            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                       April 10, 2012 Session

                   JEFFERY D. ALLEN V. STATE OF TENNESSEE

                      Appeal from the Circuit Court of Crockett County
                            No. 3704    Clayburn Peeples, Judge


                No. W2011-01666-CCA-R3-PC - Filed September 13, 2012


Jeffery1 D. Allen (“the Petitioner”) filed for post-conviction relief, challenging his
convictions for first degree felony murder, criminally negligent homicide, facilitation of
attempted first degree murder, and attempted especially aggravated robbery. As his bases
for relief, he alleged several grounds of ineffective assistance of counsel at trial. After an
evidentiary hearing, the post-conviction court denied relief, and this appeal followed. On
appeal, the Petitioner asserts that trial counsel (1) failed to call two witnesses to testify at
trial, (2) failed to adequately cross-examine a witness, and (3) failed to move to sever the
Petitioner’s offenses prior to trial. Upon a thorough review of the record, we affirm the
judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Brandon L. Newman and James B. Webb, Trenton, Tennessee, for the appellant, Jeffery D.
Allen.

Robert E. Cooper, Jr., Attorney General & Reporter; J. Ross Dyer, Senior Counsel; Garry
Brown, District Attorney General; Larry Hardister and Hillary Lawler Parham, Assistant
District Attorneys General; for the appellee, State of Tennessee.


        1
          We recognize that the Court, on direct appeal, spelled the Petitioner’s name “Jeffrey,” based on the
spelling written in the indictment. See State v. Jeffrey D. Allen, No. W2008-01348-CCA-R3-CD, 2009 WL
2502000 (Tenn. Crim. App. Aug. 17, 2009), perm. app. denied, (Tenn. Feb. 22, 2010). However, all
documents provided in the post-conviction proceeding have spelled the Petitioner’s name “Jeffery,” including
his signature on his petition for post-conviction relief. Therefore, we will utilize the spelling used in the
post-conviction proceedings.
                                                OPINION

                               Factual and Procedural Background

       A Crockett County jury returned guilty verdicts against the Petitioner for first degree
felony murder, criminally negligent homicide, facilitation of attempted first degree murder,
and attempted especially aggravated robbery. This Court stated the facts underlying the
convictions as follows on direct appeal:

       [O]n January 22, 2003, the [Petitioner] and three others, Chad Bricco, Eugene
       Spivey, and Quantel2 Taylor went to the Crockett County home of fifty-six-
       year-old Leonard Neely and his fifty-five-year-old brother, Lewis,3 with the
       intent to rob and kill them. The victims were known to sell liquor from their
       home and rumored to keep large amounts of cash on hand. The [Petitioner]
       and Spivey, who were armed with a .40 caliber pistol, gained entry to the home
       under the pretense of wanting to buy some liquor, while Taylor and Bricco
       waited outside with a shotgun. Once inside, either the [Petitioner] or Spivey
       began firing the pistol, shooting Leonard multiple times and Lewis twice
       before fleeing the scene with their companions in the defendant’s girlfriend’s
       vehicle. Later that night, Leonard Neely was found dead as a result of his
       wounds inside the residence. Lewis survived the shooting but was unable to
       provide any assistance to investigators due in large part to a series of strokes
       and seizures that predated the shooting, which made it difficult for him to
       communicate.

               The [Petitioner], who was almost immediately developed as a “person
       of interest” based on information supplied by the victims’ neighbors, was
       initially interviewed by police on March 23, 2003. In that interview, the
       defendant denied any involvement in the crimes and claimed that he had been
       babysitting his girlfriend’s children in Ripley on the night of the incident.
       Approximately two years later, investigators received a tip that the murder
       weapon belonged to Ripley Police Officer Debbie Kirkpatrick, who was Chad
       Bricco’s mother. When ballistics testing confirmed the information, Bricco
       gave a statement admitting his involvement in the crimes and implicating the
       [Petitioner], Spivey, and Taylor.




       2
           It is unclear from the record whether the correct spelling is “Quantel” or “Quentell.”
       3
           We note that the victim’s name is spelled “Louis” throughout the trial transcript.

                                                     -2-
               On March 18, 2005, the [Petitioner] was booked into the Crockett
       County Jail on a probation violation warrant. One to two days later, Bricco,
       Spivey, and Taylor were each charged by warrant with first degree murder,
       attempted first degree murder, and especially aggravated robbery. The
       [Petitioner] then gave a second statement in which he continued to deny any
       involvement in the crimes. In the second statement, however, the [Petitioner]
       added the new information that on the night of the murder, Spivey and Bricco
       had borrowed the [Petitioner’s] girlfriend’s vehicle for approximately forty
       minutes. He also said that the next day they offered to sell him a .40 caliber
       pistol. The [Petitioner] explained that his bloody fingerprints might have
       gotten on the weapon because he had touched it while his hand was bleeding
       from a recent cut.

               On April 5, 2005, the Crockett County Grand Jury returned an
       indictment against the [Petitioner] in connection with the instant case, charging
       him with one count of first degree premeditated murder, one count of felony
       murder, one count of attempted first degree murder, and one count of
       especially aggravated robbery. On May 11, 2005, while still in jail and before
       a lawyer had been appointed to represent him, the [Petitioner] initiated a third
       statement in which he admitted that he went to the victims’ residence with the
       intent to rob them. He denied, however, that he had planned to kill the victims
       and claimed that Spivey, not he, was the shooter.

       ....

               The [Petitioner] was tried alone before a Crockett County jury from
       April 2-4, 2008. In addition to his statement of admission, the State presented
       evidence to show, among other things: that the [Petitioner]’s three
       companions had given statements implicating the [Petitioner] in the crimes;
       that the [Petitioner] had told his girlfriend of his plan to rob the victims; that
       the [Petitioner] and his companions had borrowed the girlfriend’s car on the
       day of the robbery and that the [Petitioner]’s blood was found in the
       girlfriend’s car.

State v. Jeffrey D. Allen, No. W2008-01348-CCA-R3-CD, 2009 WL 2502000, at *1-2, 5
(Tenn. Crim. App. Aug. 17, 2009), perm. app. denied, (Tenn. Feb. 22, 2010) (footnotes in
original). The trial court sentenced the Petitioner to a life sentence for his conviction of first
degree felony murder. The court also sentenced the Petitioner to concurrent sentences of
twenty years for facilitation of attempted first degree murder, twenty years for attempted



                                               -3-
especially aggravated robbery, and four years for criminally negligent homicide,4 all of which
the court ordered to be served consecutively to his life sentence. The Petitioner appealed,
and this Court affirmed the convictions but remanded for entry of a corrected judgment to
reflect that the Petitioner received a life sentence for his felony murder conviction. Id. at
*13. The Petitioner subsequently filed the instant petition for post-conviction relief, alleging
ineffective assistance of trial counsel on numerous grounds.

       At the post-conviction hearing, the Petitioner testified that his ineffective assistance
of counsel claim was based in part on trial counsel not calling witnesses that the Petitioner
had requested. Although Lewis Neely testified by videotape deposition at trial, the Petitioner
believed that trial counsel did not make sufficient attempts to procure Neely to testify in
person at trial.

         Trial counsel testified that the defense’s theory at trial was that the Petitioner “was
there when the shooting occurred[] but that due to certain circumstantial reasons . . . he was
not . . . guilty of a first degree murder.” Trial counsel remembered wanting to call Neely in
person as a witness at trial but did not do so. He understood that Neely’s testimony would
be that “somebody other than [the Petitioner] shot [Neely].” From trial counsel’s
recollection, Neely, during a lineup, identified as his shooter someone other than the
Petitioner or the Petitioner’s accomplices. When asked what efforts trial counsel made to
secure Neely in person at trial, trial counsel stated,

        We went to great lengths. We issued – we had several hearings. I can
        remember distinctly having one with General Dorsey that was very
        contentious. We had multiple hearings in this Court in which we sought
        foreign subpoenas and we were successful in that. We hired a Michigan
        lawyer to serve those subpoenas in Michigan and ultimately we were not
        allowed to force Mr. Neely to Tennessee, but we were able to take his
        deposition in Michigan.

       On cross-examination, trial counsel recalled that the video of Neely’s deposition was
played for the jury at trial. In this video, Neely discussed his identification in the lineup.
Trial counsel also agreed that, following the video, Chief Jeff Sills testified regarding
Neely’s identification in the lineup. Furthermore, he acknowledged that Chief Sills
investigated the person whom Neely identified but found that this individual had “an ironclad

        4
          Although the felony murder conviction and the criminally negligent homicide conviction both relate
to the same victim, the record does not indicate that these two convictions were ever merged. That issue is
not before us. Moreover, it would appear at this point that the Petitioner has waived any such claim for post-
conviction purposes. See Sean Earl Jones v. State, No. M2006-00664-CCA-R3-PC, 2007 WL 1174899, at
*5-7 (Tenn. Crim. App. Apr. 20, 2007), perm. app. denied, (Tenn. 2007).

                                                     -4-
alibi.” Regarding trial counsel’s efforts to force Neely to testify, he maintained that there
was not anything else he could have done as an attorney that he did not try. Despite the fact
that Neely did not testify in person at trial, trial counsel believed that the jury clearly
understood that Neely had identified someone other than the Petitioner in a lineup.
Moreover, the Petitioner acknowledged that trial counsel had made clear to the jury that
Neely had identified someone other than the Petitioner as the shooter in a lineup. Neely died
prior to the post-conviction hearing.

        The Petitioner also testified that one of the individuals he requested was Salisa
Woodland. He believed that, had Woodland testified, she would have relayed information
that the Petitioner told her about him not being the shooter. However, he acknowledged that
Woodland was not present at the scene and that the sole information she would give would
be whatever information the Petitioner told her. Trial counsel denied that the Petitioner
asked him to call Salisa Woodland as a witness. He stated that he and the Petitioner
discussed all potential witnesses prior to trial and decided together not to call anyone as a
witness.5 The Petitioner did not call Woodland to testify at the post-conviction hearing.

       Trial counsel also testified that he remembered cross-examining a witness named
Chad Bricco. His goal throughout the cross-examination was to focus on Bricco not being
truthful, and trial counsel believed that he satisfied that goal. When asked about trial
counsel’s examination of Bricco, the Petitioner stated that trial counsel “did a pretty good
job” in his attempt to discredit Bricco. However, the Petitioner believed that trial counsel
should have delved further into the cross-examination. The State entered the transcript of
Bricco’s testimony as evidence at the post-conviction hearing.

        In the trial transcript, Bricco testified that on the night of January 22, 2003, the
Petitioner and two other individuals, Quantel Taylor and Eugene Spivey, came over to
Bricco’s mother’s house to buy cocaine from Bricco. Although he knew Taylor and Spivey
prior to that evening, it was the first time that he met the Petitioner. When Bricco brought
the cocaine out to the car where the three men were sitting, the Petitioner told Bricco their
plan to rob and shoot two bootleggers. Although the men had a shotgun in the vehicle, they
informed Bricco that they needed a handgun. Bricco told them that he could provide them
with a handgun but that he wanted part of the money acquired from the robbery. He then
retrieved the handgun and joined the men as they drove to the Neely residence in Maury
County. According to Bricco, the Petitioner’s plan was to shoot the Neely brothers because
the Petitioner knew them well enough that they would be able to identify him.


        5
          It is clear from trial counsel’s testimony regarding his exhaustive efforts to procure Neely as a
witness that his decision with the Petitioner not to call anyone as a witness excluded their attempts to procure
Neely.

                                                      -5-
       Upon reaching the house, Bricco and Taylor were to stay in the front of the house
while the Petitioner and Spivey approached the door on a side porch. Bricco and Taylor
planned to enter the house through the front shortly after the Petitioner and Spivey initiated
the robbery. However, within seconds of someone answering the door, Bricco heard
gunshots and felt that something had gone wrong, so he and Taylor ran back to the vehicle.

       On cross-examination, Bricco acknowledged that he had been convicted of fourteen
felonies, including thirteen burglary and theft charges. He also stated that he had been a
cocaine dealer for approximately five or six years.

       Trial counsel confronted Bricco with the statement he made to police. Bricco
acknowledged that in his statement he told police that he met with Spivey and the Petitioner
about an hour before the robbery. Further, he told police that it was Spivey and not the
Petitioner who was telling Bricco all the plans and details of the robbery. Bricco also
acknowledged that although he told police that Spivey had the shotgun, at trial he stated that
Spivey did not have the shotgun.

       In his statement to police, Bricco identified both the Petitioner and Spivey as the
shooters. However, Bricco stated at trial that he named both of them because he did not see
who actually fired the handgun. All he knew was that he gave the handgun to the Petitioner
before the Petitioner approached the residence and that the Petitioner gave it back to him
when the Petitioner returned to the car. Bricco stated that he knew Spivey through Spivey’s
brother and through selling Spivey cocaine.

       Trial counsel pressed Bricco about the deal he made with the State. Before this deal
was made, the offer before Bricco was to serve forty years at 100%. However, the State
agreed that, if Bricco testified against the Petitioner at trial, Bricco only would serve twenty
years at 100% for the charged offenses related to the present case.

        Initially, Bricco denied telling anyone about the shooting. However, upon further
questioning, he stated that he vaguely told a friend about the incident and acknowledged
telling police that he told that friend “everything.” Bricco remembered that, before he gave
his statement, the police told him that they were looking to prosecute his mother for the
incident because the gun belonged to her. However, he acknowledged that his mother had
never been prosecuted for the incident.

       At the post-conviction hearing, the Petitioner testified that he also thought trial
counsel should have attempted to sever the charges against him. According to the Petitioner,
the State failed to prove at trial that he committed the robbery. He stated that severing the
charges would have benefitted him “[b]ecause if they wouldn’t have . . . been able to find me


                                              -6-
guilty of aggravated robbery or any kind of robbery, they couldn’t have found me guilty of
. . . felony murder.”

        After consideration of the Petitioner’s claims, the post-conviction court denied relief.
In its written order, the court noted trial counsel’s efforts to procure Neely as a witness at
trial:

       As a result of information provided over the course of various hearings, the
       Court concluded that Louis Neely was physically unable to travel back to
       Tennessee for trial. [Trial counsel] did everything he could to procure the
       personal attendance of Louis Neely, even to the point of requesting that a
       capias be issued for his arrest and that he be physically transported by the
       Sheriff to Crockett County, in company with attending medical personnel if
       necessary, to the Crockett County trial.

Therefore, the post-conviction court held that trial counsel was not deficient and that the
Petitioner also failed to show how he was prejudiced from Neely not testifying in person.

       Regarding trial counsel’s failure to call Salisa Woodland as a witness, the post-
conviction court determined that because she was not present at the scene of the shooting her
testimony chiefly would consist of what the Petitioner and his accomplices told her. The
court also accredited trial counsel’s testimony that the Petitioner never requested that
Woodland be called and found the Petitioner’s credibility lacking. Furthermore, the post-
conviction court found that the Petitioner failed to establish any prejudice suffered as a result
of not calling Woodland as a witness.

       The trial court also addressed trial counsel’s examination of Bricco, stating,

               The conclusion that the jury was impressed by [trial counsel’s] efforts
       to impeach Bricco’s credibility is almost inescapable. Upon the original count
       of premeditated first degree murder, the jury only found the petitioner guilty
       of the lesser offense of criminally negligent homicide. If they had accepted
       Bricco’s testimony[,] logic would have compelled a verdict of guilty of
       premeditated murder. Although the petitioner insisted that [trial counsel]
       should have “gone further,” he did not indicate any specific item or matter
       which could or should have been developed and failed to show that the result
       of the trial would have been different if [trial counsel] had “gone further.” . . .
       The decisions made by [trial counsel] were reasonable under the circumstances
       and will not be subjected to a process of “second-guessing” within the context
       of a post-conviction proceeding.


                                               -7-
        Finally, regarding the severance of the charges, the post-conviction court stated,

        It seems that the petitioner felt that he would have received some benefit by
        having the especially aggravated robbery charge tried separately from the
        murder and attempted murder charges. Petitioner did not explain any reason
        or grounds which would have supported a motion for severance. It appears to
        the court that evidence regarding the alleged robbery would have been
        admissible in any trial of only the murder and attempted murder charges. . .
        Conversely, evidence of the killing of Leonard Neely and the wounding of
        Louis Neely would have been relevant in any trial of only the especially
        aggravated robbery charge in order to show the injuries received by the victims
        and that the robbery was “especially aggravated.”

 Thus, the post-conviction court found that the Petitioner’s complaint as to the severance of
charges lacked merit, and the court denied post-conviction relief. The Petitioner timely
appealed,6 asserting that trial counsel was ineffective in 1) failing to call Woodland as a
witness and failing to call Neely to testify in person, 2) failing to adequately cross-examine
Bricco, and 3) failing to move to sever the Petitioner’s offenses.

                                               Analysis

                                         Standard of Review

        Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “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.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn “a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise.” Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of


        6
          The Petitioner filed a pro se notice of appeal on August 1, 2011. However, the post-conviction
court issued its written order on August 18, 2011. Because the Petitioner prematurely filed his notice of
appeal, we will treat his notice of appeal as having been timely filed. See Tenn. R. App. P. 4(d).

                                                  -8-
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                                Ineffective Assistance of Counsel

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.7 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984) (citation omitted); see also Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). The deprivation of effective assistance of counsel at trial
presents a claim cognizable under Tennessee’s Post-Conviction Procedure Act. See Tenn.
Code Ann. § 40-30-103; Pylant, 263 S.W.3d at 868.

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our Supreme Court has explained:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.




       7
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                 -9-
Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“That is, the petitioner must establish that his counsel’s deficient performance was of such
a degree that it deprived him of a fair trial and called into question the reliability of the
outcome.” Pylant, 263 S.W.3d at 869 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies the
second prong of Strickland.” Id.

                          Trial Counsel’s Failure to Call Witnesses

        The Petitioner’s first contention is that trial counsel was deficient in not calling Neely
to testify in person at trial. The trial court found that trial counsel’s actions were clearly not
deficient, and we agree. First, Neely did testify at trial by videotape deposition.
Furthermore, trial counsel testified that he wanted to call Neely as a witness and that he did
everything possible to ensure that Neely would testify in person. However, despite trial
counsel’s exhaustive efforts, including numerous hearings and the execution of several
subpoenas, he was not permitted to force Neely’s appearance at trial. Thus, we clearly do
not consider trial counsel’s actions in this regard to be deficient.

      Moreover, the main reason the Petitioner wanted Neely to testify in person was
because Neely identified someone other than the Petitioner in a photographic lineup.
However, both the Petitioner and trial counsel testified that this fact was made abundantly



                                              -10-
clear to the jury, in part by the videotape testimony of Neely himself. Therefore, the
Petitioner’s argument on this issue is without merit.

        The Petitioner also claims that trial counsel was deficient by failing to call Woodland
as a witness at trial. At the post-conviction hearing, trial counsel testified that the Petitioner
never specifically requested that trial counsel call Woodland to testify. Trial counsel stated
that he spent time with the Petitioner prior to trial discussing all the potential witnesses and
that they agreed that trial counsel would not call anyone as a witness at trial. Although the
Petitioner claimed that he specifically requested that trial counsel call Woodland as a witness,
the post-conviction court accredited trial counsel’s testimony and found the Petitioner’s
testimony lacking credibility in this regard. Thus, we defer to the post-conviction court’s
findings. Momon, 18 S.W.3d at 156. Furthermore, the Petitioner fails to establish this claim
because he failed to call Woodland to testify at the post-conviction hearing. See Wiley v.
State, 183 S.W.3d 317, 333 (Tenn. 2006) (holding that the petitioner failed to prove that
counsel’s performance was deficient or prejudicial in failing to interview certain individuals
because the petitioner did not call those individuals to testify at the post-conviction hearing).
Accordingly, we hold that trial counsel was not deficient with respect to not calling
Woodland as a witness. Therefore, the Petitioner is entitled to no relief on this issue.

                        Trial Counsel’s Cross-Examination of Bricco

        The Petitioner also claims that trial counsel was deficient in his cross-examination of
Bricco. Although the Petitioner testified at the post-conviction hearing that trial counsel “did
a pretty good job,” he believed that trial counsel should have gone further in his cross-
examination. Yet, the Petitioner fails to specify how trial counsel could have “gone further”
in his cross-examination.

        Regarding trial counsel’s cross-examination of Bricco, the post-conviction court
stated, “The conclusion that the jury was impressed by [trial counsel’s] efforts to impeach
Bricco’s credibility is almost inescapable.” Furthermore, the post-conviction court found that
trial counsel adequately attacked Bricco’s testimony, as evidenced by the fact that the jury
convicted the Petitioner of criminally negligent homicide rather than premeditated murder.
The State admitted into evidence the transcript of Bricco’s trial testimony. The transcript
clearly contains many effective attacks that trial counsel made on Bricco’s credibility,
including several instances in which trial counsel highlighted the differences between
Bricco’s statement to police and his trial testimony. The Petitioner has failed to specify what
else trial counsel could or should have elicited from Bricco on cross-examination.
Accordingly, the Petitioner has failed to establish deficient performance on the part of trial
counsel.



                                              -11-
       The post-conviction court also found that, although the Petitioner claimed that trial
counsel should have “gone further,” the Petitioner “failed to show that the result of the trial
would have been different if [trial counsel] had ‘gone further.’” Thus, we also hold that the
Petitioner has failed to establish that he suffered any prejudice. Therefore, he is entitled to
no relief on the basis of this claim.

                          Trial Counsel’s Failure to Sever Charges

       Finally, the Petitioner asserts that trial counsel should have attempted to sever his
charges before proceeding to trial. The Petitioner contends that the State did not produce
sufficient proof regarding the robbery and, had trial counsel severed the offenses, the jury
would not have had enough evidence to convict the Petitioner of first degree felony murder.

        Looking first to the prejudice prong, even if trial counsel was deficient, the Petitioner
must show by clear and convincing evidence that he suffered prejudice. We agree with the
trial court that, even if the offenses had been severed, evidence of the robbery would have
been admissible to prove the underlying felony necessary to convict the Petitioner of felony
murder. See Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 2002). In much the same way,
evidence of shooting the victim and the victim’s resulting death would have been admissible
for the State to prove that the robbery was especially aggravated. See Tenn. Code Ann. § 39-
13-403 (1997). Thus, even without addressing the deficiency prong, the Petitioner has failed
to show by clear and convincing evidence that he suffered any prejudice. Accordingly, he
is not entitled to any relief on this issue.

                                          Conclusion

       For the foregoing reasons, the Petitioner has failed to establish that he is entitled to
post-conviction relief. Therefore, we affirm the judgment of the post-conviction court.


                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE




                                              -12-
