         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 9, 2002

                   STEVEN D. KING v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-19661    Arthur T. Bennett, Judge



                  No. W2001-01382-CCA-R3-PC - Filed December 30, 2002


The petitioner, Steven D. King, appeals the denial of his petition for post-conviction relief from his
convictions of felony murder, especially aggravated kidnapping, and especially aggravated robbery.
Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction
court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Addie M. Burks, Memphis, Tennessee, for the appellant, Steven D. King.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Alonda Horne Dwyer, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background
               In 1995, the petitioner, was convicted by a jury in the Shelby County Criminal Court
of felony murder, especially aggravated kidnapping, and especially aggravated robbery. In our
opinion on direct appeal, this court set out the following facts underlying the convictions:
               On June 8, 1992, at approximately 6:00 P.M., the Memphis Police
               Department was notified of the disappearance of the 65-year-old
               victim, Mary Cuches, who was last seen a few hours earlier driving
               a blue 1984 Buick LaSabre. Within minutes, Officer Emmett Ward
               found the car and four occupants at a shopping mall. The driver of the
               vehicle sped away before eventually stopping in a church parking lot.
               Two black male occupants fled, leaving two young females in the
               backseat of the stolen vehicle.
             Earlier that afternoon, between 3:30 and 4:00 P.M., sisters Nakisisa
             and Tametrice Brown saw the [petitioner] and two of his companions
             outside their apartment building; he explained that he was driving his
             aunt's car. His companions, Tyrone James and Greg Jackson, left for
             fifteen or twenty minutes and then returned for the [petitioner]. About
             one and one-half hours later, the [petitioner] and James returned and
             invited the sisters to join them at a McDonald's Restaurant. From
             there, they went to the mall where they were discovered by the police.

             At trial, Nakisisa Brown testified that she had seen the [petitioner]
             hand Jackson a pistol before Jackson left with James; when he got
             back, Jackson returned it to the [petitioner] who then took it to a
             neighbor's house. Ms. Brown recalled that she thought the [petitioner]
             was joking when he said “there was a dead woman in the back of the
             trunk.”

             When he learned the next morning from his mother that he was
             wanted by police, the [petitioner], age seventeen, contacted
             authorities. During an hour of questioning, he signed a statement
             acknowledging that he, Jackson, and James saw the victim in the
             Kroger parking lot, put her in the trunk, and stole her car. The
             [petitioner] confessed that he shot the victim with a .22 caliber
             revolver when, about thirty minutes after her abduction, the victim
             banged noisily on the trunk of her car. The [petitioner] told officers
             that Jones and Jackson disposed of the body “in the woods.”

             The victim, found in a heavily wooded area, had been shot in the neck
             and behind the right ear. A pathologist determined that either of the
             wounds could have been fatal. There were bloodstains in the trunk of
             her car.

             The police located the pistol, serial number 44446; it contained six
             live rounds and one spent round. Expert testimony established that
             one of two bullets taken from the body was fired from this .22 pistol.
             The other bullet had too much damage for an accurate assessment.

               When called as a defense witness, James invoked his right to remain
               silent. The [petitioner] did not testify.
State v. Steven D. King, No. 02C01-9509-CR-00280, 1997 Tenn. Crim. App. LEXIS 95, at **2-4
(Jackson, Feb. 4, 1997).




                                              -2-
                The petitioner was sentenced to life in prison for the felony murder conviction,
twenty-five years incarceration for the especially aggravated kidnapping conviction, and twenty-three
years for the especially aggravated robbery conviction. The trial court ordered that the sentences for
the especially aggravated kidnapping conviction and the especially aggravated robbery conviction
were to be served concurrently, but consecutively to the sentence for the murder conviction. The
petitioner’s convictions were affirmed by this court on February 4, 1997. Id. The petitioner did not
file an application for permission to appeal to the supreme court.

                On March 3, 1998, the petitioner filed a petition for post-conviction relief, alleging
ineffective assistance of counsel. In support of his claim, the petitioner alleged numerous grounds
for relief. On March 17, 1998, the post-conviction court entered an order dismissing the petition,
concluding that the petition was not timely filed. Subsequently, the petitioner filed a motion to
reopen his petition, asserting that his petition had been given to prison authorities for mailing on
January 28, 1998, and was therefore timely filed. The post-conviction court appointed counsel for
the petitioner and an evidentiary hearing was held on February 2, 2001.

                The petitioner asserted in his petition that trial counsel had provided ineffective
assistance of counsel by, inter alia, presenting inarticulate and obtuse opening and closing
statements; failing to properly cross-examine witnesses; failing to disclose relevant evidence;
allowing false and misleading evidence to be presented to the jury; improperly investigating the case;
limiting the petitioner’s input on the proceedings; failing to object to the authenticity of evidence;
making incorrect and inflammatory statements to the jury; failing to interview and subpoena
witnesses; inadequately preparing and using pretrial discovery; and failing to impeach key witnesses.
The petitioner also alleged that trial counsel subjected petitioner to “coercion, threats, conjecture,
intimidation and manipulation.”

                The petitioner testified at the post-conviction hearing that he provided counsel with
the names, addresses, and telephone numbers of witnesses who would testify at trial. The petitioner
also asked counsel to contact his mother, Barbara Jones, and his sister, Chakita Jones. According
to the petitioner, counsel promised to speak with them and also promised to subpoena witnesses.
On the day of trial, “[t]hey were sitting there, but they didn’t testify.” The petitioner also claimed
that counsel assured him that he had spoken with his family. However, when the petitioner spoke
with his family, “they haven’t heard from him.”

                The petitioner asserted that counsel failed to visit him in jail, estimating that he saw
counsel only four or five times while he was in jail awaiting trial. He acknowledged that counsel
visited on the day before each court hearing. The petitioner also complained that he and counsel
“wasn’t getting along. We wasn’t communicating right. And the things that I was asking for him
to say to the witness . . . he weren’t saying them. The things I was asking him to do, he wasn’t
doing.” Specifically, the petitioner noted that he needed his mother to testify that when he was
arrested she was not notified. The petitioner was a minor at the time of his arrest. His sister would
also have testified regarding his mother’s lack of notice.



                                                  -3-
               The petitioner alleged that trial counsel prevented him from testifying at trial. He
complained that trial counsel told him he should not testify and he was not aware that he had a
choice. According to the petitioner, “[counsel] is the one that was calling the shots.” The petitioner
believed that his testimony would have been beneficial. The petitioner conceded that at trial he
advised the trial court that he did not want to testify and that he had not been threatened or
intimidated.

                The petitioner further asserted that trial counsel made numerous errors during trial.
He contended that during opening and closing arguments, trial counsel allowed the District Attorney
“to say some things that was really missing, misconduct for a courtroom.” Specifically, the
petitioner objected to the District Attorney’s statement in his closing argument that “there is a
Stephen King that writes scary movies but this is the Steven King that make[s] them.” Moreover,
trial counsel failed to object to the statement. However, the petitioner was unable to relate other
specific concerns, explaining, “I never got a chance to see [a] transcript on the opening and closing
statement because [trial counsel] didn’t order them.”

                Additionally, the petitioner maintained that trial counsel’s argument regarding the
murder weapon was ineffective. Prior to trial, the gun used to kill the victim was mistakenly
destroyed by the police department. Although the petitioner acknowledged that trial counsel raised
the issue in pretrial motions, the petitioner contended that counsel “could have argued that issue
better than what he done. Because what he was telling me before we went to court, every day before
we go to court was a different thing from what he was saying to the judge.”

                Next, the petitioner alleged that trial counsel did not properly cross-examine
numerous witnesses. The petitioner recalled that during trial he took notes and passed his questions
or concerns to trial counsel. However, counsel failed to respond. Specifically, the petitioner noted
his concerns regarding trial counsel’s cross-examination of Narkeshia Brown.1 The petitioner related
that, “I needed him to ask her about like the statement that she made. I say, she seen me in a car or
seen me give someone a gun. And I asked him to ask her about the questions but he didn’t.” The
petitioner was also concerned with counsel’s cross-examination regarding the disappearance of the
murder weapon.

                  The petitioner further contended that trial counsel failed to disclose relevant evidence,
including the results of fingerprint and gunpowder residue tests. Additionally, he alleged that trial
counsel failed to prepare and properly use pretrial discovery. On cross-examination, the petitioner
conceded that trial counsel provided copies of discovery, a copy of his confession, and a copy of the
trial transcript.

                Finally, the petitioner alleged that trial counsel subjected him to “coercion, threats,
conjecture, intimidation and manipulation.” However, the petitioner was unable to recall specific


         1
           The trial transcript reflects that the first name of this witness is “Nakisisa.” However, the record is clear that
Nakisisa and Narkeshia Bro wn are the sam e individual.

                                                            -4-
details of such conduct. Describing how trial counsel’s actions were coercive or manipulative, the
petitioner testified, “Because he knew I didn’t – he knew that I didn’t understand what was going
on, but yet, still, he kept telling me everything was all right. He knew it wasn’t. He kept misleading
me, telling me what I should do.” The petitioner also complained that trial counsel was
unresponsive, “And then when I call him or try to talk to him, he’s saying hold on, like he didn’t
even want to talk to me, like he just constantly pushing me off.”

                At the conclusion of the petitioner’s testimony, post-conviction counsel advised the
court that the petitioner had “indicat[ed]” to her that Beverly Reed and Chakita Jones were present
and willing to testify that they had attempted to call trial counsel to “inquire about the case.”
Additionally, Jones would testify that “she was aware when the [petitioner] was arrested. And that
they were not present or they were not called when the [petitioner’s] statement was taken and no
family members were notified with regard to the statement.” The post-conviction court noted that
the issue regarding the suppression of the petitioner’s statement had been addressed by the trial court
in pretrial motions and had also been addressed in the petitioner’s direct appeal; therefore, the issue
was moot.

                Trial counsel testified that he had practiced law since 1980 and had represented
defendants in approximately thirty-five to fifty murder cases. He was appointed to represent the
petitioner in September 1993. He filed a motion to suppress the petitioner’s statement to police on
the basis that the petitioner, who was a minor at the time of his arrest, did not have a parent or
guardian present with him at the time he gave his statement at juvenile court. He recalled that there
was a “highly contested” and lengthy hearing on the motion. Trial counsel specifically recalled
speaking with the petitioner’s mother; however, he described their contact as sporadic. He was
aware that the petitioner’s mother was not present when the statement was given. Nonetheless, he
noted that the trial court determined that because of the petitioner’s lengthy juvenile record, the
petitioner was aware of his rights and the presence of a parent or guardian was unnecessary. The
issue was also addressed in the petitioner’s direct appeal.

                Trial counsel testified that he advised the petitioner of his right to testify. He recalled
that the petitioner was asked on the record if he understood that he had a right to testify and that
“nobody can take that right away from him, not even myself.”

                Trial counsel testified that the issue of the missing gun was raised at trial and on
appeal. He also reviewed the discovery materials with the petitioner and in response to a request
from the petitioner subpoenaed a co-defendant to testify at trial. He denied that the petitioner had
asked him to subpoena other witnesses.

                On cross-examination, trial counsel estimated that he visited the petitioner
approximately ten to fifteen times while the petitioner was in custody. The petitioner never
expressed to him concerns about his representation or asked him to contact other witnesses. Trial
counsel recalled speaking with Chamika Brown who gave a statement to police implicating the
petitioner and two co-defendants. Trial counsel stated that he spoke with the petitioner’s mother and


                                                   -5-
noted that she was present during part of the trial. He explained that the petitioner’s mother had no
relevant information regarding the robbery, kidnapping, or murder. Her testimony was only relevant
to the suppression issue which had been determined prior to trial.

                Contrary to the petitioner’s assertion that trial counsel prevented him from testifying,
trial counsel asserted that the petitioner never indicated that he wanted to testify. Counsel stated that
he discussed the issue with the petitioner and the “ultimate decision” was the petitioner’s. Trial
counsel testified that the petitioner never expressed dissatisfaction with his representation.

                                            II. Analysis
                In a post-conviction proceeding, the petitioner bears the burden of proving the
grounds raised in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f)
(1997). “Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245
(Tenn. Crim. App. 1998). On appeal, a claim of ineffective assistance of counsel presents a mixed
question of law and fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
As such, the post-conviction court’s findings of fact are entitled to a presumption of correctness
unless the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001). The credibility of the witnesses and the weight and value to be afforded their testimony are
questions to be resolved by the post-conviction court and, on appeal, the burden is on the petitioner
to prove that the evidence preponderates against the post-conviction court’s findings. Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). However, a post-conviction court’s conclusions of law,
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial, are
subject to a purely de novo review with no presumption of correctness. Fields, 40 S.W.3d at 458.

                 When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). To establish prejudice, the petitioner must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Moreover,
                 [b]ecause a petitioner must establish both prongs of the test, a failure
                 to prove either deficiency or prejudice provides a sufficient basis to
                 deny relief on the ineffective assistance claim. Indeed, a court need
                 not address the components in any particular order or even address
                 both if the [petitioner] makes an insufficient showing of one
                 component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).



                                                  -6-
                The petitioner contends that the post-conviction court erred in finding that he received
effective assistance of counsel. We disagree. The post-conviction court noted that the issues
regarding suppression of the petitioner’s statement and the absence of the murder weapon had been
addressed in the petitioner’s direct appeal and were moot. Our review of the petitioner’s direct
appeal confirms the findings of the post-conviction court. On appeal, this court addressed the issue
of the admission of the petitioner’s statement, specifically acknowledging that the petitioner’s
mother was not present when his statement was given. However, this court concluded that
considering the totality of the circumstances, the petitioner’s confession was the result of a knowing
and intelligent waiver of his constitutional rights.

                With regard to the petitioner’s allegations that trial counsel failed to contact or
subpoena witnesses, the post-conviction court noted the testimony of trial counsel that he spoke with
the petitioner’s mother several times. Counsel explained that he chose not to have her testify
because she had no relevant evidence regarding the offenses and would not be helpful. Additionally,
counsel testified that the only witness petitioner asked him to subpoena was a co-defendant.
Although counsel subpoenaed the co-defendant, he asserted his Fifth Amendment privilege and
refused to testify.

                 As to the petitioner’s claim that counsel prevented him from testifying at trial, the
post-conviction court found that trial counsel advised the petitioner of the consequences of testifying
but left the ultimate decision to the petitioner. Moreover, counsel conducted a voir dire outside the
presence of the jury to determine if the petitioner was aware of his right to testify. The petitioner
assured the trial court that he did not want to testify.

                Additionally, the post-conviction court concluded that although the petitioner claimed
that trial counsel’s opening and closing arguments were improper, the petitioner was unable to
support his claim. Likewise, the post-conviction court found that the petitioner’s claims that trial
counsel limited his input on trial proceedings and failed to disclose relevant evidence were
unfounded.

               In addressing the petitioner’s claim that he was coerced, intimidated, threatened, and
manipulated by trial counsel, the post-conviction court noted that the petitioner admitted that counsel
had not made any threats against him. Additionally, the petitioner was unable to testify as to any
specific actions of counsel which would support his claim.

                 The post-conviction court chose to accredit the testimony of trial counsel, finding that
the petitioner failed to meet his burden of proving his claim by clear and convincing evidence and
that the petitioner’s allegations were without merit. The evidence does not preponderate against the
findings of the trial court. The petitioner has not shown that counsel was ineffective. Moreover, the
petitioner has failed to show that he was prejudiced by counsel’s actions.

                                           III. Conclusion



                                                  -7-
                In summary, we conclude that the post-conviction court did not err in finding that the
petitioner received effective assistance of counsel. Accordingly, we affirm the judgment of the post-
conviction court.




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




                                                 -8-
