         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   February 3, 2004 Session

           JAMES GORDON FREEMAN v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                            No. 97-B-788    Seth Norman, Judge



                      No. M2003-00899-CCA-R3-PC - Filed April 2, 2004


Petitioner, James Gordon Freeman, filed a pro se petition for post-conviction relief, which was
amended by appointed counsel. Following an evidentiary hearing, the trial court dismissed the
petition. On appeal, Petitioner argues that the post-conviction court erred in finding that Petitioner
received effective assistance of counsel at trial. After a thorough review of the record, we affirm the
judgment of the post-conviction court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH, JJ., joined.

Kathleen G. Morris, Nashville, Tennessee, for the appellant, James Gordon Freeman.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                             OPINION

I. Background

        Following a jury trial, Petitioner was convicted of one count of theft over $1,000.00 and one
count of especially aggravated kidnapping. Petitioner was sentenced as a Range II multiple offender
to four years for the theft conviction and thirty-four years for the especially aggravated kidnapping
conviction. The trial court ordered the sentences to run consecutively for an effective sentence of
thirty-eight years. The facts surrounding Petitioner’s convictions were summarized by this Court
in Petitioner’s direct appeal in State v. James Gordan Freeman, No. M1998-00182-CCA-R3-CD,
1999 1L 1073694 (Tenn. Crim. App., Nashville, Nov. 29, 1999), perm. to appeal denied (Tenn. May
15, 2000) as follows:
         On New Year's Eve 1996 defendant James Freeman wrapped-up three days
of crack cocaine use by consuming over a fifth of Cognac at a New Year's party.
Early in the morning of January 1, 1997, he went to the Par Mart convenience store
at the intersection of 10th Street and Shelby Street, in East Nashville, and badgered
the clerk, George Blackwell, for free beer and cigarettes. Blackwell, who knew
Defendant because he was a friend of Defendant's wife, refused to give Defendant
any free goods. Defendant continued to harass Blackwell, and Blackwell threatened
to call the police if Defendant did not leave. Defendant continued to hang around the
store, and the store's surveillance tape shows Defendant walking in and out of the
main door repeatedly, talking to customers and Blackwell. Eventually, Blackwell
called the police and asked to have Defendant removed.

In the meantime, Tina Trevino, an East Nashville resident, stopped at the Par Mart
store just before 3:00 AM that morning. She had celebrated the New Year's holiday
at her parents' home, and she was returning to her own home with her son, Horatio
Lee Trevino. She pulled her Ford Probe in to the Par Mart to get some snacks for
herself and Lee, and parked her car a few feet from the store's entry, immediately
adjacent to the curb abutting the front of the store. Ms. Trevino left her car running,
so as to keep the heat on for Lee, and locked her door. Lee remained in the car, in the
front seat. When Trevino was in the store, Defendant walked around her car several
times. When Trevino was at the cash register, ready to pay, Defendant got in her car
and drove away. When he did so, Lee Trevino was still in the car.

Blackwell called 911 and informed the police of the theft, and the fact that Lee was
in the car. Unbeknownst to Blackwell and Trevino, Defendant let Lee out of the car
approximately three blocks away, near 13th Street and Shelby Street. Defendant then
ran the car into an obstacle, and drove away. Lee was noticed by a local resident, who
took Lee inside his home and called police. Lee was then returned by patrol car to his
mother some time between 3:15 and 3:30 AM. Shortly thereafter, Defendant crashed
the car on another street in East Nashville. He set the back seat of the car on fire to
hide his fingerprints, took several video games from the back seat of the car, and
abandoned the vehicle. He was arrested later that morning at his wife's residence on
13th Street South. Defendant was indicted on April 15, 1997, on one count of theft,
more than $1,000, see Tenn. Code Ann. §§ 39-14-103, 105, and one count of
especially aggravated kidnapping, see id. § 39-13-305. After a jury convicted him of
both counts, the trial court sentenced Defendant on July 15, 1998. Defendant was
sentenced to four (4) years for the theft, and thirty-four (34) years for the aggravated
kidnapping, with the sentences to run consecutively.

....

The only proof that the defense offered at trial was Defendant's testimony. Defendant
conceded that he stole Tina Trevino's vehicle. However, Defendant denied knowing


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        that Lee Trevino was in the car when Defendant entered the car and drove away from
        the Par Mart convenience store. Defendant claimed that he did not know that Lee was
        in the car until he had exited the Par Mart parking lot.

Id. 1999 WL 1073694, at *1-2.

        On appeal, Petitioner argued (1) that the evidence was insufficient to support his conviction
for especially aggravated kidnapping; (2) that the trial court erred in not granting Petitioner’s motion
for judgment of acquittal under State v. Anthony; that (3) that the child victim should not have been
allowed to testify; (4) that the jury should have been instructed as to the range of punishment for the
offenses; and (5) that the trial court erred in determining the length and manner of service of
Petitioner’s sentence. Id., 1999 WL 1073694, at *2. Following a review of the record, this Court
affirmed Petitioner’s convictions and sentences. Id., 1999 WL 1073694, at *9.

II. Post-Conviction Hearing

         At the post-conviction hearing, Petitioner asserted that Larry Hoover, Petitioner’s trial
counsel, provided ineffective assistance (1) when he solicited Petitioner’s admission on direct
examination that he had been in custody since his arrest; (2) when he failed to effectively impeach
Ms. Trevino’s credibility during cross-examination and failed to interview the State’s witnesses prior
to trial; and (3) when he failed to physically inspect Ms. Trevino’s car prior to the trial.

         Mr. Hoover testified that his decision to ask Petitioner about his custodial status at the time
of trial was a tactical strategy designed primarily to deflect the jury’s potential anger over the fact
that Petitioner had let the five-year-old victim out of the stolen car on a deserted street late at night.
Mr. Hoover said that he wanted to show the jury that even if they found Petitioner not guilty of the
charge of especially aggravated kidnapping, Petitioner had already been punished for his treatment
of the child.

         Petitioner contended that Mr. Hoover should have questioned Ms. Trevino during cross-
examination about the inconsistencies between her testimony at the preliminary hearing and her
testimony at trial. At the preliminary hearing, Ms. Trevino said that she left her son in the front seat
of the car, that she saw Petitioner entice her son to unlock the car, and that she grabbed the tail of
Petitioner’s jacket before he entered her car. Mr. Hoover agreed that there were many
inconsistencies between Ms. Trevino’s testimony at the preliminary hearing and her testimony at
trial, but her testimony at trial was generally more favorable. Mr. Hoover said that he relied on the
surveillance tapes to support Petitioner’s defense. Mr. Hoover believed that the tapes sufficiently
reflected Petitioner’s obvious intoxication and the fact that he did not know anyone was in the car.
On cross-examination, Mr. Hoover agreed that bringing Ms. Trevino’s previously unfavorable
statements to the jury’s attention would not have been beneficial to Petitioner’s defense.

        Mr. Hoover confirmed that he did not talk to the detective and police officers assigned to the
case prior to trial. He pointed out, however, that he inspected the crime scene and interviewed both


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Ms. Trevino and her son during his trial preparation. On cross-examination, Mr. Hoover reiterated
that Petitioner’s defense rested solely upon his own testimony and the surveillance tapes from the
store.

        At the post-conviction hearing Petitioner maintained that the windows of Ms. Trevino’s car
were tinted black so that he was not able to see whether or not Lee Trevino was in the car. Mr.
Hoover said that he did not inspect Ms. Trevino’s car prior to trial. He stated, however, that he only
learned about the tinted windows shortly before the verdict during a casual conversation with
Petitioner’s wife.

        Ms. Trevino testified at the post-conviction hearing that her car windows were not tinted
black, and only the back window had a slight tint around the edges. Ms. Trevino confirmed that she
talked with Mr. Hoover prior to trial.

         Petitioner said that he met with Mr. Hoover several times prior to trial. Petitioner maintained
that he told Mr. Hoover about the tinted windows, but Mr. Hoover told him that he did not think this
factor would be helpful to Petitioner’s defense. On cross-examination, Petitioner conceded that he
mentioned the tinted car windows at some point in his trial testimony but stated that this fact should
have been stressed more during the trial. Petitioner denied that the car’s windows were darkened
after the incident by smoke when he set fire to the car.

         Based on the evidence presented at the hearing, the post-conviction court found that
Petitioner had failed to establish that his counsel rendered ineffective assistance at trial. The post-
conviction court found that Mr. Hoover’s decision to tell the jury about Petitioner’s custodial status
was a matter of trial strategy developed in response to the circumstances as they existed at the time
of trial. The post-conviction court also found that Mr. Hoover’s decision not to bring Ms. Trevino’s
prior inconsistent statements to the jury’s attention was a sound tactical strategy because such
statements directly contradicted Petitioner’s defense that he did not know the child was in the car.
The post-conviction court accredited Ms. Trevino’s testimony that her car’s windows were not tinted
thereby implicitly finding that Mr. Hoover was not deficient for failing to physically inspect the car
prior to trial. Accordingly, the post-conviction court denied Petitioner’s petition for post-conviction
relief.

III. Analysis

       Petitioner raises two issues on appeal. First, he alleges that his trial counsel’s performance
was deficient when he questioned Petitioner about his incarceration on direct examination.
Secondly, Petitioner argues that his trial counsel’s assistance was ineffective when he failed to
request a jury instruction on the lesser-included offenses of especially aggravated kidnapping and
when he failed to preserve the issue for appeal.

       A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). However, the trial court’s


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application of the law to the facts is reviewed de novo, without a presumption of correctness. Fields
v. State, 40 S.W.3d 450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is
a mixed question of fact and law and therefore also subject to de novo review. Id.; State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must establish that counsel’s performance fell below “the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In
addition, he must show that counsel’s ineffective performance actually adversely impacted his
defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674
(1984). In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this
Court will not second-guess counsel’s decisions regarding trial strategies and tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a
particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged
from counsel’s perspective at the point of time they were made in light of all the facts and
circumstances at that time. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

        A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on
a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
That is, a petitioner must not only show that his counsel’s performance fell below acceptable
standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either
prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the
components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at
2069.

                                     A. Improper Questioning

         Petitioner argues that counsel’s solicitation of his admission on direct examination that he
was in custody at the time of the trial deprived Petitioner of his right to a fair and impartial trial.
Petitioner submits that this exchange was no less prejudicial than clothing Petitioner in prison dress
before the jury. See Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).
Moreover, Petitioner contends that while such questioning may have been prompted by counsel’s
trial strategy, the strategy was fatally flawed.

        Every defendant is entitled to a fair and impartial trial. Willocks v. State, 546 S.W.2d 819,
820 (Tenn. Crim. App. 1976). The guilt or innocence of a defendant should be decided upon the
evidence introduced at trial and not because the defendant, for example, is in custody. Taylor v.
Kentucky, 436 U.S. 478, 485, 99 S. Ct. 1930, 1934, 56 L. Ed. 2d 468 (1978). Certain practices
during a trial may “pose such a threat to the fairness of the fact finding process that they must be
subjected to ‘close judicial scrutiny.’” State v. Braden, 874 S.W.2d 624, 626 (Tenn. Crim. App.
1994), citing Estelle, 425 S.W.2d at 504, 96 S. Ct. at 1692-93. A defendant, for example, should not
be compelled by the State to stand trial dressed in prison clothing. Estelle, 425 U.S. at 504, 96 S.


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Ct. at 1693. As the Estelle court noted, “the constant reminder of the accused’s condition implicit
in such distinctive, identifiable attire may affect a juror’s judgment.” Id., at 504-05.

        That is not to say, however, that a defendant may not choose for tactical purposes to place
his custodial status before the jury. See Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340,
1345, 89 L. Ed. 2d 525 (1986). A defendant, for example, may hope to appeal to the jury’s sympathy
through his prison attire. Id., at 508, (citing Andern v. Watt, 475 F.2d 881, 882 (10th Cir. 1973); Watt
v. Page, 452 F.2d 1174, 1176 (10th Cir. 1972)). “[J]urors are quite aware that the defendant
appearing before them did not arrive there by choice or happenstance.” Holbrook, 475 U.S. at 567,
106 S. Ct. at 1345; Carroll v. State, 532 S.W.2d 934, 937 (Tenn. Crim. App. 1975).

       The post-conviction court found that counsel’s decision to reveal that Petitioner was in
custody was prompted by trial strategy, and the record does not preponderate against this finding.
See Hellard, 629 S.W.2d at 9, citing United States ex rel. Burton v. Cuyler, 439 F. Supp. 1173, 1187
(E.D. Pa. 1977). Petitioner is not entitled to relief on this issue.

                                    B. Lesser Included Offenses

       We note at the outset that Petitioner’s challenge to the trial court’s jury instructions is
plagued by procedural defects. Nonetheless, Petitioner urges this Court to consider his argument that
Mr. Hoover provided ineffective assistance in not pursuing a jury instruction on lesser included
offenses either at trial or on appeal.

         Petitioner’s issue concerning lesser included offenses was raised for the first time in a pro
se amendment to his petition for post-conviction relief that was filed after the appointment of
counsel but apparently without counsel’s assistance. The factual allegations supporting the claim
for relief were attached to the amendment as a “memorandum of facts and law.” Although Petitioner
verified the amendment under oath, it is not clear whether the verification extended to the
memorandum which was unverified. See Tenn. Code Ann. § 40-30-104(e); Hutcherson v. State, 75
S.W.3d 929, 931 (Tenn. Crim. App. 2001). Amendments to a petition for post-conviction relief
must substantially conform to the requirements imposed on the filing of the original petition. Tenn.
Code Ann. § 40-30-104(g).

       The subject of lesser included offenses was only mentioned briefly during the post-conviction
hearing in the following exchange:

       COUNSEL:                Okay. Mr. Hoover, did you ever request any lesser included
                               offense be charged to the jury?

       MR. HOOVER:             I don’t recall one way or the other on those.

       COUNSEL:                That’s all the questions I have, your Honor.



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        Mr. Hoover was not questioned about his decision not to appeal the trial court’s jury
instructions, and Petitioner did not offer any other proof at the post-conviction hearing to establish
any deficiencies in Mr. Hoover’s representation of Petitioner on appeal or at trial in regard to this
issue.

        Petitioner effectively abandoned this issue when he failed to present any proof at the post-
conviction hearing in support of his claim other than Mr. Hoover’s very equivocal testimony on the
subject. In any event, Petitioner has not shown by clear and convincing evidence that his counsel
rendered ineffective assistance for failing to object to the trial court’s jury instructions or by failing
to appeal those instructions. Petitioner is not entitled to relief on this issue.

                                           CONCLUSION

        After a review of the record, we affirm the judgment of the post-conviction court.


                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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