         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 14, 2009

                BRYANT D. MILLEN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-21943    John P. Colton, Jr., Judge



                     No. W2007-00674-CCA-R3-PC - Filed July 23, 2009


The petitioner, Bryant D. Millen, appeals the post-conviction court’s denial of his petition for
post-conviction relief. On appeal, he asserts that he received the ineffective assistance of counsel.
Specifically, he argues that his trial counsel was ineffective in failing to interview and investigate
witnesses. He further asserts that trial counsel failed to impeach the testimony of a witness with a
prior inconsistent statement. After a thorough review of the record and the parties’ briefs, the
judgment of the post-conviction court denying post-conviction relief is affirmed.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN E.
GLENN , JJ., joined.

Robert Brooks, Memphis, Tennessee, for the appellant, Bryant D. Millen.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and P.T. Hoover, Dennis Johnson, and David Zak,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                          I. Background

        Following a jury trial, the petitioner was convicted of first degree murder and sentenced to
life imprisonment in the Tennessee Department of Correction. On appeal, this court affirmed the
petitioner’s conviction and sentence.            See State v. Bryant Dewayne Millen, No.
02C01-9602-CR-00049, 1997 WL 97843 (Tenn. Crim. App., at Jackson, Mar. 7, 1997), perm. app.
granted (Tenn. Nov. 24, 1997). On denial of rehearing, the Tennessee Supreme Court held that
evidence supported that the defendant “was guilty of premeditated and deliberate first degree murder,
even though he killed an unintended victim.” Millen v. State, 988 S.W.2d 164, 168 (Tenn. 1999).
The following is a recitation of the convicting evidence set forth in this court’s opinion on direct
appeal:

               The appellant was a member of a gang known as the “Bloods.” His intended
       victim, Tony Gray, was a member of a rival gang known as the “Crips.” On June 1,
       1994, the appellant told friends that he was tired of Gray’s harassment and that if he
       saw Gray again he was “going to blast on him.” Later that same day, the appellant
       went to a friend’s house to get a gun. He instructed his friend that he “needed” the
       gun immediately. He was given a handgun with ammunition. The appellant
       proceeded to the corner of Graceland and David in Memphis. He placed a red
       bandana around his head and another around his mouth. FN1 Shortly thereafter, a
       car containing Tony Gray and several other passengers proceeded slowly down
       Graceland. FN2 The appellant drew his weapon and began running towards the car
       firing repeated shots at its passengers.

               FN1. The appellant is a member of the “Bloods” street gang. They
               wear red and black colors to signify membership in the gang. The
               intended victim is a member of the “Crips,” a rival street gang. The
               “Crips” wear blue to signify membership in their gang.

               FN2. Tony Gray and the other passengers in the car were wearing
               blue.

              The victim in this case was a 14 year old female. She was walking home
       from school down Graceland when the appellant began shooting at Tony Gray. The
       victim was hit and killed by an errant bullet fired by the appellant.

              After the shooting, the appellant was observed running down Graceland
       towards his father’s home. The police were dispatched to the house. Upon arrival,
       the appellant was found in the bathroom attempting to cut his hair. The handgun that
       the appellant had used was found buried in the backyard. After questioning, the
       appellant confessed to the shooting.

Millen, 1997 WL 97843, at *1.

       On September 21, 1999, the petitioner timely filed a petition for post-conviction relief.
Thereafter, post-conviction counsel was appointed, amended petitions were filed, and evidentiary
hearings were held on September 30, 2005, October 3, 2005, and November 21, 2005. On
September 30, 2005, the petitioner testified that trial counsel was hired by his family to defend him
on charges of first degree murder. The petitioner stated that after school on the day of the shooting,
he saw Tony Gray drive past his school. According to the petitioner, he had been having problems
with Tony Gray. The petitioner, Danny “Little Bob” Walsh, and Terreyo Nailor flagged down a
vehicle driven by Renard Williams and got a ride from school to Danny Walsh’s house. Tommy


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Drayton, Jamie Drayton, and a girl named Stephanie were also passengers in Renard Williams’
vehicle. The petitioner did not know Stephanie’s last name. In preparing for trial, the petitioner
asked trial counsel to speak with Renard Williams as well as the other individuals in the vehicle.
The petitioner believed that the individuals in the vehicle would confirm that before the shooting,
he did not say anything about Tony Gray. The petitioner thought that trial counsel had interviewed
all of the passengers in the vehicle before trial; however, he later found out that only Terreyo Nailor,
Danny Walsh, and Renard Williams were interviewed by trial counsel.

         The petitioner stated that Renard Williams testified at trial that during the ride to Danny
Walsh’s house, the petitioner said he was going to “put the blast on” Tony Gray. At the time of the
testimony, the petitioner told trial counsel that Renard Williams was not telling the truth. Trial
counsel objected to the testimony; however, the trial court overruled the objection. The petitioner
stated that he later discovered that Renard Williams’ testimony at trial was inconsistent with a
pretrial statement he had given to an investigator working for trial counsel. The petitioner claimed
that a memorandum evidencing the prior statement was among items that he received from trial
counsel after his direct appeal. The memorandum was marked for identification as exhibit one. The
petitioner asserted that trial counsel should have used the prior inconsistent statement to impeach
Renard Williams’ trial testimony.

        On cross-examination, the petitioner stated that prior to trial, he identified the other
passengers in the vehicle to trial counsel as Tommy Drayton and Jamie Drayton, who were brothers
and were approximately fourteen and fifteen years old, Terreyo Nailor, who was sixteen years old,
and Stephanie, who he estimated was fourteen years old. The petitioner stated that trial counsel
interviewed Terreyo Nailor, but failed to interview Tommy Drayton, Jamie Drayton, and Stephanie.
The petitioner thought that the three potential witness, who were not interviewed, would have
confirmed that the petitioner did not say anything about Tony Gray.

          A second post-conviction hearing was held on October 3, 2005. Trial counsel testified that
the document identified as exhibit one appeared to be a report of a telephone interview with Renard
Williams by Glory Shuttles. Ms. Shuttles is an investigator that was hired by trial counsel to speak
with necessary witnesses. Trial counsel testified that Renard Williams gave unexpected testimony
at trial; however, he did not remember his cross-examination of Renard Williams. He stated that his
cross-examination of Renard Williams would have been based on the information that he had at the
time of trial. Although trial counsel had no specific recollection of efforts to contact witnesses
before trial, he stated that his office routine was to contact necessary potential witnesses through his
office staff or an outside investigator. On cross-examination, trial counsel said it was undisputed
that the petitioner fired the shot that killed the unintended victim. He recalled that the state presented
evidence of premeditation including the testimony from an eyewitness that the petitioner was dressed
in gang colors at the time of the shooting. He further recalled that the state presented evidence that
the petitioner was attempting to cut his hair when apprehended. Trial counsel stated that he did not
recall if Renard Williams’ statement regarding what the petitioner said was included in his statement
to the police. Trial counsel testified that his decision not to use Renard Williams’ prior statement
would have been a tactical decision.


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        A third hearing was held on November 21, 2005. Terreyo Nailor testified that on June 1,
1994, the petitioner flagged down a vehicle driven by Renard Williams and he, the petitioner, and
Danny Walsh got a ride from school to Danny Walsh’s house. Terreyo Nailor was seated in the back
seat next to the petitioner. He stated he did not hear the petitioner say that he was going to “put the
blast” on anyone. Before the petitioner’s trial, Terreyo Nailor was interviewed by an investigator
working for trial counsel. He stated he was available to testify at the trial in May of 1995; however,
he was not called to testify. On cross-examination, Terreyo Nailor testified that in 1994, he and the
petitioner were friends and spent time together everyday after school. He knew from others that the
petitioner was having trouble with Tony Gray; however, he never heard the petitioner say anything
about having a problem with Tony Gray. Terreyo Nailor knew that Tony Gray had been coming
around the school he and the petitioner attended. According to Terreyo Nailor, the petitioner was
wearing red on the day of the shooting which signified he was a member of the “Bloods” gang. He
thought that Danny Walsh gave the petitioner a gun that day because the petitioner had seen Tony
Gray and “he needed some protection.” On redirect-examination, Terreyo Nailor estimated that it
took two to three minutes to travel from school to Danny Walsh’s house. On March 9, 2007, the
post-conviction court entered an order denying post-conviction relief. The petitioner has appealed.

                                           II. ANALYSIS

                                               Waiver

         Before we address the merits of the petitioner’s issues on appeal, we must first address the
state’s argument that counsel for the petitioner did not timely file his notice of appeal. A notice of
appeal must be filed within thirty (30) days after the date of entry of the judgment from which the
petitioner is appealing. Tenn. R. App. P. 4(a). A notice of appeal is not jurisdictional, and the
requirement for an untimely notice of appeal may be waived in the interest of justice. Id. The order
of the post-conviction court was entered on March 9, 2007. The notice of appeal was not filed until
June 18, 2007, and was therefore untimely. After preparing the notice of appeal, counsel for the
petitioner withdrew and new counsel for the petitioner was appointed. The state has not argued, nor
does it appear, that the untimely notice of appeal prejudiced the state. The petitioner was convicted
of first degree murder, a crime of serious gravity, and sentenced to life imprisonment. Accordingly,
we conclude that waiving the filing requirement for the petitioner’s appeal serves the interest of
justice, and we will address the merits of his claims regarding the ineffective assistance of counsel.
See State v. Mullins, 767 S.W.2d 668, 669 (Tenn. Crim. App. 1988).

        We further note that the petitioner raised a number of issues below that he has not raised on
appeal including claims dismissed by the post-conviction court and additional arguments in support
of his claim of ineffective assistance of counsel. All issues not raised on appeal are waived. See
Tenn. R. App. 36(a).

                                II. Ineffective Assistance of Counsel



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         On appeal, the petitioner argues that he received the ineffective assistance of counsel.
Essentially, he asserts that trial counsel failed to use all the evidence available to defend against the
charge of first degree murder and to show a lack of premeditation. Specifically, the petitioner asserts
that trial counsel did not interview all possible witnesses. The petitioner also asserts that trial
counsel failed to “utilize Williams’ prior inconsistent statement to impeach him.” The petitioner
further argues that trial counsel was deficient in his failure to call Terreyo Nailor to testify at trial.
According to the petitioner, Terreyo Nailor “testified in the post-conviction hearing that he was
‘positive’ that the petitioner did not make any statement about putting ‘the blast’ on Gray or anyone
else.” The petitioner asserts that Terreyo Nailor’s testimony at trial would have challenged Renard
Williams’ trial testimony.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal, this court is bound
to the post-conviction court’s findings of fact unless the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s
factual findings is de novo with a presumption that the findings are correct. Fields v. State, 40
S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction court’s legal conclusions and
application of law to facts is de novo without a presumption of correctness. Id.

         To establish the ineffective assistance of counsel, the petitioner bears the burden of proving
that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington, 466
U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient
performance is shown if counsel’s conduct fell below an objective standard of reasonableness under
prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975) (establishing that representation should be within the range of competence
demanded of attorneys in criminal cases). A fair assessment of counsel’s 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; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a particular strategy or
tactical decision failed does not by itself establish ineffective assistance of counsel. Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves that counsel’s representation fell
below a reasonable standard, the petitioner must also prove prejudice. Strickland, 466 U.S. at 694.

         Upon review of the record, we conclude that the petitioner failed to demonstrate that he was
denied the effective assistance of counsel. According to the petitioner’s testimony at the post-
conviction hearing, he told trial counsel that Tommy Drayton, Jamie Drayton, and Stephanie would
have testified that the petitioner never said anything about Tony Gray and that their testimony would
have supported a lack of premeditation in the shooting. Trial counsel testified that it was his practice
to have an investigator interview necessary witnesses. The record reveals that an investigator hired
by trial counsel interviewed Renard Williams, the seventeen year old driver of the vehicle, Terreyo


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Nailor, a sixteen year old passenger, and Danny Walsh, who provided the petitioner with the gun.
The petitioner estimated that the three witnesses not interviewed were each around fourteen years
old. The petitioner did not know Stephanie’s last name. Since the petitioner did not call any of the
three potential witnesses to testify at the post-conviction hearing, he has failed to establish what their
testimony would have been, or that he was prejudiced. See Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990) (concluding that failure to present a material witness at the post-conviction
hearing generally results in the failure to establish ineffective assistance of counsel). We conclude
that the record does not support the petitioner’s claim that counsel was deficient in failing to
interview, or call as witnesses at trial, Tommy Drayton, Jamie Drayton, and Stephanie. Additionally,
we conclude that the petitioner has failed to demonstrate that he suffered any prejudice.

         The petitioner claims that trial counsel was deficient in failing to call Terreyo Nailor to testify
at the trial. However, our review of the record indicates trial counsel’s strategy as to Terreyo Nailor
was based on sufficient investigation. The record reveals that before trial, Terreyo Nailor was
interviewed by an investigator working for trial counsel. Terreyo Nailor testified at the post-
conviction hearing that the petitioner did not say he was going “to blast” Tony Gray. We note, as
did the post-conviction court, that similar evidence had been presented to the jury through the
testimony of Danny Walsh. We further note that the petitioner did not show that the testimony of
Terreyo Nailor would have changed the outcome of the trial. At the post-conviction hearing, Terreyo
Nailor testified that the petitioner wore gang colors on the day of the shooting. Therefore, Terreyo
Nailor’s testimony at trial could have provided further support to the state’s case and the element of
premeditation. We conclude that the tactical choice not to call Terreyo Nailor to testify at the trial
was an informed decision based upon adequate preparation. See Hellard v. State, 629 S.W.2d at 9.

         As to petitioner’s assertion that trial counsel was deficient in failing to impeach Renard
Williams’ testimony with a prior inconsistent statement, we note that trial counsel objected to the
testimony of Renard Williams. The objection was overruled and trial counsel did not revisit the
testimony at issue. The jury had already heard contrary testimony from Danny Walsh, who stated
that the petitioner did not say anything about Tony Gray. We conclude that trial counsel’s failure
to impeach Renard Williams’ testimony with an unsworn prior inconsistent statement appears to
have been a reasonable tactical decision. Moreover, the petitioner has not demonstrated that he
suffered prejudice as a result of trial counsel’s failure to ask Renard Williams about his prior
statement, nor has he demonstrated that such questioning would have changed the outcome of the
trial. The element of premeditation was supported by evidence other than Renard Williams’
testimony. The record reveals that the petitioner wore gang colors at the time of the shooting, fled
from the scene of the crime, attempted to hide the gun, and was cutting his hair at the time that he
was apprehended. We conclude that the petitioner has failed to show that counsel’s trial tactics were
deficient, or that the petitioner suffered any prejudice as a result of the handling of Renard Williams’
trial testimony.

                                               Conclusion




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       Based on the foregoing, we conclude that the petitioner has failed to meet his burden of proof
regarding his claims of ineffective assistance of counsel, and the post-conviction court correctly
denied the petition. Therefore, the judgment of the post-conviction court is affirmed.



                                          ___________________________________
                                          J.C. McLIN, JUDGE




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