         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 14, 2004

                    DENICE SMITH v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Cocke County
                          No. 27,621-III   Rex Henry Ogle, Judge



                   No. E2004-00224-CCA-R3-PC - Filed February 16, 2005


The petitioner appeals the denial of her petition for post-conviction relief from her first degree
murder conviction, arguing that the post-conviction court erred in finding that she received the
effective assistance of trial counsel. She also contends she was denied the effective assistance of
post-conviction counsel. Following our review, we affirm the denial of the post-conviction petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE , P.J., and JAMES
CURWOOD WITT , JR., J., joined.

Jason S. Randolph, Dandridge, Tennessee, and Lorraine Raymond, Chattanooga, Tennessee, for the
appellant, Denice Smith.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

        Following a joint trial, the petitioner, Denice Smith, and her twin sister, Deborah Graham,
were each convicted of the first degree murder of Smith’s ex-husband, Aaron Smith, and sentenced
to life with the possibility of parole. Their convictions were affirmed on direct appeal, and our
supreme court denied application for permission to appeal. See State v. Deborah Graham and
Denice Smith, No. E1999-02248-CCA-R3-CD, 2001 WL 301160, at *1 (Tenn. Crim. App. Mar. 29,
2001), perm. to appeal denied (Tenn. Sept. 17, 2001).

      The petitioner subsequently filed a pro se and, following the appointment of counsel,
amended petition for post-conviction relief in which she raised, among other things, a claim of
ineffective assistance of counsel. Specifically, she alleged that counsel was ineffective for failing
to properly prepare for the petitioner’s joint trial with her sister. The petitioner asserted that counsel
“should have held the motion hearing” on her motion for severance of defendants earlier than the
day prior to the start of trial or, following the trial court’s adverse ruling on the motion, “postponed
the trial in order to adequately prepare for the trial.”

        A joint evidentiary hearing was held on the post-conviction claims of the petitioner and the
post-conviction claims of her sister, Deborah Graham. At the evidentiary hearing, the petitioner’s
trial counsel testified she had been practicing law since 1987. Over the years she had handled
hundreds of criminal cases, including somewhere between ten and twenty murder and conspiracy
to commit murder cases. Although she thought she did “a pretty good job” in most of those cases,
she did not believe she was effective counsel in the petitioner’s case. Trial counsel said she filed a
motion for severance of defendants approximately seventeen months prior to the start of trial and
contacted the trial judge’s secretary at least twice in the month preceding trial in an attempt to get
the hearing on the motion held earlier, but the hearing was not held until the day before the trial
started. Because she had so little warning, she was not as prepared for the joint trial as she could
have been. She explained:

                As I said earlier, I feel like I had to take a generalized approach with the proof
        and be ready for different contingencies, which I did do the best that I could. But
        generally when I’m trying a case, certainly something as important as this, I know
        exactly who my witnesses are going to be, I know exact -- I have my questions
        written out, typed out, what I’m going to ask this person. I have a theory that I’m
        trying to prove or not prove. And I’m just generally a lot more prepared because I
        know who will be the witnesses, who will not; what statements are coming in, what
        statements are not; what evidence is coming in, what evidence is not. I mean,
        generally I know that well in advance. I should.

Trial counsel testified she believed the proof against her client was not as strong as the proof against
Graham. For that reason, she thought it was in the petitioner’s best interests to be tried either alone
or with both Graham and the third codefendant involved in the case. She said that, had the petitioner
been tried separately from her sister, she probably would have wanted her to testify in her own
defense.

         Trial counsel acknowledged she developed various trial strategies and defense theories based
on the different possible scenarios of the petitioner’s being tried alone, with her sister, or with her
sister and the third codefendant. She further acknowledged that the petitioner’s and Graham’s cases
were set together each time the case was scheduled for trial and that she anticipated that the cases
would be tried together. She said she met regularly with the petitioner to discuss the possible
defenses, had access to the codefendants’ statements, and talked to almost all the witnesses involved
in the case. In sum, she conceded that she was generally prepared for trial and that she did the best
job she could under the circumstances.



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        Renfro Blackburn Baird, III, the attorney who represented the petitioner’s sister, Deborah
Graham, testified he had been practicing law since 1988 and had handled hundreds of criminal cases
during his career, including an estimated thirteen or fourteen murder cases. According to Baird, the
petitioner’s case was originally reset when he and trial counsel “realized [they] weren’t going to be
able to try it in that first setting” because of the number of witnesses and convoluted set of facts
involved. Thereafter, he and trial counsel “were really well prepared” for a February trial date, but
the case was then continued on the motion of the State. Baird testified he, too, believed that his
client’s best interests would be served by a separate trial and therefore either joined in trial counsel’s
motion to sever or filed a motion of his own on behalf of Graham. He agreed he would have been
more effective in his representation of Graham had he known earlier that the motion was going to
be denied. He stated, however, that he and trial counsel had anticipated all the possible trial
scenarios: “I think that [trial counsel] and I tried every way to try to give ourselves -- we tried to
look ahead, give ourselves every type of scenario that we could be dealing with as far as witnesses
and the way we handled things in that case.”

         Baird acknowledged he and trial counsel had almost a year and a half in which to prepare the
case, worked well together, and were as well if not better prepared at the actual summer trial date
as they were for the earlier February setting. He testified he and trial counsel were both aware that
their chances of having all three codefendants tried together were slim because of the potential
Bruton problems associated with the third codefendant’s statements. He was also aware that trial
counsel had attempted at least twice to have the hearing on their motion to sever held earlier, only
to be told by the trial judge’s secretary that the matter would be heard in the day or two preceding
trial. Baird agreed that “[t]here was really no reason” for him or trial counsel to move for a
continuance following the trial court’s adverse ruling on the motion, testifying that he and trial
counsel thoroughly discussed the case with their respective clients and continued their preparations
for trial following the trial court’s ruling on the motion: “I remember those two days we spent a lot
of time together with [trial counsel] and myself and [the petitioner] and Deborah Graham getting
ready for trial and trying to determine the strategies that we would use and whether or not, you know,
they would testify and different things of that nature.” Finally, Baird testified that it was the
petitioner’s damaging letters written from jail, which would have been admitted had she taken the
stand, that was the large factor in her choice not to testify.

        The post-conviction court issued oral findings of fact and conclusions of law at the
conclusion of the hearing. The court’s oral ruling was subsequently transcribed into a written order,
which was entered on March 1, 2004. Among other things, the court found that both trial counsel
had investigated the case, talked to all the witnesses, and “done everything they could do.” With
respect to the petitioner’s counsel, the post-conviction court found, specifically, that trial counsel
filed motions, worked diligently on her client’s behalf, and had not been deficient in her
representation. The court noted that the petitioner’s case was tried with her sister’s pursuant to the
rules on joinder of cases and found that trial counsel’s belief that the outcome was not fair to the
petitioner had no bearing on the issue of whether counsel was deficient in her representation.
Accordingly, the court concluded that the petitioner had not met her burden of demonstrating she
was denied the effective assistance of counsel and denied the petition. Thereafter, the petitioner filed


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a timely appeal to this court, arguing that the post-conviction court erred in finding she received the
effective assistance of counsel. The petitioner additionally argues that she was denied the effective
assistance of post-conviction counsel.

                                              ANALYSIS

                               Post-Conviction Standard of Review

         The post-conviction petitioner bears the burden of proving his or her allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). 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 State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). However, review of the post-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, 6 S.W.3d at 461.

                                 Ineffective Assistance of Counsel

        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, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (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, 104 S. Ct. at 2064.

         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, 104 S. Ct. at 2065; 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


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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, 104 S. Ct. at 2068.

        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,
104 S. Ct. at 2069; 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 contends that the post-conviction court erroneously based the denial of the
petition, in part, on his own personal trial experiences rather than on the evidence at the hearing.
According to the petitioner’s argument, trial counsel’s admission at the hearing that she was
ineffective constituted clear and convincing evidence that the petitioner was denied the effective
assistance of trial counsel. We respectfully disagree.

       The post-conviction judge’s reference to his own personal experiences occurred as he
observed that the decision on the motion for severance was outside counsel’s control and did not
provide a basis for a finding that she was deficient in her representation of the petitioner:

                 An attorney, simply because they cannot get the case tried the way they want
        it tried or the fact that they cannot get the witnesses [sic] either excluded or severed
        as they want them, doesn’t make the attorney ineffective. It just makes for a hard
        case. And I’ve been there and have sat in the same chairs they’ve sat, and had the
        same results they’ve had in very similar-type cases. But that doesn’t make the
        attorney ineffective. The basis for ineffective assistance of counsel is an attorney not
        doing the job they have either been hired or appointed to do, and do it with due
        diligence as required by the [S]ixth [A]mendment.

The post-conviction court found that trial counsel conducted appropriate investigation, interviewed
witnesses, filed pertinent motions, and overall worked diligently in her representation of the
petitioner. The court concluded, therefore, that the petitioner had not shown that trial counsel was
deficient in her representation or that she was denied the effective assistance of counsel.

         The record fully supports the findings and conclusions of the post-conviction court. Trial
counsel testified she interviewed almost every witness, was aware of the codefendants’ statements,
and met regularly with the petitioner to discuss the possible defenses and strategies. Both she and
Baird testified that they prepared the case, formulated different theories of defense, and discussed
every trial scenario, including the one that occurred, in which the petitioner and her sister were tried
jointly in a separate trial from the third codefendant in the case. Baird stated that he and trial counsel
were “really well prepared” for the February trial setting. He agreed they were equally if not better
prepared for the actual summer trial date, and there would have been no reason for them to request
a continuance following the court’s adverse ruling on their motion to sever. Both counsel testified
that trial counsel filed her motion to sever many months prior to trial and that she attempted at least



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twice to have it heard in the month preceding trial, to no avail. Finally, trial counsel testified she was
generally prepared and did the best job she could under the circumstances.

        Although trial counsel testified at the evidentiary hearing that she did not believe she had
provided effective assistance at the trial, the post-conviction court was not bound by her apparent
concession. In fact, the post-conviction court must apply an objective standard in determining
whether a petitioner received effective assistance of counsel. See generally Chandler v. United
States, 218 F.3d 1305, 1316 (11th Cir. 2000); Tarver v. Hopper, 169 F.3d 710, 716 (11th Cir. 1999);
Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992). Asked how she had been ineffective, trial
counsel was able to say only that she thought she should have had more advance warning that the
case would be tried jointly so that she could have prepared a more complete list of questions to ask
potential witnesses. However, as the trial court observed, the fact that the trial did not proceed in
the manner trial counsel would have preferred has no relevance on whether she was deficient in her
representation of the petitioner. Nothing in this record shows that trial counsel’s performance fell
below the standard of competence required of an attorney in a criminal case. Furthermore, there is
also nothing in the record to show that counsel’s alleged deficiency in performance prejudiced the
outcome of the case. This court concluded on direct appeal that the trial court properly denied the
petitioner’s motion for a severance, having “correctly applied the law and reached a logical decision
based upon the facts as they applied to the law.” Deborah Graham and Denice Smith, 2001 WL
301160, at **12-13.

        The petitioner additionally argues that she received ineffective assistance of post-conviction
counsel based on counsel’s failure to pursue any other claims besides ineffective assistance of trial
counsel and on his failure to call additional witnesses to testify at the evidentiary hearing. However,
as the State notes, the law is well-established that a petitioner has neither a statutory nor a
constitutional right to the effective assistance of post-conviction counsel. See Stokes v. State, 146
S.W.3d 56, 60 (Tenn. 2004); House v. State, 911 S.W.2d 705, 712 (Tenn. 1995). The petitioner,
therefore, is not entitled to post-conviction relief on the basis of this claim.

                                           CONCLUSION

        Based on our review, we conclude that the petitioner has not met her burden of showing she
was denied the effective assistance of trial counsel. We further conclude she is not entitled to relief
on the basis of her claim of ineffective assistance of post-conviction counsel. Accordingly, we
affirm the denial of the petition for post-conviction relief.


                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




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