        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON            FILED
                         DECEMBER 1999 SESSION
                                                      March 6, 2000

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
CARLOUS COMAN,                *    No. W1999-01074-CCA-R3-PC

           Appellant,         *    MADISON COUNTY

VS.                           *    Roy B. Morgan, Jr., Judge

STATE OF TENNESSEE,           *    (Post-Conviction Relief)

           Appellee.          *




FOR THE APPELLANT:                 FOR THE APPELLEE:

MIKE MOSIER                        PAUL G. SUMMERS
P. O. Box 1623                     Attorney General & Reporter
204 West Baltimore
Jackson, TN 38302-1623             R. STEPHEN JOBE
                                   Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   JAMES G. (Jerry) WOODALL
                                   District Attorney General

                                   ALFRED LYNN EARLS
                                   Assistant District Attorney
                                   P. O. Box 2825
                                   Jackson, TN 38302




OPINION FILED: _______________


AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                     OPINION


                                  INTRODUCTION


       The petitioner, Carlous Coman, appeals from the Madison County Circuit

Court’s order denying his petition for post-conviction relief. On April 19, 1997, the

petitioner was convicted by a Madison County jury of second degree murder. For

this offense, the defendant, a Range I offender, was sentenced to twenty years in

the Department of Correction. On February 17, 1999, he filed a post-conviction

petition alleging ineffective assistance of counsel at trial and upon appeal. The trial

court denied this petition after a hearing.      After careful review, we AFFIRM the

order of the trial court denying the petition.



                                       FACTS


       The facts surrounding the commission of this offense were summarized by

this Court on direct appeal as follows:

       On the evening of March 29, 1995, the defendant and three
       companions went to the apartment of Jacqueline Haynes. The
       defendant knocked on the door. When Haynes answered the door,
       the defendant, who appeared angry, asked her if she had seen Brent
       Love. She told the defendant she had not seen Love that evening.
       The defendant and his companions left. They then went to the
       apartment of Terry Kay Wallace.

       Roderick Purdy, one of the defendant’s companions, and a co-
       defendant, went to the door and knocked. When Andrew Thompson
       answered the door, Purdy asked if Love was there. According to a
       statement given to police, Love had removed the hubcaps from
       Purdy’s automobile and Purdy wanted to know where the hubcaps
       were. Love exited the apartment and was shot five times. Eric
       Burton, who had also been inside Wallace’s apartment, waited a short
       time, exited the apartment, and dragged Love back inside the
       apartment.

       Two people were in the process of leaving a church directly across
       the street from the situs of the murder. They saw three or four people
       congregated in front of Wallace’s apartment. One person shot the
       victim. They saw the victim fall. The perpetrators of the murder ran
       away. Neither party could identify any of the individuals they saw
       since it was dark. Several witnesses testified they heard five or six
       shots in rapid succession.


                                          -2-
       Love appeared to be in excruciating pain. He was breathing heavily.
       He began to moan and gasp for breath. Later, he began “fading in
       and out.” When Burton and Thompson would call Love’s name, he
       would respond, but would then lapse back into an unconscious state.
       He died later that night at the hospital. Shortly after Love was
       dragged inside the apartment, he told Burton and Thompson twice
       that “Bushwick” shot him.1 The defendant’s nickname is Bushwick.
       The victim obviously knew the defendant.

       An autopsy revealed the victim died of multiple gunshot wounds.
       Three of the wounds discovered by the pathologist were superficial.
       One projectile struck the victim’s spine and stopped. The remaining
       projectile struck the victim on the right side of the chest, bruised the
       right lung, passed through both chambers of the heart, and struck the
       aorta as well. This latter wound was the cause of the victim’s death.

       The defendant gave the police a statement. He admitted to the
       officers that he was present when the victim was shot. However, he
       denied he was the person who shot the victim. When the shooting
       began, the defendant ran and hid in a grove of trees behind a grocery
       store.

State v. Carlos Coman, Madison County, No. 02C01-9611-CC-00412 (Tenn. Crim.

App., filed November 17, 1997, at Jackson), perm. to appeal denied (Tenn. 1998).



       Following affirmance of his conviction, the petitioner filed a pro se petition

alleging various grounds for post-conviction relief. After review of this petition, the

trial court appointed counsel, and, thereafter, counsel filed an amended petition for

post-conviction alleging ineffective assistance of counsel. The trial court conducted

a hearing on April 19, 1999, and dismissed that petition. At this hearing, the trial

court heard only the testimony of the petitioner’s trial counsel, Jan Patterson.



       Patterson testified to her representation of the petitioner. While explaining

that her pre-trial preparation was adequate, she described three areas in which her

performance was, admittedly, deficient:

       1-At Trial
       Patterson testified that the State’s decision to nolle prosequi a co-
       defendant, Byron Purdy, seriously disturbed her trial strategy. She
       said that when Purdy dropped from the case, she should have
       requested a continuance in order to get more time to formulate
       another defense strategy. However she did not. Beyond this, she




       1
           This sta teme nt was intro duced at trial as a “dying declaratio n.”
                                                    -3-
         did not specify how her strategy would have changed absent one
         matter: the sudden loss of a witness subpoenaed only by Purdy.
         Patterson testified that this witness could have provided testimony
         impeaching the credibility of the victim.2 After Purdy dropped out,
         however, this witness was lost.

         2-At Sentencing
         Patterson testified that her performance at sentencing was deficient
         on account of certain prescription medication that she was taking at
         the time. Days before, Patterson was involved in a car accident and
         was prescribed painkillers. Again, she testified that unmedicated she
         would have done things differently; however, she could not specify
         exactly how her strategy would have changed.

         3-On Appeal
         Patterson testified that her performance on appeal was deficient as
         one of her issues was deemed waived by this Court. It was waived
         on account of her failure to make appropriate citations to authority
         and to prepare a record sufficient for review. This issue involved
         evidence, excluded at trial, that would have allegedly revealed a
         motive for the Purdys, rather than Coman, to kill the victim.



         As stated before, at the close of this testimony, having also heard argument

from both sides, the trial court, by written order, denied the petition finding that:

         (1) The issues raised by the petitioner that deal with sentencing and
             issues on direct appeal are denied because they are not
             cognizable at habeas and have been waived.

         (2) The issue regarding counsel’s performance at closing argument
             is denied because the petitioner has not established prejudice.

         (3) The issue regarding counsel’s performance at sentencing, while
             more serious, is denied because the petitioner has not established
             prejudice.

         (4) The issue regarding counsel’s failure to ask for a continuance is
             denied because the petitioner has not established prejudice.

         (5) The issues raised regarding deficiencies in counsel’s performance
             upon appeal are waived as no proof was presented at the hearing.



                                           ANALYSIS

         The defendant’s sole argument alleges ineffective assistance of trial

counsel. This Court reviews a claim of ineffective assistance of counsel under the

standards of Strickland v. Washington, 466 U.S. 668 (1984) and Baxter v. Rose,

523 S.W.2d 930 (Tenn. 1975). The petitioner has the burden to prove that (1) the

         2
           Tha t witne ss w ould h ave te stified that th e victim had m arijua na in h is rec tum at the time
of the murder. As we discuss later, Patterson testified that this testimony would have been used
to im pea ch th e victim ’s cre dibility.
                                                     -4-
attorney’s performance was deficient, and (2) the deficient performance resulted in

prejudice to the defendant so as to deprive him of a fair trial. See Strickland, 466

U.S. at 687; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State,

874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).



       The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel’s conduct falls within the

wide range of acceptable professional assistance. See Hicks v. State, 983 S.W.2d

240, 246 (Tenn. Crim. App. 1998), Strickland, 466 U.S. at 689; Alley v. State, 958

S.W.2d 138, 149 (Tenn. Crim. App. 1997).          Therefore, in order to prove a

deficiency, a petitioner must show that counsel’s acts or omissions were so serious

as to fall below an objective standard of reasonableness under prevailing

professional norms. See Strickland, 466 U.S. at 688; Henley v. State, 960 S.W.2d

at 572, 579 (Tenn. 1997); Goad, 938 S.W.2d at 369.



       In reviewing counsel’s conduct, a “fair assessment . . . 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.” See Strickland, 466 U.S. at 689. The fact that

a particular strategy or tactic failed or hurt the defense, does not, standing alone,

establish unreasonable representation. However, deference to matters of strategy

and tactical choices applies only if the choices are informed ones based upon

adequate preparation. See Goad, 938 S.W.2d at 369; Hellard v. State, 629 S.W.2d

4, 9 (Tenn. 1982); Alley, 958 S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992).



       The second prong of Strickland’s test requires a petitioner to show a

reasonable probability that the result of the trial would have been different but for


                                         -5-
the deficient representation. See Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.



       If afforded a post-conviction evidentiary hearing by the trial court, a petitioner

must do more than merely present evidence tending to show incompetent

representation and prejudice; the petitioner must prove actual allegations by clear

and convincing evidence.               See Tenn. Code Ann. § 40-30-210(f). When an

evidentiary hearing is held, findings of fact made by that court are conclusive and

binding on this Court unless the evidence preponderates against them. See Cooper

v. State, 849 S.W.2d 744, 746 (Tenn. 1993).



       Assuming arguendo that counsel’s performance was ineffective, we review

for prejudice. In the end, we conclude that the petitioner has failed to carry his

burden to establish the requisite level of prejudice.



                                                 At Trial


       First, while counsel describes her failure to ask for a continuance upon the

state’s decision to nolle prosequi Purdy and her resultant “deficient” performance

as “prejudicial,” this Court lacks the supporting evidence needed to agree with that

conclusion. The only testimony that describes specifically how trial strategy might

have changed involved one witness, a police officer. His testimony, had it been

offered,3 would have been used to impeach the credibility of the victim. He would

have testified that the victim had marijuana in his rectum at the time of the murder.

The victim’s credibility was at issue as a major component of the evidence was a

“dying declaration.” However, as regards this impeachment evidence, first, its

impeachment value is questionable at best. Second, the petitioner had and used

other avenues of impeachment.4 And third, medical testimony describing an “air


       3
           Pres um ably, th e con tinua nce wou ld hav e allow ed co uns el tim e to s ubp oen a this
witness.
       4
           The petitioner impeached the victim’s credibility with two prior convictions.
                                                     -6-
pocket” in the victim’s rectum nevertheless got before the jury. Therefore, the loss

of this witness did not significantly prejudice the defendant. Any other “prejudice”

the petitioner perceives is simply not proved.        Broad, conclusory assertions

unsupported by particularized evidence or argument do not fulfill the defendant’s

burden on prejudice.



                                   At Sentencing


       Second, while petitioner alleges ineffectiveness and prejudice at sentencing,

no testimony indicating how sentencing strategy would have been changed was

adduced at the hearing. Instead, the testimony established that counsel submitted

mitigating factors at sentencing and argued the applicability of those factors.

Beyond this fact, counsel’s testimony is again merely conclusory and unsupported.

When petitioner asks this Court to find ineffectiveness and prejudice, we require

more. Here, counsel did not testify that she failed to make any one particular

argument but, medicated and confused, she forgot. Instead, she testified:

       What I felt very badly about was, at the time of the sentencing hearing
       itself, that I did not do a better job, or do the job I would have
       preferred to have done in presenting the sentencing arguments to the
       Court.

While the allegations are “serious,” as the trial court noted, there is no evidence nor

convincing argument to support a finding of prejudice. Counsel’s belief that a 15

year sentence, rather than 20 year one, would have been more appropriate, does

not meet the burden.



                                     On Appeal


       Third, while petitioner argues that counsel’s failure on appeal resulted in

prejudice, we must disagree. Counsel, in her appellate brief, failed to make the

appropriate citations to authority and to prepare a record sufficient for review and

therefore lost an issue on appeal: the trial court’s exclusion of a plea agreement

involving the victim. Apparently, counsel now believes that the plea agreement, if

                                         -7-
introduced at trial, would have revealed a motive for the Purdys, rather than the

petitioner, to kill the victim. While the merit of this conclusion is unclear, it is clear

that at trial a motive for the Purdys to kill the victim was already presented: The

Purdys apparently believed that the victim had stolen their hubcaps. In fact, that

seems to have been the state’s theory of the case: The Purdys had the motive, the

petitioner went along with them to find the victim and then, with the Purdys at his

side, shot the victim. Whatever the case, petitioner’s argument ignores the fact that

no matter who had the motive to kill the victim, the petitioner was alongside the

Purdys at the time of the killing. And therefore, just as the “hubcap motive”

necessarily did not exclude the petitioner as the killer, neither does the “plea

agreement motive.” How counsel therefore could have used this “plea agreement

motive” to obtain some other verdict is entirely unclear. Again, this Court, without

further supporting argument or evidence, would be left to speculate, and speculation

is not proper basis for setting aside jury verdicts. Therefore, we conclude that the

petitioner has failed to meet his burden of establishing the requisite level of

prejudice.



       In conclusion, the petitioner has failed to demonstrate that counsel’s

performance, at trial, at sentencing, or at appeal, resulted in the requisite level of

prejudice. And while the petitioner seeks to analogize his situation with State v.

Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991), we fail to discern any

persuasive similarity.    Zimmerman involved an attorney who failed to present

crucial evidence in support of the previously announced defense theory, while

petitioner’s case simply states vague and ambiguous second-guesses and regrets.



       The state’s case clearly put the petitioner upon the scene of the murder. The

petitioner’s own statement and the victim’s dying declaration are powerfully

incriminating. The case is strong, and the errors complained of would not have

affected the outcome. Accordingly, we see no merit in the petitioner’s claim.


                                           -8-
                                CONCLUSION


  Accordingly, we AFFIRM the trial court’s order denying the petition.




                                            _____________________________
                                            JOHN EVERETT W ILLIAMS, Judge


CONCUR:




___________________________
GARY R. WADE, Presiding Judge




___________________________
NORMA McGEE OGLE, Judge




                                      -9-
