         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                Assigned on Briefs May 4, 2004

                JESSIE JAMES AUSTIN v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Weakley County
                          No. CR25-2000 William B. Acree, Jr., Judge



                       No. W2003-01312-CCA-R3-PC - Filed July 8, 2004


The petitioner was originally indicted for aggravated robbery and three counts of aggravated assault.
After a jury trial, the petitioner was convicted of two counts of aggravated assault. He appealed his
convictions to this Court. This Court affirmed the convictions. The petitioner then filed a Petition
for Post-conviction Relief based upon ineffective assistance of counsel. After a hearing, the trial
court denied the petitioner’s petition. The petitioner appeals the trial court’s decision to this Court
on three issues: (1) trial counsel failed to call the petitioner’s mother as a witness; (2) trial counsel
failed to make an investigation of the crime scene, including the failure to take pictures; and (3) lead
counsel was hired at 8:30 p.m. the night before trial, was not familiar with the case, and was not
allowed a continuance by the trial court. We affirm the decision of the trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , and JAMES
CURWOOD WITT , JR., JJ., joined.

Langdon S. Unger, Jr. Martin, Tennessee, for the appellant, Jessie James Austin.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                          Factual Background

        This is an appeal as of right from the trial court’s denial of the petitioner’s Petition for Post-
conviction Relief. This court affirmed the petitioner’s convictions in State v. Jessie James Austin,
No. W2001-00120-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 66, (Tenn. Crim. App. at Jackson,
Jan. 25, 2002). The facts as recited in this Court’s previous opinion are as follows:
        The defendant’s convictions arise from an incident in which he pointed a gun
at two young brothers. Sherry Hugheley, the victims’ mother, testified that in
January 2000, she lived in a double- wide trailer with her two sons Paul and Zachary,
who were eleven and seven years old respectively at the time of trial. She said that
she and Zachary had Stickler Syndrome, a genetic disorder, and that, as a result, she
had difficulty moving around and doing things for herself. She said that she had
known the defendant for one and one-half years. She stated that at first, he worked
for her doing yard work, cooking, cleaning, and taking her and Zachary to doctor’s
appointments. She said that a government agency provided her the money to pay the
defendant and that she paid him monthly. She said that it took three weeks from the
time that she submitted his hours to the agency for her to receive a check, which was
made out to her. She said that eventually, she began dating the defendant and that
he lived with her while continuing to work for her. She said that during this time,
they pooled their money for living expenses. She said that in mid-December 1999,
the defendant accompanied her and Zachary on a week-long trip to Maryland to
attend a study conducted by the National Institute of Health. She said that upon their
return on December 13, the defendant moved out after an argument.

        Ms. Hugheley testified that between 2:30 and 3:00 a.m. on January 21, 2000,
the defendant came to her home wanting money. She said that at that time, she was
waiting for a check from the agency and that the defendant had not worked for her
since the Maryland trip. She said that she and the boys were asleep on the couch
when the defendant knocked on the door. She said that she opened the door, that the
defendant came inside, and that she told him that the check had not come yet. She
said that the boys awoke while she and the defendant argued about her not wanting
to give him fifteen dollars. She stated that the defendant entered the bedroom and
that she could hear him struggling with the guns, which were in a dresser drawer.
She said that she went outside to ask the man who had brought the defendant to get
him out of her house. She said that she heard Paul screaming at the defendant but
that she never heard the defendant threaten her children. She stated that while she
was outside on the wheelchair ramp, the defendant came to the doorway and fired a
gun straight ahead into a field. She said that the noise scared her because she did not
realize that the defendant was behind her. She said that she was outside for only a
short time.

        Ms. Hugheley testified that the defendant took one of the two guns and fifteen
dollars from her closet, which contained around four hundred dollars. She admitted
that the defendant did not have a car, that he always had someone drive him to her
house, and that he had asked for gas money to give the driver on other occasions.
She acknowledged that at the time of the offenses, she owed the defendant $ 240 for
working for her. She said that the defendant did not yell at her, threaten her with the
gun, or point it at her. She said that Paul’s father had told Paul that he was the man
of the house and that he was to take care of everything. She said that after the


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children awoke, Paul tried “to stand up to [the defendant] like a man instead of a little
boy, because this is what his daddy told him” to do. She said that the main reason that
she separated from the defendant was that she needed some time to deal with Paul.
She said that her children were taken from her and were living with their father at the
time of trial because she was seeing the defendant.

       Ms. Hugheley was recalled by the defendant and testified that the defendant
had come to her house around 2:30 a.m. on other occasions before the day of the
offenses. She said that at the time of the offenses, the defendant was still
accompanying her and Zachary to the doctor’s office and that she would have needed
him to go with her to the doctor’s office sometime after January 21.

         Paul Hugheley testified that at the time of trial, he was eleven years old and
lived with his father. He stated that in January of that year, he had been living with
his mother and his seven-year-old brother, Zachary. He said that the defendant
worked for his mother and lived with them from time to time. He said that in the
early morning of January 21, 2000, he was asleep with his mother and brother on the
living room couch when he was awakened by his mother and the defendant yelling
at each other. He said that the defendant was demanding money and that his mother
did not have it. He said that the defendant went into his mother's room and returned
with two guns and the bag in which the money was kept. He said that his mother
went outside and told the man who had brought the defendant to get the defendant
out of the house and that if anyone was hurt, the man would be charged too. He said
that the defendant was standing two yards from the back door and that the defendant's
back was toward him when he heard the defendant fire the gun. He said that he
picked up the phone to call 9-1-1. He said that he had pushed the nine when the
defendant, who was standing about two feet away from him, pointed the gun at him
and told him to put the phone down. He said that he believed that the defendant
pointed the gun at his face. He said that the defendant said, “If I can drop one, I can
drop three.” He agreed that he feared for his safety when the defendant pointed the
gun at him and made this comment. He said that Zachary, who was on the couch
beside him, told the defendant to leave them alone. He said that the defendant
pointed the gun at Zachary and said, “Shut up.” He testified that the defendant
pointed the gun at him before firing the shot out the back door, then Zachary told the
defendant to leave them alone, and the defendant said, “Shut up.”

        On cross-examination, Paul testified that he was in fifth grade when the
offenses occurred. He said that the weekend following the incident, he told his father
what had happened and that his father called the police and his lawyer. He said that
he did not remember his father telling him that no black man could spank him. He
said that his father told him to testify truthfully. Paul was questioned about his
preliminary hearing testimony in which he said that the defendant made the comment
“If I can drop one, I can drop three” to his mother while he and his brother were


                                          -3-
pretending to be asleep on the couch. Paul stated that the defendant made the
comment to all three of them. He admitted that the defendant never discharged the
gun in his direction.

        The thirty-six-year-old defendant testified that he had known the Hugheleys
for about eighteen months. He said that at first, he worked for Ms. Hugheley but that
after four or five months, they began dating and he began staying at her house. He
stated that at this point, they pooled their money. He said that with his paychecks,
he would first pay child support for his two children and then he would give the rest
of the money to Ms. Hugheley to manage. He said that he frequently accompanied
the Hugheleys on trips out of town for medical treatment. He said that he did not get
paid for a lot of these trips and that he made them because he loved Ms. Hugheley.
He said that once they began dating, he took over the yard work in order that Ms.
Hugheley could save money.

         The defendant testified that he got along well with Ms. Hugheley’s sons. He
said that he had never threatened them and that they had written him letters saying
that they loved him. He said that although he had punished the boys before, he would
always tell Ms. Hugheley first. He stated that once he told Ms. Hugheley that Paul
was riding his bicycle in the road and that Ms. Hugheley punished Paul for a week.
He said that Paul got mad and told his father about the incident. He said that Paul
told him, “My daddy said if that old n***er will whoop me, he’s gonna have him
locked up.” The defendant stated that once the fact that he and Ms. Hugheley were
dating became known, people began calling Ms. Hugheley’s house and threatening
to kill him and Ms. Hugheley. He said Ms. Hugheley had her telephone tapped in
order to learn who was making the calls.

        The defendant testified that on the day of the offenses he came to Ms.
Hugheley’s house at 2:30 a.m. He said that Ms. Hugheley was probably going to the
doctor’s office and that he was supposed to have been at her house earlier. He said
that he did not realize what time it was because he had been asleep and that he asked
Mr. Jamie Pankey, a handicapped man who went to his church, to take him to Ms.
Hugheley’s house. He said that he had gone to Ms. Hugheley’s house in the early
morning before due to his transportation situation and that Ms. Hugheley had paid
Mr. Pankey twenty dollars for bringing the defendant to her house before. He said
that when Ms. Hugheley let him inside on the morning of the offenses, he told her
that he needed fifteen dollars to pay the man who had driven him there. He said that
Ms. Hugheley replied that they needed that money to pay their bills that month.

         The defendant testified that when they had cleaned out the trailer in which
Ms. Hugheley lived, they had found an old .22 caliber pistol, which belonged to the
trailer's owner, who had left town. The defendant testified that he got this gun,
showed it to Mr. Pankey, and asked if he would hold it until the next morning. He


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       said that he tried to take the bullet out of the gun but could not and that he fired it
       into a field to unload it. He said that Mr. Pankey replied that he did not have enough
       gasoline to get home. He said that he told Ms. Hugheley that he had to give Mr.
       Pankey some money for gasoline. He said that he and the Hugheleys had recently
       returned from a trip to Maryland where he had been paid thirty or forty dollars per
       day for seven or eight days. He said that this money was for his living expenses
       while in Maryland but that they had brought their own groceries in order to save the
       expense money for Christmas. He said that he had about $ 300 cash at Ms.
       Hugheley’s house not counting the $ 240 that Ms. Hugheley owed him. He said that
       he went inside, got fifteen dollars, and paid Mr. Pankey. He said that because the
       children were awake and because he and Ms. Hugheley had a misunderstanding, Ms.
       Hugheley said that it would be best if he left. He said that although he had intended
       to stay for a few days, he decided not to spend the night because he and Ms.
       Hugheley had argued.

                The defendant testified that Paul’s testimony that he had pointed a gun at Paul
       and told Paul not to use the phone was not true. He said that he never told Paul not
       to call 9-1-1 or he would “drop him.” He said that it would have been impossible for
       Paul to see him with the gun from the couch because a five-foot-tall room divider
       would have blocked Paul’s view. He said that he did not steal anything from Ms.
       Hugheley. He said that he considered part of the money at Ms. Hugheley’s house to
       be his and that when he took fifteen dollars, more money remained. He said that he
       left the gun.


State v. Jessie James Austin, No. W2001-00120-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 66,
at *2-11 (Tenn. Crim. App. at Jackson, Jan. 25, 2002). This Court affirmed the two convictions for
aggravated assault.

        The petitioner then filed a Petition for Post-conviction Relief based on claims of ineffective
assistance of counsel. After an evidentiary hearing, the trial court denied the petitioner’s petition.
The petitioner now appeals the trial court’s decision. The sole issue presented for review is whether
the petitioner received the effective assistance of counsel.

                                        Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issue raised, we will afford those findings of fact the weight of a jury verdict, and this court
is bound by the court’s findings unless the evidence in the record preponderates against those
findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138,
147 (Tenn. Crim .App. 1997). This Court may not reweigh or re-evaluate the evidence, nor substitute
its inferences for those drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762,


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766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are reviewed under a
purely de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                                 Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of claims of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674 (1984). “Because a petitioner must establish both prongs of the test to prevail on a claim of
ineffective assistance of counsel, failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

         Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins, 911 S.W.2d at 347. This Court may not second-guess a
reasonably-based trial strategy, and we cannot grant relief based on a sound, but unsuccessful,
tactical decision made during the course of the proceedings. See id. However, such deference to the
tactical decisions of counsel applies only if counsel makes those decisions after adequate preparation
for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        The petitioner argues three reasons as to how his trial counsel was ineffective: (1) trial
counsel failed to call the petitioner’s mother as a witness; (2) trial counsel failed to make an
investigation of the crime scene, including the failure to take pictures; and (3) lead counsel was hired
at 8:30 p.m. the night before trial, was not familiar with the case, and was not allowed a continuance
by the trial court.

         We first address the petitioner’s argument that he was denied effective assistance of counsel
because the trial court denied his motion to continue when he brought in newly-hired counsel the day
of trial. The petitioner argues that forcing his defense counsel to try a felony jury trial without any



                                                  -6-
preparation made it impossible for his counsel to be effective. The trial court included the following
findings in its order denying the petitioner’s Petition for Post-conviction relief:

                When the petitioner was arraigned [May 8, 2000], he informed the Court that
       he planned to hire [Private Trial Counsel] to represent him. The petitioner reported
       to Court two weeks later and stated that he needed additional time to hire [Private
       Trial Counsel]. Approximately three and one half weeks later, the petitioner again
       appeared in Court and informed the Court that he did not have the funds with which
       to hire an attorney. The Public Defender’s office was appointed to represent the
       petitioner [June 16, 2000], and the petitioner was instructed to report to the Court
       approximately one and one half weeks later. When he again reported, the case was
       set for trial two months later.

              On the morning of the trial [August 24, 2000], with the jury present, [Private
       Trial Counsel] appeared with the petitioner and informed the Court that he had been
       hired by the petitioner on the preceding evening at 8:30 p.m. [Private trial counsel]
       asked for a continuance which was denied. The following exchange took place
       between the Court and the petitioner’s attorneys:

               The Court: “[Private trial counsel], I understand the predicament
               you’re in, but [Assistant Public Defender] is here today, also, [sic]
               Are you going to participate in the trial?
               [Private Trial Counsel]:          I will.
               The Court: All right. The Public Defender’s office is instructed
               to assist you in the case, since he’s been involved in the case since the
               inception. Are you prepared for trial, [Assistant Public Defender]?
               [Assistant Public Defender]:               Yes, sir.
               The Court: Okay. You’re to give [Private Trial Counsel]
               whatever assistance that he wants. Anything else?
               [Private Trial Counsel]:          No, sir.
               The Court: Thank you.”

               Both [Private Trial Counsel] and [Assistant Public Defender], testified at the
       post-conviction hearing. Both attorneys said that although [Assistant Public
       Defender] did not directly participate in the trial, he offered substantial assistance to
       [Private Trial Counsel]. The petitioner has failed to demonstrate any harm or
       prejudice resulting from [Private Trial Counsel]’s unfamiliarity with the case.
       Furthermore, the record of the original trial does not reflect any error made by
       [Private Trial Counsel] in his representation of the petitioner. The petitioner was
       well aware that [Private Trial Counsel] was not familiar with the case. It was his
       choice to hire [Private Trial Counsel] the night before the trial and to have [Private
       Trial Counsel] as the lead attorney rather than the Assistant Public Defender. The
       Court finds there is no merit in this ground.


                                                 -7-
       The petitioner’s basic argument is that he was denied his right to effective assistance of
counsel because the trial court did not grant private trial counsel’s motion for a continuance. The
record on appeal supports the findings of the trial court. The petitioner had roughly four months
from his arraignment to the day of trial to hire private trial counsel, but waited until 8:30 p.m. the
night before his trial was to begin.

        This Court addressed a similar situation in State v. Zyla, 628 S.W.2d 39 (Tenn. Crim. App.
1981). In Zyla, the defendant had retained counsel, who appeared with him at his arraignment. Four
months later, on the day of trial, the defendant moved for a continuance so he could discharge his
retained counsel and find new counsel. The trial court denied the defendant’s motion to continue.
The defendant in Zyla argued that his right of effective assistance of counsel was violated. We
stated:

              In United States v. Burton, 584 F.2d 485, 489, 490 (D.C. Cir. 1978), cert.
       denied, 439 U.S. 1069, 99 S.C. 837, 59 L. Ed2d 34, the court held:


                       “Yet, the right to retain counsel of one’s own choice is not
               absolute. The right ‘cannot be insisted upon in a manner that will
               obstruct an orderly procedure in courts of justice, and deprive such
               courts of the exercise of their inherent powers to control the same.’
               The public has strong interest in the prompt, effective, and efficient
               administration of justice; the public’s interest in the dispensation of
               justice that is not unreasonably delayed has great force.”
                       ******
                       “We recognize that the right to choice of counsel devolves not
               only from the due process clause of the Fifth Amendment but also
               from the more stringent and overlapping standards of the Sixth
               Amendment. This, however, does not alter the fact that the
               determination of whether the defendant’s right to select his counsel
               was protected depends upon the circumstances of the particular case.
               Once a fair and reasonable initial opportunity to retain counsel has
               been provided, and adequate counsel obtained, the court, mindful of
               the accused’s interest in having counsel in whom he has confidence
               is free to deny a continuance to obtain additional counsel if, upon
               evaluation of the totality of the circumstances, it reasonably
               concludes that the delay would be unreasonable in the context of the
               particular case.”


Zyla, 628 S.W.2d at 41-42. This Court then concluded that the trial judge did not abuse his
discretion in denying the motion to continue.


                                                 -8-
        In this case, the petitioner had about four months to retain private trial counsel. The
petitioner repeatedly told the trial court he was going to hire private trial counsel but never did, even
when he had two months’ notice of his trial date. The evidence in the record fully supports the trial
court’s findings that the denial of a continuance did not deprive the petitioner of the effective
assistance of counsel. We must now determine whether the actual services rendered by trial counsel
were deficient or that any deficient performance was prejudicial.


        As the trial court stated in its findings, the petitioner has failed to show any ineffective
assistance of counsel. The assistant public defender was there throughout the trial. Both private trial
counsel and assistant public defender testified that the assistant public defender was very active in
his assistance of private trial counsel. In fact, the petitioner was initially charged with and tried for
aggravated robbery and three counts of aggravated assault but was convicted of only two counts of
aggravated assault. We fail to find deficiency in counsel’s representation or prejudice stemming
from trial counsel’s representation. This issue is without merit.

       The petitioner also argues that trial counsel was ineffective in failing to call the petitioner’s
mother to testify at the trial. The trial court stated the following in its findings of fact:

                The petitioner’s mother, Cora Austin, was called as a witness at the post-
        conviction hearing. She said that Ms. Hugheley told her the petitioner was upset, he
        wanted money and had a gun. He shot the gun while outside the home and while the
        children were inside. Ms. Hugheley did not tell her anything about the petitioner
        threatening the children.
                By the time of the trial, Ms. Hugheley had reconciled with the petitioner, and
        her two children were living with their father. She was called as a witness by both
        the State and the petitioner. Ms. Hugheley did not testify that the petitioner
        threatened the children, and her testimony at the trial was not at variance with what
        she allegedly told the petitioner’s mother. Thus, the petitioner was not prejudiced by
        the failure to call his mother.


        We have reviewed the transcript from the post-conviction hearing and conclude that the trial
court’s findings accurately reflect what transpired at the hearing. Therefore, the record does not
preponderate against the trial court’s findings, and we are bound by those findings. Both trial
counsel also testified at the hearing. They both stated that the petitioner never suggested his mother
as a witness at the trial.

        For the petitioner to be successful on his post-conviction relief claim, he must prove that his
trial counsel was deficient and that their deficient performance was prejudicial. It is clear that the
failure to call the petitioner’s mother as a witness was not prejudicial. The petitioner’s mother’s
testimony was not substantially different from that of the victims’ mother, Ms. Hugheley. In fact,
the petitioner’s mother’s testimony was a recitation of what Ms. Hugheley told her had happened.


                                                  -9-
It is clear that the jury believed the testimony of the victim at trial over that of Ms. Hugheley.
Therefore, we conclude that the outcome of the trial would not have been affected by the cumulative
testimony of petitioner’s mother, who was not even present at the underlying incident. This issue
is without merit.

        The petitioner’s final argument is that his trial counsel were deficient because they failed to
investigate or take pictures of the crime scene. The petitioner argues that the availability of pictures
of the crime scene could have enabled the defense to prove that the children were out of harms way,
or were in rooms other than the room the petitioner was in during the incident.

         The trial court stated in its findings of fact that Ms. Hugheley’s eldest son’s testimony was
the most damaging evidence presented at the petitioner’s trial. The trial court also stated that visits
to or photographs of the crime scene would have had little impact on the boy’s testimony. We agree
with the trial court. Even if trial counsels’ performance was deficient in not visiting the crime scene,
the petitioner cannot prove that this failure was prejudicial to his case. The petitioner has not shown
that there is a reasonable probability that the outcome would have been different if photographs of
the trailer had been introduced at trial. The jury, when presented with the testimony of Ms. Hugheley
that the petitioner did not threaten her sons and presented with the testimony of Ms. Hugheley’s
eldest son that the petitioner pointed a gun and threatened both him and his brother, believed Ms.
Hugheley’s son.

       For the reasons stated above, we affirm the decision of the trial court.



                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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