         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   February 15, 2005 Session

          ANDREW CHARLES HELTON v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 98-B-1052    Seth Norman, Judge



                      No. M2004-01015-CCA-R3-PC - Filed May 31, 2005


Petitioner, Andrew Charles Helton, filed a pro se petition for post-conviction relief, which was
amended after appointment of counsel. Following an evidentiary hearing, the trial court dismissed
the petition. On appeal, Petitioner argues (1) that the prosecutor misrepresented to the jury during
closing argument evidence concerning the 911 tape; (2) that the prosecutor improperly pointed the
murder weapon at the jury during closing argument; (3) that his trial counsel was ineffective for
failing to object to the prosecutorial misconduct which occurred during closing argument; and (4)
that his trial counsel provided ineffective assistance when he objected to the jury’s request during
deliberations to review the tape of a neighbor’s call to the 911 operator on the night of the shootings.
After a thorough review of the record, we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID G. HAYES, J., joined.

Kathleen G. Morris, Nashville, Tennessee, for the appellant, Andrew Charles Helton.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
S. (Torry) Johnson III, District Attorney General; Pamela Sue Anderson, Assistant District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the appellee, the State of
Tennessee.

                                              OPINION
I. Background

        Following a jury trial, Petitioner was convicted of the premeditated first degree murder of
Robert Cole and the second degree murder of Michael Chatman. He was sentenced to life
imprisonment for the first degree murder conviction and twenty-three years for the second degree
murder conviction. The facts surrounding Petitioner’s convictions were summarized by this Court
in the direct appeal in State v. Andrew Charles Helton, No. M1990-01405-CCA-R3-CD, 2000 WL
1520018 (Tenn. Crim. App., at Nashville, Oct. 13, 2000), perm. to appeal denied (Tenn. Apr. 24,
2001), as follows:

               Prior to the evening of November 28, 1997, the Defendant had known victim
       Michael Chatman for about eleven years. However, it was not until the Defendant
       got divorced that he and Chatman began to socialize on a regular basis. During the
       months before the killings, the Defendant testified that he and Chatman would see
       each other at least a couple of times a week. A few days before Thanksgiving, 1997,
       the Defendant testified that Chatman came to his house, pushed him against the wall,
       and accused the Defendant of trying to "cross him out with his girlfriend." A friend
       broke the fight up, and according to the Defendant, Chatman "broke down ... and
       started crying."

              The next time the Defendant saw Chatman was on the evening of November
       28, 1997. On that night, the Defendant was at home not feeling very well when
       Michael Chatman called and asked the Defendant to come over. The Defendant
       declined, and Chatman offered to come over and bring the Defendant some food.
       Chatman went to the Defendant's apartment with food and a bottle of Crown Royal
       whiskey. The two men drank for a short time and then decided to go out. They went
       to Shayne Cochran's house, and then all three men went to Bailey's Sports Bar in
       Rivergate. At Bailey's, the men met up with Robert Cole and decided to go to the
       home of Leslie Hebert, a friend of Cochran's. Allison Dowell and Hebert's roommate
       were also present when the men arrived. After staying at Hebert's house for awhile,
       the Defendant, Cochran, Chatman, Cole, Hebert, and Dowell went to an after-hours
       club downtown called "The Church."

                When the group arrived at The Church, the Defendant took off his jacket and
       left it in the car that Chatman had been driving. The Defendant testified that the
       jacket contained approximately $200.00 in cash and a small amount of marijuana.
       At The Church, the Defendant became separated from the group. Thinking that the
       Defendant might have gone home, Cochran, Chatman, Cole, Hebert, and Dowell left
       The Church and went to the Defendant's apartment. Cochran hid a Crown Royal bag
       full of cocaine and pills behind one of the buildings at the Defendant's apartment
       complex and then retrieved it shortly thereafter. The group waited outside the
       Defendant's apartment for a brief period of time and then went to Chatman's
       apartment in Antioch.

                When the group arrived at Chatman's apartment, Chatman's roommate took
       his car, which Chatman had been driving all evening, and went to work. Without a
       car, the two women had no way to get home so they paged the Defendant, hoping that
       he would take them home. The Defendant testified that he was on his way to his
       apartment in a cab he shared with Shirley Crowell, Chatman's ex-girlfriend whom the
       Defendant encountered at The Church, when he got a page from Cochran and


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Chatman. The Defendant testified that he called Chatman's apartment, and Chatman
asked him to come over because Hebert and Dowell needed a ride home. Crowell,
who had recently broken up with Chatman, agreed to ride with the Defendant to pick
up Hebert and Dowell, but said that she would not go inside.

        The Defendant eventually arrived at Chatman's apartment and testified that
he asked Chatman about his jacket that he left in the car. Chatman told the
Defendant that Cochran had gotten the jacket out of the car and that it was in the
living room. When the Defendant retrieved his jacket, he realized that several items,
including $200.00 and some marijuana, were missing. The Defendant talked briefly
with Cochran outside while Chatman went upstairs to change clothes. After
changing clothes, Chatman came back downstairs about the time that the Defendant
came inside.

         Although the Defendant's story differs as to what occurred next, Hebert and
Dowell testified that the Defendant began to accuse Chatman of stealing. Dowell
testified that the Defendant and Chatman were arguing "kind of loud." Dowell also
noticed that the Defendant had a gun strapped on his shoulder underneath his jacket.
When Chatman denied the allegation, Hebert and Dowell testified that the Defendant
pulled out a gun and shot Chatman. According to Hebert and Dowell, Chatman did
not touch the Defendant before he started shooting. Hebert testified that the
Defendant just began shooting for no apparent reason.

        Soon after the Defendant began shooting, Hebert ran outside, and Dowell ran
to the back of the apartment. Dowell testified that she saw the first shot and could
hear more shots as she was running to the back of the apartment. At one point,
Dowell testified that the Defendant walked to the back of the apartment where she
was, looked at her for a moment, and then returned to the front of the apartment. In
fear that she might be shot for hiding, Dowell went to the front of the apartment and
saw the Defendant shoot Chatman one more time in the mouth. Dowell then ran
outside and found Hebert hiding in the bushes.

        Hebert testified that she was hiding outside with a view of the apartment. She
saw Dowell run outside and saw Chatman lying on the floor and Cole sitting on the
living room couch. Hebert testified that Cole remained sitting on the living room
couch during the entire confrontation between the Defendant and Chatman. This is
contradictory to the Defendant's testimony that Cole had been involved in the fight.
The Defendant testified that Cole was pulling at the Defendant's pockets and claimed
that he shot Cole only to make him let go.

       After the killings, the Defendant and Cochran got into the Defendant's car.
Cochran asked Hebert and Dowell to get in also. Hebert and Dowell got into the car
and saw that Shirley Crowell was also present. After driving a short distance in the


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        parking lot, the Defendant returned to Chatman's apartment and retrieved Dowell's
        purse as well as the gun that he had used to shoot Chatman and Cole. Crowell made
        some threatening statements to Hebert and Dowell. Hebert testified that the
        Defendant told her and Dowell, "I am sorry y'all had to see that."

                When police arrived at Chatman's apartment after the shooting, Chatman was
        found lying on the floor near the front door, and Cole was found lying on the living
        room couch. Both Chatman and Cole had been shot multiple times. The police were
        able to get a description of the Defendant's car from neighbors and within minutes
        were in pursuit. During the pursuit, Crowell threw the gun out of the car window.
        The Defendant, upon realizing that the police were behind him, put the car in neutral
        and got out of the car. Everyone fled from the car, except for Hebert, who jumped
        into the front seat to stop the car from rolling. All of the occupants of the car,
        including the Defendant, were found and taken into police custody. The police also
        found the nine millimeter semiautomatic handgun on a sidewalk near the Defendant's
        car.

                Both victims were pronounced dead upon arriving at nearby hospitals.
        Autopsies performed on the victims revealed the following: (1) Chatman had a
        "contact" wound to his lower left abdomen, a "close-range" wound to his upper left
        abdomen, and a contusion to the right side of his head; (2) Cole had a "close-range"
        gunshot wound to the left eyebrow and additional gunshot wounds on the right side
        of the head and on the scrotum; and (3) both victims tested positive for cocaine,
        marijuana, and alcohol.

Helton, 2000 WL 1520018, at **1-3.

         On appeal, Petitioner argued that the evidence was insufficient to sustain his convictions, and
that the trial court erred in admitting certain photographs into evidence. Id. at *1. This Court upheld
Petitioner’s convictions on appeal, and the Supreme Court denied Petitioner’s application for
permission to appeal.

II. Post-Conviction Hearing

        Petitioner’s trial counsel, the public defender, testified that he and two or three of his staff
investigated Petitioner’s case. He said that he initially considered raising a diminished capacity
argument based on the amount of drugs and alcohol Petitioner and the other members of the group
had consumed prior to the shootings. Trial counsel interviewed “a couple of” experts in this field
but determined that their testimony would not be beneficial to the defense. Trial counsel said that
he did not recollect Petitioner testifying on cross-examination that he was “clear headed” at the time
of the shootings, but he conceded that it was a point that probably should have been addressed on
redirect. In the end, trial counsel said that Petitioner agreed that his defense should be based on self-
defense.


                                                  -4-
        Trial counsel said that when he was informed after deliberations began that the jury wanted
to review a 911 tape of a call by a resident of the apartment complex of the night of the shootings,
his immediate response was to object to the request. Trial counsel said that he mistakenly thought
that the caller had told the 911 operator that he heard gunshots after Petitioner returned to Mr.
Chatman’s apartment when, in fact, the caller did not mention hearing a second series of gunshots.
Trial counsel said that if he had correctly remembered the substance of the tape, he would not have
objected to the jury’s request to review the tape. The State’s theory of premeditation for Mr. Cole’s
shooting was based, in part, on the testimony of Leslie Hebert’s and the 911 caller’s wife that another
round of gunshots occurred after Petitioner returned to Mr. Chatman’s apartment.

        Trial counsel said that he did not remember whether or not the murder weapon was tested
for fingerprints. Trial counsel said that he saw the prosecutor pick up the gun at some point during
her closing argument but did not see her point the gun at the jury. Trial counsel conceded, however,
that he was not watching the prosecutor during all of her argument.

        On cross-examination, trial counsel said that at the time of the post-conviction hearing he had
practiced law for twenty-two years, primarily as a criminal defense attorney. He said that if there
had been fingerprint evidence, he would have reviewed it. Trial counsel said that Petitioner
maintained at trial that Mr. Chatman owned the murder weapon, and the State argued that the murder
weapon was Petitioner’s gun. Petitioner did not deny that he touched the gun that night, and trial
counsel said that the presence or absence of Mr. Chatman’s fingerprints on the gun would not have
assisted in establishing that Petitioner acted in self-defense on the night of the shootings.

        Trial counsel said that the decision of whether or not to let the jury review the 911 tape had
to be made quickly. Trial counsel said that he did not know exactly why the jury wanted to listen
to the 911 tape again during their deliberations, and he did not know if the absence of the tape had
any impact on the jury’s finding of premeditation in Mr. Cole’s death. Trial counsel said that if he
had seen the prosecutor point the gun at the jury during closing argument, he would have objected.
He said that he did not hear the prosecutor pull the trigger of the unloaded gun. Trial counsel agreed
that Petitioner’s admission on cross-examination that he was “clear headed” when he shot Mr.
Chatman and Mr. Cole did not give him a lot of flexibility even if he had questioned Petitioner
further about the remark on redirect examination.

        James Whiting, Petitioner’s stepfather, said that the prosecutor was showing the jury
photographs of the victims at the crime scene during closing argument when she picked up the gun,
put the strap on her shoulder, and swung the barrel of the gun around the jury. Mr. Whiting said he
did not hear the prosecutor pull the trigger, and he did not recall whether anyone was startled by the
prosecutor’s conduct.

       Judith Whiting, Petitioner’s mother, said that the prosecutor picked up the murder weapon
and said, “[T]his is the last thing that Robert Cole felt [sic],” and then pulled the trigger. Ms.
Whiting said that two female jurors gasped in response to the prosecutor’s demonstration.



                                                 -5-
         Petitioner testified in his own behalf. He conceded that he testified at trial that he was “clear
headed” during the shootings. Petitioner said, however, that he meant that he was not angry when
the shootings occurred, not that he was not under the influence of drugs. Petitioner contended that
his trial counsel should have clarified Petitioner’s understanding of the word “clear headed” on
redirect examination. Petitioner also contended that trial counsel should have presented expert
testimony about the effect the drugs and alcohol he had consumed that night would have had on his
conduct. Petitioner said that the prosecutor put the murder weapon to the back of her head during
closing argument to demonstrate how Mr. Cole was shot, and then pointed the gun at the jury.

       At the conclusion of the post-conviction hearing, the trial court found that Petitioner had not
shown that his counsel provided ineffective assistance or that his deficiencies, if any, were
prejudicial, and dismissed Petitioner’s petition for post-conviction relief.

III. Standard of Review

        A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The trial court’s findings of fact in
a post-conviction hearing are afforded the weight of a jury verdict. Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990). Therefore, this Court may not re-weigh or re-evaluate these findings
nor substitute its inferences for those of the trial judge unless the evidence in the record
preponderates against those findings. State v. Honeycutt, 54 S.W.3d 762, 763 (Tenn. 2001); State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). In addition, questions concerning the credibility of
witnesses and the weight and value given their testimony is resolved by the trial court, and not this
Court. Burns, 6 S.W.3d at 461. However, the trial court’s application of the law to the facts is
reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001). A claim that counsel rendered ineffective assistance is a mixed question of fact and law and
therefore also subject to de novo review. Id.; Burns, 6 S.W.3d at 461.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must establish that counsel’s performance fell below “the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In
addition, he must show that counsel’s ineffective performance actually adversely impacted his
defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674
(1984). In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this
Court will not second-guess counsel’s decisions regarding trial strategies and tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a
particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged
from counsel’s perspective at the point of time they were made in light of all the facts and
circumstances at that time. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

        A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on
a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).


                                                   -6-
That is, a petitioner must not only show that his counsel’s performance fell below acceptable
standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either
prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the
components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at
2069.

IV. Prosecutorial Misconduct

        Petitioner argues that the prosecutor engaged in prosecutorial misconduct during closing
argument by misrepresenting the dialog between the 911 caller and the 911 operator, and by pulling
the trigger of the murder weapon while the gun was aimed at the jury. The State argues that
Petitioner has waived his issue of prosecutorial misconduct for failure to raise it on direct appeal.
Tennessee Code Annotated section 40-30-106(g) provides that:

       [a] ground for relief is waived if the petitioner personally or though an attorney failed
       to present it for determination in any proceeding before a court of competent
       jurisdiction in which the ground could have been presented unless:

       (1) The claim for relief is based upon a constitutional right not recognized as existing
       at the time of trial if either the federal or state constitution requires retroactive
       application of that right; or

       (2) The failure to present the ground was the result of state action in violation of the
       federal or state constitution.


         Petitioner’s claims that the prosecutor misrepresented evidence or engaged in improper
demonstrations during closing argument could have been raised on direct appeal, and this claim for
relief is not “based upon a constitutional right not recognized as existing at the time of trial.” Id. §
40-30-106(g). In his petition, Petitioner stated that the issue of prosecutorial misconduct was not
raised on direct appeal due to the ineffectiveness of his trial and appellate counsel. No evidence,
however, was presented at the post-conviction hearing in regard to that claim.

        When a petitioner fails “to raise [an] . . . issue on direct appeal, he effectively block[s] any
consideration of this issue by this Court on post-conviction review” under Tennessee Code
Annotated section 40-30-112(b), and Tennessee Code Annotated sections 40-30-111 and -112(a) and
(b) “effectively prevent the application of Rule 52(b)” in the post-conviction forum. State v. West,
19 S.W.3d 753, 756-57 (Tenn. 2000); Brimmer v. State, 29 S.W.3d 497, 530 (Tenn. Crim. App.
1998) (Petitioner’s issue on prosecutorial misconduct “waived for failure to present [it] on direct
appeal”). Accordingly, we conclude that the issue is waived in this post-conviction proceeding
pursuant to Tennessee Code Annotated section 40-30-106(g). Petitioner is not entitled to relief on
this issue.



                                                  -7-
        Nonetheless, were we to review Petitioner’s issue on the merits, he would not prevail.
Neither the trial court nor Petitioner’s trial counsel saw the assistant district attorney aim the murder
weapon at the jury. The trial court concluded that it was not convinced that the incident occurred
in the manner described by Mr. and Mrs. Whiting during their testimony. Petitioner did not offer
any testimony by a member of the jury that the incident occurred. The trial court was in the best
position to judge the credibility of the witnesses, and the evidence does not preponderate against the
trial court’s findings that Petitioner failed to establish that the assistant district attorney engaged in
prosecutorial misconduct by aiming the murder weapon at the jury during closing argument.

V. Ineffective Assistance of Counsel

                              A. Failure to Object to Closing Argument

       Petitioner argues that his counsel’s performance was deficient when he failed to object to the
prosecutor’s misrepresentation of the substance of the 911 tape during closing argument. Petitioner
contends that the following portion of the State’s closing argument to the jury was misleading:

                You were able to hear on the 911 tape how long a period of time it was from
        when the vehicle first left with [Petitioner] in it to the time it returned. It was at least
        mid-way through that call before the car returned. And you know, from description
        of the eye-witnesses that it was on that return to the apartment, after having a chance
        to go away with at least Mr. Cole being alive, he choose [sic] to go back in the
        apartment and fire more shots.

                 These are the shots, ladies and gentlemen, that we would contend were to Mr.
        Cole’s head. One being on the front, left side of his face exiting out the right, and
        one from the backside of the – the right side of the head exiting out the left. A
        perfect crisscross of his brain. He intended to kill Robert Cole when he fired those
        two shots through his head. There was no reason to do it, except that he intended to
        do it, and he had plenty of time to think about it before he did.

        Petitioner contends that the State erroneously told the jury that the 911 tape supported its
theory that Petitioner fired another round of gunshots after he returned. We do not read the State’s
comments in that light. The State relied on the caller’s comments to the 911 operator to establish
that Petitioner started to drive away from the crime scene, and then returned in a few minutes. The
State then argued that two witnesses testified that they heard a series of gunshots after Petitioner
returned to the apartment. Petitioner testified that he did not fire his weapon the second time he was
in the apartment. As the trial court observed, this is a matter of the witnesses’ credibility which was
properly left to the jury. The evidence does not preponderate against the trial court’s findings that
Petitioner failed to show that his trial counsel was ineffective for failing to lodge an objection during
the presentation of the State’s closing argument. Petitioner is not entitled to relief on this issue.

                  B. Objection to Jury Listening to 911 Tape during Deliberations


                                                    -8-
        Petitioner argues that his trial counsel’s performance was also deficient when he objected to
the jury’s request to review the recording of the neighbor’s conversation with the 911 operator during
deliberations. Trial counsel said that, in retrospect, if he had reviewed the tape before voicing his
objection to the jury’s request, he would have responded differently. Trial counsel also said,
however, that it was necessary to make the decision quickly, and there was no way he could assess
why the jury made the request or whether the inability to review the 911 tape had any impact on the
jury’s deliberations.

        The trial court found that trial counsel’s decision was one of tactical strategy, and declined
to second-guess the appropriateness of his decision in hindsight. See Henley, 960 S.W.2d at 579.
The trial court found that Petitioner had failed to show that his counsel was ineffective in this regard.
The trial court also found that Petitioner had not shown that he was prejudiced by his trial counsel’s
decision to object to the jury’s request. The 911 tape was played to the jury during trial. The trial
court also noted that “[w]ithout testimony from one of the jurors, it is pure speculation to contend
that they wanted to hear the tape to make sure that it showed that only one set of shots were fired.”

         In assessing trial counsel’s performance at trial, “it is not [the reviewing court’s] function to
‘second guess’ tactical and strategic choices pertaining to defense matters or to measure a defense
attorney’s representation by ‘20-20 hindsight.’” Id. (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982). A particular decision does not render trial counsel’s conduct deficient if the decision was
“within the range of competence demanded of attorneys in criminal cases.” Baxter, 523 S.W.2d at
936. Based upon our review of the record, we find that the evidence does not preponderate against
the trial court’s finding that trial counsel’s decision concerning the request posed by the jury during
deliberations was within the range of competence demanded of attorneys in criminal cases.
Petitioner is not entitled to relief on this issue.

                                           CONCLUSION

        After a review of the record, we affirm the judgement of the trial court.


                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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