        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 10, 2012

              ANTOINETTE HORTON v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                        No. 07-00649     John Fowlkes, Judge


              No. W2011-01941-CCA-R3-PC - Filed December 11, 2012


The petitioner, Antoinette Horton, appeals the Shelby County Criminal Court’s denial of her
petition for post-conviction relief. The petitioner was convicted of second degree murder and
sentenced to a term of eighteen years in the Department of Correction. On appeal, she
contends that the court erred in denying her petition because she was denied her right to the
effective assistance of counsel. Specifically, she contends that trial counsel was ineffective
by: (1) failing to present a witness who would have established that the gunshot fired by the
petitioner could not have killed the victim; and (2) failing to adequately advise the petitioner
with regard to the State’s plea offers. The petitioner also asserts that the post-conviction
court’s denial of her request for funding for a ballistics expert violated her Due Process
rights. Following review, we affirm the denial of the petition.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

Neil Umsted (on post-conviction); Claiborne H. Ferguson (on appeal); and Jake Erwin (at
trial), Memphis, Tennessee, for the appellant, Antoinette Horton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; Ray Lepone and Reginald Henderson, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                      Procedural History and Factual Background

       According to the opinion filed by this court in the direct appeal of the petitioner’s
case, this case arose out of a June 2006 fight at a park in the Binghampton community of
Memphis between individuals from the Binghampton and Orange Mound communities
during which the thirteen-year-old victim was shot to death. State v. Antoinette Horton, No.
W2009-00277-CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 3, 2010). According to the
opinion:

                 Officer Taurus Nolen with the Memphis Police Department testified
       that he and Detective Billingsly were working on a plain clothes operation in
       t ear ofTimanSteetandMi osaAvenuei t eBi gha onneghbor oodo J 26,2006. The weesti gi t erc r whe t e s wagr of
        h ea l       r       m          nh n mpt i h n une                       y r in nh i as nh y a oup
seventy to one hundred angry individuals. Officer Nolen said, “We saw weapons. I think
I saw a baseball bat and something like that.” The officers decided to investigate and drove
toward the group, at which point Officer Nolen heard a gunshot. Officer Nolen heard
squealing tires and saw a large, dark-colored vehicle driving away. He tended to the victim
and radioed for assistance while Detective Billingsly maintained a perimeter. One witness
told Officer Nolen that the suspect was driving a black or brown Buick Roadmaster, and he
relayed that information to other officers. On cross-examination, Officer Nolen stated that
there was a rivalry between individuals from the Binghampton and Orange Mound
neighborhoods.

Id.

        Multiple witnesses for the State testified that they were present at the park during the
altercation and observed the victim and a group of her friends in the park that day. One
witness indicated that he was aware of a prior fight between these factions earlier in the day.
The witnesses each observed an unfamiliar dark-colored car approach the park and then
observed four to five African-American women get out and enter the park. This group began
arguing with the group of girls in the park, but they returned to their car when they saw they
were outnumbered. However, the women returned from the dark-colored car and were armed
with bats, a tire iron, and a knife. An older woman from Binghampton informed these
women that they would not allow them to fight the younger girls in the park, and the Orange
Mound group began to return to their car while making “bring it on” gestures. At this point,
the girls in the park began arming themselves with bottles, rocks, and bricks off the ground.
As the Orange Mound group began to enter the car, someone from the Binghampton group
threw something and hit the car. The driver, described as having “a Mohawk [hair]style with
braids on the side, with some hair in the middle [and] two gold teeth in her mouth,” then
pointed a gun out the window at the group and fired. Witnesses testified that there was
nothing blocking the car’s exit when the shots were fired. No witness observed any member
of the Binghampton group in possession of a firearm. Id. A co-defendant testified at the trial
and confirmed the details of other witness testimony, adding that when they were pulling
away from the scene, the petitioner said, “[M]an, I think I shot somebody.” Testimony was

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conflicting, however, on the actual number of shots which were fired by the petitioner and
on whether shots were fired by another party.

        Shortly thereafter, an officer responding to the scene saw a Buick Roadmaster
matching the description of the vehicle involved in the shooting driving at a high rate of
speed, with the female driver “aggressively holding the steering wheel.” The officer’s signal
to stop was ignored. While the car was still in motion, the officer observed the car doors
open and shut a couple of times. The chase eventually ended when the car pulled into the
driveway of a residence with the driver jumping out and running into the house. The officer
and his partner chased both the driver and the passenger, who had also jumped from the car,
until they were apprehended. Three other individuals remained in the car. The petitioner
was identified as the driver of the car. One of the other suspects directed the officers to the
gun, which was found in the middle of the street just south of where the officers had initially
spotted the car. Id.

       Crime scene investigators were called to the scene and took photographs including
pictures of a park bench with blood nearby. A search of the car the defendant was driving
revealed a knife, a baseball bat, and a tire tool inside of the car. Crime scene technicians also
found damage to the car, which they hypothesized could have been caused by a bullet or a
rock. Subsequent forensic testing confirmed that the bullet recovered from the victim “had
the same rifling characteristics or lans and grooves as a test bullet fired from the revolver”
recovered from the petitioner. Nonetheless, it could not conclusively be determined whether
the bullet which killed the victim was fired from that particular revolver.

       For these actions, the petitioner was indicted for one count of first degree
premeditated murder and, along with three co-defendants, one count of aggravated assault.
The petitioner proceeded to trial on a theory of self-defense. Both her testimony and those
of the witnesses she presented acknowledged her presence at the scene and in the ensuing
altercation. However, the petitioner contended that the other group was throwing bottles at
them and that someone in that crowd appeared to make a move for a gun. The assault charge
was subsequently dismissed by the State following the close of proof. Following the trial,
the petitioner was convicted of the lesser-included offense of second degree murder and
sentenced to serve eighteen years at 100%. On direct appeal, this court affirmed the
petitioner’s conviction. Id.

        Thereafter, the petitioner filed a timely pro se petition for post-conviction relief
asserting that she was denied her right to the effective assistance of counsel. Following the
appointment of counsel, two amended petitions were filed on the petitioner’s behalf. A
hearing was then held at which the petitioner, her aunt, and trial counsel were called to
testify. The first witness called was Gail Sheppard, the petitioner’s aunt. Ms. Sheppard

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testified that she was at the park on the day the victim was shot because she had heard that
the petitioner was going to be involved in an altercation with a group who had been hassling
the petitioner’s sister earlier in the day. Ms. Sheppard drove to the park, but she remained
inside her car. Although Ms. Sheppard did not witness the shooting, she did hear seven or
eight shots, which caused her to leave and drive to a nearby apartment. She did, however,
return to the area shortly thereafter and observed that the police had cordoned off the area.

       According to Ms. Sheppard, upon her return, she observed the victim lying on the
ground by the playground. She stated further that she observed the victim’s stepfather pick
up the victim and run towards the front of the park, placing the victim on a park bench when
he met paramedics. Ms. Sheppard testified that she observed no blood on the victim. She
seemed to indicate that it was on the park bench where police first saw the victim and
conducted their investigation with that as the place the victim was shot. Incidently, Ms.
Sheppard testified that the petitioner was located in a part of the park which would have
made it impossible to shoot someone in the playground area.

       Ms. Sheppard indicated that she informed trial counsel that she had witnessed the
victim being moved “from day one.” However, she was not called to testify and was
informed by trial counsel that she could not be a witness because she had heard other
witnesses give testimony during the trial.

        Next to testify was the petitioner herself. She stated that her family had hired trial
counsel to represent her and that they had proceeded to trial under a theory of self-defense.
However, at the post-conviction hearing, the petitioner stated she only fired her gun up in the
air and did not believe that the bullet from her gun could have hit the victim. She denied
telling the police investigators that she was responsible for shooting the victim, although she
acknowledged that she had signed and initialed a statement to that effect.

       The petitioner also insisted that she asked trial counsel to call Ms. Sheppard as a
witness, and he assured her that he would do so. However, she was never called. The
petitioner also denied that she had seen the victim near the park bench where she was found,
and she insisted that she herself was never anywhere near where the victim was found.

        With regard to plea offers, the petitioner recalled that as the jury began deliberating,
the State made two separate offers: (1) thirteen and one-half years 100% for second degree
murder; and (2) fifteen years at 45% for voluntary manslaughter. The petitioner testified that
trial counsel failed to explain the terms and conditions of the offers to her in detail. Despite
her instant claim that she was not responsible for the shooting, the petitioner testified that she
would have accepted the second offer had she understood the concept of release eligibility.
However, later in her testimony, she stated it was common sense to know that “a 13.5 year

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at 100%” meant serving the entire sentence; however, she denied that she understood that the
same concept applied to the fifteen-year sentence, meaning she was eligible for release after
serving 45%. She acknowledged that she had stated under oath that she understood the
State’s offers and was freely rejecting them. The petitioner also stated that while trial
counsel had discussed the offers with her family, she denied discussing the matter with any
family member herself prior to making the decision.

        The petitioner testified that trial counsel informed her that a ballistics test had been
conducted by the State on the bullet recovered from the victim and her own gun, with the
results being inclusive. She further stated that trial counsel informed her that he had a
separate test done in Texas and that the results indicated that the bullet had not been fired
from the petitioner’s gun. The petitioner never saw the actual test results, and the
information was not presented to the jury. The petitioner testified that when she asked why,
trial counsel told her that he did not offer the evidence because he believed it could raise an
additional argument for the State and because he believed she would be acquitted. The
petitioner acknowledged that no further testing had been done during post-conviction
because her family could not afford to do so.

       Trial counsel testified that he was hired to represent the petitioner by her family and,
during the process, communicated regularly with both the petitioner and her family. He
indicated that after being hired, he obtained the police report, maintained discussions with
the prosecutor, requested discovery, and hired an investigator. Trial counsel also recalled
specifically going to the crime scene to conduct his own examination.

        Trial counsel recalled speaking with Ms. Sheppard on several occasions, but he stated
that, until her testimony at the post-conviction hearing, he had never been made aware that
the body had allegedly been moved. Moreover, he testified that the physical proof presented
was not consistent with the body having been moved. Regardless, even if the testimony had
been presented, trial counsel did not believe it would have changed the outcome of the trial
in light of the overwhelming evidence to the contrary.

        Trial counsel testified that, given the petitioner’s statement to the police and other
contributing evidence, it was decided that self-defense was the best available defense
strategy. He recalled speaking with the petitioner and her family at length regarding having
an independent test conducted on the bullet. However, after he received the inconclusive
results from the State’s test, he felt it a better decision not to have a second test done. He felt
it was better to argue the State’s lack of a conclusive match rather than chance receiving a
confirmed match from a second test. He made this strategic decision based upon the
petitioner’s statement to police and upon the fact that while the State’s results were
inconclusive, they did indicate that the bullet from the victim possessed the same

                                                -5-
characteristics as the petitioner’s gun. Trial counsel testified he felt there was no benefit to
conducting the second test. Trial counsel testified that he explained this decision to the
petitioner.

        Trial counsel confirmed that two offers were made by the State to the petitioner. He
further testified that he always gave the same advice to all of his clients regarding release
eligibility; specifically, that he could not predict what the parole board would do. He recalled
informing the petitioner that a fifteen-year sentence at 45% would mean that she would be
eligible for parole after serving approximately half of the sentence. Trial counsel also
recalled that the State’s offers were fully discussed and stated on the record during voir dire.

        After hearing all the evidence presented, the post-conviction court denied the petition
for relief. Thereafter, the petitioner filed timely notice of appeal.

                                           Analysis

        On appeal, the petitioner contends that the post-conviction court erred in denying her
petition because trial counsel was ineffective by: (1) failing to present a witness who could
have established that the gunshot fired by the petitioner could not have killed the victim; and
(2) failing to adequately advise the petitioner with regard to the State’s plea offers. The
petitioner also asserts that the post-conviction court’s order denying funding for a ballistics
expert violated her right of due process.

       In order to obtain post-conviction relief, a petitioner must prove that his or her
conviction or sentence is void or voidable because of the abridgement of a right guaranteed
by the United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103 (2010);
Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner must prove
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct.
R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “Evidence is
clear and convincing when there is no serious or substantial doubt about the correctness of
the conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an appeal
of a court’s decision resolving a petition for post-conviction relief, the court’s findings of
fact “will not be disturbed unless the evidence contained in the record preponderates against
them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

       A criminal defendant has a right to “reasonably effective” assistance of counsel under
both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington, 466

                                              -6-
U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of
counsel, a petitioner must prove both deficient performance and prejudice to the defense.
Strickland, 466 U.S. at 687-88. Failure to satisfy either prong results in the denial of relief.
Id. at 697.

        For deficient performance, the petitioner must show that “counsel’s representation fell
below an objective standard of reasonableness” under prevailing professional norms, despite
a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 687-89. “In other words, the services rendered or the advice
given must have been below ‘the range of competence demanded of attorneys in criminal
cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). The petitioner must prove that counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687.
When reviewing trial counsel’s performance for deficiency, this court has held that a
“petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful, tactical
decision made during the course of the proceeding.” Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994). The reviewing court “must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). However, “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Prejudice in turn requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by counsel, even
if professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691. The court clarified that
prejudice “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. “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.” Id. at 694.

        A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the
trial court’s factual findings de novo with a presumption of correctness, unless the evidence
preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But
the trial court’s conclusions of law on the claim are reviewed under a purely de novo

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standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

I. Ineffective Assistance of Counsel

       a. Failure to Call a Witness

         First, the petitioner contends that trial counsel was ineffective for failing to present
the testimony of her aunt, Ms. Sheppard, who could have established that the gunshot the
petitioner fired could not have killed the victim. In support of her argument, the petitioner
relies upon Ms. Sheppard’s testimony offered at the post-conviction hearing that she was
ready and available to testify at the petitioner’s trial. It is not disputed that Ms. Sheppard did
in fact offer her testimony at the post-conviction hearing, during which she indicated that she
had seen the victim shot in an area of the park where the petitioner was not located. She
stated that the area where the victim was prior to being moved was not in the petitioner’s line
of fire, thus offering evidence of the petitioner’s innocence. The petitioner contends that trial
counsel’s failure to introduce this evidence prejudiced her defense, especially as there was
conflicting testimony at trial over how many shots were fired.

       In finding that the petitioner was entitled to no relief on this issue, the post-conviction
court stated:

              Trial Counsel testified that he did not learn that [the p]etitioner wanted
       Sheppard to be called as [a] witness regarding the body of the Victim being
       moved until he heard Sheppard testify during the post-conviction hearing.
       Further, nothing in the police investigation or the defense investigation showed
       that the Victim had been moved. Even if [trial counsel] had known about
       Sheppard’s allegations, in his legal opinion, it would have made no difference
       given all of the other evidence in the case.

        Based upon these statements, it is apparent that the post-conviction court accredited
the testimony of trial counsel over that of Ms. Sheppard and the petitioner. As has been
repeatedly held, this court is bound by credibility findings of the lower court unless the
evidence preponderates otherwise. Burns, 6 S.W.3d at 461. It is simply not the province of
this court to reweigh evidence or re-evaluate credibility determinations made by the trier of
fact. Trial counsel specifically testified that he was not aware of any statements at the time
of the trial made by Ms. Sheppard or anyone suggesting that the victim had been moved. The
post-conviction court accepted that version of events, thus rejecting the petitioner’s. Like
the post-conviction court, we cannot conclude that trial counsel was deficient for failing to
present evidence which he was not aware existed.



                                               -8-
         Moreover, the court noted that Ms. Sheppard’s testimony was inconsistent with the
other evidence that was presented at trial-including the petitioner’s own statement to the
police and her testimony at trial, as well as the chosen theory of defense in her case. The
State points out that Ms. Sheppard, by her own admission, was not even a witness to the
shooting. She indicated that she fled the scene when she first heard gunshots, returning only
after the police had secured the area. It is not logical to assume that police, who have already
secured and blocked a street, would be unaware of people moving bodies around a crime
scene. Thus, in light of the fact that Ms. Sheppard did not witness the actual event, that the
petitioner acknowledged her own responsibility, that the petitioner was observed by
eyewitnesses firing into the crowd, and that no physical evidence supported the claim that
the victim was moved, we cannot conclude that the post-conviction court erred in its
determination that the petitioner had failed to show how the testimony would have affected
the outcome of her trial. As such, no relief is warranted.

       b. Advice on Plea Offers

       Next, the petitioner contends that trial counsel was ineffective for failing to adequately
explain the two offers proferred by the State, as well as the concept of release eligibility. She
contends that, had she properly understood the offers, she would have pled guilty.

        The petitioner’s argument in this case rests solely on her assertion that she was not
properly informed regarding the plea offers and did not understand the consequences of each
agreement. However, trial counsel’s testimony stands in stark contradiction to this, as he
specifically testified that he explained the offers to the petitioner and her family. Trial
counsel expressly stated that he explained the concept of the release eligibility, as well as the
role of the parole board in granting the release. The post-conviction court also noted that the
petitioner was expressly voir dired on this very subject, and she stated that she understood
the agreement and wanted to plead guilty. Again, the post-conviction court accredited trial
counsel’s testimony, and we will not re-evaluate such a determination when no evidence
preponderates against it. See Burns, 6 S.W.3d at 461. The petitioner has simply failed to
carry her burden in this case.

II. Denial of Funding for a Ballistics Expert

       Next, the petitioner contends that the post-conviction court’s denial of her request for
funding for an expert during the post-conviction process resulted in a violation of Due
Process. During the post-conviction hearing, the petitioner raised the issue of whether trial
counsel was ineffective for failing to hire a ballistics expert and have a second test conducted
on the bullet recovered from the victim. In this appeal, she asserts that she carried her burden
of establishing that trial counsel was deficient in this regard, but she argues that she was

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precluded from establishing prejudice by the post-conviction court’s denial of her request to
obtain a ballistics expert to testify at the hearing.

       The petitioner acknowledges that the rules of the Tennessee Supreme Court
specifically prohibit the authorization of expert services in non-capital post-conviction
proceedings. Tenn. Sup. Ct. R. 13 § 5(a)(2) (“In non-capital post-conviction proceedings,
funding for investigative, expert, or other similar services shall not be authorized or
approved.”). She argues, however, that application of this rule violates her right to Due
Process by precluding her ground for relief from being established. She states that
application of Rule 13 is a classic example of a Due Process violation and “essentially barred
the indigent [petitioner] from presenting a viable claim of ineffective assistance of counsel
due to her lack of finances.”

       As an initial matter, we are unable to agree with the petitioner that deficient
performance on the part of trial counsel was established at the hearing, and it is not
specifically addressed on appeal. That conclusion itself would prohibit a determination that
ineffective assistance of counsel was established regardless of this issue regarding the
prejudice prong of the claim. We, nonetheless, address the petitioner’s contentions with
regard to Due Process.

       The petitioner’s argument asks this court to make a determination that application of
a supreme court rule results in a violation of our constitution. However, her argument
ignores that we, as a lower court, are bound by the determinations made by the Tennessee
Supreme Court. That court has specifically found no state entitlement to expert assistance
for non-capital post-conviction petitioners and held that due process rights of non-capital
post-conviction petitioners were sufficiently protected. Davis v. State, 912 S.W.2d 689, 696
(Tenn. 1995). As such, absent a directive from our supreme court, we are precluded from
reaching the conclusion that the petitioner is entitled to relief on this issue.

                                      CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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