         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                Assigned on Briefs May 2, 2006

                MICHAEL WILLIAMS v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                             No. P-27128    W. Otis Higgs, Judge



                   No. W2005-01810-CCA-R3-PC - Filed November 20, 2006


The petitioner, Michael Williams, appeals the denial of post-conviction relief. Specifically, he
contends that trial counsel was ineffective by failing to have him undergo a mental evaluation prior
to trial. Upon review, we conclude that the petitioner has failed to meet his burden that: (1) his
counsel was deficient in her performance, and (2) he was prejudiced in his claim of ineffective
assistance. We affirm the post-conviction court’s denial of relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
THOMAS T. WOODALL, JJ., joined.

James E. Thomas, Memphis, Tennessee, for the appellant, Michael Williams.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

                                     Facts and Procedural History

         The petitioner is seeking post-conviction relief from his conviction of rape and the sentence
of thirty years as a violent offender. The petitioner’s trial counsel testified during the post-conviction
hearing that the petitioner was arrested after the grand jury indictment and that she was appointed
as counsel and began investigating the case. She met with the petitioner and obtained his list of
potential witnesses. The investigator for the public defender’s office met with all of his proposed
witnesses, as well as the witnesses proposed by the State. She also copied the prosecutor’s file with
the exception of the victim’s statement. The investigator did not meet with the victim because the
victim refused to speak with the defense. Counsel explained that she did not meet with the police
officers or the nurse who performed the examination on the victim because they usually do not speak
with attorneys prior to trial.

        Counsel testified that she filed a motion for a speedy trial and a motion in limine regarding
the prior convictions of the petitioner. She said that the victim identified the petitioner from a book
of mug shots. She also said that the police did not provide her a photo lineup because the
identification of the petitioner was not done through a lineup. She said that she did not file a Rule
Sixteen motion for discovery because the prosecution had already provided her with their entire file
with the exception of the victim’s statement, which she copied herself. She made five attempts to
speak with the petitioner at the jail. He refused to meet with her on one occasion. She discussed all
the discovery with the petitioner and provided him with copies of all the material. He gave several
statements to her as to his version of events before he gave the version they used at trial. She said
that she investigated the petitioner’s background by obtaining his juvenile record. She did not file
a motion for expert services or a mental evaluation because the petitioner gave her no indication that
he might need an evaluation and never told counsel that he had a history of mental illness. She was
aware that the petitioner had a history of patronizing prostitutes.

        She testified that the defendant initially told her that he did not have sex with the victim and
told her that he was still in jail when the victim claimed the incident occurred. Later he said that he
was at home and could not have possibly had sex with the victim. Eventually, he admitted that he
did have sex with the victim.

        She acknowledged that this was her first rape trial but said that she had experience in trying
sexual assault cases. She said that she did investigate the victim’s criminal background but not her
sexual background. She did not file a Rule Twelve notice of intent to check the sexual history of the
victim, and she did not ask the victim about her sexual history while she testified. She testified that
their theory of defense was that the sex was consensual. Their defense was that the defendant agreed
to pay the victim for sex but that he left without paying and, as revenge, the victim accused him of
rape. At trial, the victim refuted their theory of defense with her testimony even though it was
brought out that she had made some inconsistent statements. Counsel testified that the State offered
a sentence of eight years and that the petitioner, if convicted, faced thirty years because his prior
convictions made him a career offender. She believed that there was a good chance the petitioner
would be convicted and that he was making a mistake in rejecting the plea offer. She did not believe
that anything was wrong with him mentally for turning down the offer.

        She testified that in her initial interview with a client, she obtains any necessary personal
information, relays the issues about the case, and provides discovery or an affidavit of complaint,
if available. She said that if a client indicates he or she has any problem, she would discuss it with
the client. She acknowledged that she does not always ask about medication. She testified that if
she had known the petitioner took medication for depression, she would have inquired further and
an evaluation would have been a possibility but not a certainty. She did not ask about medication,
and the petitioner never indicated that he was taking any medication. She did not obtain the
petitioner’s school records, but she was aware that he dropped out of high school in the tenth grade.


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She added that most of her clients did not graduate from high school. Finally, she said that, in and
of itself, a high school diploma or lack thereof is not indicative of mental disease. Further, most of
her clients also have juvenile records and that does not mean that they suffer from mental disease.

        On cross-examination, counsel testified that there were at least twelve court appearances for
the petitioner up to the time of his trial. When he rejected the State’s plea offer, she questioned him
before a judge. He was also voir dired at the start of trial and during the trial. Each time he
understood what he was doing and was able to answer the questions. Counsel said that the petitioner
understood both the State’s offer and his range of punishment and exposure. A DNA analysis was
completed and showed that the semen on the victim was the petitioner’s. She said that she always
spoke with the petitioner at his court appearances. She spoke with the petitioner’s mother because
she planned to call her to testify, and she presented the petitioner’s mother as a witness at trial.
Counsel said the victim did not appear to be very old and looked as though she might have been a
basketball player. She cross-examined the victim at length during the trial and tried to point out the
inconsistencies in her statements.

        Counsel testified that the petitioner never mentioned his mental problems. The petitioner
talked with her about filing other motions including a discussion about the DNA testing and what
it would show. She said that the petitioner asked reasonable questions and never appeared as though
he had any problem understanding. They reviewed the bond hearing report, and the petitioner told
her what was correct. They succeeded in getting his bond lowered from $150,000 to $50,000. She
also said that the petitioner’s mother never indicated that he had any history of mental problems.
The petitioner was able to assist counsel in deciding all the legal procedures, and she never had any
reason to suspect that there was a mental deficiency.

        During re-direct examination, counsel said that the DNA evidence does not prove whether
the sex was rape or consensual, but it does show that they had sex. She said that they attempted to
verify the victim’s story about being on her way home from the gym when the rape occurred, but the
gym was no longer in business. She said that the prosecution did not give her the information
regarding the gym until the trial. The potential witness was unable to testify because he was on
dialysis the day of the hearing.

        Next, the petitioner testified that he was a career criminal but that he had always “copped
out” to everything he did. He was released from the penal farm at approximately seven o’clock p.m.
on the day of the incident after serving “right about two years” and was picked up by his friend
Courtney Harris and Mr. Harris’s mother. The petitioner’s prior convictions included six robberies
and three aggravated burglaries. He said that he had received treatment for depression and behavior
problems at Lakeside and Timber Springs in Bolivar in 1994. He took medicine for his depression,
including Elavil and Benadryl, but is no longer on depression medication. He claimed he told his
trial counsel that he had a history of depression and that he had spent time at Timber Springs. He
said that she told him that was not a proper defense for rape. He testified that counsel advised him
to take the offer of eight years, but he would not plead because he was innocent. He said that
counsel only met with him on two occasions prior to trial. He said that he wanted Mr. Harris and


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his mother to testify because Mr. Harris’s mother was a Christian and they could both verify taking
him home. He said there was no question that he had sex with the victim, but he did not rape her.
He also said that he knew the victim had not been to the gym on the night of the incident. He said
that if counsel had done a better job, she could have proven that he was not guilty.

         On cross-examination, the petitioner testified that he told counsel only one version of the
events. He said that he never raped anyone and that the victim lied. He said that the jury did not
listen to him but convicted him after looking at his record. He acknowledged that the jury did listen
to the victim’s version of events.

       During re-direct examination, the petitioner said that counsel came to him talking about rape.
He denied raping anyone and said he thought she was talking to him about something else. He
admitted that he had sex with the victim but insisted that it was consensual.

          The State did not present any proof during the post-conviction proceeding. In closing
argument, the petitioner claimed that his whole background “screamed” mental illness. He argued
that, had the mental evaluation been conducted, it might have negated the mens rea element for rape.
The State argued that no proof was presented of ineffective assistance of counsel. The State argued
that, in fact, the proof demonstrated that the petitioner received competent counsel and that there was
never any indication that the petitioner did not understand what was going on or what the procedures
were.

                                              Analysis

        On appeal, the petitioner contends that he did not receive effective assistance of counsel
during his trial. Specifically, he avers that counsel was ineffective for failing to move the court to
order a mental evaluation.

        This court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984). The petitioner has the burden to prove that (1) the attorney’s performance was deficient, and
(2) the deficient performance resulted in prejudice to the defendant so as to deprive him of a fair
trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure to prove either deficiency or
prejudice justifies denial of relief; therefore, the court need not address the components in any
particular order or even address both if one is insufficient. Goad, 938 S.W.2d at 370. In order to
establish prejudice, the petitioner must establish a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068.

       The test in Tennessee to determine if counsel provided effective assistance is whether his or
her performance was within the range of competence demanded of attorneys in criminal cases.


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Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficiency, a petitioner must show “that counsel’s acts or omissions were so serious as to fall below
an objective standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d
at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

         In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fact that
a particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical choices applies
only if the choices are informed ones based upon adequate preparation. Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

         On appeal, the petitioner contends that he received ineffective assistance of counsel during
trial because counsel did not have him evaluated for alleged mental illness. He argues that the post-
conviction court should not have relied on counsel’s testimony that she had no indication the
petitioner had any mental illness. He argues that, because counsel testified that she reviewed the
petitioner’s juvenile record prior to trial which indicates that the petitioner was committed to the
Department of Mental Health and Retardation, her failure to investigate his commitment constitutes
ineffective assistance of counsel. He further argues that, had counsel actually investigated his
background, she would have found that further investigation into his mental capacity would have
been warranted. Upon the record, we conclude that trial counsel was not deficient in her
performance and was not obligated to conduct further investigation concerning the petitioner’s
mental capacity.

        The petitioner must prove both prongs of the Strickland test in order to obtain relief. Failure
to prove either prong provides a sufficient basis to deny relief. Goad, 938 S.W.2d at 369. Under
Tennessee Code Annotated section 40-30-11(f), a petitioner who is afforded a post-conviction
evidentiary hearing by the trial court must do more than merely present evidence. He must prove
his allegations by clear and convincing evidence. We also conclude that the petitioner has failed to
establish that he was prejudiced by counsel’s representation. He failed to prove that there was a
reasonable probability sufficient to undermine confidence in the outcome of the case. In fact, he
failed to show that there was anything in the record other than a single notation, “Department of
Mental Health & Mental Retardation,” with no description of what the notation meant or entailed
and with no description of treatment or diagnosis from a treating physician. At the post-conviction
hearing, the petitioner offered no evidence, except his own testimony, that he had been committed
and diagnosed with depression. He offered no witnesses or evidence to support his allegation that
a mental evaluation was warranted or what an evaluation would reveal sufficient to support his
defense. Quite simply, the petitioner offered nothing to support his allegation that counsel’s
representation had prejudiced him.


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                                   Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                              ___________________________________
                                              JOHN EVERETT WILLIAMS, JUDGE




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