         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 11, 2003

                  EARL JUNIOR PIKE v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 97-A-369    Cheryl Blackburn, Judge



                      No. M2002-01363-CCA-R3-PC - Filed June 27, 2003


The petitioner, Earl Junior Pike, appeals from the post-conviction court’s denial of his petition for
post-conviction relief, which alleged that his appointed trial counsel was ineffective for not allowing
him to testify at trial. Following a hearing, the post-conviction court dismissed the petition, and we
affirm.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G.
RILEY, J., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Earl Junior Pike.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         The petitioner was convicted in March 1998 of aggravated sexual battery and rape of a child
and sentenced to thirty-seven years imprisonment. His conviction was affirmed on direct appeal to
this court, and our supreme court denied permission to appeal. See State v. Earl Junior Pike, No.
01C01-9804-CR-00168, 1999 WL 737876, at *1 (Tenn. Crim. App. Sept. 22, 1999), perm. to appeal
denied (Tenn. Mar. 6, 2000). On March 14, 2001, he filed a pro se petition for post-conviction
relief, which was subsequently amended by appointed counsel. The amended petition alleged that
the petitioner was denied effective assistance of counsel at trial, in that the trial counsel failed (1)
to move to suppress certain incriminating statements the petitioner made to police, (2) to allow the
petitioner to testify at trial, and (3) to investigate and discover evidence that would have lessened the
petitioner’s sentence. Following an evidentiary hearing, the post-conviction court denied the petition
as to all three claims, and the petitioner appealed, continuing only the claim that the court erred in
finding that the trial counsel did not prevent the petitioner from testifying at his trial.
                                             ANALYSIS

                                         Standard of Review

         A post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held
in the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).
Where appellate review involves 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 trial 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 issues of deficient performance
of counsel and possible prejudice to the defense are mixed questions of law and fact and, thus,
subject to de novo review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999).

                                 Ineffective Assistance of Counsel

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. 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.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

                In any case presenting an ineffectiveness claim, the performance
                inquiry must be whether counsel’s assistance was reasonable
                considering all the circumstances. . . . No particular set of detailed
                rules for counsel’s conduct can satisfactorily take account of the


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                variety of circumstances faced by defense counsel or the range of
                legitimate decisions regarding how best to represent a criminal
                defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

         As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        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,
104 S. Ct. at 2069; 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”).

        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,
therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d) (1997).

        We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and
weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). 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, 104 S. Ct. at 2066, 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 fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).
Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in Burns, 6 S.W.3d
at 462, “[c]onduct that is unreasonable under the facts of one case may be perfectly reasonable under
the facts of another.”



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        At the hearing, the petitioner claimed that he had a third grade education, did not read or
write, possessed the IQ of a kindergartner, and had brain damage from a series of strokes. In his
testimony that he desired to testify at trial, he recounted telling a detective that he had committed the
acts of which he was accused:

                  Yes, I told [the detective] that but also whenever I told him what I
                  told him in the car, sitting at my apartment, [the detective] told me
                  and it wasn’t on tape, wasn’t nobody’s voice on tape but mine, he
                  turned the tape recorder off when he went to talking but when I was
                  talking, he would turn the tape recorder on. He told me, he said if we
                  can’t get your statement, he said if you won’t tell us what we want to
                  know, I can see that your kids are taken away from you for life. He
                  said and I will do that in order to see that you serve this time, what
                  you are supposed to be doing. He said I can do that.1

       The petitioner also said that trial counsel had told him it was not in his best interest to testify,
and once said he would “not allow” the petitioner to testify:

                  Q.       Did you ever ask [trial counsel] if you could testify?

                  A.       Yes, I did.

                  Q.       And what was his response to that?

                  A.       It would be in your best of interest for you not to testify for
                           you could hang yourself.

                  Q.       Did he ever tell you that he would not allow you to testify?

                  A.       One time, he did.

The petitioner later acknowledged on cross-examination that counsel had spoken to him about
testifying, advising him that it would do more harm than good for him to take the stand, and that he
had agreed to this advice.

        The petitioner’s trial counsel testified that he had practiced law for twenty-five years, mostly
in criminal law. He said that he had several reasons for advising the petitioner not to take the stand,
one of which was the petitioner’s lack of intelligence. He did not want the petitioner, whom he knew
had a limited education and mental capacity, to testify in a courtroom setting where “he becomes


         1
          Trial counsel filed a motion to suppress the incriminating statements, claiming that the petitioner did not
know ingly, intelligently, and voluntarily waive his right against self-incrimination. However, the m otion was
unsuccessful.

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more difficult to understand and his comprehension decreases, so I guess I’m saying partially I
thought that he was probably a fairly poor historian.” Also, trial counsel did not want prior
admissions the petitioner made to the police to be brought up again, nor did he want the jury to hear
about the petitioner’s previous conviction for a sexual offense or certain “bad acts” involving a
relative. Trial counsel explained his reasons for concluding that the defense would not be benefitted
by the petitioner’s testimony:

                [H]e had made admissions to Detective Imhoff. It was going to be
                necessary for me to attack [the petitioner’s] own admissions and I
                didn’t care to bolster that by having him take the witness stand and be
                in a potential jeopardy of having to repeat them again. He did have
                the prior conviction. There was, as the transcript reflects and as I
                recall, some discussion of other prior bad acts involving a relative in
                Kentucky by the name of Annie, and there was some discussion
                during the course of the case about that.

                        It would be my opinion that [the petitioner] would have had
                a difficult job in testifying, even surviving a warm and fuzzy direct
                examination much less a spirited cross-examination.

       Trial counsel further testified that he recalled advising the petitioner not to take the stand and
had no recollection of the petitioner’s disagreeing with the recommendation:

                Q.      Okay. I’m just saying, along that line, assuming for the sake
                        of this question that you had had an opinion one way or the
                        other about [the petitioner] testifying and his had been
                        diametrically opposed, would that have been something that
                        you would normally make note of and have some memory or
                        notations of?

                A.      Yes.

                Q.      Okay. Do you recall that happening in this case?

                A.      Not at all.

Finally, counsel testified as to how he explained the case to the petitioner and made sure that he
understood what was happening:

                Q.      Did you have trouble communicating with him?

                A.      No, so long as I took additional time and checked with [the
                        petitioner] to be sure that he was following what I was saying;


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                        occasionally asking him to repeat to me or state it to me
                        differently. If I proceeded as I normally would have, I think
                        [the petitioner] would have understood only a small portion
                        of what I said.

         In its written findings of fact and conclusions of law, the post-conviction court found that the
decision not to testify at trial was the petitioner’s, and counsel had not prohibited him from
testifying:

                         The Court is convinced based on the facts cited above that
                [trial counsel] advised the petitioner as to his right to testify at trial
                and after consultation, the petitioner took counsel’s advice and
                decided not to testify. The Court finds that the petitioner has failed
                to carry his burden of proof with regard to this issue; therefore, this
                claim is dismissed.

The record supports these findings.

                                           CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition.


                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




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