        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 12, 2011

            CHRISTOPHER CARTER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                        No. 05-05922    Lee V. Coffee, Judge




                 No. W2010-01049-CCA-R3-PC - Filed June 21, 2011


The petitioner, Christopher Carter, appeals the denial of his petition for post-conviction
relief. In this appeal, he contends that he was denied the effective assistance of counsel at
trial. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and R OBERT W. W EDEMEYER, J., joined.

R. Todd Mosley (on appeal), and Ruchie Patel (at trial), Memphis, Tennessee, for the
appellant, Christopher Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              In July 2006, a Shelby County Criminal Court jury convicted the petitioner of
one count aggravated assault and one count of assault, and the trial court imposed a sentence
of 15 years’ incarceration as a career offender. See State v. Christopher Carter,
W2006-02124-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Jackson, Nov. 15, 2007), perm.
app. denied (Tenn. Apr. 7, 2008). This court affirmed the convictions and 15-year sentence
on appeal, see id., and our supreme court denied the petitioner’s application for permission
to appeal on April 7, 2008. The petitioner filed a timely petition for post-conviction relief
in August 2008 alleging that he had been denied the effective assistance of counsel at trial.
               The facts adduced at trial, as summarized by this court on direct appeal,
established that Officer Ronnie Payne with the Memphis Police Department, who was off
duty and relaxing with other members of a local recreational softball team, attempted to
diffuse an argument between the petitioner and Ashley Millington on June 15, 2005, at the
Arbors Apartments in Memphis. See Christopher Carter, slip op. at 1-2. After Officer
Payne attempted to close the door to the petitioner’s vehicle, the petitioner argued with the
officer before reaching into his pants pocket for a knife. After a brief struggle, the two men
fell to the ground, and the petitioner stabbed Officer Payne in the shoulder. See id. Officer
Payne then ran to his apartment to retrieve his service weapon.

                While Officer Payne was gone, the petitioner continued to threaten other
people with the knife, including Ms. Millington and her boyfriend, Michael Langston. Id.,
slip op. at 2-4. Mr. Langston testified at trial that the petitioner “‘stuck the knife at me and
said, ‘You want some?’” Id. at 4. After Mr. Langston replied, “[N]o,” the petitioner then ran
in another direction. Officer Payne then returned to the scene with his weapon and ordered
the petitioner to drop the knife. See id. The petitioner complied, but he then got back into
his truck and drove off before being apprehended a short distance away.

              The petitioner, testifying in his own behalf, confirmed that he engaged in an
argument with Ms. Millington and Mr. Langton over a parking space, but he claimed that
rather than diffusing the situation, Officer Payne “punched him in the face through his
truck’s driver’s side window.” Id. He said he tried to get out of the truck, but the officer
slammed the door on his ankle and continued punching, forcing the petitioner to stab him in
self-defense. Id. The petitioner denied threatening others with the knife and insisted that
Officer Payne never identified himself as a police officer. Id. at 5.

               At the February 17, 2010 evidentiary hearing, trial counsel testified that she
began representing the petitioner at his arraignment and continued to represent him until the
conclusion of his trial. Prior to trial, trial counsel received discovery materials from the State
and provided a copy to the petitioner on November 4, 2005. Included in the discovery
materials were witness statements. Counsel stated that, given the presence of witness
statements in the discovery materials, she deemed personal interviews of the State’s
witnesses unnecessary. Counsel said that she utilized the services of an investigator whose
primary duty was to locate potential witness Gara Mullica. Counsel said that “it took a year
to try to get any information from her.” Counsel stated that Ms. Mullica did not really
provide her with any useful information and that, as a result, she chose not to present Ms.
Mullica as a witness at trial. According to trial counsel, Ms. Mullica told them that she did
not “see the actual altercation, which is what we needed. So, that’s why she wasn’t called
as a witness.”



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               Trial counsel testified that prior to trial the State made a plea offer to the
petitioner that would have disposed of the charges in this case along with two other cases in
exchange for a total effective sentence of 19 years, which was greater than the sentence
imposed following the petitioner’s trial.

                 Trial counsel could not recall whether she had instructed the petitioner’s family
to bring clothing for him to wear during the trial, but she testified that it was her practice to
tell clients “if they are going to wear clothes, to have their family bring them.” Counsel said
that “there would be no reason for [her] not to have him dressed out if [they] had access to
clothes.” She said that she made no objection to the petitioner’s appearing at trial in jail garb
because the petitioner “was not adamant about not wearing jail clothes.” She could not recall
the petitioner’s specifically asking to change clothes.

                 Trial counsel testified that she “probably talked” to the petitioner about
testifying at trial but that it was not her practice to “coach” her clients. She said that she did
not anticipate the petitioner’s testifying at trial because of his “extensive record.” She stated
that she told the petitioner that he could be impeached by his prior record should he choose
to testify at trial.

              Trial counsel testified that the theory of defense was self-defense “and also that
these people may not have seen things as clearly as they thought they would have.” She said
that “the main self-defense issue was against [victim] Ronnie Payne” and that “that charge
went away” because the jury could not reach a verdict on that count. The State later
dismissed that count. Counsel said she could not recall whether the petitioner testified at trial
and that she had prepared the case to proceed with or without his testimony.

              Trial counsel testified that she found no reason to challenge the jury
instructions provided by the trial court.

               During cross-examination by the State, trial counsel testified that the
petitioner’s trial was conducted in the “major violators” division of the Shelby County
Criminal Court. She explained that “in layman’s terms” that division prosecuted those
offenders “who have a bad record or a record of a certain level classifications as far as
convictions.” She said that she had worked as an assistant public defender in the “major
violators” division for several years and had worked for six years on the “capital defense
team.”

               Counsel reiterated that she chose not to utilize Ms. Mullica as a witness
because Ms. Mullica did not “put herself on the scene to see the initial altercation between
[the petitioner] and Mr. Payne - the off-duty officer. So, because of that, I did not think that

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she could do us any good.” Counsel added that Ms. Mullica’s unwillingness to speak with
her added to counsel’s reluctance to present Ms. Mullica as a witness, explaining, “That’s
not necessarily the person you want to put on the stand - someone that you have no real
working relationship with.”

               Counsel said that she could recall no reason that she would not have allowed
the petitioner to dress in “street clothes” for the trial, and she agreed that if the petitioner
expressed a desire to wear street clothes and his family provided them, she would have made
sure that he was permitted to change clothes. Counsel said that some attorneys believed that
their clients might garner more sympathy from the jury if dressed in jail clothes but that it
was not her practice to tell her clients that they should remain in jail garb.

                Upon questioning by the post-conviction court, trial counsel explained that the
public defender’s office maintained a “closet full of predominantly men’s clothing - pants,
shirts, jackets, suits, shoes,” that they use to attire those clients who do not otherwise have
access to street clothes for trial. She also agreed that it was the trial court’s practice to permit
counsel to bring clothing to court and to allow incarcerated petitioners to change in the
holding cell. She agreed that if the petitioner had expressed a desire to dress in street clothes
for his trial, she would have been “happy to do that. I do that all the time.”

              Counsel said that, in addition to the name of Ms. Mullica, the petitioner
provided her the name of only one potential witness, Ms. Mullica’s friend Linda. She said
that they could not find the witness because she had moved and the petitioner did not have
any other identifying information for her. She added that, in any event, it was never clear
that the potential witness “actually saw anything.”

                 Upon further questioning by post-conviction counsel, trial counsel testified that
the “proper procedure” for the family of an accused to provide trial clothing required the
family to “drop the clothes off . . . the Thursday or Friday before trial; and then that gets put
into their property. And then the deputies have him dressed out that way.” She said that
when the family provides clothing, “then the deputies are the ones that handle that.” Counsel
testified that if she knows the family has provided clothes but the petitioner has not been
“dressed out,” she would attempt to locate the clothing through the deputies. She said that
an accused’s attending trial in a jail uniform only becomes an issue when his right to wear
street clothes is denied by the trial court. She testified that if the petitioner appeared at his
trial in jail garb it was because he did not indicate a desire to do otherwise.

             Gara Mullica testified that she was living with a friend in Memphis in July of
2006 and that she and the petitioner “had been friends for a while.” She said that she
expected to be contacted by trial counsel regarding the petitioner’s trial and that she was

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prepared to offer testimony if needed. She said that she spoke with an investigator for the
public defender’s office sometime prior to trial and that she met trial counsel for the first time
on the day of trial. Ms. Mullica confirmed that she told the investigator that she did not
witness the confrontation that led to the petitioner’s convictions. Ms. Mullica did not know
whether her friend Linda had witnessed the altercation. She testified that when she arrived
on the scene, she saw the petitioner leaning against his truck and holding a knife and Mr.
Payne, who had identified himself as a police officer, holding a gun. She said she saw the
petitioner drop the knife and leave in his truck.

                Ms. Mullica claimed that she brought clothing to court on the last day of the
petitioner’s trial and that trial counsel told her “he wouldn’t need them.” Ms. Mullica said
that she came on the first day of trial but left and did not return until the last day of trial.

              During cross-examination by the State, Ms. Mullica acknowledged that she
made no attempt to contact trial counsel or any person at the public defender’s office despite
knowing that trial counsel had been appointed to represent the petitioner. She also
acknowledged that just before the petitioner’s trial, she went to stay with her mother in
Arkansas and that the investigator from the public defender’s office finally made contact
with her while she was at her grandmother’s house. She gave a telephone interview on July
10, 2006, only weeks before the petitioner’s trial.

               Upon questioning by the post-conviction court, Ms. Mullica again confirmed
that she did not witness the altercation that gave rise to the charges against the petitioner.
She said that she could not have told the jury who initiated the fight between the petitioner
and Mr. Payne.

                The petitioner testified that his “main issue is the clothing issue.” He claimed
that he told trial counsel that his family said they would bring clothes to court for him to wear
at trial but that when she did not return with the clothes, he assumed that his parents had not
done as they promised. He said that he later learned that his parents had, in fact, brought
clothes to court. The petitioner submitted a receipt from the property room of the jail
indicating that the petitioner’s father, Dan Carter, had brought a shirt, tie, and pants to the
jail for the petitioner on July 21, 2006. The petitioner testified that jail officials told him in
October 2006 he would have to pay to have the items returned to his parents or they would
be disposed of. The petitioner stated that he would have preferred to wear civilian attire,
particularly when he took the stand.

             The petitioner acknowledged that he, too, had “a hard time getting in touch
with” Ms. Mullica and that he told Ms. Mullica to contact trial counsel. He said that Ms.
Mullica told him that “she was doing everything she could” to make contact with trial

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counsel. He claimed that Ms. Mullica’s testimony would have corroborated his own that he
did not threaten anyone other than Mr. Payne.

               The petitioner said that he asked the investigator to photograph the inside of
his truck to establish that the truck had no dash and therefore no glove compartment for him
to have reached into, as witness Michael Langston had claimed. He said he also wanted trial
counsel to offer as an exhibit a hand drawn diagram he had made of the scene. The petitioner
acknowledged, however, that he understood that the diagram might not have been admissible
as evidence.

              During cross-examination, the petitioner acknowledged that he did not
personally know that clothing had been delivered to the jail prior to trial. He said, however,
that he believed that “it was [his] attorney’s job to make sure [he] was dressed out.” The
petitioner conceded that he never asked trial counsel about the clothing before the bailiff
brought him into the court room. He explained, “We didn’t discuss anything else when she
came back other than did they bring my clothes, which logically led me to believe she was
going to check.” The petitioner said he never mentioned the clothing issue to trial counsel
again.

             The petitioner testified that trial counsel told him that she did not want to call
Ms. Mullica as a witness because she feared that Ms. Mullica might “comment on [his] good
character which would open the door for the prosecution to bring up some past felonies” that
had already been excluded by the trial court.

               At the conclusion of the hearing, the post-conviction judge, who did not preside
over the petitioner’s trial, stated that he had reviewed the trial transcript as well as the entire
trial record in the petitioner’s case. The court concluded that the petitioner had failed to
establish by clear and convincing evidence that he was denied the effective assistance of
counsel. Regarding the petitioner’s claim that trial counsel performed deficiently by failing
to ensure that he was dressed in civilian clothing for trial, the court concluded,

                              There is nothing before this record that would
               indicate that had [the petitioner] been dressed out in civilian
               clothing that it would have made a difference. There is nothing
               on this record that would indicate that the jury found [the
               petitioner] guilty because of the manner in which he was
               dressed.

               . . . . There is nothing on this record other than [the petitioner]
               saying that he would have felt better - that he wanted to be

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              dressed in civilian clothing.

The Court concluded that trial counsel “made a tactical decision not to call Ms. Mullica as
a witness because [trial counsel] correctly concluded that there is nothing that [Ms.
Mullica’s] testimony would have made a difference in - her testimony would not have been
helpful . . . because Ms. Mullica did not see the altercation.” The court stated, “And this
court finds, beyond any doubt, that the testimony of Ms. Mullica would not have made a
difference in this trial, would not have been helpful towards [the petitioner’s] assertion that
he acted in self-defense.” Finally, the post-conviction court concluded that trial counsel “did
properly investigate this case.” In a later-filed written order denying post-conviction relief,
the post-conviction court reiterated these findings and specifically accredited the testimony
of trial counsel regarding the decision not to call Ms. Mullica as a witness and the failure to
have the petitioner dressed in civilian clothing for trial.

               In this appeal, the petitioner maintains that trial counsel performed deficiently
by failing to protect his right to appear at trial in civilian clothing, by failing to adequately
investigate the case, and by failing to seek admission into evidence of a diagram of the scene
drawn by the petitioner. The State contends that the petitioner failed to establish his claim
of ineffective assistance of counsel by clear and convincing evidence.

               We view each of the petitioner’s claims with a few well-settled principles in
mind. Post-conviction relief is available only “when the 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.” T.C.A. § 40-30-103 (2006). A post-conviction
petitioner bears the burden of proving his or her allegations by clear and convincing
evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to the post-conviction
court’s findings of fact the weight of a jury verdict, and these findings are conclusive on
appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By
contrast, the post-conviction court’s conclusions of law receive no deference or presumption
of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

              To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show 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.

                                               -7-
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

              Claims of ineffective assistance of counsel are regarded as mixed questions of
law and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the post-conviction
court’s factual findings, our review is de novo, and the post-conviction court’s conclusions
of law are given no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State
v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

                The petitioner first contends that his trial counsel performed deficiently by
failing to ensure that he was permitted to dress in civilian clothing for his trial. Generally,
“the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand
trial before a jury while dressed in identifiable prison clothes.” Estelle v. Williams, 425 U.S.
501, 512 (1976). No constitutional error occurs when an accused appears at trial in jail garb,
however, unless he has, in fact, been compelled to appear before the jury so attired. See id.
This rule does not create in the trial court an affirmative duty to ensure that the accused does
not appear in front of the jury attired in jail garb; instead, the burden of raising the issue
“rests with the accused and his attorney.” Id.

                Here, the petitioner asserts that he was compelled to appear before the jury
dressed in jail clothing and that trial counsel performed deficiently by failing to lodge an
objection. Although counsel had no specific recollection whether the petitioner had asked
“to be dressed out,” she stated that her practice was to ensure that those clients who wanted
to attend trial in civilian clothing were able to do so. She stated that she routinely brought
clothing to incarcerated clients in advance of trial. The petitioner himself testified that he
mentioned the issue to trial counsel only once just before trial and that he did not mention it
again, even when he was brought into the courtroom without being given the opportunity to
change clothes. Under these circumstances, we cannot say that the petitioner established that
trial counsel performed deficiently in this regard. Perhaps more importantly, the record

                                              -8-
supports the post-conviction court’s conclusion that the petitioner had failed to establish that
he was prejudiced by attending trial in his jail uniform. Indeed, the record establishes that
the jury clearly struggled over the evidence, as it was unable to reach a verdict on two of the
four counts. It was able to amply parse the proof as to each charge based on its convicting
the defendant of a lesser included offense in one of the remaining two counts. Accordingly,
the petitioner is not entitled to relief on this issue.

               The petitioner next contends that his trial counsel performed deficiently by
failing to adequately investigate the case because she failed to photograph the interior of his
truck. Again, the record supports the post-conviction court’s conclusion that the petitioner
was not prejudiced by the failure to photograph the interior of the petitioner’s truck. The
petitioner claimed that a photograph of the interior would have established that his truck did
not have a glove compartment, which would have, he claimed, “discredited” the testimony
of Mr. Langston that the petitioner retrieved the knife from the glove compartment. The
location of the petitioner’s knife prior to the beginning of the events that led to the
petitioner’s conviction, however, was irrelevant. Regardless of whether Mr. Langston
accurately identified that location of the knife prior to the petitioner’s using it to stab Officer
Payne, Mr. Langston’s testimony mirrored that of other witnesses that the petitioner stabbed
Officer Payne and then wielded the knife toward Mr. Langston and others asking whether
they “wanted some.” Consequently, the petitioner has failed to establish that the absence of
the photograph enured to his prejudice.

               Finally, the petitioner asserts that his trial counsel performed deficiently by
failing to seek admission into evidence of a hand-drawn diagram of the crime scene prepared
by the petitioner. The petitioner has failed, however, to establish his claim because he failed
to introduce the diagram at the evidentiary hearing and failed to establish that the diagram
would have been admissible at trial.

             Because the petitioner failed to establish by clear and convincing evidence that
he was denied the effective assistance of counsel at trial, the judgment of the post-conviction
court denying relief is affirmed.

                                                      _________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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