        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 1, 2013

               BRANDON JOHNSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 07-01964 J. Robert Carter, Jr., Judge




              No. W2012-01164-CCA-MR3-PC - Filed December 5, 2013


The Petitioner, Brandon Johnson, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief from his 2007 conviction for first degree murder, for which
he is serving a life sentence. The Petitioner contends that he received the ineffective
assistance of counsel. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
N ORMA M CG EE O GLE, JJ., joined.

R. Todd Mosley (on appeal); and Mozella Ross (at hearing), Memphis, Tennessee, for the
appellant, Brandon Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Amy P. Weirich, District Attorney General; and Anita Spinetta, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

       The Petitioner’s conviction relates to the March 10, 2003 shooting death of Richard
McCuin. The State presented eyewitnesses who testified that the Petitioner went to the
victim’s apartment, pointed a gun at the victim, demanded money, and shot the victim when
he said he did not have any money. The eyewitnesses said that the victim did not act
aggressively toward the Petitioner and that the Petitioner looked in the victim’s pants pockets
after he shot the victim. The Petitioner gave a pretrial statement in which he admitted
shooting the victim but claimed he did so in self-defense. The Petitioner testified that the
victim robbed him of $200 and two $25 rocks of crack cocaine on the date of the shooting.
The Petitioner said he went to the victim’s apartment to talk to the victim and attempt to get
his money. He took a gun to the victim’s apartment, which he claimed he had because he
lived in a dangerous neighborhood, but he denied he planned to rob or kill the victim. He
said that the victim “jumped” him as soon as he walked into a room in the apartment and that
he pulled his gun and shot the victim. He admitted he pushed the victim away before firing
the gun but said that the events happened quickly and that the shooting was an accident. He
acknowledged that the victim was unarmed. State v. Brandon Johnson, No. W2007-01655-
CCA-R3-CD, slip op. at 3-6 (Tenn. Crim. App. July 17, 2009), perm. app. denied (Tenn.
Dec. 21, 2009).

         At the post-conviction hearing, the Petitioner testified that he met with counsel for
five to ten minutes initially and that he met with counsel once or twice at the jail before the
trial, although he said they usually met for five to ten minutes when he came to court. He
acknowledged he received a copy of the discovery materials from counsel but said he did not
understand them. He agreed that before his arrest, he received Social Security disability
benefits for a “mental defect.” He agreed that counsel requested a mental evaluation and that
he saw at least three doctors for the evaluation. He claimed that he did not read a report
stating he read on a second grade level but said that to his knowledge, counsel received the
report.

       The Petitioner testified that he gave counsel names and telephone numbers for “Shea”
and “Randy.” He said counsel never told him he had contacted the witnesses or provided
him an investigator’s report. He said counsel did not call the witnesses at the trial or explain
to him why they were not called.

       Regarding his meeting with counsel, the Petitioner testified that counsel asked if he
had questions, that he said no, and “that was the end of it.” He said counsel gave him
information about court dates and the possible punishment he faced and asked him “what I
would take.” When asked if he told counsel he would be interested in a “plea settlement,”
he said, “I ain’t know about it. I ain’t know nothing about it, what it meant.” He said the
possibility of a plea agreement was not explained to him.

        The Petitioner testified that counsel never talked to him about the possible defenses
or the facts. He said he told counsel that he went to talk to the victim and recover his things
and that the shooting was accidental. He said he told counsel that the victim grabbed him
and that the victim was known in the neighborhood for robbing people. He said that he
testified at the trial but that counsel did not call other witnesses. He said counsel told him
he did not have to testify but did not tell him about the ramifications of testifying. He said
counsel spent about twenty minutes preparing him to testify. He said that he had a chance
to ask counsel questions but that he was “dumb to the law.”

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        The Petitioner testified that it was “easy” to talk to counsel and that the Petitioner had
a clear understanding “[o]n certain things.” He said he did not understand what went on at
his trial.

       Regarding the motion to suppress, the Petitioner testified that he did not talk to
counsel about whether he understood the nature of the police questioning and his rights. He
agreed he talked to one of the doctors who evaluated him about these matters. He said he did
not knowingly and voluntarily waive his rights but acknowledged the court ruled otherwise.
He did not think counsel represented him well at the suppression hearing and said counsel
could have made arguments about what the witnesses said about him and “what went down.”

       Regarding his mental capabilities, the Petitioner agreed that one of the mental
evaluators, Dr. Steinberg, did not testify at the trial. When asked if he thought he was “all
there” at the time of the shooting, he thought he was.

       On cross-examination, the Petitioner testified that counsel met with him every time
he went to court. He agreed he testified at the trial that the shooting was accidental and in
self-defense. He agreed he chose to testify in order to tell the jury what happened. He said
he did not know Shea’s or Randy’s last names. He said that he knew them “from the
neighborhood” and that they were not present for the shooting. He said he told counsel
everything he knew about the case and identified everyone who might know something about
the case. He acknowledged that counsel attempted to argue on his behalf at the trial. He said
counsel should have cross-examined witnesses about their lies and inconsistent statements.
He said counsel did not explain to him what the State would try to prove, although he said
counsel talked to him about “what it carried.”

       Counsel testified that he had handled about six first degree murder trials when he
represented the Petitioner. When asked why the case was pending for over three years, he
said there were “extensive mental health continuances” to determine the Petitioner’s
competency. He said that in speaking with the Petitioner, it was apparent there might be a
mental health issue. He said, “They requested a mental retardation specialist speak to [the
Petitioner].” He said that after the Petitioner was determined to be competent for a trial, he
requested that Dr. Steinberg evaluate whether a basis existed to have the Petitioner’s
statement suppressed based upon a lack of intellectual capacity. He noted that the
Petitioner’s IQ was “low.” He said that Dr. Steinberg testified at the suppression hearing and
that the court denied the motion. He said that he was aware of the Petitioner’s limited
reading ability and that he tried to be as “slow and patient” as he could, given his caseload.
In his opinion, the Petitioner understood the proceedings and “what he was facing.” He
thought the Petitioner understood the defense. He thought he and the Petitioner always
understood each other, although the Petitioner did not always like the things he told him.

                                               -3-
        Counsel testified that he investigated three witnesses. He said the Petitioner’s
girlfriend provided an alibi defense but later “backed off.” He said that calling an alibi
witness was problematic given the Petitioner’s claim that the shooting was accidental. He
stated that the Petitioner’s mother said she had dropped off the Petitioner and “may have
been providing his ride to the shooting” and that he did not think it was prudent to present
her testimony. He did not think his office was able to locate Steve Jordan and did not recall
the Petitioner’s stating what Mr. Jordan’s testimony would be or if Mr. Jordan was an
eyewitness.

       Counsel testified that the Petitioner gave a statement to the police in which the
Petitioner tried to explain what happened and that counsel did not think an alibi defense
would work. He said it was the Petitioner’s decision to testify. He said he told the Petitioner
he did not have to testify. He said the Petitioner’s testimony was consistent with his pretrial
statement. In both, the Petitioner stated that there had been a prior incident in which the
victim stole drugs from the Petitioner and that he confronted the victim to work things out
but did not necessarily plan to kill him. He said that the Petitioner and the victim were both
drug dealers and that the Petitioner wanted to see if they could coexist in the neighborhood.
He agreed the Petitioner testified that he had been robbed and was going to reclaim his
property.

       Counsel testified that his trial strategy was to show that the Petitioner did not go to the
victim’s apartment to kill the victim in order to avoid a felony murder conviction and first
degree premeditated murder conviction. He said that he did the best he could given the facts
and that the case was a “very difficult” one.

       Counsel testified that he had paperwork for a plea offer of thirty-two years. He said
the State was never comfortable with the offer and withdrew it before the trial. He said that
the Petitioner did not want to accept an offer for more than twenty-five years.

      Counsel testified that he visited the Petitioner frequently. He thought the Petitioner
understood everything.

       On cross-examination, counsel testified that Drs. Steinberg and Hutson did not think
a mental capacity defense could be supported. He said the doctors did not find evidence to
support an insanity defense. He said he did not schedule a competency hearing because the
doctors said the Petitioner was competent and not insane. He said that although Dr.
Steinberg’s opinion was used at the suppression hearing to try to show that the Petitioner did
not understand his Miranda rights due to his low IQ, Dr. Steinberg’s report did not say the
Petitioner was incompetent. He said he did not think the Petitioner’s mother’s testimony



                                               -4-
about the Petitioner’s limitations would have been relevant at the trial.           He said the
Petitioner’s mother was “a little bit not all there,” as well.

        Counsel testified that the Petitioner had trouble talking and was difficult to
understand. He thought, though, that they were able to communicate effectively and that the
Petitioner understood everything. He said the Petitioner asked questions and offered
information. He disagreed with the Petitioner’s testimony that counsel mailed the discovery
packet to the Petitioner but never reviewed it with him. He said that he would have mailed
it in order to get it to the Petitioner but that they reviewed the information. He thought he
received the Jencks material before the trial, and because it would have been his standard
practice, he thought he reviewed it with the Petitioner.

        Counsel testified that he did not think it would be credible to call “Ms. Reed,” an alibi
witness, given the Petitioner’s admission he shot the victim. He said the Petitioner’s mother
told his investigator that she may have dropped off the Petitioner at the crime scene. He said
a third person could not be found. He said that at the time of the trial, he thought it was best
not to call these witnesses. He said his investigator, not he, spoke to the witnesses.

        Counsel testified that he did not think it was prudent to focus on self-defense in
closing argument, although the court charged self-defense in the jury instructions and he may
have “touched on” it. He said he used the more credible argument that the Petitioner was not
there to commit a robbery or kill the victim.

       In its order denying post-conviction relief, the trial court found:

              In this case, Petitioner has not shown that his trial attorney was deficient
       in any way. His trial attorney met with him, took the extra patience needed to
       effectively communicate with him and thoroughly pursued all avenues open
       with an eye toward preparing a defense. This Court finds that trial counsel
       pursued the mental health issue and fully presented a Motion to Suppress.
       Upon that Motion being denied, counsel adapted to a strategy that included
       dealing with the admission into evidence of the Petitioner’s statement.

              Upon finding that the attorney was not deficient, no analysis is required
       to determine whether there was any prejudicial effect.

              This is a case where the jury rejected the claim of accident or self-
       defense and accredited the State’s witnesses. It was not the fault of the trial
       attorney.



                                               -5-
       ....

              The Petitioner has failed to carry his burden of proof.

This appeal followed.

        The Petitioner contends that trial counsel was ineffective for failing to call Shea and
Randy as witnesses at the trial. The State counters that the Petitioner failed to offer evidence
of how these witnesses would have testified at the trial if they had been called and that he
failed to establish counsel was ineffective. We agree with the State.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

       Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland
standard has been applied to the right to counsel under article I, section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id.

                                              -6-
        The Petitioner’s brief fails to explain why Shea and Randy were relevant witnesses
who would have benefitted the defense. He likewise failed to offer their testimony or other
evidence at the hearing to show what their trial testimony would have been if they had been
called as witnesses. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)
(stating that as a general rule, a petitioner can only establish ineffective assistance from
failure to call a trial witness by presenting the witness’s testimony at the post-conviction
hearing). The evidence shows that Shea, who we presume is the same person counsel
identified as Ms. Ross, initially provided an alibi for the Petitioner but later “backed off.”
Counsel thought that calling this witness to establish an alibi would have diminished the
credibility of the defense, given the Petitioner’s admission he shot the victim. We note, as
well, that the witness was equivocal about the alibi. Regarding Randy, the evidence shows
that counsel’s investigator attempted to locate him but was unsuccessful. There was no
evidence that counsel’s attempts through his investigator to find Randy were inadequate. See
id. at 757-58 (stating that a petitioner is not entitled to post-conviction relief for failure to call
a material witness unless he shows that the witness could have been found through
reasonable investigation and would have testified favorably for the defense). Counsel cannot
be faulted for failing to present a witness he attempted to find but could not. The Petitioner
failed to show that counsel’s performance was deficient or that he was prejudiced from
counsel’s failure to call the witnesses at the trial. The trial court did not err in concluding
that the Petitioner failed to prove his claims by clear and convincing evidence. See T.C.A.
§ 40-30-110(f).

        In reaching this conclusion, we have not overlooked the Petitioner’s argument that the
general rule of Black regarding the necessity that a petitioner present the testimony of a
witness at the post-conviction hearing in order to establish ineffective assistance from
counsel’s failure to call the witness at the trial, is not absolute. See Black, 794 S.W.2d at
757. We acknowledge that our supreme court has granted relief despite a petitioner’s failure
to call a witness at a post-conviction hearing. See Pylant v. State, 263 S.W.3d 854 (Tenn.
2008). In Pylant, the court noted that despite the general rule requiring the witness to testify
at the post-conviction hearing, the petitioner presented evidence of the witness’s inculpatory
statements through other witnesses, and the witness might have refused to testify given her
inculpatory statements in a homicide. Id. at 872-73. The court also noted the materiality of
the evidence because it implicated a third person, rather than the petitioner, in the crime. Id.
at 873. In the present case, though, the Petitioner has not argued why the general rule of
Black should not apply, and no reason is apparent.




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        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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