        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 4, 2012

                 TERRANCE ROSE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. 07-04461    J. Robert Carter, Judge


               No. W2012-00610-CCA-R3-PC - Filed January 10, 2013


The petitioner, Terrance Rose, appeals the denial of his petition for post-conviction relief,
arguing that he received ineffective assistance of counsel due to counsel’s failure to properly
communicate with him and to prepare him to testify at trial. Following our review, we affirm
the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and J EFFREY S. B IVINS, JJ., joined.

Michael R. Working, Memphis, Tennessee, for the appellant, Terrance Rose.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Amy
P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       In 2007, the Shelby County Grand Jury indicted the petitioner and a co-defendant,
Charles Williams, for the first degree felony murder and especially aggravated robbery of the
victim, Christopher Smith, who was found shot to death on a wooded walking trail in a
Cordova neighborhood. Williams, who was tried first, was convicted of the indicted offenses
and sentenced to an effective term of life plus fifteen years. See State v. Charles Williams,
No. W2008-02211-CCA-R3-CD, 2010 WL 1930965, at *1 (Tenn. Crim. App. May 13,
2010), perm. app. denied (Tenn. Apr. 12, 2011).
       Following his separate jury trial, the petitioner was convicted of the lesser included
offense of reckless homicide, a Class D felony, and the indicted offense of especially
aggravated robbery and sentenced to concurrent terms of three years and twenty years,
respectively. The petitioner’s convictions were affirmed by this court on direct appeal, and
our supreme court denied the petitioner’s application for permission to appeal. State v.
Terance Rose, No. W2008-02214-CCA-R3-CD, 2010 WL 2219596, at *1 (Tenn. Crim. App.
May 20, 2010), perm. app. denied (Tenn. Nov. 12, 2010).

        The State’s proof at trial established that the victim was shot and killed after the
petitioner, using the alias “Markese,” called sometime after 12:00 a.m on March 11, 2007,
to arrange a meeting to purchase marijuana from the victim. Id. Williams accompanied the
petitioner to the meeting place, and it was he who fired the fatal shot that resulted in the
victim’s death. The victim’s body was found by a neighborhood resident who was walking
his dog on the morning of March 11. Near the body was a compact disc case with a set of
digital scales inside; a nine-millimeter handgun with its safety on and its chamber and
magazine empty; the gun’s magazine, which was lying several feet away from the gun; two
fired .380 caliber bullets, and several empty .380 caliber shell casings. There were no drugs
recovered from the victim or the crime scene. Id. at *2.

        The petitioner, who was arrested later that same day, had ten grams of marijuana
packaged in five small bags on his person. Id. at *2. He ultimately gave three different
statements to police: two on March 11 and a third on March 13. Id. at *4. In the first
statement, the petitioner claimed that the shooting had occurred in self-defense and said that
he had thrown the murder weapon in a pond after fleeing the scene. Id. In the second
statement, the petitioner said that the murder weapon was in the house in which he had been
living, id., and a subsequent police search uncovered the gun hidden in attic insulation
located adjacent to the petitioner’s bedroom in the home. Id. at *3. In the third and final
statement, the petitioner admitted that neither he nor Williams had enough money to finance
the marijuana purchase and that the plan had been to rob the victim of his marijuana. All
three of the petitioner’s statements were published to the jury at trial. Id. at *4. The
petitioner did not testify and did not present any witnesses in his defense. Id. at *6.

       On November 14, 2011, the petitioner, with the assistance of counsel, filed a petition
for post-conviction relief in which he raised a claim of ineffective assistance of counsel.
Although he alleged a number of instances of ineffective assistance in his petition, he
confines himself on appeal to arguing that counsel was deficient in his representation,
thereby prejudicing the outcome of the petitioner’s case, for failing to communicate with the
petitioner and to prepare him to testify at trial.




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       At the evidentiary hearings, Charles Williams testified that his defense theory at his
separate trial was that he was not present at the crime. He acknowledged, however, that he
had given a statement in which he had admitted he was present and claimed that the victim’s
death resulted from a “drug deal that had gone bad.” He said he never saw the petitioner in
possession of a gun on the night of the victim’s shooting and the petitioner was never part
of any plan to rob the victim.

         The petitioner’s mother, Paula Mays, testified that she let the petitioner’s court-
appointed attorney know she was available to assist in locating witnesses and was willing to
offer character evidence on behalf of her son at trial. She said she was not called to testify
at trial, but she did testify at sentencing.

        The petitioner’s father, Burnest Rose, Jr., testified that he and trial counsel argued
when he first met him because counsel, who appeared arrogant, accused the petitioner of
being a member of a gang. After that initial meeting, counsel was never available when Rose
called to speak with him and usually waited one to two weeks before returning Rose’s phone
calls. Rose stated that he offered to locate witnesses on the petitioner’s behalf, but counsel
never asked him to help find any witnesses. Counsel also never asked him to testify about
the petitioner’s good character at trial, although he offered to do so. Rose further testified
that counsel failed to keep him involved in the petitioner’s case and never informed him of
what kind of defense strategy he intended to employ at trial.

        The petitioner testified that trial counsel met with him for approximately three to five
minutes each time he was brought from jail for a courtroom appearance in the months leading
up to trial, which would have been about a dozen times, but that counsel never visited him
in the jail. Trial counsel had only a five-minute conversation with him about whether he
should testify, during which counsel recommended that he not take the stand. The petitioner
said that he had almost no prior contact with the criminal justice system and followed
counsel’s advice because he did not know anything about the law. He stated that counsel
never discussed the possibility of his testifying in order to explain his three different
statements to the jury.

       The petitioner further testified that he was never a part of his co-defendant’s plan to
rob the victim, had no weapon, and was simply inspecting the victim’s marijuana when the
victim and his co-defendant began shooting at each other. He said he consistently maintained
throughout all three of his statements to police that he never planned to rob the victim and
never shot him. He stated that he gave that same account of the crime to Anthony and
Brandon Johnson and that his conversation with the Johnson brothers was overheard by
Sheronda Burks, who testified at his trial. He informed counsel of his conversation with the
Johnson brothers, but counsel, to his knowledge, never interviewed them.

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        On cross-examination, the petitioner acknowledged that he assured the trial court and
his counsel at the time of trial that it was his decision not to testify in his own defense. He
believed, however, that he would have received a more favorable result had he testified and
if he had it to do over again, he would make a different decision. On redirect examination,
the petitioner testified that he did not think he could have taken the stand at trial because
counsel never prepared him to testify.

        Trial counsel testified that he was licensed to practice law in both Tennessee and
Arkansas and had been practicing law in Tennessee for approximately eleven years, with
ninety-eight percent of his practice devoted to criminal defense. He estimated he had
handled twenty to thirty homicide cases, including four or five capital murder cases, during
that time.

        Trial counsel testified that he advised the petitioner not to testify because of the three
inconsistent statements he had given to police, which he thought would result in the
petitioner’s losing all credibility and sympathy with the jury if he testified and attempted to
explain the statements. Without the petitioner’s testimony, the jury was left with the
petitioner’s third statement, in which the petitioner, who was a young man with a minimal
criminal record and a supportive family in attendance in the courtroom, admitted that the plan
was to “take” the victim’s marijuana but was vague enough in his details to make it appear
that it was “a little bit more of a maybe we will, maybe we won’t” type of situation rather
than a concrete plan. Thus, although counsel thought that the jury had enough evidence to
conclude that the petitioner was probably “up to no good,” he believed that it might also find
the petitioner less culpable and convict him of a lesser offense than felony murder, as it, in
fact, ended up doing. Counsel explained:

       And in my experience, jury’s [sic] just have a really hard time of looking at the
       guy who’s not the shooter and he probably is not the one who planned this and
       convict him for a first degree. There’s a disconnect. And you can ask jurors
       about it all day long in voir dire and they’ll say yeah, I’m going to follow the
       law, but when it comes down to sentencing a young 19-year-old man, and they
       probably know it, to the rest of his life in jail, it’s very difficult for them.

              And so there’s always an issue in these kind of cases where there’s
       very, very strong proof as to his guilt, . . . is then the question becomes can you
       unhook . . . the felony murder from the underlying felony?

               ....

               And just experience says a 19 year old kid who’s not the shooter, who’s

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       given a statement that he’s a robber, you’re going to get hit with something,
       but you’re just hoping for the, you know, a lesser-included and something
       that’s going to allow him to get out of jail sometime in the future.

       Trial counsel testified that, in his opinion, the petitioner would have been convicted
of felony murder had he testified at trial.

        On cross-examination, trial counsel testified that the other individuals who were in
the house with the petitioner and Charles Williams after they returned from the alleged
murder and robbery were fellow gang members of Williams who were closely associated
with Williams, whereas the petitioner was not. He could not remember what he did with
those potential witnesses. He did, however, recall that he wanted to distance the petitioner
from Williams and those other “Street Crips” gang members. Counsel testified that he did
not interview the Johnson brothers. He said he knew that Brandon Johnson was currently in
jail and, as he recalled, Anthony Johnson was in jail and represented by counsel at the time
he prepared for the petitioner’s trial. As for Sheronda Burks, he recalled that he had
reviewed her statement and that he spoke to her in the hallway outside the courtroom before
her testimony at trial. He also cross-examined her at trial. He could not, however, remember
whether he ever spoke with her before the trial began.

       Trial counsel later explained on redirect that each of the State’s witnesses testified
consistently with their pretrial statements to police, which counsel reviewed before trial. He
said that none of the statements of those witnesses was necessarily inconsistent with his
defense and that, had the witnesses’ testimony differed from their statements, he was
prepared to impeach them with the prior inconsistent statements.

         Trial counsel testified that he would be surprised if he had not visited the petitioner
in the jail but that he could not locate his billing sheet, had not pulled the jail log, and had no
independent recollection of the number of visits he had with the petitioner. He was
confident, however, that he met with the petitioner on every occasion when the petitioner was
in court for the case to be reset, which would have occurred every thirty days. During those
dozen or so visits, which he estimated lasted anywhere from five to thirty minutes, he would
have asked the petitioner if anything new had come up or whether the petitioner had any
questions for him about the case. Counsel testified that the bailiffs were always
accommodating, especially in a murder case, and would not have prevented him from taking
as much time with the petitioner as he felt necessary unless the meeting was occurring at the
end of the court day. However, if that were the case, he would have visited the petitioner in
jail to continue their conversation.




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        On March 21, 2012, the post-conviction court entered an order denying the petition
for post-conviction relief on the basis that the petitioner failed to meet either the deficiency
or the prejudice prong of the Strickland test for ineffective assistance of counsel. This appeal
followed.

                                          ANALYSIS

        On appeal, the petitioner argues that trial counsel provided ineffective assistance for
failing to adequately meet with or communicate with him before trial and for failing to
prepare him to testify in his own defense. 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, review of a
trial 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.




                                                -6-
        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)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of counsel
falls within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,
and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). 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”).

        The petitioner alleges that because he “did not receive a single jail visit or letter” from
counsel, he was “largely uninformed about his case” and therefore unable to make an
informed decision about testifying. He further alleges that counsel’s failure to visit him in
jail resulted in counsel’s being “willingly uninformed of the materiality or availability of the
State’s witnesses at trial.” The petitioner asserts that, “[g]iven the nature of the drastic
difference in the verdicts” in his and his co-defendant’s cases, “a reasonable probability
exists” that the outcome of the case would have been different had he “been properly and
fully informed of his rights by his attorney.” The State disagrees, arguing that the post-
conviction court properly denied the petition based on the petitioner’s failure to show either
a deficiency in counsel’s performance or resulting prejudice to his case. We agree with the
State.

        Although trial counsel could not specifically recall whether he visited the petitioner
in the jail, he was confident that he met with him at the back of the courtroom at every report
date, which occurred once a month. Moreover, he was certain that the meetings lasted long
enough for him to cover everything necessary and said that he would have continued the
conversation in jail if any meeting was prematurely ended by the bailiffs. Counsel also
offered a reasonable explanation for why he did not interview the Johnson brothers or other
witnesses and why he advised the petitioner not to take the stand in his own defense. With
respect to this latter point, the petitioner, himself, acknowledged in his voir dire before the
trial court that his counsel had explained his right to testify in several meetings and that it
was his decision not to take the stand in his own defense. The petitioner has not, therefore,

                                                -7-
met his burden of showing that counsel was deficient in his general communication about the
case or in his specific communication and advice to the petitioner about testifying.

       The petitioner has also failed to meet his burden of showing that counsel’s alleged
failure to adequately communicate with him or advise him about his right to testify
prejudiced the outcome of his case. In his brief, the petitioner asserts that the vastly different
verdicts reached by the respective juries in his and Williams’ cases show that there is a
reasonable probability that the outcome of his case would have been different had counsel
properly and fully informed him of his rights. We fail to follow the petitioner’s logic. The
petitioner has not presented any evidence to show that, had he testified at trial, he would have
received a more favorable outcome at trial than the reckless homicide offense for which he
was convicted. We conclude, therefore, that the petitioner has not met his burden of
demonstrating that he received ineffective assistance of trial counsel.

                                       CONCLUSION

       Based on our review, we conclude that the petitioner has failed to show either a
deficiency in counsel’s performance or resulting prejudice to this case. Accordingly, we
affirm the denial of the petition for post-conviction relief.




                                                     ____________________________________
                                                     ALAN E. GLENN, JUDGE




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