        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  June 4, 2013 Session

          AUBREY TREMAINE EISOM v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Dyer County
                        No. 08-CR-228 R. Lee Moore, Judge


              No. W2012-02355-CCA-R3-PC - Filed September 24, 2013


Aubrey Tremaine Eisom (“the Petitioner”) was convicted by a jury of two counts of first
degree felony murder and one count of especially aggravated robbery. The trial court
sentenced the Petitioner to life imprisonment for each felony murder conviction and to forty
years’ incarceration for the especially aggravated robbery conviction, all to run
consecutively. The Petitioner subsequently filed for post-conviction relief, which the post-
conviction court denied following an evidentiary hearing. The Petitioner now appeals,
arguing that he received ineffective assistance of counsel at trial and on appeal. Upon our
thorough review of the record and the applicable law, we conclude that the Petitioner is not
entitled to post-conviction relief. Accordingly, we affirm the post-conviction court’s
decision denying relief.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J AMES C URWOOD W ITT, J R., JJ., joined.

W. Taylor Hughes, Jackson, Tennessee (on appeal), and Danny Goodman, Jr., Tiptonville,
Tennessee (at post-conviction hearing), for the appellant, Aubrey Tremaine Eisom.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                          Factual and Procedural Background

       The Petitioner was convicted by a Dyer County jury of two counts of first degree
felony murder and one count of especially aggravated robbery. The trial court sentenced the
Petitioner to life imprisonment for each felony murder conviction and to forty years’
incarceration for the especially aggravated robbery conviction, all to run consecutively. On
direct appeal, this Court affirmed the Petitioner’s judgments. See State v. Aubrey Tremaine
Eisom and Cedric Moses, No. W2009-02098-CCA-R3-CD, 2010 WL 4540069, at *19
(Tenn. Crim. App. Nov. 5, 2010), perm. app. denied (Tenn. Mar. 9, 2011). To assist in the
resolution of this proceeding, we repeat here the summary of the facts set forth in this Court’s
opinion resolving the Petitioner’s direct appeal:

              The convictions in this case relate to the execution-style murders of
       Jeffery “Snap” McMullin and Cristin Robinson during the course of the
       especially aggravated robbery of Mr. McMullin at Mr. McMullin’s residence
       in Dyer County.

              Shortly after 11:00 p.m. on August 13, 2007, Barbara Ford was at her
       home when she heard someone banging on her door and a little boy’s voice
       yelling. Thinking that the boy said, “[M]y cat is dead,” Ms. Ford answered the
       door to find five-year-old Xavier Johnson, who was clad in only blue jeans and
       socks, covered in blood and “hysterical.” Xavier said, “Take me home to my
       mama; my daddy is dead; he already dead.” When Ms. Ford tried to assure
       him that his father was not dead, Xavier said, “Some gangsters killed my
       daddy.” She asked if he had seen the perpetrators, and he said, “Yeah.” She
       then asked what they had said, and Xavier replied, “Where the money at?” At
       that point, Ms. Ford went to a neighbor’s apartment to call police. She said
       that Xavier’s father lived “[a]bout half a block” from her apartment. She
       stayed with Xavier and rode with him to the police department.

             Ms. Ford clarified that Xavier said “[g]angsters” had killed his father
       and not “gangster” had killed his father. Ms. Ford also said that she had
       known [the Petitioner] for 16 years and that, in her opinion, he was “a nice
       young man.”

              Dyersburg Police Department Officer David Dodds responded to Ms.
       Ford’s call. Xavier told Officer Dodds, “My daddy’s dead,” and he directed
       the officer to Mr. McMullin’s residence. After leaving the McMullin
       residence, Officer Dodds took Ms. Ford and Xavier to the police station and
       let Xavier watch cartoons rather than ask him any questions about the murders.
       He explained, “I knew he was gonna have to tell that story to somebody other
       than me. I didn’t want [him] to have to tell it more than once.” Eventually
       Officer Dodds turned Xavier over to Dyersburg Police Lieutenant Billy
       Williams.



                                              -2-
       Dyersburg Police Department Sargeant Jason Alexander responded to
Mr. McMullin’s residence on Upper Finley Road and found the front door ajar.
In the bedroom, he “found the two victims l[y]ing in the floor.” After
determining that no one else was in the house, Sargeant Alexander and the
other officers secured the scene and waited for investigators to arrive.

        Lieutenant Billy Williams interviewed Xavier, who was present with
his mother and uncle, and Xavier told him, “Gangsta killed my daddy.” Xavier
elaborated that “Gangsta” and another individual killed his father and “a white
girl,” who he called “Kris.” Xavier told Lieutenant Williams that the
assailants first shot Ms. Robinson in the mouth and then shot Mr. McMullin
in the ear. Xavier said that his “Uncle Gangsta” “had a small gun and the other
boy had a[n] oozie,” which Xavier described as a “machine gun” that made a
“b-r-r-r” sound when it was fired. Xavier described his “Uncle Gangsta” as
a “dark complected” African American with “no hair,” “a big nose[,] and gold
teeth.” The only description he could provide of the other assailant was that
he wore a blue hat.

       Mr. McMullin’s cousin, Tamika McMullin, testified that she had known
both defendants for approximately 15 years, that [the Petitioner’s] nickname
was “Gangsta,” and that Mr. Moses’ nickname was “Big Bo.” Mr. McMullin,
whose nickname was “Snap,” commonly had both illegal drugs and money in
his possession. Tamika and her sister drove Xavier and his mother, Shameil
Johnson, home from the police station. When they arrived at Ms. Johnson’s
residence, “Big Bo and Robot w[ere] standing outside” next to “a maroon
Impala.” She said the men “approached the car and w[ere] talking to Xavier,
asking him questions about what had happened that night.” Tamika told the
men to “leave him alone. Get away from the car.”

       Tarmara McMullin held Xavier on her lap during the trip from the
police station to Ms. Johnson’s home. As they rode together, Xavier told
Tarmara that his “Uncle Gangster” had murdered his father.

       Dyersburg Police Department Officer Jim Joyner arrived at the scene
and “recognized the victims to be Crist[i]n Robinson and Jeffery McMullin.”
After being informed that Xavier had identified “Uncle Gangster” as one of
the perpetrators, Officer Joyner focused his investigation on [the Petitioner],
whose street name he knew to be “Gangster.” He then attempted “to locate
vehicles . . . that [the Petitioner] had been traveling in” and found one, a
burgundy Impala, behind the Briarwood Apartments parked near the apartment
of Atonya Yarbro. In a dumpster located near the vehicle, officers found “a

                                      -3-
partial box of Winchester brand 9mm ammunition, a pair of latex rubber
gloves all stuffed in the box, [and] 21 live rounds of ammunition.”

        When questioned initially, [the Petitioner] claimed to have been “with
Dwayne Armstrong getting drunk.” Later, [the Petitioner] said that he had
been with his “‘baby’s mama’ all night.” Sometime in 2008, Officer Joyner
received information from a confidential informant that “Paris Wilson would
have information about who was involved in the homicide.” Paris Wilson was
“the girlfriend of Ewan Dwayne Armstrong and she was living in Rayville,
Louisiana at the time.” Officer Joyner interviewed Ms. Wilson on May 14,
2008, and she implicated Mr. Armstrong in the murders. Mr. Armstrong gave
a “complete confession” in October 2008. Based upon Mr. Armstrong’s
statement, Officer Joyner went to a field in an attempt to locate “[b]urned
clothing including shoes, shirts, [and] pants that were allegedly burned
following the incident.” They were not able to recover the items because the
field “probably had been plowed and planted since the incident occurred.” In
his statement, Mr. Armstrong was able to reveal facts that, until that time, were
“[k]nown only to law enforcement and persons who were inside the residence
when the incident occurred.”

        Officer Joyner admitted that there was no evidence placing [the
Petitioner] in the maroon Impala on the day of the offenses and that the interior
of the Impala was not dusted for fingerprints. In addition, no fingerprints were
recovered from any of the items found in the dumpster and the officers could
not affirmatively determine who had placed the items in the dumpster.

       Dyersburg Police Department Evidence Technician Thomas Langford
responded to Mr. McMullin’s residence and observed a cellular telephone in
the middle of the living room floor. A short time later, another officer noticed
that the telephone appeared to be on, so Officer Langford picked it up and
determined that Kelly Coles was on the other end. Officer Langford learned
that the telephone belonged to Mr. McMullin and that Ms. Coles lived in
Mayfield, Kentucky. Officer Langford also found a $20 bill and a $10 bill on
the ground on the west side of Mr. McMullin’s house. None of the physical
evidence recovered from the scene, however, connected either [the Petitioner]
or Mr. Moses to the murders. Officers found marijuana and more than $500
in cash inside Mr. McMullin’s residence.

       Within “a week or two” of the homicides, Officer Langford took a
statement from Mr. Armstrong wherein Mr. Armstrong denied any
involvement in the murders.

                                       -4-
        Kelley Coles, the mother of two of Mr. McMullin’s children, testified
that at approximately 10:00 p.m. on the evening of August 13, 2007, she was
on the telephone with Mr. McMullin when she heard him say, “Don’t do this
in front of my son. Just hold on, . . . I don’t have a gun . . . take whatever you
want.” She also heard a female voice, Xavier’s voice, and two male voices.
She said, “After a few minutes I heard gunshots. . . . I heard two different sets
of gunshots.” Ms. Coles remained on the telephone for “close to an hour”
before Officer Langford picked up the telephone and spoke to her. During that
time, she heard other voices and noises in the house. After she talked to
Officer Langford, Ms. Coles called several of Mr. McMullin’s friends,
including [the Petitioner], who was “[a]t his girlfriend’s with his girlfriend.”

       Atonya Yarbro, who was living at 2203 Parr Avenue, Briarwood
Apartments on August 13, 2007, allowed Mr. Moses, who often drove a
maroon Impala like the one found outside Ms. Yarbro’s apartment on the day
following the murders, to stay with her “[o]ff and on.” When Ms. Yarbro left
for work on August 13, 2007, Mr. Moses was at her apartment, and the Impala
was parked outside. When she returned home from work sometime after 11:00
p.m., Mr. Moses was gone, and the Impala was not in the parking lot. Despite
her apartment’s having two bedrooms, Ms. Yarbro and her son slept on the
couch on the evening of August 13, 2007. When she awoke the following
morning, the “cover was just messed up” on one of the beds in one of the
bedrooms, but Ms. Yarbro could not say with certainty whether Mr. Moses had
been in the apartment during the night. She said that Mr. Moses had a key to
the apartment.

        Nakeshia McClain, the mother of one of [the Petitioner’s] children,
testified that [the Petitioner’s] nickname is Gangster and that Mr. Moses, who
is her uncle, went by the nickname of “Bo.” The maroon Impala belonged to
her, and she allowed Mr. Moses to use the car “from time to time.” After she
lost her job and was unable to make payments on the car, Ms. McClain
allowed [the Petitioner] to drive the car for a short period of time.

       According to Ms. McClain, Mr. McMullin was a friend of both
defendants, but Mr. McMullin and [the Petitioner] “were more like brothers.”
[The Petitioner] had given Mr. McMullin “a car when he . . . first got out of
prison” and had helped take care of Xavier during Mr. McMullin’s
incarceration.




                                       -5-
        In addition to the child he fathered with Ms. McClain, who was born on
December 12, 2007, [the Petitioner] and Annwan Miles had a child together
on July 30, 2007. As a result, [the Petitioner] stayed overnight with Ms. Miles
in the summer of 2007.

       Dyer County Sheriff’s Department Officer Terry McCreight, who lived
next door to [the Petitioner’s] mother, saw [the Petitioner], Mr. Moses, and
another black male standing together in her driveway when he got home from
work at approximately 6:00 p.m. on August 13, 2007. Mr. McMullin’s
neighbor, Joe Blue, also saw [the Petitioner] and Mr. Moses together on the
afternoon of August 13, 2007, although he recalled that they were driving a
small green car.

       In the fall of 2008, Officer McCreight received a call reporting that
weapons had been discovered in an abandoned house on McGuire Road. He
recovered the weapons, which had been “drug . . . out from underneath a wood
porch and they were in a plastic bag, garbage type bag.” Both weapons were
loaded, but neither weapon was linked to [the Petitioner] or Mr. Moses.

       Tennessee Bureau of Investigation Special Agent and firearms
examiner Dan Royse examined the Charter Arms Model 44 “five shot
revolver” and the HiPoint 9mm Luger recovered by Officer McCreight. He
concluded that the Charter Arms Model 44 revolver fired the three bullets
recovered from Mr. McMullin’s body and that the HiPoint 9mm Luger semi-
automatic carbine, or short rifle, fired the bullets recovered from the mattress
and floor in the bedroom of Mr. McMullin’s residence. Both weapons were
very muddy and very rusted.

        Agent Royse also examined the 9mm cartridge casings found at the
scene and concluded that the bullets were manufactured by Winchester, which
was the same manufacturer and caliber as the box of ammunition discovered
in the dumpster. He compared the manufacturer’s marks on the cartridge
casings found at the scene with the live ammunition found in the dumpster and
determined that three of the 21 live cartridges from the dumpster were
manufactured by the same “bunter tool” as the cartridge cases found at the
scene. He explained, “A bunter tool is basically a hardened steel dye with
raised numbers and letters in reverse on it. And they’re brought down under
tremendous pressure onto the brass head of the cartridge or cartridge case and
it basically stamps those characters into the heads.” The expected life span for
a bunter tool used by Winchester is 180,000 cartridges. A live cartridge
recovered with the 9mm weapon was manufactured “using the same bunter

                                      -6-
tool” as six of the live cartridges in the box of ammunition recovered from the
dumpster. Agent Royse testified that the most he could say with regard to the
bullets recovered from Mr. McMullin’s body and those found in the dumpster
“is that they were manufactured using the same tool which would put them
within a day or two of production life.” He emphasized, “I can’t say that the
cartridge case from the crime scene came from that box of ammunition. I can
say it’s consistent with it, but I can’t say that it came from that one.”

        Ewan Dwayne Armstrong, who was incarcerated on charges of two
counts of first degree murder and one count of especially aggravated robbery
in connection with the victims’ deaths, testified that he had not reached a plea
agreement with the State but had agreed to testify against [the Petitioner] and
Mr. Moses. Mr. Armstrong, who had been previously convicted of bank
robbery and incarcerated in a federal penitentiary in Louisiana, testified that
he was living in Evansville with his then-pregnant girlfriend, Paris Wilson, and
her two-year-old son in a house provided to them by his aunt on August 13,
2007. Mr. Armstrong, who was a friend of both defendants, testified that on
that day, he and [the Petitioner] were walking [the Petitioner’s] pit bull dog
and discussing the financial difficulties occasioned by the impending births of
their children when [the Petitioner] suggested to Mr. Armstrong that they rob
Mr. McMullin “to get some money together.” According to Mr. Armstrong,
[the Petitioner] claimed to know “[w]here he kept his money and drugs” and
expressed a preference to go into Mr. McMullin’s house when Mr. McMullin
was home “to make sure he got everything out of the house.”

        Later that same night, [the Petitioner] came to the residence Mr.
Armstrong shared with Ms. Wilson and asked Mr. Armstrong if he was
“ready.” Mr. Armstrong recalled that, “Big Bo was still standing outside by
the car,” which Mr. Armstrong identified as the maroon Impala later found
parked outside Ms. Yarbro’s apartment. Mr. Armstrong dressed in “black
jogging pants” and a black t-shirt because [the Petitioner] was clad in “some
faded black jeans and some old worn work shoes and a black shirt.” He said
that the three men smoked a “blunt,” which he described as a cigar “[w]ith
weed inside of it,” before they left. Mr. Moses drove the car while Mr.
Armstrong armed himself with a 9mm carbine and [the Petitioner] armed
himself with a Charter Arms revolver. Mr. Armstrong said that Mr. Moses
dropped him and [the Petitioner] off in a cul-de-sac across from Mr.
McMullin’s residence and that the two men made their way “around the back
of the house,” where they waited on either side until Mr. McMullin arrived in
his car. Both Mr. Armstrong and [the Petitioner] had fashioned t-shirts into



                                      -7-
“makeshift masks” so that their faces were concealed, with “[n]othing[ ]
showing but [their] eyes.”

        When he heard the car door close, Mr. Armstrong came out of his
“hiding spot” and saw [the Petitioner] walking toward Mr. McMullin with his
gun drawn. According to Mr. Armstrong, Mr. McMullin, who had been
talking on a cellular telephone, “had his hands up but he still had the phone to
his head.” Mr. Armstrong said that Mr. McMullin “said something to the
effect of not in front of his son, while his son was in the house and . . . he said
he didn’t have a gun on him or any kind of weapon.” When they entered the
house, Mr. Armstrong saw Ms. Robinson and Xavier seated on the couch. Mr.
Armstrong said that once inside the house he “veered to the left into the
bedroom” so that he could “see if anybody was in the house, but they wasn’t.”
While he was in the bedroom, Mr. Armstrong “heard a lot of clutter and a lot
of rattling going on in the front room.” He went back toward the living room
and saw that [the Petitioner] was “roughing [Mr. McMullin] up, like tossing
him around or whatever and he had the pistol on him.” At that point, Ms.
Robinson took Xavier into the bedroom where Mr. Armstrong still stood. He
heard [the Petitioner] and Mr. McMullin talking in the living room. He
described the conversation:

                I heard [the Petitioner] tell him, he was saying something
       to the effect that—he was saying something about $75; he was
       like, that’s all I’m worth. He was like, nigga I loves you and
       [Mr.] McMullin was saying back to him I love you, too; we
       supposed to be brothers. And [the Petitioner] was saying stuff
       like, if I was supposed to be your brother you left me in that jail
       and you ain’t give a F about me or whatever. So there was a lot
       of that going back and forth and I heard him saying come on,
       Gangster, man, ain’t gotta be like this man.

       Then [the Petitioner] led Mr. McMullin into the bedroom where Mr.
Armstrong, Ms. Robinson, and Xavier were. Mr. Armstrong said that he
searched the bedroom but found no money or drugs. When [the Petitioner]
asked, “[W]here’s the rest of it,” Mr. McMullin “stood up and he reached in
his pocket and he grabbed a wad of money out of his pocket and threw it on
the bed.” Mr. Armstrong retrieved the money and put it into the pocket of the
shorts he was wearing underneath his jogging pants. [The Petitioner] then told
Mr. McMullin to get down on his knees, and Mr. McMullin complied. [The
Petitioner] then shot Mr. McMullin three times in quick succession. Mr.
Armstrong claimed that after shooting Mr. McMullin, [the Petitioner]

                                        -8-
“snapped the pistol out of [Mr. Armstrong’s] hand and he put it to the back of
[Ms. Robinson]’s head and he shot one time.” At the time Ms. Robinson was
shot, she had her body folded protectively over Xavier, so that she was
kneeling somewhat on the bed. Mr. Armstrong denied shooting either of the
victims.

       Mr. Armstrong said that following the murders, he and [the Petitioner]
made their way out of the house, across the street, “through the projects,
through this field” and across a “big ditch” and then [the Petitioner] used his
cellular telephone to call Mr. Moses to pick them up. Once in the car, [the
Petitioner] said to Mr. Armstrong, “I wasn’t trying to give you no case back
there. I had to do it like that because I only had three bullets.” [The
Petitioner] then told Mr. Moses that he had murdered the victims. Mr. Moses
drove to Mr. Armstrong’s residence, dropped Mr. Armstrong off, and then
drove to get gas while [the Petitioner] went back to the field to recover the
revolver he had dropped as they ran.

        When the two men returned to Mr. Armstrong’s residence “about
fifteen to twenty minutes” later, Mr. Moses told them that he had heard that
Xavier had told police that Gangster had killed his father. The three then got
back into the maroon Impala, and Mr. Moses drove them to “the country,”
where Mr. Armstrong and [the Petitioner] placed their clothes in a box and set
them on fire using the gasoline procured by Mr. Moses as an accelerant. After
returning to Mr. Armstrong’s residence, [the Petitioner] gave Mr. Armstrong
$700 of the $1900 in robbery proceeds and asked him to dispose of the
weapons. [The Petitioner] also divided the drugs the pair had taken during the
robbery. He said that [the Petitioner] kept $200 or $300 for himself and gave
the rest to Mr. Moses. Mr. Armstrong explained that [the Petitioner] “had
already made a determination he was gonna turn himself in.”

        Mr. Armstrong said that after [the Petitioner] and Mr. Moses left, he
wiped the guns down, placed them in a plastic garbage bag, and put them
under the porch of an abandoned house in Middle City. He said that when he
returned home, he woke Ms. Wilson and told her what had happened,
explaining that he might send her back to Louisiana to avoid being the target
of retribution for the victims’ murders.

      Mr. Armstrong admitted that when he was initially questioned by
Dyersburg authorities, he denied any involvement in the crime. He also
admitted that when he was later arrested in Rayville, Louisiana on June 10,
2008, he initially told the officers, “I didn’t kill anybody and I didn’t rob

                                      -9-
anybody.” He stated that he opted to provide a full confession when he
returned to Tennessee and had gotten “proper advice from [his] counsel.” Mr.
Armstrong denied any “bad blood” between him and the defendants and said
that he had no reason to lie about their involvement in the crimes.

       Mr. Armstrong stated that he knew Ms. Robinson’s husband, Jonathan
Robinson, but said that he had not seen Mr. Robinson since he had been
released from federal prison. He said he also knew Ms. Robinson because, at
the time of her murder, she was dating his friend, Carlos Sharp. Mr.
Armstrong denied seeing Mr. Robinson in city court on August 13, 2007, and
denied having any discussion with Mr. Robinson about the burglary of Mr.
Robinson’s residence.

       Mr. Armstrong’s former girlfriend and the mother of two of his
children, Paris Wilson, testified that on August 13, 2007, [the Petitioner], who
she knew as Gangster, and another man, who she described as a large black
man, came to the small one bedroom house she shared with Mr. Armstrong,
and she “peeped” out of the bedroom window to see “the burgundy Impala
parked like backed up in the driveway.” She identified a photograph of the
maroon Impala found parked outside the Brookside Apartments on August 14,
2007, as being like the car she saw, but she stated that the Impala she saw had
darker tinted windows. She said that Mr. Armstrong left with the men and that
when he returned sometime later, the two argued because she accused him of
leaving “to be with somebody else.” Mr. Armstrong at first claimed he had
been “riding around . . . busting blocks.” She said she did not believe him
because “it don’t take that long to bust blocks.” Ms. Wilson said that Mr.
Armstrong left their home and returned only once and that he had not come
and gone several times as he testified. Eventually, Mr. Armstrong told her
what had happened: “He told me that something bad had happened. I said
something bad like what. And he was like I can’t tell you. I was like well, you
gonna tell me something. So that’s when he told me. Told me that Gangster
had killed somebody.” She said that Mr. Armstrong did not provide any
further details about the offenses.

        She said that she remained in Dyer County for only one week before she
returned to her hometown of Rayville, Louisiana and that Mr. Armstrong came
to Rayville when she gave birth to their child in December 2007. She did not
tell anyone about Mr. Armstrong’s revelation until the following year when
she was contacted by Dyer County investigators. Ms. Wilson said that the
thought of calling the police to report the murders never crossed her mind.



                                      -10-
        Davidson County Assistant Medical Examiner and forensic pathologist
Doctor Feng Li testified that Mr. McMullin suffered three “penetrating
gunshot wounds, meaning the bullets [were] still inside the body.” Gunshot
wound A was “located on the left flank area,” and it “penetrated through the
left posterior lateral aspect of the rib cage, specifically the eighth rib,
perforated the diaphragm, the lower lobe of the left lung, the heart and a bullet
[was] lodged and recovered subcutaneously . . . on the right side of the chest
wall.” Gunshot wound B was “on the left lower back,” and it “penetrated
through the abdominal cavity and injured left kidney medullaries meaning, you
know, the softer tissue around intestines and intestines itself and” the bullet
was recovered “inside the abdominal wall.” Gunshot wound C was “on the
right posterior shoulder, and it penetrated “the skin, the muscle and the bone
of the right shoulder” and was recovered from “the right chest wall.” Gunshot
wounds A and B traveled from back to front, right to left, and upward.
Gunshot wound C traveled from back to front, right to left, and downward.
Gunshot wound A was “the most serious because it damage[d] lung, the heart
and so on.” Mr. McMullin would have succumbed to that wound “within
minutes, if without any rescue effort.”

       Ms. Robinson suffered a single gunshot wound to the head. “This
gunshot wound [wa]s a contact, perforating gunshot wound of the left
oc[c]ipital region meaning on the back of . . . the head.” The “searing” and
“soot material” around the wound indicated that the muzzle of the gun had
been resting on Ms. Robinson’s head when the shot was fired. Doctor Li
explained,

               This wound is on the left side on the back of the head and
       the bullet penetrated through but not penetrated into the cranial
       cavity, meaning not inside of the head but penetrated through
       the high level of the spinal column and caused some epidural
       hemorrhage around the spinal cord and some synovial
       hemorrhage on the cerebellum although, you know, the bullet
       does not penetrate into the head itself but the power, the
       pressure causes some hemorrhage around the cerebellum and the
       bullet exits through the right side of the cheek.

              The bullet “[t]raveled forward, rightward and slightly
       downward.” Damage of the type caused by the gunshot wound
       would have caused Ms. Robinson to die “instantaneously.” He
       also found “multiple varying colored contusions on the body” of
       Ms. Robinson.

                                      -11-
        Ms. Robinson’s husband, Jonathan Robinson, testified that the couple
had been married for five years at the time of the murders, but they had been
separated for “[s]ix to eight months.” Mr. Robinson admitted that he assaulted
Ms. Robinson on November 19, 2005, on March 12, 2006, and again on July
31, 2007, stating, “[N]o marriage is perfect.” He blamed the assaults, during
which he lifted Ms. Robinson off of the ground and “slammed her,” on his
intoxication “with alcohol, weed and a lot of pills.” He recalled being released
on bail on drug charges on the afternoon of August 13, 2007, and admitted that
he also attended city court on that same day because he had violated Ms.
Robinson’s order of protection by going to her place of employment. Mr.
Robinson, who remained in the marital residence following the couple’s
separation, said that he did not know where Ms. Robinson was living at the
time of her death and that, although he knew Mr. McMullin, he did not know
where Mr. McMullin lived or that Ms. Robinson was with Mr. McMullin on
August 13, 2007. Mr. Robinson admitted telephoning Ms. Robinson at 8:42
p.m., 9:07 p.m., and 9:16 p.m. on August 13, 2007, and leaving threatening
messages on Ms. Robinson’s cellular telephone. He explained, “I was
threatening to beat her up because of what she did.” Mr. Robinson denied
playing any role in the murders.

      Mr. Robinson testified that officers came to his residence at 3:30 a.m.
on August 14, 2007, and that he thought they were there to “see if [he] had any
more weed.” He said that he did not believe it when officers told him that Ms.
Robinson had been killed.

       Dyersburg Police Department Investigator Monty Essary went to Mr.
Robinson’s residence just after the murders and observed that the hood of Mr.
Robinson’s car was cool and that there were no lights on in the home. When
he answered the door, Mr. Robinson was dressed in “boxer shorts and [a] wife
beater” and appeared to have been asleep. He allowed the officers to look
through his house. When they told him that Ms. Robinson had been murdered,
Mr. Robinson “just lost it, just started crying.” He gave officers consent to
search the residence, and they found no weapons or drugs.

      Following this proof, the State rested. Mr. Moses presented no proof.
[The Petitioner], however, presented the testimony of several witnesses.

      Local bail bondsman Larry Baltimore posted a bond for [the Petitioner]
on August 13, 2007, and then drove [the Petitioner] to a residence in Milltown.
Mr. Baltimore described [the Petitioner] as a “fine young man,” despite



                                      -12-
knowing that [the Petitioner] had been previously incarcerated for a conviction
of aggravated robbery wherein he shot the victim.

        Willie Moorer, who lived with [the Petitioner’s] mother, Cathy Gardner,
testified that on August 13, 2007, [the Petitioner] ate dinner with him and Ms.
Gardner and that at approximately 8:30 or 9:00 p.m., he drove [the Petitioner]
“[t]o his baby mama house.” He dropped [the Petitioner] off at Ms. Miles’s
residence and left. [The Petitioner] and Mr. Armstrong walked [the
Petitioner’s] dogs before dinner on August 13, 2007.

        Annwan Miles, the mother of [the Petitioner’s] daughter born in July
2007, testified that although she and [the Petitioner] were not romantically
involved at the time their daughter was born, they “made arrangements that
[the Petitioner] would stay [at Ms. Miles’s residence] and help” following her
birth. On August 13, 2007, Ms. Miles, her three-year-old daughter, Quentera,
and Laquanda Matthews’ three-year-old daughter, Sereta, were at Ms. Miles’s
residence with [the Petitioner] and the newborn baby. [The Petitioner] arrived
at her home at “[a]bout 9:00” p.m., and she “took a shower and went to bed.”
Ms. Miles said that her infant daughter “was real spoiled. She cried too much.
So we basically had to hold her all the time.” She said that [the Petitioner]
came to the home on August 13, 2007, to hold the baby because she “wasn’t
gonna do it.” When she finished her shower, Ms. Miles went to bed and left
[the Petitioner] babysitting the three little girls. Sometime later, she got a call
from Terry Lee Adams, who asked to speak to [the Petitioner]. Ms. Miles
maintained that the baby would have cried if [the Petitioner] had put her down
and that she did not hear the baby cry all night. After receiving several
telephone calls, Ms. Miles asked [the Petitioner] to leave the apartment
because she feared for her own safety and for the safety of the children.

        [The Petitioner’s] cousin, Laquanda Matthews, testified that on August
13, 2007, she took her three-year-old daughter to Ms. Miles’s residence to
spend time with [the Petitioner] because “she liked being around him.” She
let her daughter spend the night with [the Petitioner] and Ms. Miles. When she
awoke the following morning and saw [the Petitioner’s] photograph on the
news, she called 9–1–1 and asked police not to hurt [the Petitioner] because
her daughter was with him. She also saw Mr. Armstrong walking from the
direction of Ms. Gardner’s house at approximately 8:00 p.m. on August 13,
2007.

        Ms. Gardner and Joyce McMullin, [the Petitioner’s] grandmother,
testified that they both telephoned [the Petitioner] at Ms. Miles’s residence to

                                       -13-
       tell him that Mr. McMullin had been killed. Fred P. Wells, II, testified that he
       had also telephoned [the Petitioner] at Ms. Miles’s residence to inform him of
       the murders.

               Qiandra Johnson, who lived near Mr. McMullin, testified that at
       approximately 10:00 or 10:30 p.m. on August 13, 2007, she was watching
       television when she saw “a fellow dressed in all black walking down the street
       . . . and he had like long dreads.” She said that the man “walked down the
       street and behind the house next door to Mr. McMullin’s house and just
       disappeared.” She knew [the Petitioner], and the man was not [the Petitioner].

              Xavier’s mother, Shameil Johnson, testified that while she was reading
       the paper on August 14, 2007, Xavier pointed to a photograph of Mr. Robinson
       and ran away. When she caught up with Xavier he said, “He was there, too”
       and pointed at the photograph of Mr. Robinson. Xavier said that Mr. Robinson
       “was the guy that killed his dad.”

              Ms. Johnson said that Mr. Moses was waiting at her residence when she
       returned from the police station with Xavier and that he asked her if
       “everything was all right . . . and he said if I needed anything to let him know.
       He was trying to be a friend.” He did not attempt to talk to Xavier.

              Ms. Johnson’s cousin, Tiffany Fields, said that Ms. Johnson and Xavier
       spent the night at Ms. Fields’s house after they left the police station. On the
       following day, Mr. Robinson’s photograph appeared in the newspaper, and
       Xavier refused to let anyone throw the paper away. Xavier pointed to the
       picture and told her that he had seen Mr. Robinson before. He did not say that
       Mr. Robinson had killed his father.

               Crystal Richards, who had dated Mr. Robinson “five or six years”
       before the trial and who was a friend to Mr. McMullin, testified that during
       their relationship, Mr. Robinson “was very abusive” and, at one point, had
       “[h]eld a gun to [her] head.” She testified that she and Mr. Robinson got into
       an altercation at a club and that on the following morning, “[she] woke up and
       he had a 9mm to the back of [her] head and told [her] he would kill [her] if
       [she] ever did that again.” She said that Mr. Robinson was also abusive to her
       children and that he had held her hostage in her own home by nailing “2x4’s
       up over the door.” She said that he tried to force her to drink gasoline when
       she tried to leave him.

Id. at *1-10.

                                             -14-
        The Petitioner subsequently filed a petition for post-conviction relief, alleging
multiple instances of ineffective assistance of counsel at trial and on appeal (“trial counsel”).
Although the Petitioner claimed numerous instances of ineffective assistance in his petition,
he has raised only three issues on appeal: that trial counsel erred in stipulating to the out of
court statement of Xavier Johnson that “Gangsta killed my daddy”; that trial counsel erred
when he “opened the door” to the Petitioner’s prior criminal record at trial; and that, on
appeal, trial counsel failed “to include transcripts that were necessary to the Petitioner’s
direct appeal.” Accordingly, we will address only the facts adduced at the post-conviction
hearing relevant to these issues.

       At the post-conviction hearing, the Petitioner testified that trial counsel represented
him from his arraignment through his direct appeal.1 As to his first allegation of trial
counsel’s ineffectiveness, he stated that from the beginning he wanted “to confront [his]
accuser,” five-year-old Xavier Johnson, who “was at the base of the whole accusation.” At
the preliminary hearing, the court found that the child was incompetent to testify. When the
Petitioner discussed the child’s testimony with trial counsel, trial counsel told him that the
testimony “was inadmissible and that he wouldn’t have to worry about it because [trial
counsel] was going to file motions to have the evidence excluded.”

        The Petitioner stated that he continued to ask trial counsel about this testimony, and
trial counsel repeatedly told him, “We’re gonna get to it.” Once the trial commenced, the
State began introducing the child’s testimony through other witnesses. The Petitioner asked
trial counsel to object, and trial counsel complied and had a bench conference over the issue.
After the bench conference, trial counsel told the Petitioner that the motions regarding this
testimony “had been denied and that the evidence was coming in.” The Petitioner stated that
the testimony that he wanted excluded, and that the jury ultimately heard, was: “[Xavier]
supposedly had described me to Lieutenant Williams as being his uncle and told [him] I had
a big nose and a bald head and some gold teeth, and that I had killed his father, and that I had
shot the . . . female victim, also.” He also wanted Tamara McMullen’s 2 testimony excluded
that “on the way home from the police station, . . . [Xavier] supposedly had told her that
somebody named Gangster, Uncle Gangster, had killed his father.” After the trial, trial
counsel told the Petitioner that “[h]e stipulated with the [State] to allow hearsay in, in order
to get inconsistent statements that [Xavier] had made in.” The Petitioner believed he would




        1
          The Petitioner explained that another attorney represented him at his preliminary hearing.
According to the Petitioner, the State nolle prossed the case, he was “re-indicted,” and trial counsel began
representing him at the arraignment on his “re-indicted” offenses.
        2
        In the opinion on direct appeal, this witness’ name was spelled “Tarmara McMullin.” See Aubrey
Tremaine Eisom and Cedric Moss, 2010 WL 4540069, at *2.

                                                   -15-
not have been convicted had he been able to cross-examine Xavier regarding these
statements.

        The Petitioner was unaware that the State was going to introduce evidence regarding
the Petitioner’s nickname being “Gangster” and stated that at least five witnesses testified
to this fact. The Petitioner did recall that trial counsel planned to file a motion in limine as
to the introduction of evidence regarding the nickname, but the Petitioner “never did see it.”

        The Petitioner next stated that trial counsel had instructed him not to testify based on
the Petitioner’s prior conviction that was similar to the present case. The Petitioner agreed
with trial counsel and, accordingly, decided not to testify. However, the testimony came in
anyway because trial counsel “asked a witness what kind of person [the Petitioner] was.”
The State then introduced the Petitioner’s conviction through that witness, Larry Baltimore.
According to the Petitioner, trial counsel told him, “Dog, I messed up.” Trial counsel still
advised the Petitioner not to testify, so the Petitioner did not. He felt that, with the evidence
of the conviction coming in, he should have testified, given that his “co-defendant” 3 testified
against him.

        The Petitioner testified that, on appeal, trial counsel never submitted transcripts of the
pretrial hearings, which related to some issues the Petitioner wanted to raise on appeal. The
Court of Criminal Appeals “waived a couple of [the Petitioner’s] issues because [trial
counsel] didn’t cite case law, . . . he didn’t put authorities.”

        On cross-examination, the Petitioner acknowledged being present at the preliminary
hearing and witnessing that court finding Xavier incompetent to testify as a witness. He
further acknowledged that, at that hearing, when the State introduced Xavier’s statement
through another witness, the court overruled the defense’s objection under the excited
utterance exception. Moreover, he was aware that trial counsel intended to introduce
Xavier’s other statement regarding his identification of other individuals as the one who
killed his father. The Petitioner identified at the hearing the stipulation that Xavier was not
competent to testify at trial. He acknowledged that, at the preliminary hearing, the State also
elicited references to the Petitioner’s nickname, “Gangster.”

       The Petitioner denied that, prior to trial counsel’s calling Larry Baltimore to testify,
he told trial counsel, “He knows me, he’s my friend.” He acknowledged that he had a jury-
out proceeding in which he waived his right to testify. After the testimony was elicited



        3
           The Petitioner testified that his “co-defendant” testified against him. However, Mr. Moses did not
testify at the trial or present any proof. Rather, Mr. Armstrong, an accomplice who was not a co-defendant
in the trial, testified against the Petitioner.

                                                    -16-
regarding his prior conviction, he told trial counsel that he “might as well” testify but that
trial counsel told him not to testify because the State would “trip [him] up.”

       Trial counsel testified that he represented the Petitioner in his trial on two counts of
murder and one count of especially aggravated robbery. Regarding the stipulation that
Xavier was incompetent to testify, trial counsel knew that the court at the preliminary hearing
had ruled Xavier incompetent to testify. He continued,

       I was aware that the young boy . . . made certain statements to individuals that
       I didn’t think I would ever be able to get in, where he named other people as
       the shooter or that killed his daddy. I also knew and felt after research and
       what I knew about the matter that the testimony of the boy would probably not
       be allowed, thus the stipulation with the attorney general . . . . So, I went to
       the attorney general’s office. And I also felt like that young man’s statement
       was an excited utterance. I think that would have been ruled without agreeing
       to it.

        Trial counsel confirmed that it was his idea to stipulate to the hearsay statements
regarding Xavier’s identifications. He acknowledged that, when Xavier was found
incompetent at the preliminary hearing, he was five years old and that, at the time of trial, he
was seven years old. He stated, however, that Xavier also was taking seizure medication and
that trial counsel “made that decision at the time and cleared it with [the Petitioner].” Trial
counsel did not believe that the admission of the nickname “Gangster” would be unfairly
prejudicial to the Petitioner.

       Regarding the Petitioner’s decision not to testify, trial counsel stated,

       [A]ll I can say is that in my years of experience, never, never have I told
       someone – given them an opinion about don’t testify because of this reason or
       that. It’s always up to the individual client. He knew his – what his record
       was . . . . He knew that that’s something that we’d hoped we could keep out
       from the jury. But I did not ever tell him don’t testify.

       Trial counsel stated that, when he called Baltimore to testify at trial,

       I was sitting right there next to [the Petitioner]. . . . And [the Petitioner] . . .
       grabbed me by the arm and pulled me back down and said, “He likes me. He’s
       a good friend.” And . . . I don’t know that he told me to go up and ask that
       question, but that – by pulling me back and saying, you know, “He’s a good
       friend of mine, he really likes me,” I came up here and I asked that question.
       And I got – the only reason I think I did it is because it was right new to me;

                                              -17-
       he pulled me back and made that point, so I came up and asked him that
       question that he’s mentioned here. And, of course, the DA jumped all over it.
       . . . And after it was over, I think he would go on and tell you that I came back
       – after Baltimore was excused, I went back around and sat down with him and
       said, “Well now, look here.” You know, “You pulled my arm.” And he said,
       “Yeah, I shouldn’t have done it.”

        Regarding his representation on direct appeal, trial counsel stated that he had
requested an extension of time for the preparation of the transcripts. He requested an order
from the trial court asking that “the transcripts of the entire proceedings” be transcribed.
However, once the deadline had passed on the extension, trial counsel realized that a
different court reporter actually had transcribed “some of these motion hearings,” so he could
not retrieve these transcripts.

        On cross-examination, trial counsel confirmed that he was not the Petitioner’s counsel
at the original preliminary hearing. He stated that his two main defenses at trial were “alibi
and the third party matter of Mr. Jonathan Robinson being the shooter.” Trial counsel
confirmed that one of Xavier’s statements that he wanted to introduce actually identified
Robinson as the person who killed Xavier’s father.

      At the conclusion of the hearing, the post-conviction court took the matter under
advisement and subsequently issued a written order denying relief. In its order, the post-
conviction court stated,

               The Court finds that [trial counsel] is an able trial counsel. . . . The
       Court finds that the stipulation referred to in this case was a part of trial
       strategy that was discussed between counsel and the petitioner prior to trial so
       that the choices made in this case were informed choices based on adequate
       preparation. . . . The Court finds that trial counsel and petitioner had a
       discussion both before trial and during trial about the right to testify. The
       Court also conducted a hearing during the trial so that petitioner was fully
       advised of his right to testify and his right against self incrimination. The
       petitioner chose not to testify and there is no basis for post-conviction relief on
       this issue.

              The issue of whether or not trial counsel allowed into evidence the
       statement of Xavier Johnson is part of the trial strategy dealing with the
       defenses available to the petitioner in this case. The Court does not find that
       the petitioner is entitled to post-conviction relief on the issue of appeal. The
       petitioner first of all did not indicate what issues on appeal he felt should have
       been raised. Evidently, there were some pre-trial motion issues that were not

                                              -18-
       included in the transcript. Trial counsel referred to a Motion to Sever and a
       Motion for a Bill of Particulars. There is no evidence before the court that
       even if these matters had been pursued that it would have changed the outcome
       of the trial. Petitioner has failed to show any prejudice and the Court finds that
       the petitioner has failed to prove that trial counsel’s performance was deficient
       or that any omission or act by trial counsel resulted in prejudice to the
       petitioner so as to deprive him of a fair trial.

Thus, the post-conviction court denied relief, and the Petitioner timely appealed.

                                             Analysis

        Relief pursuant to a post-conviction proceeding is available only when the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006); see also Momon
v. State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

        The Petitioner argues that he was denied effective assistance of counsel. 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 at trial.4
Both the United States Supreme Court and the Tennessee Supreme Court have recognized
that this right is to “reasonably effective” assistance, which is assistance that falls “within the
range of competence demanded of attorneys in criminal cases.” Strickland v. Washington,
466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
deprivation of effective assistance of counsel at trial presents a claim cognizable under



       4
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                -19-
Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103; Pylant, 263
S.W.3d at 868.

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient; and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688). Our supreme court has explained
that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,

                                              -20-
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“That is, the petitioner must establish that his counsel’s deficient performance was of such
a degree that it deprived him of a fair trial and called into question the reliability of the
outcome.” Pylant, 263 S.W.3d at 869 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies the
second prong of Strickland.” Id.

                             Stipulation as to Xavier’s Statements

      The Petitioner first asserts that trial counsel erred in stipulating to the out of court
statements of Xavier Johnson. The State disagrees.

        Turning to the deficiency prong, the post-conviction court stated in its order denying
relief, “The Court finds that the stipulation referred to in this case was a part of trial strategy
that was discussed between counsel and the petitioner prior to trial so that the choices made
in this case were informed choices based on adequate preparation.” The court further stated,
“The issue of whether or not trial counsel allowed into evidence the statement of Xavier
Johnson is part of the trial strategy dealing with the defenses available to the petitioner in this
case.”

      The evidence does not preponderate against the post-conviction court’s findings. Trial
counsel testified at the post-conviction hearing that he knew Xavier had been ruled
incompetent to testify at the preliminary hearing. He continued,

       I was aware that the young boy . . . made certain statements to individuals that
       I didn’t think I would ever be able to get in, where he named other people as
       the shooter or that killed his daddy. I also knew and felt after research and
       what I knew about the matter that the testimony of the boy would probably not
       be allowed, thus the stipulation with the attorney general . . . . So, I went to
       the attorney general’s office. And I also felt like that young man’s statement
       was an excited utterance. I think that would have been ruled without agreeing
       to it.

Trial counsel also stated that he “cleared” this decision with the Petitioner.

       Thus, the proof established that trial counsel, after adequate preparation, decided to
stipulate to the admissibility of Xavier’s statements in exchange for the admission of other
statements that were favorable to the Petitioner. These other statements, in all likelihood,
would not have been admissible otherwise. Without any further showing by the Petitioner,
we will give deference to trial counsel’s informed decision. See Cooper, 847 S.W.2d at 528.

                                               -21-
To the extent the Petitioner contends that trial counsel should have challenged the admission
of Xavier’s testimony, rather than stipulate to allow in the testimony regarding the other
identifications, we “‘must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.’” Honeycutt, 54 S.W.3d at 767
(quoting Strickland, 466 U.S. at 689). The post-conviction court implicitly accredited trial
counsel’s testimony over that of the Petitioner, and we will not disturb those credibility
findings on appeal. See Momon, 18 S.W.3d at 156. Therefore, the Petitioner has failed to
establish deficient performance on the part of trial counsel in this regard. Thus, we do not
need to address the prejudice prong. See Goad, 938 S.W.2d at 370. Accordingly, the
Petitioner is entitled to no relief on this basis.

                                   The Petitioner’s Criminal Record

        Next, the Petitioner argues that trial counsel was ineffective when he “opened the
door” to the Petitioner’s prior criminal record at trial. The post-conviction court, in denying
relief, addressed the Petitioner’s choice not to testify at trial but did not address separately
trial counsel’s questioning of the defense witness which led to the State’s introduction of the
Petitioner’s criminal record. We will address the issue of trial counsel’s questioning of the
witness as a separate issue.5

        We first note that the Petitioner did not include a transcript from this portion of the
trial, but we have reviewed that transcript as part of his appellate record on direct appeal.
See Harris v. State, 301 S.W.3d 141, 147 n. 4 (Tenn. 2010) (“The Court may take judicial
notice of its own records.”) (citing State v. Lawson, 291 S.W.3d 864, 869-70 (Tenn. 2009)).
At the trial, trial counsel asked Baltimore the following on direct examination:

        Q. Okay. Do you know the gentleman sitting here with the colored shirt, pink
        shirt on? How long have you known [the Petitioner]?

        A. Since he was a kid.

        Q. Do you have an opinion as to his – What is your opinions [sic] about him?

        A. He’s been a fine young man towards me. I mean, I’ve known him probably
        twenty years or better.




        5
          In his petition for post-conviction relief, the Petitioner addressed simultaneously the issues of his
decision not to testify and trial counsel’s “opening the door” to allow proof of the Petitioner’s prior criminal
record. On appeal, the Petitioner argues only the latter issue and not his decision not to testify.

                                                     -22-
       At the conclusion of the direct examination, the State requested a bench conference,
at which point the following colloquy took place:

       State: [Trial counsel]’s brought up [the Petitioner]’s character. He’s opened
       the door –

       Court: Yeah, he has.

       State: – for his prior record.

       The State then cross-examined Baltimore and asked him the following:

       Q. Mr. Baltimore, you stated you’ve known [the Petitioner] for a long time,
       you gave an opinion as to his character?

       A. Pardon me?

       Q. Is that correct? You said you’ve known [the Petitioner] for a long time and
       you just gave an opinion as to his character?

       A. Yes, sir.

       Q. Do you know about his prior criminal record?

       A. Yes, sir.

       Q. Know he’s been in prison?

       A. Yes, sir.

       Q. And what he was in prison for?

       A. Yes, sir.

       Q. What was he in prison for?

       A. I think something about a shooting?

       Q. Shot somebody?

       A. Right.

                                            -23-
       Q. During an aggravated robbery.

       A. Yes, sir.

        In addressing trial counsel’s effectiveness in this regard, we first will look at the
deficiency prong. Tennessee Rule of Evidence 404(a)(1) states that “[e]vidence of a person’s
character or trait of character is not admissible for the purpose of proving action in
conforminy therewith on a particular occasion, except . . . [i]n a criminal case, evidence of
a pertinent trait of character offered by an accused or by the prosecution to rebut the same.”
Thus, this exception “permits the accused in a criminal case to ‘open the door’ by introducing
evidence of his or her own pertinent character trait.” Neil P. Cohen et al., T ENNESSEE L AW
OF E VIDENCE § 4.04[4][a] (6th ed. 2011). Furthermore, “[o]nce the accused puts his or her
character in issue by presenting this evidence, the prosecution is free to offer relevant
character evidence to rebut the accused’s proof.” Id.

        Here, trial counsel acknowledged that both he and the Petitioner planned to keep the
Petitioner’s prior criminal record from the jury. He stated that the reason he asked Baltimore
about the Petitioner’s character was because the Petitioner stopped him before his
questioning and said, “He likes me. He’s a good friend.” Furthermore, trial counsel testified,
“And I got – the only reason I think I did it is because it was right new to me.” Based on a
review of the trial transcript, it is clear that trial counsel’s question, “What is your opinions
[sic] about [the Petitioner]?” and Baltimore’s answer, “He’s been a fine young man towards
me,” opened the door to the State’s introduction of the Petitioner’s conviction for aggravated
robbery in which he shot the victim.

        Even if we were to deem trial counsel’s questioning of Baltimore a tactical choice, our
deference to trial counsel should apply only when those choices “are informed ones based
upon adequate preparation.” Cooper, 847 S.W.2d at 528 (citing Hellard, 629 S.W.2d at 9).
Here, trial counsel admitted that, although he intended to keep the Petitioner’s prior criminal
record from the jury, he decided in the moment to ask Baltimore about the Petitioner’s
character. We cannot afford deference to this decision. Moreover, based on the record as
a whole on this issue, we hold that trial counsel was deficient in asking Baltimore his opinion
of the Petitioner and thus allowing the State to introduce evidence of the Petitioner’s criminal
record.

       Having found deficient performance, we must assess whether the Petitioner suffered
prejudice as a result of the introduction of his prior conviction. We note that the evidence
presented at trial included the testimony of an accomplice, Armstrong, directly implicating
the Petitioner in the crimes and specifically identifying the Petitioner as the person who killed
both victims. Additionally, the physical proof at trial was consistent with the testimony of
the accomplice and the other witnesses for the State. The proof also included the

                                              -24-
identification of the Petitioner by Xavier Johnson. We recognize that the proof at trial also
established that witnesses for the Petitioner claimed that Xavier, on a different occasion,
identified another individual, Robinson, as the person who killed his father. Also, Robinson
acknowledged at the trial that he had left threatening messages on his wife’s phone on the
evening that she was killed. We, however, note that the proof at trial clearly indicated that
more than one individual was involved in these crimes. Additionally, no testimony at trial,
other than the statement of two of the Petitioner’s witnesses regarding Xavier’s alleged
gratuitous identification of Robinson, actually linked Robinson to these crimes. Moreover,
there was no evidence of Robinson’s having an accomplice to help him perpetrate these
offenses. Finally, the trial court gave the jury a limiting instruction that evidence of the
Petitioner’s prior criminal conviction could be used solely for the purpose of assessing the
credibility of the particular witness. Thus, based on the entire record, we conclude that the
Petitioner has failed to carry his burden of demonstrating that the introduction of a similar
offense prejudiced the Petitioner to the extent that it created a “reasonable probability that
but for counsel’s error[] the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). Accordingly, we conclude that the
Petitioner is not entitled to post-conviction relief on this issue.

                              Ineffective Assistance on Appeal

        The Petitioner’s last claim of ineffective assistance of counsel is that trial counsel
failed on appeal to include all the necessary transcripts in the record to facilitate appellate
review of the issues raised. Specifically, the Petitioner contends that trial counsel failed to
include in the record the transcripts on the hearings for the Motion to Sever and Motion for
a Bill of Particulars.

       We choose to first address the prejudice prong. In denying relief, the post-conviction
court stated,

       The Court does not find that the petitioner is entitled to post-conviction relief
       on the issue of appeal. The petitioner first of all did not indicate what issues
       on appeal he felt should have been raised. Evidently, there were some pre-trial
       motion issues that were not included in the transcript. Trial counsel referred
       to a Motion to Sever and a Motion for a Bill of Particulars. There is no
       evidence before the court that even if these matters had been pursued that it
       would have changed the outcome of the trial. Petitioner has failed to show any
       prejudice and the Court finds that the petitioner has failed to prove that trial
       counsel’s performance was deficient or that any omission or act by trial
       counsel resulted in prejudice to the petitioner so as to deprive him of a fair
       trial.



                                             -25-
        We agree with the post-conviction court that the Petitioner has failed to establish
prejudice in this regard. The Petitioner merely asserts that trial counsel’s failure to include
the transcripts on these hearings and trial counsel’s failure to support these arguments with
proper authority on appeal resulted in waiver of these issues. The Petitioner has not
established a reasonable probability that, had trial counsel provided the proper transcripts and
argument, “the result of the [appellate] proceeding would have been different.” Vaughn, 202
S.W.3d at 116 (citing Strickland, 466 U.S. at 694); see also Carpenter v. State, 126 S.W.3d
879, 886 (Tenn. 2004) (applying the same two-prong inquiry to claims of ineffective
assistance on appeal). Therefore, because the Petitioner has failed to establish prejudice, we
need not determine whether trial counsel’s representation on appeal was deficient. See Goad,
938 S.W.2d at 370. The Petitioner is entitled to no relief on this issue.

                                       CONCLUSION

      For the foregoing reasons, we conclude that the Petitioner is not entitled to post-
conviction relief. Therefore, we affirm the judgment of the post-conviction court.


                                                     ______________________________
                                                     JEFFREY S. BIVINS, JUDGE




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