         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 1, 2005

                DARRELL ANDERSON v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Madison County
                           No. C-04-203    Roy B. Morgan, Judge



                     No. W2004-01758-CCA-R3-PC - Filed April 27, 2005


On May 14, 2004, the petitioner filed a petition for post-conviction relief to challenge his 2002
Madison County Circuit Court conviction of assault and aggravated assault. See State v. Darrell M.
Anderson, No. W2002-01269-CCA-R3-CD (Tenn. Crim. App., Jackson, May 15, 2003). The post-
conviction court appointed counsel, and after conducting an evidentiary hearing, it rejected the
petitioner’s claims of ineffective assistance of trial counsel and of trial error and denied relief. The
petitioner appealed in a timely manner, but following our review upon the record, we affirm the
order denying post-conviction relief.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and J.C. MCLIN , JJ., joined.

Richard L. Finney, Jackson, Tennessee, for the Appellant, Darrell Anderson.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General; James
G. Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                              OPINION

                This court’s opinion in Darrell M. Anderson summarizes the facts underlying the
petitioner’s convictions:

               On April 5, 2001, Yulanda Hollis resided with the defendant, who
               was her fiancé. After informing the defendant that she planned to see
               a movie at Hollywood Cinema with her cousin, Shamika Anderson,
               she left the residence. When Ms. Anderson could not join her, Ms.
               Hollis went to the movie with the victim, Troy Holloway, who was
               a co-worker. According to the victim, while the two were waiting for
the movie to begin, the defendant entered the theater, at which point
Ms. Hollis remarked, “That’s my boyfriend.” The defendant then left
but returned approximately ten minutes later. The defendant, who
was carrying a tire iron, ran towards the victim. The defendant swung
the tire iron at the victim but missed and the two men began to
scuffle. Ms. Hollis intervened, separated the two men, and the three
left. As Ms. Hollis was driving the victim to his residence, the victim
noticed that the defendant was following in his car. Fearful that the
defendant intended to ram his vehicle into hers, Ms. Hollis pulled into
the parking lot of a shopping center, stepped out of her car, and
walked towards the defendant. The defendant, armed with a “pipe,”
walked past Ms. Hollis towards the victim and threw the pipe, barely
missing the victim’s head. The defendant then returned to his car and
drove away.

....

By the time police arrived, the defendant was no longer at the scene.
Officer Gary Jones, who investigated, drove to the Hollywood
Cinema and found a tire iron located under a seat.

By the time of trial, Ms. Hollis had married the defendant. Called as
a defense witness, she testified that as the defendant approached the
victim inside the movie theater, “[The victim] jumped up and both of
them got into each other.” She stated that she ran to the concession
stand for assistance and that by the time she returned, “There was no
altercation . . . [and the two men] were coming down the stairs.” Ms.
Hollis denied that the defendant had entered the theater more than
once. She claimed that she did not see a weapon in the defendant’s
possession. With regard to the second encounter, Ms. Hollis
confirmed that the defendant had followed her into the shopping
center parking lot but contended that he had approached her vehicle
only to take possession of some personal belongings he had left in her
car. Ms. Hollis acknowledged that the two men exchanged words and
stated that “they were like just chasing each other around the car . . .
[with] no blows or anything.” She recalled that Constable Perry
intervened and the defendant left. Upon cross-examination, Ms.
Hollis acknowledged that she met the victim at the post office and ate
with him at a restaurant before going to the movie theater. She also
acknowledged that the defendant took a “black and long” stick from
beneath her seat during the second altercation. She conceded that the
defendant threw the stick but had missed the victim.



                                  -2-
Darrell M. Anderson, slip op. at 1-2.

                 In the post-conviction evidentiary hearing, the petitioner testified that he spoke with
his retained trial attorney only once; the conference was held about a month prior to trial and lasted
for a period of 30 minutes. He testified that, following trial, counsel did not confer with him again
until the sentencing hearing. He testified that counsel discussed with him neither a theory of defense
nor the evidence that would or could be presented at trial. Specifically, he claimed that his trial
counsel failed to present evidence of self-defense at trial.

               The petitioner testified that trial counsel should have objected to the victim’s
testimony that, when the victim was riding in a car with Ms. Hollis, she said, “He’s gonna hit me.
He’s gonna hit me.”

                On cross-examination, the petitioner denied making a pretrial statement that he
became enraged when he discovered the victim in a movie theater with Ms. Hollis and that he
entered the theater with a tire iron to confront the victim. The petitioner admitted that he went into
the theater with a “tire tool . . . in [his] pants,” but he testified that, rather than arming himself before
entering the theater, he was merely carrying the accouterments of his trade as a “professional auto
detailer.”

                 The petitioner’s trial counsel testified in the evidentiary hearing that she conferred
with the petitioner numerous times prior to his trial. Counsel testified that, prior to trial, she was
aware of the petitioner’s claim that, inside the theater, the male victim accosted the petitioner and
that the petitioner did not remove the tire tool from his pocket; however, the petitioner agreed that
he should not testify at trial because of his prior criminal record and because of the possibility of
impeachment via a prior inconsistent statement. She testified that the trial court conducted a voir
dire of the petitioner and determined that he had made a voluntary, competent decision not to testify.
On cross-examination, she admitted that she requested no jury instruction on self-defense.

                Following the hearing, the post-conviction court ruled that the petitioner had failed
to establish his claims for relief by clear and convincing evidence and dismissed the petition. On
appeal, the petitioner claims that trial counsel was ineffective in failing to object to the introduction
of hearsay evidence and in failing to request a jury instruction on self-defense.
.
                In post-conviction proceedings, the petitioner has the burden of proving by clear and
convincing evidence the claims raised. Tenn. Code Ann. § 40-30-110(f) (2003). On appeal, the
lower court’s findings of fact are reviewed de novo with a presumption of correctness that may only
be overcome if the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). On appeal, the lower court’s findings of fact are reviewed de novo with a
presumption of correctness that may only be overcome if the evidence preponderates against those
findings. Id.




                                                    -3-
               When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel’s services fall below
the range of competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient
representation, the outcome of the proceedings would have been different. Overton v. State, 874
S.W.2d 6, 11 (Tenn. 1994). Courts need not address both Strickland components in any particular
order or even address both if the petitioner fails to meet his burden with respect to one. Henley v.
State, 960 S.W.2d 572, 580 (Tenn. 1997). On review, there is a strong presumption of satisfactory
representation. Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

                In evaluating counsel’s performance, this court should not examine every allegedly
deficient act or omission in isolation, but rather we view the performance in the context of the case
as a whole. State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary concern
of the court should be the fundamental fairness of the proceeding being challenged. Id. Therefore,
this court should not second-guess tactical and strategic decisions of defense counsel. Henley, 960
S.W.2d at 579. Instead, this court must reconstruct the circumstances of counsel’s challenged
conduct and evaluate the conduct from counsel’s perspective at the time. Id.; see also Irick v. State,
973 S.W.2d 643, 652 (Tenn. Crim. App. 1998). A court must

                  “consider the totality of the evidence before the judge or jury. Some
                  of the factual findings will have been unaffected by the errors, and
                  factual findings that were affected will have been affected in different
                  ways. Some errors will have had a pervasive effect on the inferences
                  to be drawn from the evidence, altering the entire evidentiary picture,
                  and some will have had an isolated trivial effect. . . .”

Henley, 960 S.W.2d at 580 (quoting Strickland, 466 U.S. at 696-97, 104 S. Ct. at 2069).

                In the present case, the post-conviction court held that the petitioner failed to establish
his claims of ineffective assistance of counsel by clear and convincing evidence, and on appeal, we
hold that the petitioner has failed to show that the trial court erred in so holding. The record, via trial
counsel’s testimony, supports a finding that counsel was fully informed of the petitioner’s claim of
self-defense, but counsel testified that after advising the petitioner that his testifying would evoke
impeachment via evidence of his prior criminal record1 and of his prior statement,2 the petitioner
made a strategic decision to not testify. The trial court apparently found that the decision was

         1
            Counsel had sought a Tennessee Rule of Evidence 609 determination of the admissibility of prior convictions
for impeachment purposes, and the trial court had ruled that certain convictions would be admissible should the petitioner
testify at trial.

         2
           Counsel testified that the petitioner’s proposed trial testimony would have contradicted his pretrial statement
on the issue of whether the petitioner purposefully carried the tire tool into the theater.

                                                           -4-
voluntary and competent. The strategic decision to keep the petitioner off the witness stand was
made upon due discovery and preparation, and accordingly, it will not be second-guessed by this
court, despite that the decision obviously hampered the petitioner in advancing his claim of self-
defense.

                 Thus, in consequence of this strategic decision to which we defer, we question
whether the evidence at trial fairly raised the self-defense issue.3 See Poe v. State, 212 Tenn. 413,
416, 370 S.W.2d 488, 489 (1963) (holding that a trial court is obligated, without request, to instruct
the jury on the rules of law governing every issue fairly raised by the evidence); State v. McPherson,
882 S.W.2d 365, 374 (Tenn. Crim. App. 1994). In any event, the petitioner failed to demonstrate
in the post-conviction hearing how the absence of self-defense jury instructions prejudiced him in
the outcome of the trial. The evidence at trial, apparently accredited by the jury, showed that the
petitioner used a deadly weapon to assault an apparently unarmed victim.

                 We are also at a loss to determine whether the complained-of hearsay statement as
set forth in the post-conviction hearing was actually hearsay or, if so, whether an exception to the
hearsay rule applied. See Tenn. R. Evid. 801(c) (defining a hearsay statement as an extrajudicial
statement “offered in evidence to prove the truth of the matter asserted”); see generally id. 803
(listing various exceptions to the hearsay rule). Consequently, we see no basis for holding that trial
counsel’s performance in not objecting to the extrajudicial statement was deficient, and at any rate,
the petitioner failed to demonstrate prejudice from the admission of the statement.

                   In the final analysis, we agree with the post-conviction court and affirm the denial of
relief.



                                                                   ___________________________________
                                                                   JAMES CURWOOD WITT, JR., JUDGE




          3
            W e note that the post-conviction record does not contain a full transcript of the trial. From the excerpts of the
trial testimony inserted into the evidentiary hearing by the petitioner and from the summary of the facts presented in
Darrell M. Anderson, we find it difficult to discern a fair raising of the self-defense issue.

                                                             -5-
