half gram of cocaine conviction; and eleven months, twenty-nine days for the simple
possession conviction.


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        At the post-conviction evidentiary hearing, the petitioner testified that his trial attorney, who
was retained, never explained to him the elements of the delivery of cocaine offenses and that he
never understood his offenses. He acknowledged that there may have been witnesses who could
have helped in his defense and that his attorney did not investigate them. He said he was addicted
to drugs and alcohol at the time of the offenses. He said that between the time of the crimes in 1998
and the time of his arrest in 1999, he got help for his addictions through the J. B. Summer Treatment
Program, Memphis Mental Health Institute (MMHI), New Directions Rehab, and Alcoholics
Anonymous. The defense submitted records of the petitioner’s treatment at the J. B. Summer
Counseling Center and MMHI to the trial court.

        The petitioner testified that he was working and “back on track” when he was indicted and
arrested for the offenses. He said his attorney did not pursue any defenses other than casual
exchange and simple possession. He said that his attorney never discussed using records from the
drug treatment centers as evidence for his casual exchange defense and that his attorney did not call
witnesses from the treatment centers to testify. He said that his family members knew about his
addictions and that his attorney did not call them to testify in his defense. The petitioner
acknowledged that although he had wanted his attorney to pursue an entrapment defense, he never
discussed entrapment with his attorney.

         The petitioner acknowledged that he had several prior felony drug convictions, that he was
on parole at the time of trial, and that his attorney filed motions regarding whether those prior
convictions could be used against him at trial. He said that he and his attorney discussed his right
to testify and that his attorney indicated it was unnecessary for him to testify because the attorney
“had covered everything.” He said he took his attorney’s advice and did not testify at trial or his
sentencing hearing. When asked if he ever expressed a wish to testify, the petitioner replied, “Now
I do.” He said that his trial attorney was appointed to represent him in the appeal of his convictions.
He said he did not know if his attorney alleged on appeal that the evidence was insufficient to
support the convictions.

        On cross-examination, the petitioner testified that he spoke with his attorney about six times
before trial. He said that although his attorney explained unlawful delivery to him, his attorney did
not fully explain it. He stated that he said something to his attorney about presenting records from
the drug treatment centers at trial. He acknowledged that his attorney did not tell him that he could
not testify.

        Lily Anderson, the petitioner’s mother, testified that the petitioner lived with her before his
1999 arrest. She said that in 1997 and 1998, the petitioner was addicted to drugs. She acknowledged
that he went to several rehabilitation centers and that after his release from rehabilitation, he got a
job. She said that at the time of the petitioner’s arrest, he also was attending counseling sessions for
his addictions. She said the petitioner’s attorney did not ask her to testify at the petitioner’s trial.

        The petitioner’s trial attorney testified that his law practice focused on criminal defense. He
said that he had hoped to work out a plea agreement for the petitioner but that the state would not


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consent to it. He said he met with the petitioner about six times before trial. He said he explained
unlawful delivery to the petitioner and how it differed from casual exchange. He said he thought the
petitioner understood the elements of the offenses. He said the only way to defend the case was to
argue casual exchange. He said that entrapment was not a possible defense because the state could
have shown with the petitioner’s prior convictions that he was predisposed to commit the crimes.

        The attorney testified that the petitioner had pled guilty to six or eight prior felony drug
offenses. He said he told the petitioner that if the petitioner was convicted, the trial court would
sentence him as a career offender and he would have to serve sixty percent of his sentence in
incarceration. He acknowledged that the petitioner helped him prepare a trial strategy. He said the
petitioner had planned to testify about the petitioner’s treatment for drug addiction and that the
testimony would have supported the casual exchange defense. He said that through his cross-
examination of the state’s witnesses, the jury heard about the petitioner’s drug addiction, and,
therefore, the petitioner did not need to testify. He said that when the petitioner’s testimony became
unnecessary, he recommended to the petitioner that he not testify. He said that although the trial
court had ruled that the state could not impeach the petitioner with prior convictions, he was afraid
the petitioner would open the door to the prior eight felonies. He said that he explained the risk in
testifying to the petitioner and that the petitioner did not argue with him.

        The attorney testified that he interviewed the state’s witnesses, including Undercover Officer
Dan Feathers, who was involved in the drug transactions. He said that he filed a request for
discovery and that the state turned over a videotape showing the petitioner. He said that he handled
the petitioner’s appeal and that he did not raise a sufficiency of the evidence claim. He said he
regretted not arguing on appeal that the evidence was insufficient to support the petitioner’s
convictions.

        On cross-examination, the attorney testified that he did not remember a confidential
informant being involved in the petitioner’s case. He said that the evidence showed at trial that the
petitioner was a drug addict. He said he did not introduce the petitioner’s rehabilitation records into
evidence because he did not think they would add anything to the defense.

       The trial court denied the petitioner post-conviction relief. In its order, the trial court stated,

               Petitioner’s basic contention is that counsel failed to present evidence
               that after the alleged event took place the petitioner began a process
               of drug and alcohol rehabilitation. Specifically, petitioner believed
               counsel should have presented reports from rehabilitative centers
               showing petitioner’s treatment, as well as witnesses who could testify
               that petitioner had straightened out his life. The purpose of this
               evidence was to show that petitioner was a user of drugs and not a
               drug dealer. Counsel for petitioner testified that this was exactly the
               trial strategy he pursued. Further, the record indicated that the State’s



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               proof conceded that the petitioner was a user. Therefore, counsel felt
               that this proof was amply before the jury.

The trial court did not address the attorney’s failure to raise an insufficiency of the evidence claim
on direct appeal.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under Article I,
Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, 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 Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. See Hellard, 629
S.W.2d at 9; DeCoster, 487 F.2d at 1201.

         In a post-conviction case, the burden is on the petitioner to prove by clear and convincing
evidence his grounds for relief. Tenn. Code Ann. § 40-30-210(f). On appeal, we are bound by the
trial court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). We review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency was
prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

         First, the petitioner claims that he received the ineffective assistance of counsel because his
trial attorney failed to present evidence of the petitioner’s treatment for drug addiction. He claims
that this evidence was necessary to persuade the jury that he was a drug addict who was guilty of
casual exchange. The state contends that the petitioner was not prejudiced by his attorney’s failure
to present the evidence because the evidence was cumulative. We believe that the petitioner has
failed to demonstrate that he received the ineffective assistance of counsel.




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        At the evidentiary hearing, the petitioner’s trial attorney stated that evidence of the
petitioner’s drug treatment was not needed because state witnesses testified at trial that the petitioner
was a drug addict. Our review of the trial transcript reveals that Officer Feathers was the only state
witness who made statements about the petitioner’s being addicted to drugs. During the defense’s
cross-examination of Officer Feathers, the following exchange occurred:

                Q.      Investigator, you have known Mr. Anderson for a while,
                        haven’t you?

                A.      That’s correct.

                Q.      How long have you known him?

                A.      Approximately, 20 something years.

                Q.      A long time?

                A.      Yes.

                Q.      You know he is a crack addict?

                A.      I know that he has an addiction.

                Q.      You don’t know that it is crack cocaine?

                A.      Not personally.

                Q.      But you know that he is addicted to some kind of drug?

                A.      Alcohol or cocaine.      I know that he has some type of
                        addiction.

                Q.      You know that he knows who most of the drug suppliers are
                        around Fayette County?

                A.      Most of them.

                ....

                Q.      Don’t you also know that he accommodates and helps out
                        those who are looking for drugs, and he gets him a little
                        something for doing so?



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               A.      He assisted in three cases, yes.

               Q.      You are not suggesting that that’s the only three times that he
                       has ever done that?

               A.      No.

               Q.      In fact, you know that he has done that a lot?

               A.      That’s correct.

During closing statements, the defense argued to the jury that the petitioner was a cocaine addict who
was guilty of casual exchange.

        Although additional evidence of the petitioner’s drug addiction was available to bolster his
casual exchange defense, we believe he has failed to show that he was prejudiced by his attorney’s
failure to present such evidence. At trial, the defense questioned Officer Feathers about the
petitioner’s drug addiction, and Officer Feathers testified that the petitioner was addicted to cocaine
or alcohol. In addition, the defense argued the petitioner’s drug addiction and casual exchange
defense to the jury during closing statements. Moreover, the evidence in the trial regarding the drug
sales strongly militates against casual exchange. In light of the proof and argument at trial, we
conclude that the petitioner has failed to demonstrate that he received the ineffective assistance of
counsel.

        The petitioner also contends that his trial attorney was ineffective for failing to argue on
appeal that the evidence was insufficient to support his convictions. However, when viewed in the
light most favorable to the state, the evidence is sufficient to show that the petitioner committed the
offenses. Therefore, he has not shown by clear and convincing evidence that his attorney was
ineffective for failing to raise the issue on appeal.

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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