        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 20, 2016

           DAVID LYNN BRUMMITT v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Sullivan County
                    No. C62781    James F. Goodwin, Jr., Judge


               No. E2015-02452-CCA-R3-PC – Filed October 18, 2016


The petitioner, David Lynn Brummitt, appeals the post-conviction court’s denial of his
petition for post-conviction relief, arguing he received ineffective assistance of counsel.
After review, we affirm the denial of the petition for post-conviction relief.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., joined. ROBERT H. MONTGOMERY, JR., J., not participating.

Stephen M. Wallace, District Public Defender; and William A. Kennedy, Assistant Public
Defender, Tennessee, for the appellant, David Lynn Brummitt.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Barry Staubus, District Attorney General; and Julie Canter, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

       The petitioner was convicted of especially aggravated robbery, aggravated
burglary, and reckless aggravated assault and was sentenced to terms of twenty-four, six,
and four years, respectively. State v. David L. Brummitt, No. E2011-01002-CCA-R3-
CD, 2012 WL 5333556, at *1 (Tenn. Crim. App. Oct. 30, 2012). The court ordered that
the petitioner serve the six- and four-year terms concurrently on probation but
consecutively to the sentence of twenty-four years in confinement. Id. On direct appeal,
this court modified the petitioner’s especially aggravated robbery conviction to
aggravated robbery and remanded the case for sentencing as to that offense. Id. On
remand, the trial court sentenced the petitioner to twelve years for the aggravated robbery
conviction. Id. The court also ordered that the petitioner serve the six- and four-year
sentences in confinement, consecutively to each other and consecutively to the twelve-
year sentence. Id. On appeal, the petitioner argued that his twelve-year sentence for the
aggravated robbery conviction was excessive and that the trial court’s resentencing him
on the aggravated burglary and reckless assault convictions exceeded the scope of this
court’s order on remand in the direct appeal opinion. Id. This court affirmed the
sentence imposed for the aggravated robbery conviction. Id. However, this court
concluded that the trial court did not have jurisdiction to resentence the petitioner on the
aggravated burglary and reckless assault convictions and held that the petitioner’s
original sentences on those convictions were to remain in effect. Id.

       The underlying facts of the case were recited by this court in the second direct
appeal as follows:

       On the night of January 1, 2008, the [petitioner] went to the home of
       Michael May, who knew the [petitioner] “from [the] neighborhood.” At
       some point, the [petitioner] went into the kitchen to talk on his cellular
       telephone, and May heard the kitchen door open. Two men, one armed
       with a knife and one armed with a baseball bat, entered the home, forced
       May upstairs, and searched the upstairs area for money and drugs. After
       searching the upstairs rooms, the man with the knife kicked or pushed May
       down the stairs, and the two armed men searched the kitchen for money and
       drugs. When May’s partner, Gary Adams, arrived and entered the home,
       the man with the bat hit Adams on the head, knocking him unconscious.
       Both of the assailants fled, taking money and jewelry. May also discovered
       that his Jeep, laptop, and cellular telephone were missing. May was certain
       that the two armed assailants did not take those items.

David L. Brummitt, 2012 WL 5333556, at *1 (internal citations omitted).

        The petitioner filed a pro se petition for post-conviction relief and, following the
appointment of counsel, an amended petition was filed as well. In his petitions, he raised
numerous allegations of ineffective assistance of counsel including the eight allegations
maintained on appeal – that trial counsel: (1) did not spend sufficient time meeting with
him in order to properly and fully review and explain the law and evidence against him;
(2) was ineffective in advising him not to testify at trial; (3) failed to obtain a transcript of
the preliminary hearing and use it for impeachment of the victim; (4) failed to call a key
witness, Ms. Casey Church; (5) failed to obtain phone records; (6) failed to investigate or
give evidence concerning individuals whom he identified as the actual perpetrators; (7)
failed to request a change of venue; and (8) told the jury in his opening statement that he
would provide certain evidence and did not follow through.

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       At the evidentiary hearing, the petitioner’s trial counsel testified that he met with
the petitioner, who was incarcerated, to discuss strategy. Although he could not recall
how many times he met with the petitioner, it was “a sufficient number of times to feel
comfortable with the case and understand what [the petitioner’s] issues were with the
case.” Their defense strategy was that one cannot be convicted for mere presence at a
crime scene, and all the State had proven was that the petitioner was present at the scene
but not in any way part of the crime.

        Counsel testified that he contemplated calling the petitioner’s girlfriend, Casey
Church, to testify, but because Mr. May testified as to Ms. Church’s calling the
petitioner, he did not have her testify. Counsel said that he did not recall the petitioner
asking him to obtain Mr. Adam’s phone records, and he did not get them because he did
not “see a reason to do so when [he] was preparing.” Counsel said that he did not order a
transcript of the preliminary hearing before trial. He said that it was his practice to listen
to the preliminary hearing testimony, but he could not say under oath whether he did so
in this case.

       Asked what the purpose of getting a transcript of a preliminary hearing might be,
counsel responded that a transcript could have been used to impeach Mr. May. However,
counsel said that the defense strategy at the time of trial was not to discredit Mr. May,
who was a sympathetic victim, but instead to show the jury that there was no proof the
petitioner was involved in the crime. He did not put the petitioner on the stand to testify
because he felt that the State had not met its burden, as all it proved was that the
petitioner was at the scene. He said that, in hindsight, knowing the outcome, he would
have tried the case differently.

       Counsel testified that he subpoenaed Casey Church to testify. However, he
decided not to have her testify because it was clear in the record from Mr. May’s
testimony that Ms. Church called the petitioner repeatedly that night and also the danger
that she would say something that would reflect poorly on the petitioner. Counsel
elaborated that Mr. May had testified that the petitioner left his phone at Mr. May’s
house, and Ms. Church had told counsel that she had received calls from the petitioner
from that phone after the robbery occurred. The petitioner did not testify at trial but
made an offer of proof in which he said that he was buying drugs from Mr. Adams and
that was how he had gotten to know the actual perpetrators. Counsel was surprised by
the petitioner’s offer of proof because the petitioner had been unable to give him the
names of the perpetrators before trial. Counsel did not investigate any of the names that
the petitioner mentioned during his proffer because he did not have their names prior to
trial.

       Counsel acknowledged making three assertions in his opening statement: that the
petitioner was at the victims’ home that night looking for Mr. Adams from whom to buy
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drugs; that the petitioner was on the phone with Ms. Church during the incident; and that
the petitioner saw two men in the alleyway, one with a bat, as he left the victims’ house.
Asked if he thought it was important to follow up on the assertions made to the jury
during opening statement, counsel acknowledged “that’s what you want to do.” Counsel
testified that it was ultimately the petitioner’s decision whether to testify, and he thought
the petitioner would have testified had the trial court ruled differently on the admissibility
of his prior theft conviction. Counsel said the decision not to call Ms. Church to testify
was a joint decision.

       On cross-examination, counsel testified that he did not recall the case getting a
great deal of pretrial publicity, nor was there any indication that there was an issue with
the venue. Counsel agreed that at a Momon hearing during the trial, he asked the
petitioner whether he had followed up on anything the petitioner had asked of him, and
the petitioner said that counsel had. At the Momon hearing, the petitioner also affirmed
that counsel had met with him on numerous occasions to discuss his case and spent
considerable time with him reviewing whether he should testify.

       Casey Church testified that the petitioner is her son’s father and on January 1,
2008, they were no longer together but still in communication with one another. Around
5:30 or 6:00 p.m. on the night of the incident, Ms. Church called the petitioner repeatedly
until he eventually answered the phone. She said that she also met up with the petitioner
sometime later that night, perhaps around 6:30 p.m. Ms. Church said that she talked to
counsel and was subpoenaed for trial, but she was not called to testify.

        The petitioner testified that counsel’s not calling Ms. Church to testify was “very
ineffective” because she talked to him “right around the same time the robbery happened
and that she had seen [him] right after the robbery.” The petitioner claimed that counsel
did not read over the discovery motion before trial. The petitioner said that he asked
counsel to follow up with Mike Arnold and Joel Gideon, who were mentioned in the
motion for discovery, but counsel did not do so. The petitioner also claimed that he
asked counsel to obtain cell phone records for both himself and Mr. Adams because Mr.
Adams testified at trial that he spoke to the petitioner one time on the day of the incident,
but the petitioner claimed that he spoke to Mr. Adams at least three to five times. The
petitioner stated that he asked counsel to get a copy of the preliminary hearing transcript,
but counsel did not obtain a copy in a timely fashion due to the cost. Almost a year after
the trial, the petitioner received a copy of the transcript from counsel.

        The petitioner testified that counsel told him that he was not going to have Ms.
Church testify. Counsel never explained the reason behind his decision, and the
petitioner “being naive . . . agreed to it.” The petitioner stated that he decided not to
testify because counsel told him repeatedly that the State did not prove its case. Counsel
had also talked to him about his prior record and how that might hurt his case if he
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testified. The petitioner testified that he believed there should have been a change of
venue because Mr. May was an attorney in Sullivan County.

        The petitioner testified that counsel only visited him three times prior to trial, with
each visit lasting less than thirty minutes. The petitioner stated that there were
photographs introduced the day of trial that he had never seen. One of those photographs
was of the crime scene and showed a computer, which the victims claimed had been
stolen, sitting on the sofa. Counsel did not object to any of Mr. May’s testimony or to the
introduction of the photographs. The petitioner stated that he asked counsel to obtain a
continuance of the trial because counsel only received discovery four or five days
beforehand.

        On cross-examination, the petitioner acknowledged that he received the discovery
from an attorney who represented him before counsel took over the case but claimed that
counsel “never once pulled out any statement, any motion of discovery.” However, he
admitted that he and counsel discussed the case from the discovery the petitioner had
received from his previous attorney. The petitioner stated that he felt counsel coerced
him not to testify by telling him that “the scales of justice . . . tipped in our favor.” The
petitioner acknowledged that he told the trial court that counsel had discussed potential
witnesses with him and followed up on anything the petitioner asked him to do. The
petitioner also acknowledged that he told the trial court that counsel had spent
considerable time with him discussing whether he should testify, that counsel went over
the advantages and disadvantages of testifying, and that counsel told him that it was his
decision alone to make. The petitioner admitted that he told counsel and the trial court
that he voluntarily and personally waived his right to testify at trial. At no time did he
tell the court he was coerced into not testifying. The petitioner acknowledged that he
actively participated with counsel in selecting and striking jurors.

       After the conclusion of the hearing, the post-conviction court entered a written
order denying the petition. The court found that the petitioner failed to prove his
allegations by clear and convincing evidence and that there was no reasonable probability
of another result had counsel performed differently.

                                        ANALYSIS

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, our review of a post-
                                              -5-
conviction court’s application of the law to the facts of the case is de novo, with no
presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The
issue of ineffective assistance of counsel, which presents mixed questions of fact and law,
is reviewed de novo, with a presumption of correctness given only to the post-conviction
court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v.
State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

      With regard to the petitioner’s allegation that counsel was ineffective in failing to
spend sufficient time meeting with him in order to properly and fully review and explain
                                            -6-
the law and evidence against him, the petitioner testified that counsel only visited him
three times with each visit lasting less than thirty minutes. Counsel testified that he met
with the petitioner to discuss trial strategy and, although he could not remember the exact
number of times, it was sufficient for him to feel comfortable with the case and
understand the petitioner’s issues. Their strategy was that the petitioner should not be
convicted for merely being present at the crime scene and that the State had not proven
that the petitioner was in any way involved in the crime. The post-conviction court
accredited counsel’s testimony that he met with the petitioner a sufficient number of
times to feel comfortable with the case and that he and the petitioner discussed and
agreed on the strategy to be used at trial. The record supports the findings of the post-
conviction court.

        With regard to the petitioner’s allegation that counsel was ineffective in advising
him to not testify at trial, the petitioner acknowledged at the hearing that he affirmed to
the trial court regarding his decision not to testify that counsel had spent considerable
time with him discussing whether he should testify at trial and that it was his decision to
make. The petitioner acknowledged having told the court that counsel discussed the
advantages and disadvantages of testifying, and he told the court that he voluntarily and
personally waived his right to testify. The petitioner acknowledged that at no time did he
tell the court that he was coerced into not testifying. The post-conviction court found that
the petitioner made a knowing and voluntary decision to not testify at trial and that
counsel did not render deficient performance, nor was there a reasonable probability of a
different result. The record supports the findings of the post-conviction court.

       With regard to the petitioner’s allegation that counsel was ineffective in failing to
obtain a transcript of the preliminary hearing, counsel acknowledged that he did not order
a transcript. Counsel testified that it was his practice to listen to the preliminary hearing
testimony, but he could not say under oath whether he did so in this case. Counsel said
that the purpose of a transcript may have been to impeach the victim; however, the
defense strategy was not to impeach the sympathetic victim but to tell the jury that there
was no proof the petitioner was involved in the crime.

        The post-conviction court found that when given the opportunity to remark about
trial counsel not procuring a transcript of the preliminary hearing, the petitioner did not
discuss the matter and immediately started talking about other grounds raised in his
petition. The post-conviction court accredited counsel’s testimony and found that,
despite his inability to specifically remember, counsel in all likelihood listened to the tape
of the preliminary hearing and decided with the petitioner that their best strategy was to
attempt to show the jury that the petitioner was merely present at the scene prior to the
attack, not to attempt to discredit a sympathetic victim. The post-conviction court further
accredited counsel’s testimony that he and the petitioner met numerous times and
discussed and agreed on the trial strategy. The evidence supports the post-conviction
                                             -7-
court’s conclusion that counsel did not render deficient performance in not obtaining a
transcript of the preliminary hearing or that there was a reasonable probability of a
different result had counsel obtained a transcript.

        With regard to the petitioner’s allegation that counsel was ineffective in failing to
call Casey Church to testify at trial, counsel testified that he subpoenaed Ms. Church to
testify but ultimately decided that her testimony could potentially be detrimental to the
defense’s theory of the case. Counsel said that the decision to not call Ms. Church was a
joint decision by him and the petitioner, and the petitioner testified that he agreed with
the decision although claiming he did so “naively.” The post-conviction court found the
petitioner’s credibility to be lacking and concluded that he failed to prove that counsel
performed deficiently or that there was a reasonable probability of a different result. The
record supports the findings of the post-conviction court.

        With regard to the petitioner’s allegation that counsel was ineffective in failing to
obtain phone records, the petitioner claimed that he asked counsel to obtain cell phone
records for both himself and Gary Adams because Mr. Adams testified at trial that he
spoke to the petitioner one time on the day of the incident, but the petitioner claimed that
he spoke to Mr. Adams at least three to five times. In his brief, the petitioner additionally
avers that Ms. Church’s phone records would have also been “valuable.” Counsel
testified that he did not recall the petitioner’s asking him to obtain phone records, and he
did not get them because he did not “see a reason to do so when [he] was preparing.”
Accrediting counsel’s testimony, as the post-conviction court did throughout its findings,
counsel did not render deficient performance. Moreover, the petitioner has failed to show
any reasonable probability that counsel’s procuring these phone records would have
resulted in a different outcome at trial.

        With regard to the petitioner’s allegation that counsel was ineffective in failing to
investigate or give evidence concerning individuals whom he identified as the actual
perpetrators, the petitioner testified that he asked counsel to follow up with Mike Arnold
and Joel Gideon, who were mentioned in the motion for discovery, but counsel did not do
so. However, the petitioner acknowledged that he told the trial court in a Momon hearing
during the trial that counsel had discussed potential witnesses with him and followed up
on anything the petitioner asked him to do. Counsel testified that he was surprised by the
petitioner’s offer of proof during trial because the petitioner had been unable to give him
the names of the perpetrators beforehand. Counsel did not investigate any of the names
that the petitioner mentioned during his proffer because he did not have their names prior
to trial. Accrediting counsel’s testimony, as the post-conviction court did throughout its
findings, counsel did not render deficient performance. Moreover, the petitioner has
failed to offer any proof that shows a reasonable probability that counsel’s investigating
the “actual perpetrators” would have resulted in a different outcome at trial.

                                             -8-
       With regard to the petitioner’s allegation that counsel was ineffective in failing to
request a change of venue, the petitioner made the blanket statement that he believed
there should have been a change of venue because Mr. May was an attorney in Sullivan
County. Counsel testified that he did not recall the case getting a great deal of pretrial
publicity, nor was there any indication that there was an issue with the venue. The
petitioner has failed to show a legitimate need that a change of venue should have been
pursued and that there would have been a different outcome had counsel pursued one.

       With regard to the petitioner’s allegation that counsel was ineffective in telling the
jury in his opening statement that he would provide certain evidence and not following
through, counsel acknowledged making three assertions in his opening statement: that
the petitioner was at the victims’ home that night looking for Mr. Adams from whom to
buy drugs; that the petitioner was on the phone with Ms. Church during the incident; and
that the petitioner saw two men in the alleyway, one with a bat, as he left the victims’
house. Asked if he thought it was important to follow up on the assertions made to the
jury during opening statement, counsel acknowledged “that’s what you want to do.”

        The petitioner claims that the “first and third assertion[s] intimated that the
[petitioner] was going to testify.” However, the petitioner made the knowing and
voluntary decision to not take the stand, and his case was more than adequately presented
to the jury through the witnesses who testified. The petitioner claims that the “second
[assertion] could have been accomplished through Ms. Church.” However, even without
Ms. Church’s testifying, as noted by counsel at the evidentiary hearing, it was clear in the
record from Mr. May’s testimony that the petitioner’s girlfriend repeatedly called the
petitioner that night, and counsel had a valid strategic decision for not having Ms. Church
testify. The petitioner has failed to show that counsel performed in less than a
constitutionally adequate manner as to this allegation.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the
petition for post-conviction relief.

                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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