        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 15, 2009

               MICHAEL BRANHAM v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                       No. 263911    Rebecca J. Stern, Judge




                No. E2009-00775-CCA-R3-PC - FILED JUNE 17, 2010


The Petitioner, Michael Branham, appeals the Hamilton County Criminal Court’s denial of
his petition for post-conviction relief from his conviction upon a guilty plea for aggravated
assault, a Class C felony, for which he received a three-year sentence with split confinement.
He contends that the proof at the post-conviction hearing established that he received the
ineffective assistance of counsel, that the trial court failed to review the post-conviction
hearing evidence under the standard established in United States v. Cronic, 466 U.S. 648
(1984), and that the trial court committed plain error when it failed to address the issue of
prosecutorial misconduct. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and N ORMA M CG EE O GLE, JJ., joined.

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Michael Branham.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State
of Tennessee.

                                         OPINION

       This is the Petitioner’s second appeal. This court previously remanded the case for
entry of findings of fact and conclusions of law, and the present appeal resulted. In the first
appeal, this court summarized the facts as follows:
              [T]he [Petitioner] and the [victim] were having a disagreement
              over something, and the [victim] was subsequently shot in the
              ankle by [Petitioner]. . . . The victim, Jamaal Townsend,
              initially insisted that he did not know his shooter, claiming he
              was only a bystander to a dispute. However, he later told police
              he participated in the fight and knew his shooter. The victim
              said that, in September 2005, he argued with Standford Steward
              and Petitioner at a nightclub. After the victim struck Steward,
              Steward threatened to shoot the victim. The victim, however,
              left the club, returned home, retrieved his revolver, and went to
              his sister’s apartment in a housing project.

                     As the victim walked through a field connecting the
              project’s housing buildings, he came upon Steward and
              Petitioner. The record contains conflicting statements about
              what happened next. According to Steward, the victim grasped
              Steward’s neck with one hand and waived a gun with the other
              hand. Petitioner then began to shoot the victim. However,
              according to the victim, Petitioner simply started firing at him as
              soon as he and Steward began to argue again, and one of the
              shots hit him in the ankle. The victim said he fired five shots at
              Petitioner and Steward as they fled.

Michael Branham v. State, No. E2008-00404-CCA-PC, Hamilton County, slip op. at 2
(Tenn. Crim. App. Jan. 23, 2009).

       The Petitioner was charged with attempted first degree murder and aggravated assault.
Pursuant to a plea agreement, the State dismissed the attempted first degree murder charge
in exchange for the Petitioner’s plea of guilty to aggravated assault.

       The Petitioner filed a pro se petition for post-conviction relief, which he later amended
with the assistance of appointed counsel. He contended that his trial counsel had been per
se ineffective because she failed to subject the prosecution to the adversarial process in any
form. He also contended that he would not have pled guilty had he known about the victim’s
conflicting statements, which he argued counsel should have obtained through investigation
or discovery. Finally, he argued that he was denied substantive due process because the State
failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963).




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       The testimony at the post-conviction hearing was also summarized by this court in the
Petitioner’s first appeal:

                     At the post-conviction hearing, Petitioner testified that he
              pled guilty based on Counsel’s advice. He explained that, after
              he pled guilty, federal prosecutors brought charges against him
              and that his federal defender obtained and showed him several
              witness statements gathered during the State’s investigation of
              the shooting. Petitioner then introduced the statements into
              evidence.

                      Petitioner said the statements showed the victim first told
              police he did not know his shooter, but, after the police agreed
              to drop warrants then pending against the victim, the victim
              identified Petitioner as the shooter. He said that Counsel had
              never shown the statements to him and that he, therefore, pled
              guilty without knowing of their existence. Petitioner testified he
              would not have pled guilty had he known of the statements
              because the statements contained information that would
              impeach the victim’s testimony.

                     On cross-examination, Petitioner said that, before
              pleading guilty, he read the plea papers and agreed that he was
              guilty “based upon the facts of what [Counsel] had discussed
              with [him].” Also, he conceded that, although the victim’s
              statements conflicted, Steward’s statement corroborated the
              victim’s second statement, which implicated Petitioner. Further,
              he conceded the victim explained in his second statement that he
              did not originally identify the shooter because he was scared.

                     Counsel testified she entered into an agreed order of
              discovery with the State in January 2006, but the State never
              disclosed the witness statements at issue. She said the first time
              she saw the statements was after Petitioner filed his petition for
              post-conviction relief. Counsel testified that the victim’s
              testimony would have been the most crucial evidence in the
              prosecution of Petitioner and admitted she was aware, before the
              plea hearing, that the victim was reluctant to identify the
              shooter. She attributed his reluctance, however, to the
              gang-related nature of the shooting. Counsel reiterated that she

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was aware only of the victim’s reluctance and not of his specific
statement denying knowledge of the shooter.

       Explaining why she did not interview Steward, Counsel
said the State suggested a plea deal in May 2006 although the
case was not to be tried until September 2006. Therefore, she
had not completed her investigation of the shooting when she
advised Petitioner whether to accept the plea deal. She testified
she told Petitioner “the State’s case was crap” because she did
not believe the State could procure the victim as a witness. She
said Petitioner “wanted very much to get out of jail” and
accepted the plea deal.

       Asked whether she would advise Petitioner to accept the
plea deal had she known of the witnesses’ statements later
disclosed, she said,

       The charge was attempted first degree murder. I
       think at trial the State wouldn’t have been able to
       prove that. But this was a greatly reduced offer of
       three years, split confinement, got him out of jail.
       I would have advised him that a trial is always a
       crap shoot. That if you get a victim up there
       that’s going to testify that he was afraid of
       [Petitioner] because of some gang activity so
       therefore he didn’t want to talk to the police, but
       then later went and talked to the police, I think he
       could have been taking a big risk going to trial.

        On cross-examination, Counsel testified she believed the
State had an “open-door policy” with respect to discovery,
which meant the State allowed a defendant or his representative
to freely examine the State’s file on the defendant. She recalled
that, when she went to the State’s office, the prosecutors showed
and explained all the documents they possessed but that, at that
time, the State did not possess Petitioner’s “entire case file.”
Also, she agreed that “in regard to all the circumstances” the
plea deal was good for Petitioner.




                               -4-
                       On redirect-examination, Counsel testified that, had the
               State later obtained the statements and, without disclosing them
               to her, introduced them at trial, she would have “fought like
               hell” to have them excluded. On recross-examination, she
               agreed that, although she had not completed her investigation,
               to prevent Petitioner from pleading guilty would have been
               “unethical,” given the nature of the deal and Petitioner’s desire
               to accept it.

Michael Branham, slip op. at 2-4. The trial court dismissed the petition.

        The Petitioner appealed, and this court remanded the case and ordered the trial court
“to enter an order or written memorandum addressing all grounds presented, with findings
of fact and conclusions of law as required by the Post-Conviction Procedure Act.” Id., slip
op. at 5. After this court’s remand of the case, the trial court filed a memorandum in which
it dismissed the Petitioner’s petition for post-conviction relief. The trial court discredited the
Petitioner’s claim that if he had known about the victim’s conflicting statements, he would
not have pled guilty. The court also noted trial counsel’s consideration that going to trial to
attack the victim’s credibility through prior inconsistent statements, which the victim said
resulted from his fear of the Petitioner, would not have achieved a favorable result for the
Petitioner. The court found that trial counsel’s performance was not deficient regarding the
alleged failure to seek disclosure of, to obtain, or to inform the Petitioner of the witnesses’
statements because trial counsel had examined the prosecutor’s incomplete file and was
aware of the victim’s reluctance to testify. The court found no clear and convincing evidence
of a Brady violation because the evidence of the witnesses’ statements was not material,
given that the Petitioner was willing to plead guilty despite counsel’s assessment that the
State’s case was weak.

                                                I

        The Petitioner contends that the evidence at the post-conviction hearing established
that trial counsel was per se ineffective because counsel failed to subject the State to the
adversarial process. He claims the trial court should have assessed the ineffective assistance
of counsel issue pursuant to United States v. Cronic, 466 U.S. 648 (1984). Alternatively, the
Petitioner argues that the evidence established that he received ineffective assistance under
the standard established in Strickland v. Washington, 466 U.S. 688 (1984), because counsel
did not investigate the case and failed to discover or obtain the victim’s conflicting
statements. He argues that the district attorney general’s statement that the State gave the
Defendant “everything he had” implied that there might be exculpatory material located



                                               -5-
elsewhere. The State contends that the trial court correctly denied post-conviction relief
because the petitioner failed to prove his claims by clear and convincing evidence.

       The burden in a post-conviction proceeding is on the Petitioner to prove his
allegations of the fact supporting his claims of counsel’s deficiency by clear and convincing
evidence. T.C.A. § 40-30-110(f) (2006); Dellinger v. State, 279 S.W.3d 282, 294 (Tenn.
2009). Once a petitioner establishes the fact of counsel’s deficiency, the trial court must
determine whether the errors resulted in the ineffective assistance of counsel. Dellinger, 279
S.W.3d at 293; see Strickland, 466 U.S. at 687-88, 694.

        On appeal, we are bound by the trial court’s findings of fact unless we conclude that
the evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456-57 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review
the trial court’s conclusions as to whether counsel’s performance was deficient and whether
that deficiency was prejudicial under a de novo standard with no presumption of correctness.
Id. at 457. Post-conviction relief may only be given if a conviction or sentence is void or
voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,
466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A petitioner will
only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the
Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The performance
prong requires a petitioner raising a claim of ineffectiveness to show that the counsel’s
representation fell below an objective standard of reasonableness or “outside the wide range
of professionally competent assistance.” Strickland, 466 U.S. at 690. The prejudice prong
requires a petitioner to demonstrate that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. When a petitioner pleads guilty, he must show a reasonable probability that, but for
the errors of his counsel, he would not have pled guilty. See Hill v. Lockhart, 474 U.S. 52,
59 (1985); Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within
the range of competence demanded of attorneys in criminal cases. Further, the court stated
that the range of competence was to be measured by the duties and criteria set forth in
Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,
487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel’s conduct, a “fair
assessment of attorney performance requires that every effort be made to eliminate the

                                              -6-
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466
U.S. at 689. “Thus, the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they
are informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982); see DeCoster, 487 F.2d at 1201.

        In Cronic, the United States Supreme Court held that when counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing, a presumption arises that the
adversarial process was unreliable. Thus, the Petitioner is not required to demonstrate
prejudice. 466 U.S. at 658-59. In Williams v. Taylor, the Supreme Court confirmed the
vitality of this “per se” approach noting that while the Strickland test for ineffective
assistance of counsel requiring proof of deficient performance and prejudice provides
guidance for resolving virtually all ineffective assistance of counsel claims, there are “a few
situations in which prejudice may be presumed.” Williams, 529 U.S. 362, 391 (2000).

        In this case, the trial court evaluated the claim of ineffective assistance of counsel
under the test established in Strickland. It determined that counsel’s failure to obtain or
inform the Petitioner of the victim’s conflicting statements was not attributable to deficient
performance but to the State’s failure to disclose the statements, despite a discovery order
and an open-file policy. The court also found that trial counsel examined the prosecutor’s
file, which was incomplete at the time, and that she was aware of the victim’s reluctance to
testify against the Petitioner, which she attributed to the victim’s fear of the Petitioner.
Finally, the court found that counsel had not completed her investigation when the State
offered a plea agreement and despite her assessment that the State’s case was weak, the
Petitioner accepted the offer. The court concluded that counsel’s performance was not
deficient.

        The record reflects that trial counsel represented the Petitioner in the adversarial
process. Counsel met with the Petitioner and the State’s prosecutor, reviewed the files, and
made an appearance at a hearing on a motion to reduce bond. Because counsel subjected the
case to adversarial testing, Cronic was not the appropriate standard to apply in this case, and
the trial court properly applied the Strickland test.

        We conclude that the trial court properly denied post-conviction relief. The trial court
found no deficiency in trial counsel’s performance. Counsel had reviewed the prosecutor’s
file, but the prosecutor had not yet received the investigating detective’s file containing the
witnesses’s statements. Counsel was presented with the State’s plea offer months before the
case was scheduled to go to trial and before counsel had completed her investigation.

                                               -7-
Counsel informed the Petitioner that the State’s case was weak, but the Petitioner agreed that
he was guilty based upon the facts presented to him and entered a guilty plea. The Petitioner
is not entitled to relief on this issue.

                                              II

        The Petitioner contends that the trial court committed plain error when it failed to
address the issue of prosecutorial misconduct based upon the State’s failure to provide him
with the witnesses’s statements. The State contends that the trial court addressed the issue
in its memorandum. We agree with the State.

       Every criminal defendant “has a constitutionally protected privilege to request and
obtain from the prosecution evidence that is either material to guilt or relevant to
punishment.” State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999). In Brady, the United
States Supreme Court held that the prosecution has a constitutional duty to furnish an
accused with exculpatory evidence pertaining to either the accused’s guilt or innocence or
the punishment that may be imposed. 373 U.S. at 87. Failure to reveal exculpatory evidence
violates due process when the evidence is material either to guilt or punishment, irrespective
of the prosecution’s good faith. Id. Evidence that is “favorable to the accused” includes
evidence that is deemed to be exculpatory in nature and evidence that could be used to
impeach the State’s witnesses. State v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995); State v.
Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998); see also United States v. Bagley,
473 U.S. 667, 676 (1985).

       The “prosecution is not required to disclose information that the accused already
possesses or is able to obtain.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App.
1992). Also, although the State is not obligated to disclose the entirety of the investigatory
police work in a case, the State is required to disclose all favorable evidence obtained by any
person acting on the government’s behalf. See Strickler v. Greene, 527 U.S. 263, 275 n.12
(1999) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)); Walker, 910 S.W.2d at 389
(quoting Moore v. Illinois, 408 U.S. 786, 795 (1972)).

       The Tennessee Supreme Court has held that in order to establish a Brady violation,
four elements must be shown by the defendant:

              (1) that the defendant requested the information (unless the
              evidence is obviously exculpatory, in which case the State is
              bound to release the information whether requested or not);

              (2) that the State suppressed the information;

                                              -8-
              (3) that the information was favorable to the accused; and

              (4) that the information was material.

State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); see also Walker, 910 S.W.2d at 389.

       Evidence is considered material only “‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.’” Edgin, 902 S.W.2d at 390 (quoting Kyles, 514 U.S. at 433). The question is not
whether the defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial resulting in
a verdict worthy of confidence. Kyles, 514 U.S. at 434.

       Contrary to the Petitioner’s claim, the record reflects that the trial court addressed the
alleged prosecutorial misconduct in its memorandum. The court concluded that the
Petitioner had not proved a Brady violation because he had not shown that the undisclosed
evidence was material. The trial court found:

              The petitioner testified that he pled guilty on counsel’s advice
              and without knowledge of the existence of the victim’s
              conflicting statements. He admitted that, before pleading guilty,
              he read the plea papers and agreed that he was guilty based upon
              the facts he discussed with counsel. He conceded that, although
              the victim’s statements conflicted, the statement implicating
              him, which also attributed the victim’s initial failure to identify
              the shooter to fear, was corroborated by another witness’s
              statement.
              ...
                      The petitioner’s willingness to plead guilty despite
              counsel’s assessment of the weakness of the state’s case belies
              his insistence that, had he known of the conflicting statements,
              he would not have pled guilty. Counsel testified that, had she
              known of the conflicting statements, she would have advised the
              petitioner that a trial is always a risk and the risk could be big if
              the victim testified and attributed his initial failure to talk to
              police to fear of the petitioner “because of some gang activity.”
              Her testimony in this respect reflects that, had the victim
              decided to identify the shooter and testify against the petitioner,



                                               -9-
              the petitioner would have had more, not less, reason to plead
              guilty than he already had.

       We conclude that the record does not preponderate against the trial court’s
determination that no Brady violation occurred. The Petitioner failed to show that if he had
received the victim’s statements, the result of the proceeding would have been different.
Thus, the evidence was not material. The Petitioner is not entitled to relief on this issue.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.




                                              ___________________________________
                                              JOSEPH M. TIPTON, PRESIDING JUDGE




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