        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned On Briefs August 14, 2012

                DORIS NELL JONES v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Lawrence County
                            No. 29418 Robert L. Jones, Judge



                   No. M2011-02343-CCA-R3-PC - Filed March 8, 2013


Petitioner, Doris Nell Jones, was convicted of second degree murder and sentenced to
eighteen years in incarceration. On direct appeal, this Court dismissed the appeal for lack
of jurisdiction based on an untimely notice of appeal and the absence of a motion for new
trial in the record. State v. Doris Nell Jones, No. M2007-00791-CCA-R3-CD, 2008 WL
544576, at *1 (Tenn. Crim. App., at Nashville, Feb. 27, 2008), perm. app. granted, (Tenn.
June 1, 2009). The supreme court remanded the case for reconsideration in light of its
opinion in State v. Byington, 284 S.W.3d 220 (Tenn. 2009). On remand, this Court affirmed
the conviction and sentence. State v. Doris Nell Jones, No. M2009-01102-CCA-RM-CD,
2009 WL 2633026, at *1 (Tenn. Crim. App., at Nashville, Aug. 26, 2009) (not for citation),
perm. app. denied, (Tenn. Feb. 22, 2010). Petitioner subsequently sought post-conviction
relief. After a hearing, the post-conviction court denied relief. Petitioner appeals, arguing
that the post-conviction court improperly denied relief. After a review of the record, we
affirm the post-conviction court’s denial of post-conviction relief because Petitioner has
failed to show by clear and convincing evidence that she is entitled to post-conviction relief.
Accordingly, the judgment of the post-conviction court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
C AMILLE R. M CM ULLEN, JJ., joined.

Shara A. Flacy, Ardmore, Tennessee, for the appellant, Doris Nell Jones.

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

                                          I. FACTS

        The factual basis of Petitioner’s underlying second degree murder conviction was
summarized by this Court on remand from the direct appeal. Doris Nell Jones, 2009 WL
2633026, at *2. Essentially, on October 24, 2000, Petitioner’s brother, Eddie Staggs, was
involved in a fight with a man in Bradley County. Id. Mr. Staggs significantly injured the
other person in the fight and was urged to talk to police about the incident. Id. Mr. Staggs
threatened suicide to friends and family and was urged to speak to his pastor. A group of
people went with Mr. Staggs to the pastor’s house where they learned that the man injured
in the fight was being treated at the hospital and might die. Id. Mr. Staggs walked outside
and fatally shot himself. That night, Petitioner’s live-in lover, the victim, showed up where
mourners were gathered at Petitioner’s mother’s house. According to several accounts, the
victim made disparaging remarks about Petitioner’s brother. The Court explained:

               During the confrontation between [the victim] and the others . . . ,
       [Petitioner] was seen waving a gun in the air. Some of the gathered mourners
       led [Petitioner] into a bedroom away from the melee, but after [the victim] was
       forced outside the house, [Petitioner] left the house. The testifying witnesses
       said that [Petitioner] then fired between one and seven shots into the air. [The
       victim], who was in a nearby parking lot walking toward his car, had his back
       turned . . . when [Petitioner] fired into the air, but he turned around once he
       heard the shots. Patricia Kephart, testifying for the State, said that once [the
       victim] turned around, [Petitioner] said, “I’m going to shoot you, . . . .” The
       victim placed his hands in the air and said, “[G]o ahead and shoot me.” Other
       witnesses described a similar confrontation. [Petitioner] then fired between
       one and four shots at [the victim], with one bullet hitting him in the stomach.
       Charles Harlan, who at the time of trial was a licensed physician, performed
       the victim’s autopsy. Harlan testified that the bullet severed an artery, causing
       the victim to bleed to death.

Doris Nell Jones, 2009 WL 2633206, at *2-3. Petitioner was indicted on one count of
premeditated first degree murder but ultimately was convicted of the lesser included offense
of second degree murder. The trial court sentenced Petitioner to eighteen years in
incarceration.

       Petitioner’s first appeal was dismissed by this Court for failure to contain a motion for
new trial or an order denying a motion for new trial. Doris Nell Jones, 2008 WL 544576, at
*2. The supreme court granted permission to appeal and reversed and remanded the case for

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reconsideration in light of the court’s opinion in State v. Byington, 284 S.W.3d 220 (Tenn.
2009).

       On remand, this Court determined that the trial court erred in admitting testimony by
Petitioner’s mother regarding a telephone conversation between Petitioner and the victim,
but that the error was harmless. Doris Nell Jones, 2009 WL 26933026, at *1. Additionally,
this Court determined that Petitioner’s other arguments were waived for failure to include
them in the motion for new trial and that the issues did not merit plain error review. Id.

        Subsequently, Petitioner sought post-conviction relief by filing a pro se petition. In
the petition, Petitioner claimed that she received ineffective assistance of counsel. An
amended petition was subsequently filed. In the amended petition, Petitioner listed several
areas in which counsel was allegedly ineffective, including: (1) failing to discuss Petitioner’s
mental evaluation at trial; (2) failure to call attention to a sleeping juror at trial; (3) failure
to argue self-defense at trial; and (4) failure to explain the change in the indictment to
Petitioner. Counsel was appointed, and a hearing was held on the petition.

        At the hearing, Petitioner testified that she had a mental evaluation prior to trial but
was not shown the report prior to making her decision about whether to testify at trial. In
fact, Petitioner claimed that counsel did not discuss the results of the evaluation with her
prior to trial. Petitioner claimed that had she seen the report prior to trial she would have
decided to testify at trial. The report was made an exhibit at the hearing on the post-
conviction petition. In the report, there were conclusions made about Petitioner’s mental
state at the time of the incident. Specifically, the report stated that there was no evidence that
Petitioner was “psychotic” at the time of the offense and no evidence that suggested “she did
not appreciate the wrongfulness of her actions.” Additionally, the report noted that there
were no past medical records that documented a history of “psychotic statements or
behaviors.” Petitioner testified that the report’s introduction at trial would have bolstered any
testimony she might have given about self-defense or heat of passion.

      Petitioner also complained about trial counsel’s failure to complain about a juror that
was supposedly asleep during trial. Further, Petitioner felt that the evidence suggested self-
defense and complained that trial counsel failed to argue this at trial.

        Trial counsel, on the other hand, testified that he reviewed the forensic evaluation
prior to trial and discussed the results with Petitioner. Specifically, trial counsel recalled
discussing the report with the doctor who performed the evaluation. The doctor told trial
counsel that “he could not take the stand and say it’s heat of passion because that’s not in his
realm, that’s in the realm of the jury.” Trial counsel noted that the evaluation would not have
been admissible at trial without the testimony of the doctor.

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       Trial counsel recalled that he prepared Petitioner to testify at trial in order to help
argue voluntary manslaughter was the appropriate charge. Counsel thought Petitioner’s
testimony would be helpful, but Petitioner declined to testify despite trial counsel’s advice.

       Trial counsel denied Petitioner’s allegation that he had informed her self-defense was
not available in Tennessee. However, trial counsel admitted that he assessed the case and
had determined that self-defense was not warranted under the facts of the case.

       Trial counsel remembered seeing one of the jurors nodding off during the State’s case.
Trial counsel made the decision not to call attention to the juror.

       At the conclusion of the hearing, the post-conviction court took the matter under
advisement. In an order, the post-conviction court noted that while the actual medical report
was not introduced at trial, the substance of the report was introduced through testimony of
other witnesses for the defense. The post-conviction court further determined that the juror’s
inattention did not prejudice Petitioner’s case because it “was not in the best interest of the
Petitioner to make sure that jurors heard and understood the State’s theory of the case.” The
post-conviction court accredited trial counsel’s testimony with regard to the level of
communication with Petitioner about the availability of defenses. Consequently, the post-
conviction court denied relief.

       Petitioner appeals.

                                           Analysis

                             Post-Conviction 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 issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction 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, 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).




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                               Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis 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 (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 v. State,
960 S.W.2d 572, 580 (Tenn. 1997).

       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 v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
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 record supports the conclusions of the post-conviction court. Petitioner argues
that trial counsel was ineffective for failing to discuss the mental evaluation with her prior
to trial and for failing to introduce the report at trial. However, trial counsel testified that he
discussed the evaluation with Petitioner. Further, trial counsel noted that the doctor who
performed the evaluation was unwilling to testify that Petitioner was mentally compromised
at the time of the incident so trial counsel did not wish to introduce the evaluation at trial.
The post-conviction court accredited the testimony of trial counsel. The post-conviction
court’s credibility determinations are entitled to great weight on appeal. Further, we cannot



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second guess a reasonably-based trial strategy made after preparation of trial counsel. See
Adkins, 911 S.W.2d at 347. Petitioner is not entitled to relief on this issue.

       Petitioner insists that trial counsel failed to address the sleeping juror at trial. Trial
counsel recalled the sleeping juror and determined that the juror’s sleeping occurred during
the State’s case-in-chief and counsel made the strategic decision not to bring the juror to the
court’s attention. The post-conviction court specifically accredited the testimony of trial
counsel at the post-conviction hearing. As noted, this was a strategic decision made by trial
counsel after considering the possible alternatives. Petitioner is not entitled to relief on this
issue.

       Finally, Petitioner claims that trial counsel informed her that self-defense was not a
viable defense in Tennessee. Trial counsel testified that he never would have advised
Petitioner that this was the case. Rather counsel was of the opinion that the facts surrounding
the shooting did not substantiate a claim of self-defense. Again, the post-conviction court
accredited the testimony of trial counsel. Petitioner is not entitled to relief on this issue.

                                          Conclusion

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


                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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