            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                Assigned on Briefs October 4, 2005

                   BERNARDO C. LANE v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Shelby County
                             No. P-24886    Joseph B. Dailey, Judge



                    No. W2004-01882-CCA-R3-PC - Filed November 22, 2005


The Defendant, Bernardo C. Lane, petitioned for post-conviction relief, alleging ineffective
assistance of counsel. After an evidentiary hearing, the trial court denied relief. This direct appeal
followed. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN , JJ., joined.

Scott Hall, Memphis, Tennessee, for the appellant, Bernardo Lane.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                  OPINION


                                                    FACTS

        The Defendant was convicted after a jury trial of one count of first degree murder,1 one count
of especially aggravated robbery, three counts of aggravated robbery, and one count of aggravated
burglary. These convictions arose out of a 1993 home invasion during which four persons were
robbed. The four victims were Billy Mosley, his wife Artis Mosley, their son, Kenneth Mosley, and
their daughter, Danyale Davis. During the home invasion, Kenneth Mosley was shot once in the
back and killed. The Defendant was tried with his two codefendants, Andre Hamilton and Redonna
T. Hanna. The Defendant’s convictions were affirmed on direct appeal. See State v. Redonna T.


        1
         The Defendant was convicted of both felony murder and premeditated murder with respect to a single murder
victim. These two convictions were subsequently merged into a single count of first degree murder.
Hanna, No. 02C01-9806-CR-00165, 1999 WL 689414 (Tenn. Crim. App., Jackson, Sept. 7, 1999).
The Defendant now seeks to have his convictions overturned and this matter remanded for a new
trial on the basis that he received ineffective assistance of counsel at trial.

        At his post-conviction hearing, the Defendant testified that, on the night of the crimes, he was
with his sister, Shekeitha Lane. He informed his trial lawyer (“Counsel”) of that fact. He also gave
Counsel the names of two other witnesses, Reginald Hill and Chris Wright.2 The Defendant stated
that Counsel spoke with each of these persons and filed a notice of alibi on the basis of what one of
them told her. Counsel did not, however, call this alibi witness at trial. Counsel also obtained
affidavits from the Defendant’s codefendants in which they stated that the Defendant was not present
during the commission of the crimes. Counsel did not attempt to have these affidavits admitted at
trial.

        The Defendant also testified that Counsel did not attempt to suppress a pretrial identification
of him made from a photo-spread. Nor did Counsel arrange to have Artis Mosley, one of the
victims, listen to a series of voices in order to determine if she could identify the Defendant’s.
Counsel further failed to effectively cross-examine victim Danyale Davis with respect to her
inconsistent statements. Counsel also failed to properly object to the introduction of a note that had
not been previously provided during discovery. The Defendant also complained about Counsel’s
failure to move the trial court for a severance of his case from that of his codefendants. Counsel
further failed to obtain a handwriting expert regarding the note that the prosecution maintained had
been written by the Defendant.

        The Defendant stated that Counsel should have called his arresting officer to testify because
the officer could have described the Defendant’s haircut at the time of his arrest. The Defendant
stated that he was wearing his hair in “dreadlocks” at the time. However, the description of the
suspect’s haircut at the time of the crime was “a low haircut with a curl like top fade.” The
Defendant also stated that Counsel should have requested certain lesser-included offense
instructions.

         On cross-examination, the Defendant admitted to having signed a document stating,
“[Counsel] did visit me in jail; we discussed the procedure for the handwriting example and was told
that [Counsel] and a handwriting expert would come to take samples on Saturday, I told [Counsel]
that I did not wish to give samples.” The Defendant maintained, however, that his refusal to give
a handwriting sample was made in conjunction with a different case, in which he was represented
by another lawyer.

        Shekeitha Lane testified that she is the Defendant’s sister. She stated that, on December 27,
1993, the day of the crimes, she was at home. She remembered the date because she had planned
to host a gathering that day in honor of the Defendant’s planned entry into Job Corps. She spoke


        2
         Later in his testimony, the Defendant stated that he gave Counsel the names of Chris Gray, Reginald Hill and
Nicole Johnson as alibi witnesses.

                                                        -2-
with Counsel prior to the trial and informed her that the Defendant had been with her when the
crimes were being committed. She thought she was going to testify but, during the Defendant’s trial,
Counsel told her that she “would be hurting his case because [she] was his sister, and [she] wouldn’t
do him any good as coming on the stand and speaking up for him.” Accordingly, she did not testify
on the Defendant’s behalf.

         Counsel testified that she was appointed to represent the Defendant in January 1995; the trial
was held in February 1998. She met with the Defendant while he was incarcerated “several times.”
She discussed potential defense strategies with him. The Defendant did not mention an alibi until
months after she began visiting him. She spoke with the Defendant’s sister and filed a notice of alibi
naming the Defendant’s sister as the witness. She also spoke with Nicole Johnson and Christopher
Gray. She was told about the Defendant’s party in celebration of his entry into Job Corps, but she
was unable to obtain the information she needed to verify his acceptance into the Corps. She was
also unable to confirm who else was at the party. Later, the Defendant told her that he was at his
sister’s house that day because she had had surgery and needed his help looking after her children.
Counsel stated that she “was getting . . . many conflicting statements from them about this alibi.”
She stated that she advised the Defendant that it was “going to look pretty bad if [his] own witnesses
come in with conflicting statements.”

        Counsel testified that her file contained a note from Chris Gray stating that “all he knew is
what he was being told, and he didn’t know anything specific or anything definite about what was
going on.” She testified, “I thought it would damage [the Defendant], and I recommended to him
not to put him on.” She further testified that the Defendant agreed with her. They jointly decided
to abandon the alibi defense. The Defendant also decided not to testify on his own behalf.

        Counsel acknowledged that the Defendant had another case pending that also involved a
handwritten note. In her case, however, she had obtained a court order for a handwriting expert.
Nevertheless, the Defendant declined to submit a handwriting sample, and signed a document to that
effect.

        On cross-examination, Counsel recalled a piece of evidence being admitted at trial that had
not been produced during discovery. She could not recall if it was the handwritten note. She did
recall Billy Mosley testifying that the Defendant had left the note at the Mosley house for his son,
Kenneth. She could not recall what, if any, objections she lodged to the introduction of the note.
Post-conviction defense counsel thereupon entered the pertinent volume of the trial transcript into
evidence.

        Counsel testified that she tried to contact other people whose names had been provided to
her by the Defendant, but she was unsuccessful in eliciting a response from any of them.

         After hearing this proof, the trial court entered a written order denying the Defendant’s claim
for relief, finding that “each and every one of [the Defendant’s] allegations is unfounded and wholly
without merit . . . .” The Defendant now complains that the trial court erred in its decision.


                                                  -3-
                                      STANDARD OF REVIEW
        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de


                                                  -4-
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

                                        ANALYSIS
       We will now address the Defendant’s specific allegations of ineffective assistance of counsel
as argued in his appellate brief.

        The Defendant argues that Counsel was deficient in failing to present his alibi defense.
However, Counsel explained that she discussed her concerns about this defense with the Defendant
and they together determined not to pursue it. This was a strategic decision based on a sufficient
investigation into the facts. The Defendant is not entitled to relief on this basis.

         The Defendant argues that Counsel was deficient in failing to file a motion to suppress a
photographic identification of him. The record before this Court on this appeal contains no proof
of this photographic spread.3 The Defendant has therefore failed to prove his allegations concerning
this matter and is, accordingly, entitled to no relief on this basis.

        The Defendant argues that Counsel was deficient in failing to introduce notarized statements
of his codefendants. Because these statements were not admitted into evidence at the post-
conviction hearing, they are not in the record before this Court on this appeal. The Defendant has
therefore failed to prove these allegations and is, accordingly, not entitled to relief on this basis.

         The Defendant argues that Counsel was deficient in failing to request “a voice line-up
procedure to test the accuracy of witness Artis Mosley.” The Defendant has failed to demonstrate
how such a procedure would have benefitted him at trial. Accordingly, the Defendant is not entitled
to relief on this basis.

        The Defendant argues that Counsel was deficient in her cross-examinations of Artis Mosley
and Danyale Davis. The Defendant has failed to demonstrate any prejudice resulting from this
alleged deficiency. Accordingly, the Defendant is not entitled to relief on this basis.

        The Defendant argues that Counsel “failed to raise an adequate objection to the introduction
of a note.” The Defendant contends that this note was not provided until the day of trial and its
inadmissibility and/or a continuance should have been sought on that basis. However, the record
indicates that the note was provided in sufficient time to permit Counsel to obtain an order for a
handwriting expert. This allegation is, therefore, without merit.


        3
         The Defendant’s amended petition for post-conviction relief purports to contain a copy of the photo-spread.
However, documents that are merely attached to briefs are not cognizable as part of an appellate record. See State v.
Matthews, 805 S.W .2d 776, 783-84 (Tenn. Crim. App. 1990).

                                                        -5-
      The Defendant next contends that Counsel was deficient in failing to request a severance.
The Defendant has failed to demonstrate that he was entitled to a severance; he has therefore failed
to demonstrate any prejudice resulting from Counsel’s inaction in this regard. Accordingly, the
Defendant is not entitled to relief on this basis.

        The Defendant next argues that the trial court erred in its instructions to the jury. Initially,
we note that this is an issue that could have been raised on direct appeal. For the purposes of this
proceeding, this issue is therefore waived. See Tenn. Code Ann. § 40-30-106(g). Moreover, the
record before this Court on this appeal does not contain a copy of the allegedly inaccurate jury
instructions. Accordingly, the Defendant has failed to prove his allegations in this regard.

        The Defendant also argues that “[t]rial and appellate counsel was ineffective for not
challenging the [Defendant’s] conviction for aggravated robbery of Billy Mosley” on the basis that
the State failed to prove that the assailants took anything from the “person” of Billy Mosley. Cf. id.
§ 39-13-402(a)(1) (defining aggravated robbery as the intentional or knowing theft of property from
the person of another by violence or putting the person in fear, accomplished with a deadly weapon
or by display of any article used to lead the victim to reasonably believe it to be a deadly weapon).
The single volume of the transcript of evidence from the Defendant’s trial which is included in the
record before us includes Mr. Mosley’s testimony. He testified that several items of his were taken
from his bedroom while he was in the adjoining bathroom. Thus, the Defendant is correct in his
assertion that these items were not literally taken from Mr. Mosley’s body. However, this Court has
held that

       since 1989, if an offender, with the intent to deprive the owner, asserts control over
       property by means of the owner or possessor being removed from the presence of the
       property by force or fear, the offense of robbery is committed to the same degree that
       it is if the offender carries the property away from the victim’s presence.

State v. Nix, 922 S.W.2d 894, 901 (Tenn. Crim. App. 1995). In this case, Mr. Mosley testified that,
when the intruders entered his house, he started to leave his bedroom. As he was doing so, one of
the intruders placed a gun in his face and told him to get back in his room. Mr. Mosley, who testified
that he “thought they were going to kill us all,” then retreated to the bathroom that adjoined the
bedroom and closed the door. He later heard two persons in his bedroom. After they left the house,
he discovered that several personal items were missing from his bedroom. This testimony was
sufficient to establish the aggravated robbery of Billy Mosley. Accordingly, the Defendant’s
contention in this regard is without merit.

         The Defendant next alleges that Counsel was deficient in failing to call his arresting officer
to the stand. Because the Defendant has failed to establish what this officer would have stated, the
Defendant has failed to establish any prejudice arising from this alleged deficiency. The Defendant
is therefore entitled to no relief on this basis.




                                                  -6-
         Finally, the Defendant complains that Counsel was ineffective in failing to file a motion to
suppress a beeper seized in conjunction with the Defendant’s arrest. The Defendant testified that
he was arrested at his sister’s house and that the police searched the house without a warrant. The
record contains no proof as to whether the police had consent to perform the search. Because the
Defendant has failed to establish that Counsel had a valid basis for making such a motion, he has
failed to prove that she was deficient for not doing so. Accordingly, the Defendant is not entitled
to relief on this basis.

        The evidence does not preponderate against the findings of the trial court. The Defendant
has not shown that he was prejudiced by any of the alleged deficiencies of Counsel. The Defendant
thus failed to establish that he is entitled to post-conviction relief on the basis of ineffective
assistance of counsel. We affirm the judgment of the trial court.



                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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