         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     May 16, 2001 Session

           STEVE EDWARD HOUSTON v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Giles County
                             No. 9082    Robert L. Jones, Judge



                   No. M2000-01087-CCA-R3-PC - Filed September 7, 2001


The petitioner appeals the post-conviction court’s denial of his petition for post-conviction relief.
He claims that he received ineffective assistance of appellate counsel on direct appeal. After review,
we hold that appellate counsel’s decision on direct appeal not to raise potentially improper closing
arguments at trial by the prosecutor was neither deficient performance nor prejudicial to the
petitioner. We affirm the post-conviction court’s denial of the petitioner’s petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE, JJ., joined.

Leslie Curry-Johnson, Nashville, Tennessee, for the appellant, Steve Edward Houston.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
and T. Michel Bottoms, District Attorney General, for the appellee, State of Tennessee.


                                             OPINION


        The petitioner, Steve Edward Houston, was convicted by a Giles County jury of two (2)
counts of casual exchange of cocaine, Class A misdemeanors, and two counts of sale of cocaine,
Class C felonies. These convictions were affirmed by a panel of this court on October 29, 1998. See
State v. Steve Edward Houston, No. 01C01-9711-CC-00510, 1998 WL 749414 (Tenn. Crim. App.,
filed Oct. 28, 1998, at Nashville).

        On July 21, 1999, the petitioner filed a pro se petition for post-conviction relief and an
amended petition on April 14, 2000. At the conclusion of the hearing, the court denied the petitioner
any relief and later entered a written order on May 19, 2000. The petitioner has filed a timely appeal
and asserts that the post-conviction court erred in denying him post-conviction relief. Specifically,
the petitioner claims that he received ineffective assistance of appellate counsel on direct appeal.

                                               Facts

        The petitioner was convicted of two counts of casual exchange and two counts of sale of
cocaine. A summary of the underlying facts of these offenses was set out in detail on direct appeal.
See State v. Steve Edward Houston, No. 01C01-9711-CC-00510, 1998 WL 749414 (Tenn. Crim.
App., filed Oct. 28, 1998, at Nashville). Although the petitioner raised several issues for review in
his post-conviction relief petition and at his hearing, he raises only one issue in this appeal: that
appellate counsel was ineffective in failing to raise on appeal an issue concerning an alleged
improper argument by the State during closing arguments of the petitioner’s trial.

       The specific closing arguments that petitioner complains of are, in pertinent part, as follows:

       STATE: Nine, 10, 12 rocks of crack cocaine that Steve Houston has. And do you
       think for a second that he wouldn’t sell it to your children, or your grandchildren, if
       the situation was right? If the buy was set up just right.

       DEFENSE: Your Honor, I object to that argument. I do not think that is proper.

       COURT: Overruled.

       STATE: Do you think for a second that he wouldn’t sell to any John Doe on the
       street? And I suggest to you that the answer is absolutely not, because he is a drug
       dealer in the business of making money on his drug sale.

       ***

       STATE: But what a terrible injustice is going to come out of this case if we talk
       about and convict this man of casual exchange, a mere transfer of drugs between
       friends. That is, going to be a great injustice to come out of a case that involves four
       sales of crack cocaine by a drug dealer in your community on Sumpter Street.

       ***

       STATE: It’s four drug sales by a drug dealer, in your community, to a confidential
       informant, that is being monitored by the T.B.I. This is not a fly-by-night operation.
       This is a controlled situation of four deals by a dealer in your community.

       ***




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       STATE: To shift this from drug sale to casual exchange, and what a terrible injustice
       that is to this community.

       ***

       STATE: You go back there and you talk about this case, ask yourselves, is there such
       a thing as a relatively small amount, when you are dealing with a drug as dangerous
       and as addictive and devastating to your community as cocaine is?

       ***

       STATE: Don’t let a terrible injustice occur in your community by convicting Steve
       Houston of casual exchange.

       At the post-conviction hearing, the State called the petitioner’s appellate counsel and
questioned him about his performance in pursuing the petitioner’s direct appeal. Appellate counsel
explained that the way he typically selects issues for appeal is that he prepares a list of issues
throughout the trial that might be appealable. He stated, “[A]s an issue comes up I write something
down on that during the course of the trial, because by the end of the trial I will forget what it was.”
He then testified that he uses the list that he compiled in preparing his motion for new trial.

        In the instant case, appellate counsel raised fourteen (14) issues in the motion for new trial
and argued all fourteen (14) to preserve them for appellate purposes. Upon being denied relief on
all fourteen issues, he began the appellate process. Appellate counsel testified that he chose to
pursue only two (2) issues on direct appeal: a suppression issue and a severance issue.

        The State questioned appellate counsel at the post-conviction hearing as to why he did not
pursue the prosecutor’s alleged improper closing argument on appeal. He testified that although he
raised the issue in his motion for new trial and considered raising it as a third issue on appeal, after
conducting research on the issue, he determined that it was unlikely that the Court of Criminal
Appeals would reverse on that issue. Appellate counsel stated:

        My practice with the Court of Criminal Appeals, and they have written plenty of
        opinions on this is, you pick your strong points and go with those, and if you don’t
        really have what I think is substantial standing, then the Court is going to find some
        harmless error, and I don’t waste my time and the Court’s time in arguing something
        that I don’t think has got any merit to begin with. . . . Quite frankly, [the prosecutor’s
        argument] kinda flew all over me. It was almost a personal thing, I just thought it
        was totally improper. I still feel that it was improper argument. However, when I
        was working on the appeal and deciding whether or not to argue that issue on appeal,
        I did some research, and quite frankly, the research I found didn’t give me any
        substantial grounds to raise that issue about the improper closing statement by the
        prosecution at trial, so I didn’t raise that issue.


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        At the conclusion of the hearing, the post-conviction court found that appellate counsel “must
exercise some discretion [in choosing issues] so as not to dilute those grounds that may have credible
merit.” The court further found “no ineffectiveness in the way [appellate counsel] made those
elections.” Essentially, the court found that appellate counsel made a well-informed strategic
decision in choosing the particular issues on direct appeal. The court also agreed with appellate
counsel’s assessment that the appellate court would likely not have granted relief on the issue;
therefore, even if appellate counsel was deficient, the court also found that the petitioner failed to
show how he was prejudiced by any such deficient performance.

                                                Analysis

        Post-conviction petitioners bear the burden of proving their allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the appellate court accords the
trial court’s findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

        The Sixth Amendment to the United States Constitution and Article I, section 9 of the
Tennessee Constitution both require that a defendant in a criminal case receive effective assistance
of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
constitutionally ineffective assistance of counsel, the standard applied by the courts of Tennessee is
“whether the advice given or the service rendered by the attorney is within the range of competence
demanded by attorneys in criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim.
App. 1980).

        In Strickland v. Washington, the United States Supreme Court outlined the requirements
necessary to demonstrate a violation of the Sixth Amendment right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the defendant must show that
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms and must demonstrate that counsel made errors so serious that he was not
functioning as “counsel” guaranteed by the Constitution. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. Second, the petitioner must show that counsel’s performance prejudiced him and that errors
were so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the
outcome. Id.; Henley, 960 S.W.2d at 579.

        “When addressing an attorney’s performance it is not our function to ‘second guess’ tactical
and strategic choices pertaining to defense matters or to measure a defense attorney’s representation
by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982)). Rather, a court reviewing counsel’s performance should “eliminate the distorting effects of
hindsight . . . [and] evaluate the conduct from the perspective at the time.” Strickland, 466 U.S. at
689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation.” Goad v. State, 938 S.W.2d 363, 369



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(Tenn. 1996). On the other hand, “deference to matters of strategy and tactical choices applies only
if the choices are informed ones based upon adequate preparation.” Id.

       To establish prejudice, a party claiming ineffective assistance of counsel must show a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id.; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable
probability is “a probability sufficient to undermine confidence in the outcome.” Id.

        In reviewing a claim of ineffective assistance of counsel, an appellate court need not address
both prongs of Strickland if it determines that the petitioner has failed to carry his burden with
respect to either prong. Henley, 960 S.W.2d at 580. In addition, the findings that a post-conviction
court makes as to the effectiveness of counsel are conclusive on appeal unless the evidence
preponderates against them. See Henley, 906 S.W.2d at 578-79.

        The crux of the petitioner’s argument is that had appellate counsel raised the issue of the
prosecutor’s alleged improper closing argument on appeal, the case likely would have been
remanded for a new trial. In support of this argument, the petitioner cited the post-conviction court
to the case of Knight v. State, 229 S.W.2d 501 (Tenn. 1950). However, the post-conviction court
agreed with appellate counsel’s assessment that the petitioner would not have succeeded on such a
claim and that asserting such a claim might dilute the validity of the stronger issues on appeal. The
court essentially concluded that appellate counsel’s strategic decision was neither deficient
performance nor prejudiced the petitioner.

        In reviewing informed decisions based upon adequate preparation, courts give deference to
strategic and tactical choices. See Goad, 938 S.W.2d at 369. Furthermore, second guessing these
decisions is not a function of the court. See Henley, 960 S.W.2d at 579. Based upon appellate
counsel’s informed decisions and strategic choices in pursuing the direct appeal, the post-conviction
court found that the petitioner received effective assistance of counsel. The petitioner in this case
has failed to show how the record preponderates against these findings.

                                            Conclusion

        After review, we hold that the petitioner received effective assistance of appellate counsel
and affirm the post-conviction court’s denial of the petitioner’s petition for post-conviction relief.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE



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