        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 5, 2010

              SZUMANSKI STROUD v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                       No. 05-06225    John T. Fowlkes, Judge


               No. W2009-01641-CCA-R3-PC - Filed February 3, 2010


The petitioner, Szumanski Stroud, appeals the denial of his petition for post-conviction relief,
arguing that his trial counsel provided ineffective assistance by not properly cross-examining
the victim about his identification of the petitioner. Following our review, we affirm the
denial of the petition for post-conviction relief.

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

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

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Szumanski Stroud.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Garland Erguden, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

       The petitioner was convicted by a Shelby County jury of two counts of aggravated
assault and sentenced by the trial court to an effective term of fifteen years in the Department
of Correction. His convictions and sentences were affirmed by this court on direct appeal,
and our supreme court denied his application for permission to appeal. State v. Szumanski
Stroud, No. W2006-01945-CCA-R3-CD, 2007 WL 3171158 (Tenn. Crim. App. Oct. 29,
2007), perm. to appeal denied (Tenn. May 5, 2008).
        The petitioner’s convictions stemmed from a May 26, 2005, incident in which he fired
multiple gunshots at a vehicle in which his sister, Denita Harvey, and her fiancé, Randy
Smothers, were traveling. Id. at *1. At trial, Smothers testified that he recognized the
masked shooter as the petitioner by his eyes. He also said that he believed the petitioner was
retaliating against him for a fight over money that had taken place between the men two days
previously. Id. Harvey testified that she could not positively identify the petitioner as the
shooter. She acknowledged, however, that she told the police on May 26, 2005, that he was
the person responsible, and she explained that she had assumed he was the perpetrator
because of the May 24 altercation. Id. at *2.

        The petitioner filed a pro se petition for post-conviction relief on June 15, 2008. Post-
conviction counsel was subsequently appointed and an amended petition filed in which the
petitioner alleged that his trial counsel provided ineffective assistance by failing to properly
cross-examine Smothers on an earlier misidentification. Specifically, he asserted that the
State nolle prosequied a second indictment based on an incident involving the same victim
because “the victim could not sufficiently identify him.” The petitioner alleged that trial
counsel should have asked the victim about his misidentification in that dismissed case and
that, had he done so, there was a reasonable probability that the outcome of his trial would
have been different.

        At the evidentiary hearing, the petitioner testified that he was charged in one
indictment with two counts of aggravated assault, based on the May 26, 2005 incident, and
in a second indictment with criminal attempt first degree murder and aggravated assault,
based on allegations by Smothers and Harvey that someone had shot at them sometime
between June 5 and June 7, 2005. He said that his May 24, 2005 fight with Smothers, in
which Smothers stabbed him with a knife, did not result in any charges. The petitioner
testified that the two indictments were consolidated for trial, but the State nolle prosequied
the second indictment on the morning that the trial was scheduled to begin. He stated that
he wanted evidence of both indictments introduced at trial and asked trial counsel to cross-
examine the victim on the contradictory statements he had made in the indictments, but
counsel failed to do so. The petitioner expressed his belief that counsel’s failure to cross-
examine the victim on the issue ruined his defense, which was based on proving that the
victim was mistaken in his identifications.

       Trial counsel testified that he had been licensed to practice law since 1982, had been
with the public defender’s office since 1989, and had handled thousands of cases, including
an estimated 60 to 70 which had gone to trial, during his career. He said that he did not
cross-examine Smothers about the dismissed indictment because he thought he had nothing
to gain, and everything to lose, by bringing up an incident that would have revealed a pattern
of violent behavior on the part of the petitioner. In his view, the decision not to cross-
examine the victim on that issue was a sound one: “So it was a trial strategy and I think it

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was the proper trial strategy. I think if I brought that out, not only does it show a pattern, I’d
have been bringing out an alleged prior bad act and the verdict would have been quicker than
it was.”

         Trial counsel further testified that he told the petitioner it was within the prosecutor’s
discretion to dismiss one indictment and not the other and that the reason she dismissed the
second indictment was not because she thought Smothers was fabricating his allegations, as
the petitioner believed, but instead because the identification proof in the second case was
not as strong. On cross-examination, he explained that the incident that formed the basis for
the second indictment occurred at midnight on a residential street that was not very well lit.
Trial counsel testified that he explained to the petitioner why he chose not to cross-examine
the victim on the dismissed indictment. As he recalled, the petitioner accepted his decision
on the matter. Finally, trial counsel testified that Smothers was adamant in his identification
of the petitioner as the perpetrator in both cases. He did not, therefore, think that there was
anything in the proof of the dismissed case that would have helped the petitioner in his case
at trial.

        In response to questioning by the post-conviction court, trial counsel testified that he
filed a motion in limine to exclude evidence of the May 24 fight between Smothers and the
petitioner, but was overruled by the trial court.

       On April 6, 2009, the post-conviction court entered an order denying the petition.
Among other things, the court found that the petitioner failed to prove that it was not a sound
strategic choice on the part of counsel not to cross-examine the victims with respect to the
June 6 incident.

                                          ANALYSIS

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive
on appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d
497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572,
578 (Tenn. 1997). However, review of a trial court’s application of the law to the facts of
the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,
96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed
questions of fact and law, is reviewed de novo, with a presumption of correctness given only
to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).



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       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland standard
is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975)). The reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466 U.S.
at 690, 104 S. Ct. at 2066, and may not second-guess the tactical and strategic choices made
by trial counsel unless those choices were uninformed because of inadequate preparation.
See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is
satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        Because both prongs of the test must be satisfied, a failure to show either deficient
performance or resulting prejudice results in a failure to establish the claim. See Henley, 960
S.W.2d at 580. For this reason, courts need not approach the Strickland test in a specific
order or even “address both components of the inquiry if the defendant makes an insufficient
showing on one.” 466 U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370
(stating that “failure to prove either deficiency or prejudice provides a sufficient basis to deny
relief on the ineffective assistance claim”).

       We conclude that the record fully supports the post-conviction court’s finding that the
petitioner failed to show he was denied the effective assistance of counsel. On appeal, the
petitioner bases his ineffective assistance claim solely on counsel’s failure to cross-examine

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Smothers about his identification in the nolle prosequied case, arguing that counsel was
deficient for not doing so and that his deficiency in this respect prejudiced the outcome of
the trial, which hinged on the credibility of the victim. Trial counsel, however, explained
that his decision not to cross-examine the victims on the dismissed indictment was based on
his belief that it would hurt the petitioner’s case. He explained:

       As trial strategy and I did think about it a lot whether I should do it. I talked
       to several of my colleagues. Everybody’s first reaction was why would you
       bring it up. Why would you bring up an alleged prior bad act of the
       [petitioner] showing what would then be a pattern of violence, three violent
       acts, the fist fight with a stick and a knife, the alleged shooting at the car and
       then bring up the third incident. I saw no way that it could help him.

        There is nothing to show that trial counsel’s decision was not part of a sound trial
strategy or that his failure to cross-examine Smothers on the issue prejudiced the outcome
of the case. The petitioner has not, therefore, met his burden of showing that he was denied
the effective assistance of counsel.

                                      CONCLUSION

       We conclude that the petitioner has not met his burden of showing that he is entitled
to post-conviction relief from his convictions. Accordingly, we affirm the denial of the
petition for post-conviction relief.

                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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