        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 2, 2010

                 KARDIUS WILKES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. P-27220     John T. Fowlkes, Jr., Judge




                No. W2009-01476-CCA-R3-PC - Filed August 18, 2010


The Petitioner, Kardius Wilkes, was convicted by a jury of one count of first degree murder.
This Court affirmed his conviction on direct appeal, and his application for permission to
appeal was denied by the Tennessee Supreme Court. See State v. Kardius Wilkes, No.
W2001-02172-CCA-R3-CD, 2002 WL 818255 (Tenn. Crim. App., Jackson, Apr. 26, 2002),
perm. app. denied (Tenn. Oct. 7, 2002). He later filed a petition for post-conviction relief.
Following an evidentiary hearing, the post-conviction court denied the Petitioner relief. In
this appeal, the Petitioner contends that the post-conviction court erred in denying him relief
because his trial counsel failed to: (1) impeach a particular witness using transcripts of the
Petitioner’s first trial, which ended in a mistrial; (2) adequately meet with the Petitioner
before his second trial; (3) call the Petitioner’s brother as a witness; and (4) adequately
investigate and interview potential witnesses. After our review, we affirm the post-
conviction court’s denial of relief.


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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

R. Andrew Hutchinson, Memphis, Tennessee, for the appellant, Kardius Wilkes.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                 OPINION

                           Factual Background

We summarized the facts of the Petitioner’s case on direct appeal as follows:

        On January 12, 2000, several residents of Watkins Manor Apartments
in Frayser were barbequing outside their apartments when the Appellant and
Nicholas Russell drove up and parked their vehicle. Witnesses watched as the
[Petitioner] and Russell approached the victim. The [Petitioner] struck the
victim, Alexander King, in the head with a pistol and exclaimed, “I told you
about ya’ll [Vice Lords] selling drugs over here in this neighborhood.” After
the [Petitioner] struck the victim with the handgun, the victim began running.
The [Petitioner] chased the victim into a driveway. The [Petitioner] leveled
his pistol at the victim, fired one shot and missed. As the victim continued
running, the [Petitioner] fired a second shot from a distance of approximately
fifteen feet and the victim fell to the ground. The fatal gunshot struck the
victim in the back of the head. The [Petitioner] and Russell returned to their
vehicle and drove away. Officers were called to the scene around 8:45 p.m.
and found no weapons on the victim.

      In his statement to police, the [Petitioner] described the events
preceding the murder and the murder itself as follows:

       Me and Nicholas Russell was riding through Watkins Manor
       Apartments and we had saw Mr. King [the victim] and then at that time
       we went back to Nicholas house in the Watkins Manor Apartments.
       Nick had went upstairs and got the gun, he brought it back down and
       gave it to me. We went back around where we saw [the victim] at and
       I guess [the victim] didn’t notice me cause we had an incident where he
       had took something from me. He took some money from me about a
       couple of months ago. This was our first confrontation since he took
       the money. Nick had got into it with [the victim] about something, but
       I don’t know what it was about and Nick told [the victim] not to come
       back in the Watkins Manor. When [the victim] walked up he didn’t see
       me but Nick was talking to him. Nick was like saying, “Give me some
       money, give me something out of your pocket”, and then I hit [the
       victim] with my hand, [the victim] took off running. Then Nick and me
       chased him and then Nick said, “shoot at him”, and then I shot two
       times to try and scared him and he was running. He took a couple of

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               more steps and then he fell. After, I saw him fall, me and Nick jumped
               in the car and rode off . . . I got up at about 3:30 a.m. . . . and I stopped
               right there at the Wolf River and I got out, slung the pistol over the side
               . . . . I didn’t try to kill him and I didn’t try to rob him. I just was trying
               to show him that you don’t do folks wrong and get away with it. I
               didn’t mean to shoot him anywhere . . . I was just trying to scare him.

               A witness at the scene, Aaron Taylor, also recalled briefly seeing the
       [Petitioner] arrive at the apartment complex and leave prior to his return
       twenty minutes later. The [Petitioner] did not testify at trial.

State v. Kardius Wilkes, No. W2001-02172-CCA-R3-CD, 2002 WL 818255, at *1-*2 (Tenn.
Crim. App., Jackson, Apr. 26, 2002) (footnote omitted).

        At his post-conviction hearing, the Petitioner relayed his version of the events
underlying his conviction, explaining that he had merely been trying to break up a fight
between Mr. Russell and the victim. When the victim ran, the Petitioner fired his gun into
the air intending to scare the victim but instead accidentally shot him to death.

        Regarding the performance of his trial counsel, the Petitioner said that trial counsel’s
failure to order transcripts of his first trial resulted in the inability to properly impeach
witnesses at his second trial. The Petitioner said that, at his first trial, witness Aaron Taylor
testified that he had removed money and a beeper from the victim’s body; the Petitioner said
this established that Mr. Taylor could also have removed a gun from the victim’s body and
given it to the victim’s brother, who was later arrested with a gun in his possession. The
Petitioner said that, at the second trial, Mr. Taylor denied removing any items from the
victim’s body. The Petitioner added that, at the first trial, Mr. Taylor testified that the victim
was relatively far away from the Petitioner when he was shot; at the second trial, Mr. Taylor
said the victim was much closer. The Petitioner said trial counsel did not notice these
discrepancies and did not impeach Mr. Taylor even after the Petitioner asked him to do so.

        The Petitioner also testified that he had never fired a gun before shooting the victim,
and requested an expert witness for the purpose of establishing how difficult it would have
been for him to make the fatal shot intentionally; trial counsel had responded that an expert
would not be worthwhile. In addition, the Petitioner had wanted his brother, Nicolas Russell,
to testify on his behalf; trial counsel did not call Mr. Russell as a witness.

       Regarding his preparation for trial, the Petitioner said trial counsel only met with him
three or four times in jail. He also met with the Petitioner during court proceedings before



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the actual trial. Each of these meetings lasted only five to ten minutes. He also said that trial
counsel seemed less attentive and asked fewer questions of witnesses during the second trial.

       Mr. Russell testified at the post-conviction hearing that he was with the Petitioner
during the events that resulted in the victim’s death. He said that the victim had a chrome
nine millimeter handgun tucked into his pants during the encounter that preceded the
shooting. He believed the victim displayed the gun in order to frighten Mr. Russell and the
Petitioner. The victim never drew the gun. Mr. Russell said he told trial counsel that he saw
the victim in possession of a gun. He acknowledged on cross-examination that he told the
police, in an interview about a week after the incident, that he did not know whether the
victim had been armed.

       Trial counsel also testified. He said that he met with the Petitioner on many
occasions, including at least six meetings before the first trial and additional meetings before
the second trial.

       Regarding the Petitioner’s and Mr. Russell’s claim that the victim had a gun, trial
counsel noted that Mr. Russell only told him that he “believe[d] the victim had a gun.” Mr.
Russell never said he had seen a gun. Trial counsel chose not to call Mr. Russell as a witness
because every other witness testified that the victim was not armed. Trial counsel also noted
that every other witness said Mr. Taylor had not taken anything from the victim’s body and
therefore could not have removed a gun.

        Trial counsel said that a firearms expert might have been helpful; he chose not to hire
one because he was not sure whether the trial judge would have allowed it. He also said that
an expert might have been damaging, however, in that the expert might have established the
unlikely nature of the Petitioner’s claim that he had shot the victim while trying to fire into
the air over the victim’s head. Trial counsel noted that he spoke to a number of people who
had been in the area at the time of the shooting; all of them said they had not been able to
hear whether the victim and the Petitioner argued, and did not know what had happened
before shots were fired. He did not hire an investigator to interview witnesses. Trial counsel
also noted certain ways in which the Defendant’s statement differed from his claim that he
was merely breaking up a fight between the victim and another person, in that the Petitioner
admitted that the victim had stolen money from him and was a rival gang member.

       The post-conviction court denied the Petitioner relief. He now appeals.




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                                          Analysis

       To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon
review, this Court will not reweigh or re-evaluate the evidence below; all questions
concerning the credibility of witnesses, the weight and value to be given their testimony, and
the factual issues raised by the evidence are to be resolved by the post-conviction judge, not
the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless
the evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley,
960 S.W.2d at 578.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’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. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a defendant must show “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. The defendant bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient
basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       This two-part standard of measuring ineffective assistance of counsel also applies to
claims arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice
component is modified such that the defendant “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have

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insisted on going to trial.” Id. at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn.
Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

I. Failure to Impeach Aaron Taylor
         The Petitioner first contends, based on his claim that Mr. Taylor’s testimony at the
Petitioner’s first trial differed from his testimony at the Petitioner’s second trial, that trial
counsel was deficient in failing to impeach Mr. Taylor. This issue does not appear in the
Petitioner’s petition for post-conviction relief; it is therefore waived. See Tenn. Code Ann.
§ 40-30-104(d) (stating that “[t]he petitioner shall include [in the petition for post-conviction
relief] all claims known to the petitioner for granting post-conviction relief and shall verify
under oath that all the claims are included”). Although the post-conviction court accordingly
did not specifically address this issue in its order denying post-conviction relief, we note that
the post-conviction court found that Petitioner failed to prove his factual claims by clear and
convincing evidence. We also note that the Petitioner did not introduce transcripts of his
trials in order to show that Mr. Taylor’s testimony differed between the first and the second
trials. The Petitioner is not entitled to relief on this issue.

II. Failure to Adequately Meet with the Petitioner
        Trial counsel testified that he met with the Petitioner at least six times before his first
trial and a number of times before his second trial. The post-conviction court credited his
testimony rather than the Petitioner’s, and the evidence does not preponderate against this

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factual finding. While the Petitioner correctly notes that the meetings before his first trial do
not necessarily establish that he was prepared for his second trial, they were certainly
pertinent to the second trial in that the evidence being presented against the Petitioner was
nearly identical. Additionally, the Petitioner has not identified any specific way in which he
believes he was not prepared for trial or unable to participate in his own defense. This issue
is without merit.

III. Failure to Call Nicolas Russell as a Witness
        The post-conviction court credited trial counsel’s testimony that Mr. Russell never
claimed to have seen a gun in the victim’s possession. That being so, trial counsel’s decision
not to allow him to testify that he merely believed the victim to be armed was reasonable in
terms of trial strategy. All of the other witnesses at trial testified that the victim did not have
a gun, and no gun was found on the victim’s person. Mr. Russell’s belief that the Petitioner
was armed would have done little to establish the threat that he and the Petitioner claimed
to perceive. The post-conviction court noted that Mr. Russell’s credibility was “terrible.”
The post-conviction court found that trial counsel’s performance was not deficient for
electing not to call Mr. Russell as a witness. We agree. This issue is without merit.

IV. Failure to Interview Potential Witnesses
        The evidence does not preponderate against the post-conviction court’s finding that
trial counsel interviewed other people who were at the scene at the time of the shooting. The
Petitioner contends that trial counsel should have hired a private investigator to do the same.
The Petitioner presented no evidence that trial counsel’s investigation was deficient in any
way, or that any other favorable evidence would have been uncovered had a private
investigator attempted the same task. The post-conviction court found that trial counsel’s
performance was not deficient in this respect. We agree. This issue is without merit.

                                           Conclusion

      Based on the foregoing authorities and reasoning, we affirm the judgment of the post-
conviction court.


                                                      _________________________________
                                                      DAVID H. WELLES, JUDGE




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