        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 10, 2009

                TIMOTHY HUTSON v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                   No. 05-02606    Carolyn Wade Blackett, Judge




                No. W2009-00680-CCA-R3-PC - Filed May 17, 2010


In June 2005, a Shelby County jury convicted the petitioner, Timothy Hutson, of first degree
murder, and he received a life sentence. The petitioner filed for post-conviction relief,
arguing that his trial counsel provided ineffective assistance. Specifically, the petitioner
alleges that trial counsel failed to provide timely information about a plea agreement, failed
to develop a working relationship with the petitioner, and advised the petitioner to wear jail
clothes rather than civilian clothes during the trial. The post-conviction court denied relief.
Following our review, we affirm the denial of post-conviction relief.

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

J.C. M CL IN, J., delivered the opinion of the court, in which JOHN E VERETT W ILLIAMS and
R OBERT W. W EDEMEYER, JJ., joined.

Vanessa Cross, Memphis, Tennessee, for the appellant, Timothy Hutson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Carrie Shelton and Brooks
Yelverton, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                      Background
       In April 2005, a Shelby County grand jury indicted the petitioner for first degree
murder. The matter went to trial in June 2005. The following is a summary of the trial
testimony taken from this court’s opinion on direct appeal.

              This case concerns the killing of Lisa Hudspeth on January 18, 2003,
       in Shelby County. The victim was shot at close range in the head with a high
velocity rifle while in the front yard of a residence occupied by Jimmy Smith.
The facts surrounding the shooting were supplied at trial by witnesses present
at the scene and a neighbor who was the only individual who witnessed the
actual shooting.

        Charles Stidmon, an Oklahoma resident, was staying at the Smith house
on January 18. He testified that the victim was his girlfriend and was planning
to return with him to Oklahoma that day. He stated that the [petitioner] and the
victim came to the Smith residence early that morning after being at the
casinos the night before. The [petitioner] accused the victim of taking his cell
phone and some rock cocaine, which the victim denied. Stidmon heard a
gunshot while he was in the bathroom. He looked outside and saw the victim
lying in the yard and the [petitioner] leaving the scene in his truck.

       Jimmy Smith testified that the [petitioner]’s and victim’s return from
the casinos woke him about 7:30 on January 18. He did not recall any
conversation that took place. He stated that the [petitioner] left after
approximately thirty minutes. Smith was outside when the [petitioner]
returned and pulled his truck into the yard. Smith was occupied with
jump-starting his vehicle and did not witness the shooting.

        Tracy Green was also a guest at the Smith house on January 18. He
heard the [petitioner] accuse the victim of taking his cell phone. Green said
the [petitioner] seemed to be mad as he left the residence. When the
[petitioner] returned, Green was assisting Smith in starting his vehicle. He
heard the gunshot and saw the victim drop to the ground. The [petitioner] then
placed a long weapon in the back of his truck, kicked the victim’s body, and
remarked that she was dead before leaving in his truck.

        Eric Wallace witnessed the events from outside his house, which is
directly across the street from Smith’s residence. Wallace knew the victim and
the [petitioner] from seeing them in the neighborhood. On the morning of
January 18, Wallace had seen the [petitioner]’s silver Dodge truck coming and
going from the Smith residence. The [petitioner] returned to Smith’s about
9:00 a.m. and pulled his truck into the yard. The [petitioner] unloaded two
puppies and turned them loose. He then walked to the front door and yelled
inside. The [petitioner] returned to his truck and took a long object from
behind the seat. The [petitioner] sat in the driver’s seat with his leg propping
the door open. The victim came out of the house and approached the
[petitioner]. Wallace saw the [petitioner] aim directly at the victim’s head and

                                      -2-
       fire the weapon. The victim fell to the ground within the span of the
       [petitioner]’s open truck door. The [petitioner] “nonchalantly” kicked the
       victim’s body twice and then backed the truck up approximately fifty feet. The
       [petitioner] then got out and looked at the victim’s body once more before
       driving away from the scene.

               Scott Brown, a detective with the Horn Lake, Mississippi Police
       Department related that the [petitioner] had made a complaint to his office on
       January 15, 2003. The [petitioner] reported a theft of his debit card and named
       the victim as a suspect. The [petitioner] furnished a picture of the victim and
       a printed form of activity concerning the debit card. Detective Brown initiated
       an investigation but closed the case upon learning of the victim’s death.

               Sergeant Scott Evans of the Horn Lake Police Department participated
       in a search of the [petitioner]’s residence and vehicle on January 18. Sergeant
       Evans described finding blood, brain matter, and hair on the inside and outside
       of the [petitioner]’s truck. A rifle was found resting on a gun rack inside the
       [petitioner]’s residence.

               Agent Steve Scott of the Tennessee Bureau of Investigation testified as
       an expert in firearms identification. He tested the rifle seized from the
       [petitioner] and found it to be in proper operating condition with all safety
       features intact. Agent Scott described the weapon as a Ruger high velocity
       hunting rifle.

              Dr. O.C. Smith, an expert in forensic pathology, testified that the
       autopsy revealed the victim’s cause of death was a high velocity gunshot
       wound to the head. He also explained that high velocity wounds can result in
       a cavitation effect, causing tissues to be propelled away at a considerable
       distance.

             The [petitioner], after voir dire, opted to remain silent. No defense
       proof was presented. The jury returned a verdict of guilt as to first degree
       premeditated murder.

State v. Timothy Hutson, No. W2005-01812-CCA-R3-CD, 2006 WL 3147052, *1-2 (Tenn.
Crim. App., at Jackson, Nov. 3, 2006) (no application for permission to appeal filed). This
court found that the evidence supported the jury’s verdict and affirmed the defendant’s
conviction. Id., at *3.



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       The petitioner, pro se, filed his first petition for post-conviction relief on October 3,
2007.1 Through counsel, he filed an amended petition on May 21, 2008. The post-
conviction court heard the petition on January 7 and 23, 2009, and the parties presented the
following testimony.

        Yvonne Savage testified that she was the petitioner’s ex-wife. She was present during
all three days of his trial. Ms. Savage testified that William Moore,2 of the public defender’s
office, represented the petitioner for two years. Mr. Moore passed away six weeks before
the trial began, at which time trial counsel replaced him. She spoke with trial counsel over
the phone at least twice and during breaks in the trial. She asked trial counsel whether she
should bring civilian clothes for the petitioner to wear during trial, but he told her that
petitioner would not be able to change clothes. As a result, the petitioner appeared at trial
in his jail clothes, an orange jumpsuit. Ms. Savage said that the petitioner appeared
disoriented during the trial. Ms. Savage also spoke with trial counsel about hearing aids for
the petitioner. Her daughter bought one hearing aid for him, and trial counsel asked her to
raise $1,500 to purchase a second hearing aid. The petitioner, however, told Ms. Savage not
to give money to trial counsel for a hearing aid because the county would pay for it. Ms.
Savage testified that trial counsel did not seem prepared at trial because he did not cross-
examine many witnesses or have many questions. When trial counsel informed her that the
petitioner decided not to testify, she was very surprised because the petitioner had repeatedly
told her that he would testify.

       On cross-examination, Ms. Savage admitted that trial counsel did not discuss trial
strategy with her. She was not aware that trial counsel paid for the petitioner’s second
hearing aid “out of his own pocket.” She further testified that she agreed with the
petitioner’s decision not to testify because she was afraid that he would appear disoriented
on the witness stand.

       The petitioner testified that Mr. Moore represented him for two years until his death
in January 2005. During that time, the petitioner was under indictment for second degree
murder. In April 2005, the grand jury re-indicted the petitioner for first degree murder. The
petitioner learned that trial counsel would represent him on the same day that he learned
about the re-indictment. The petitioner estimated that there were thirty business days

         1
            In his first petition, the petitioner alleged, inter alia, that his appellate counsel was ineffective for
failing to file an application for permission to appeal to the supreme court and for not notifying the petitioner
of his right to proceed pro se. The petitioner waived his right to apply for permission for a delayed appeal
at a hearing before the post-conviction court on March 19, 2008. Thereafter, the petitioner proceeded solely
on a theory that his trial counsel was ineffective.
        2
        Ms. Savage could not remember Mr. Moore’s first name, but other witnesses testified that his full
name was William Moore.

                                                        -4-
between the day he learned that trial counsel would represent him and the first day of his trial
on June 6, 2005. The petitioner met with trial counsel in the courtroom during four or five
report days. The first time that trial counsel came to the jail to see him was June 7, 2005, and
they met for approximately thirty minutes. The petitioner asked trial counsel about arranging
for his family to bring him civilian clothes to wear during trial. According to the petitioner,
trial counsel told him that he did not need civilian clothes because the jury would not believe
that he was out on bond.

        The petitioner testified that Mr. Moore developed an accidental shooting theory and
had secured a blood spatter expert who would testify for the defense. The petitioner did not
know what strategy trial counsel had developed for his defense. Trial counsel did not present
any witnesses at trial. According to the petitioner, trial counsel told him that if he testified,
he would have difficulty explaining how the gun was loaded after he checked that it was
unloaded. The petitioner planned to testify on his own behalf until after the state finished its
proof, at which time trial counsel told him he did not have to testify. Trial counsel did not
allow him to discuss with his family whether he should testify, but counsel talked to his
family for him. They left the decision to the petitioner, and he decided not to testify. During
his voir dire about his decision not to testify, the trial judge informed him that without his
testimony, there would be no evidence that he was intoxicated at the time of the shooting, but
the petitioner did not understand what the judge meant. He never discussed intoxication with
trial counsel, but the police report included his statement that he was intoxicated at the time
of the shooting. He reasoned that if counsel had read the police report, then he would have
known that the petitioner had been intoxicated. The petitioner said that counsel “knew that
[he] was real [sic] intoxicated.”

       The petitioner testified that trial counsel told him in April 2005, on the day that the
petitioner learned about the re-indictment, that the state offered him a plea deal of thirteen
and one-half years. The petitioner asked trial counsel whether he would have to serve 100
percent of the sentence and said he did not want to take the deal if he had to serve 100
percent. Trial counsel told him that he would have to serve 100 percent, but he promised to
confirm that with the state. During trial, counsel assured the petitioner that he would serve
100 percent under the state’s plea offer.

        The petitioner testified that trial counsel did not let him see photographs of the crime
scene. He explained that Mr. Moore had given him photographs, but they were too dark to
see what was in the photographs. The petitioner wanted trial counsel to show the jury
pictures of tire tracks that he claimed showed how he was careful to drive around the victim’s
body. The petitioner said that trial counsel did not tell him what length of sentence he could
expect. Concerning his hearing aid, the petitioner said that the Board of Professional
Responsibility showed him a copy of the check written by trial counsel to pay for the hearing
aid after the petitioner brought a claim against trial counsel.

                                               -5-
        On cross-examination, the petitioner explained that his family hired an attorney who
represented him in general sessions court, but the court appointed the public defender’s office
after the petitioner and his family could no longer afford an attorney. The petitioner said that
Mr. Moore used an investigator, obtained statements from all but one of the witnesses, and
talked to a blood spatter expert, but trial counsel did not do any of those things. The
petitioner said that he understood that trial counsel inherited Mr. Moore’s files because they
both worked for the public defender’s office, but he did not know that trial counsel had
access to everything Mr. Moore did. The petitioner acknowledged that trial counsel argued
during trial that the shooting was accidental, which was in accord with the petitioner’s
version of the shooting.

       On re-direct examination, the petitioner testified that trial counsel told the jury in his
opening statement that they would hear evidence of an accidental shooting and the
petitioner’s testimony. The petitioner said that the only evidence that trial counsel presented
of an accidental shooting was one witness’s testimony on cross-examination that the victim
leaned into the petitioner’s truck. According to the petitioner, another public defender, who
was assisting trial counsel, told him that the state’s prosecutor was very good and might
“make [him] say something [he did not] want to say.”

         Trial counsel testified that he had worked for the public defender’s office since 2003,
and he worked in private practice, with a focus on criminal defense, for eleven years prior
to joining the public defender’s office. When William Moore passed away, the office
assigned his entire case load to trial counsel, and he began working on those cases in March
2005. He did not have an opportunity to speak with Mr. Moore about his cases. Counsel
took a couple of weeks to acquaint himself with all of the cases and focused on those that
would go to trial soon, including the petitioner’s case. The petitioner’s case file included his
initial intake interview, full discovery, notes from the blood spatter expert, and interviews
with all but one witness, who was not on the witness list. Counsel interviewed the remaining
witness, Mr. Stidmon, before trial. He also familiarized himself with the forensic “lingo,”
learned how much cocaine the victim had ingested, and spoke with a weapons expert about
the gun used by the petitioner. He did not ask for a continuance because the court had
continued the case once, and the petitioner was “quite anxious to get to trial.”

       Trial counsel said that the grand jury originally indicted the petitioner for second
degree murder. On March 16, 2005, counsel learned of the thirteen and one-half-year plea
deal from the prosecutor, who warned counsel that the state would seek to re-indict the
petitioner for first degree murder if the petitioner did not accept the plea offer. Trial counsel
conveyed the offer to the petitioner the same day, but he rejected it. Counsel testified that
the plea offer was available throughout the pre-trial process, and the petitioner asked at an
interim report date whether the offer was for a lower release eligibility percentage. Counsel
told the petitioner that he did not think so, but he would ask the state.

                                               -6-
        Counsel first interviewed the petitioner on March 16, 2005. They “went through his
story” and discussed how it was different than the statement that he gave police. The
petitioner “was adamant that he was not intoxicated.” The grand jury re-indicted the
petitioner for first degree murder on April 21, 2005. Trial counsel agreed that Mr. Moore
prepared the case file in anticipation of a second degree murder trial, but counsel said he
would not have prepared differently for a first degree murder trial because the accidental
shooting theory remained the same. Trial counsel testified that he went through most of the
photographs with the petitioner, with the exception of the blood spatter photographs. Trial
counsel said the petitioner was very helpful in preparing the accidental shooting theory. He
agreed that he promised the jury in his opening statement that the petitioner would testify,
and he said the petitioner wanted to testify. He further agreed that his trial assistant spoke
with the petitioner about how the state would cross-examine him, but counsel said the
assistant was merely telling him what to expect when he testified. Trial counsel said he met
with the petitioner the night before he was supposed to testify, and the petitioner said that his
family did not want him to testify. When counsel spoke with the family, the petitioner’s
daughter said she was concerned that he would get confused on the stand. Trial counsel
agreed that, prior to the state’s voir dire, the petitioner did not realize that his testimony
would be the only proof that he was intoxicated at the time of the shooting, but counsel said
that the petitioner would not have testified that he was intoxicated.

        Trial counsel denied telling Ms. Savage that the petitioner did not have a right to wear
civilian clothes at trial. He said that after conferring with the petitioner and with his
colleagues, he decided that having the petitioner appear in jail clothes would evoke the jury’s
sympathy for the petitioner because of his age and poor health. He admitted that he told the
petitioner that the jury would not believe that he was out on bond. The petitioner agreed to
wear jail clothes and “was very accommodating.”

        Trial counsel said the only time he met with the petitioner in jail was the night before
the petitioner was supposed to testify. He had unsuccessfully tried to meet with him at the
jail prior to that day, so he set the interim report dates to give them a chance to meet. He
estimated that he spoke to the petitioner “a little more than” two hours, and they went over
the petitioner’s story each time they met. Counsel said that much of the week prior to trial
was spent “trying to keep from continuing the case again because of a hearing aid.”

        Trial counsel testified that he spoke with the blood spatter expert by phone prior to
trial, and she was prepared to testify for the petitioner. Counsel issued a subpoena for her
testimony. He did not call the blood spatter expert to the stand after the petitioner decided
not to testify because “the last thing [he would do] is bring out more brain matter and
pictures . . . and make that [his] only proof . . . .”




                                               -7-
        Counsel said that the petitioner was angry when the jury found him guilty, specifically
because counsel was unable to make the witnesses admit they were lying. The petitioner said
that when he got a new trial, he would get a different attorney. Trial counsel testified that
he was prepared for the trial, saying, “I believed in him. I lived that man’s case for a little
over a month. That’s just about all I did . . . . I will not ever say that I was not prepared for
that trial.”

       On cross-examination, trial counsel testified that the petitioner told him that he had
one “hitter” of cocaine at the casinos the night before the shooting, but the petitioner told
police that he had been drinking and using cocaine all night. Trial counsel said he paid
$2,495 for a hearing aid for the petitioner after the state refused to pay for one and the
petitioner’s family did not have the money. He testified that the petitioner knew that he
might receive a life sentence after he was indicted for first degree murder.

        On re-direct examination, trial counsel said that the petitioner did not ask him about
wearing civilian clothes at trial; instead, trial counsel first mentioned his strategy of wearing
jail clothes, and the petitioner said he trusted counsel’s judgment. Counsel testified that he
had adequate time to prepare for trial because Mr. Moore had already done much of the
work, such as obtaining witness interviews and discovery.

        On March 11, 2009, the post-conviction court filed a written order denying post-
conviction relief. The court found that the petitioner did not prove the factual allegations of
his petition for post-conviction relief by clear and convincing evidence. The petitioner filed
this timely appeal.

                                            Analysis

        The petitioner contends that trial counsel provided ineffective assistance. Specifically,
the petitioner claims that trial counsel did not provide enough information about the state’s
plea offer because he did not tell him prior to trial that the offer would require him to serve
100 percent of thirteen and one-half years. The petitioner further claims that trial counsel
failed to develop a working relationship with him because he only met the petitioner at the
jail once and did not convey his trial strategy. As part of this claim, the petitioner alleges that
trial counsel did not follow through with his promise to the jury that they would hear proof
of an accidental shooting and the defendant’s testimony. Finally, the petitioner argues that
trial counsel advised him that he did not have the right to appear before the court in civilian
clothes.

       In order for a petitioner to succeed on a post-conviction claim, the petitioner must
prove the allegations set forth in his petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s

                                                -8-
findings unless the petitioner proves that 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 ineffective assistance of counsel, the petitioner must show 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). Prejudice is
shown if, but for counsel’s unprofessional errors, there is a reasonable probability that the
outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. If either
element of ineffective assistance of counsel has not been established, a court need not
address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996). Also, 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). The
fact that a particular strategy or tactical decision failed does not by itself establish ineffective
assistance of counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy
and tactical decisions only if the decisions are informed ones based upon adequate
preparation. Id. (citations omitted).

        First, the petitioner claims that counsel did not provide him with enough information
about the state’s plea offer for him to make an informed decision. At the post-conviction
hearing, trial counsel testified that he informed the petitioner on the same day he learned of
the plea offer that the petitioner would have to serve 100 percent of the state’s offer of
thirteen and one-half years. The petitioner testified that he told trial counsel that he did not
want to accept the plea offer if he had to serve 100 percent. The post-conviction court denied
relief on this issue because the petitioner did not offer proof that he would not have served
100 percent under the state’s plea agreement. We conclude that the evidence does not
preponderate against the post-conviction court’s findings. The petitioner has not carried his
burden of proving that trial counsel was ineffective in communicating the state’s plea offer;
therefore, the petitioner is without relief as to this issue.



                                                -9-
        Secondly, the petitioner claims that trial counsel failed to develop a working
relationship with him. The post-conviction court concluded that the petitioner’s right to
effective assistance of counsel does not include having a meaningful relationship and that the
petitioner did not show that counsel’s performance was deficient. We agree. “The right of
an accused to assistance of counsel . . . does not include the right to appointment of counsel
of choice, or to special rapport, confidence, or even a meaningful relationship with appointed
counsel.” State v. Carruthers, 35 S.W.3d 516, 546 (Tenn. 2000). Trial counsel testified that
he met with the petitioner once at the jail and numerous times at the courthouse, and he said
the petitioner was very helpful in preparing his accidental shooting defense. Also, counsel
said they went over the petitioner’s story many times, he did research to understand the case
better, and he spent $2,495 of his own money to purchase a hearing aid for the petitioner.
We conclude that the petitioner has not shown that counsel was deficient in his relationship
with the petitioner; therefore, the petitioner is not entitled to relief on this issue.

       The petitioner further argues that counsel was ineffective because he did not follow
through on promises he made to the jury in his opening statement. However, this is the first
time that the petitioner has raised this issue as he did not include it in his petition for post-
conviction relief. Because the issue is raised for the first time on appeal, it is waived. See
Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996); Tenn. Code Ann. §40-30-110(f); see
also Bobby Blackmon v. State, No. M2004-03070-CCA-R3-PC, 2007 WL 92361, *6 (Tenn.
Crim. App., at Nashville, Jan. 11, 2007). Additionally, a petitioner cannot change theories
from the trial court to the appellate court. State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim.
App. 2001); State v. Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000); see also State
v. Barbara Ann Bryant, No. W2007-00287-CCA-R3-PC, 2008 WL 1850914, *3 (Tenn.
Crim. App., at Jackson, April 23, 2008). The petitioner is not entitled to relief on this issue.

        Finally, the petitioner claims that trial counsel was deficient because he advised the
petitioner that he did not have the right to wear civilian clothes at trial. The post-conviction
court found that the petitioner failed to show he was forced to wear jail clothes and failed to
prove that trial counsel’s strategy of having the petitioner wear jail clothes to elicit sympathy
from the jury was below an objective standard of reasonableness. The fact that a particular
strategy failed does not by itself establish ineffective assistance of counsel, and deference is
made for sound trial strategy if the choices are informed and based upon adequate
preparation. Goad, 938 S.W.2d at 369. Trial counsel testified that he consulted the
petitioner about his strategy, and the petitioner agreed to follow his advice. Additionally,
trial counsel testified that he consulted with his colleagues about his strategy. We conclude
that the evidence does not preponderate against the post-conviction court’s findings.
Therefore, the petitioner is without relief on this issue.

                                          Conclusion


                                              -10-
Based on the foregoing reasons, we affirm the denial of post-conviction relief.




                                           ___________________________________
                                           J.C. McLIN, JUDGE




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