        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 16, 2014

           WILLIAM LANCE WALKER v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Marshall County
                     No. 2013-CR-146       Robert Crigler, Judge




               No. M2014-01305-CCA-R3-PC - Filed December 17, 2014


A Marshall County jury convicted the Petitioner, William Lance Walker, of the sale of .5
grams or more of cocaine and the delivery of .5 grams or more of cocaine. The Petitioner
appealed, and this Court affirmed the judgments of the trial court. State v. William Lance
Walker, No. M2012-01319-CCA-R3-CD, 2013 WL 1799988, at *6 (Tenn. Crim. App., at
Nashville, April 29, 2013), no Tenn. R. App. P. 11 filed. The Petitioner subsequently filed
a petition for post-conviction relief in which he alleged that his trial counsel was ineffective
on multiple grounds. The post-conviction court dismissed the petition after a hearing. After
a thorough review of the record and applicable law, we affirm the post-conviction court’s
judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and J OHN E VERETT W ILLIAMS, J., joined.

James Ronald Tucker, Jr., Shelbyville, Tennessee, for the appellant, William Lance Walker.

Herbert H. Slatery, III, Attorney General and Reporter; Meredith Devault, Senior Counsel;
Robert Carter, District Attorney General; Weakley E. Barnard, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION
                                           I. Facts
                                           A. Trial



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       This case arises from the Defendant’s sale of cocaine to a confidential informant in
a Walmart parking lot in Lewisburg, Tennessee. On direct appeal, this Court summarized
the underlying facts of the case as follows:

              Kristoffer Peacock, the confidential informant, testified for the State.
       According to Mr. Peacock, after he was caught with several ounces of
       marijuana at his home, he became a “cooperating individual” for the 17th
       Judicial Drug Task Force at some point prior to the transaction involving [the
       Petitioner]. Mr. Peacock had never met [the Petitioner] prior to November 14,
       2008, but knew about [the Petitioner] through [the Petitioner’s] ex-girlfriend.

               On the date of the incident, Mr. Peacock called [the Petitioner] and
       asked for an “eight ball” of cocaine. [The Petitioner] quoted a price of “$220
       or 225, something like that.” At the request of authorities, Mr. Peacock
       initiated contact with [the Petitioner] a second time to confirm the deal and try
       to negotiate the price. This telephone call was recorded and played for the
       jury.

              Mr. Peacock was searched by authorities, fitted with a transmitter and
       recorder, and given $225 in preparation for the controlled drug buy. [The
       Petitioner] met Mr. Peacock in the parking lot of the Walmart in Lewisburg,
       Tennessee. [The Petitioner] got into the car with Mr. Peacock and handed him
       an “eight ball” of cocaine in a small bag which was tied in a knot. Mr.
       Peacock gave [the Petitioner] $225. Mr. Peacock left the location of the buy
       and drove back to the meeting point. He informed officers that the cocaine
       was located in the cup holder of his car. It was retrieved by police and tested
       positively for 3.3 grams of cocaine.

               During cross-examination, Mr. Peacock testified that he owned a
       janitorial business. Prior to the incident at issue herein, [the Petitioner] had
       asked Mr. Peacock for a job. Mr. Peacock admitted that he was “going to
       potentially give [the Petitioner] a job.” Counsel for [the Petitioner] asked if
       the “Drug Task Force [knew he] was going to potentially give [the Petitioner]
       a job.” Mr. Peacock answered, “When [the Petitioner] got out of jail, he never
       called me.”

              Special Agent Billy Osterman, the “tech man” on the 17th Judicial Drug
       Task Force for the controlled buy at issue herein was responsible for
       preserving the evidence of the telephone call prior to the transaction and
       supplying Mr. Peacock with the money for the transaction. Special Agent

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       Osterman also fitted Mr. Peacock with the transmitter and recorder to monitor
       the transaction. Special Agent Osterman monitored Mr. Peacock’s audio
       transmission throughout the transaction and was in visual contact with Mr.
       Peacock until he approached the Walmart parking lot. At that point in time,
       another agent, Special Agent Shane George, actually picked up visual contact
       of Mr. Peacock and witnessed the transaction with [the Petitioner]. The
       purchase was videotaped by Special Agent George. Deputy Sheriff Tim Miller
       of the Bedford County Sheriff’s Department also maintained visual contact
       with Mr. Peacock during the transaction.

Walker, 2013 WL 1799988, at *1-2. The jury convicted the Petitioner of the sale of .5 grams
or more of cocaine and the delivery of .5 grams or more of cocaine. The trial court merged
the two offenses and sentenced the Petitioner to twelve years in incarceration, to be served
consecutively with his sentence in another case, for a total effective sentence of forty-seven
years of confinement. Walker, 2013 WL 1799988, at *2. The Petitioner filed a motion for
new trial, and, at a hearing on the motion, the trial court modified the sentence and imposed
an effective sentence of thirty-six years. Id. at *2.

                                     B. Post-Conviction Hearing

       The Petitioner filed a petition for post-conviction relief, claiming that he had received
the ineffective assistance of counsel on multiple grounds, including that his trial counsel,
(“Counsel”), failed to raise objections to the State’s line of questioning, which he contends
was leading, elicited speculative testimony, and was without proper foundation.1 The post-
conviction court held an evidentiary hearing, where the parties presented the following
evidence:

        The Petitioner testified that he was incarcerated at the time of the hearing for parole
violations related to felony drug convictions. He stated that he was represented by Counsel
at one of his two jury trials on those drug charges. He testified that the trial court originally
imposed a twelve-year sentence to be served consecutively to a sentence in another case but
that the trial court modified the sentence at the motion for new trial hearing and imposed a
twenty-year sentence to be served concurrently to the sentence in the other case.

        The Petitioner stated that in his petition for post-conviction relief he was raising the
issue of ineffective assistance of counsel because Counsel “didn’t meet the standards on
representing [the Petitioner] and providing [him] with an adequate defense.” The Petitioner
said that the State asked witnesses leading questions, for which Counsel raised no objection.

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           The Petitioner’s additional allegations are not being maintained on appeal.

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The Petitioner recalled that a State’s witness testified to the Petitioner’s criminal history and
that Counsel failed to request a curative instruction be given to the jury. The Petitioner also
stated that some of the witnesses’ testimony was “guess work” and that Counsel failed to
object to that speculative testimony. The Petitioner testified that there were no objections
throughout his trial and that “none of the State’s evidence was ever put [] under attack or
challenged” by Counsel.

        The Petitioner testified that he felt that the confidential informant was not a reliable
witness and had induced the Petitioner to commit the crime, but Counsel failed to bring that
up in front of the jury. The Petitioner recalled that the presentence report introduced at the
sentencing hearing was incomplete according to the person who prepared it and that Counsel
failed to object to the presentence report being introduced into evidence.

         On cross-examination, the Petitioner testified that the State asked leading questions
of all the police officers who testified. The Petitioner stated that the prosecutor “testified for
[the witnesses].” The Petitioner stated the confidential informant testified about the
Petitioner being in jail, which the Petitioner said prejudiced him, and then Counsel failed to
ask the trial court for a curative instruction. The Petitioner agreed that he asked Counsel to
move for a mistrial, which Counsel did, and the trial court denied the motion.

       The Petitioner recalled that the trial court might have offered to give a curative
instruction for the comment about the Petitioner having been in jail. The Petitioner testified
that he thought Counsel declined to have the instruction given to the jury but that he could
not say for certain. The Petitioner testified that he asked Counsel to file a motion to recuse,
because the trial judge had presided over the Petitioner’s other criminal matters. The
Petitioner reiterated that Counsel failed to object to the presentence report after the witness
who testified about it said she had not spoken with the Petitioner and that the report was
inaccurate.

        Counsel testified that he was an Assistant Public Defender for six and a half years and
that he represented the Petitioner at trial. At that time, Counsel had worked on approximately
thirty trials. Counsel agreed that the Petitioner asked him to file a motion to recuse, but
Counsel stated that he “had no grounds to request recusal.” Counsel stated that he reviewed
the case for potential grounds for recusal but found none.

       Counsel was shown the trial transcript and agreed that several of the State’s questions
could “possibly be [] leading,” but he said that the questions were “clarifying” a prior
question. Counsel stated that some of the leading questions were “procedural” and “did not
have any bearing on the facts of the case.” Counsel stated that he did not object to those
questions because he was “concerned” that “the jury would get irritated that [he] was

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dragging out the trial on a point of just procedures.”

       Counsel testified that he did not object when the State questioned the confidential
informant about his drug transactions with the Petitioner because it was part of his strategy
to show the jury that the confidential informant was a drug dealer himself. Counsel wanted
to show the jury that the confidential informant had pressured the Petitioner into purchasing
crack cocaine from him. Counsel testified that he did not recall any specific testimony that
was speculative. Counsel reiterated that he did not object to some of the State’s leading
questions about Drug Task Force investigation procedures because “the jury may not [] like
defense counsel jumping up and objecting to leading questions over and over, when [the
question is] just the Drug Task Force saying, we place the drugs into a bag and tape it.”

       Counsel stated that the mention of the Petitioner’s past drug use came out through a
recording played for the jury about the Petitioner purchasing marijuana from the confidential
informant. Counsel reiterated that this was part of his strategy to show the jury that the
confidential informant was the drug dealer and the Petitioner “was just helping him out. . .
.” Counsel recalled that he discussed this strategy with the Petitioner, who did not object to
it. Counsel stated that to shed light on the confidential informant’s lack of credibility, he
asked the confidential informant about “working off” his crimes in exchange for his
testimony against the Petitioner and used the same in his closing argument to highlight the
confidential informant’s involvement.

       Counsel stated that he brought up the issue of the confidential informant being the
Petitioner’s potential employer, after the Petitioner “got out of jail[,]” in order to establish
an entrapment defense. As such, Counsel did not request a curative instruction on the
comment about the Petitioner being in jail because he wanted the evidence that the
confidential informant was “able to hold a job over [the Petitioner’s] head” to be introduced
in support of the defense theory that the Petitioner was pressured into committing the crime.
Counsel also decided that the jury could easily have assumed that the Petitioner’s
incarceration was in connection with his current charges and not his prior convictions.
Counsel was “concerned” that, if he asked for a curative instruction on the comment about
the Petitioner being in jail, then it would “suggest heavier weight” or make the comment
stand out in the jurors’ minds. Counsel said:

              I mean, of course, [the jury] could think that [the Petitioner] was in jail
       for something else. However, there is an effect that if you tell somebody not
       to think about something, that’s what pops in their mind. . . . . So, I did not
       want to have the judge go back and tell the jury.

              Because at the time when [the confidential informant] made that

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       statement, I tried to keep going in order to try and minimize it and just move
       on – and keep him back on the questions. So, I did not want to come back 20
       minutes later and have [] the judge tell the jury, this prior statement was
       prejudicial, so you don’t need to think about it.

             And then, therefore, they walk back into the jury room thinking, well,
       why – why would he tell us not to think about that jail? There must be
       something really bad in his past.

       Counsel stated that the Petitioner’s trial lasted one day, and that at the conclusion
Counsel felt that he had done everything he could. He recalled thinking that the State had
a strong case and he felt that the Petitioner would be convicted.

       On cross-examination, Counsel agreed that the State asked leading questions, but that
he did not want to stop the line of questioning because it was leading directly to what
Counsel wanted to show the jury about the confidential informant being a drug dealer and
working the Petitioner’s case so he could get a plea deal. Counsel stated that objecting to
questions about Drug Task Force procedure would have been a waste of time, because those
facts would have been testified to anyway, and thus, objecting to them would not have
benefitted the Petitioner’s case. Counsel agreed that he requested a mistrial based on the
confidential informant’s comment about the Petitioner having been in jail, but did not want
a curative instruction given to the jury because it would not have been helpful to the
Petitioner’s case. Counsel agreed that not requesting the curative instruction was a “tactical
decision” and that the Petitioner understood the decision. Counsel stated that the Petitioner
later disagreed with the decision after being convicted. As for the presentence report,
Counsel did not recall any testimony about inaccuracies.

       On redirect-examination, Counsel stated that, even had he objected to the confidential
informant’s comment about the Petitioner having been in jail, the outcome of the trial would
not have been different.

         Based upon this testimony, the post-conviction court found that the Petitioner had not
met his burden of showing prejudice or deficient performance by Counsel. The post-
conviction court accredited Counsel’s testimony as to the reasons he chose not to object to
the State’s leading questions and found that the same was “sound trial practice[.]” The post-
conviction court further noted that objecting to leading questions that “don’t hurt you” could
“alien[ate] a jury.” The post-conviction court found that the leading questions asked had not
affected the outcome of the trial. On the subject of the comment about the Petitioner being
in jail, the post-conviction court found that Counsel was not ineffective because he moved
for a mistrial on that basis, and that his failure to request a curative instruction was a “sound

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tactical decision,” which did not provide a basis for post-conviction relief. The post-
conviction court noted that not requesting a curative instruction was “common” practice
where an attorney felt that the instruction would draw more attention to the damaging
information.

       The post-conviction court went on to find that there was no legal basis for recusal in
this case, and, thus, such a motion would have been frivolous and Counsel was not
ineffective for failing to file a motion for the same. Finally, the post-conviction court found
that Counsel had raised the entrapment defense. For these reasons, the post-conviction court
denied the petition. It is from this judgment that the Petitioner now appeals.

                                         II. Analysis

        On appeal, the Petitioner contends that Counsel’s failure to object to the State’s
leading questions resulted in the Petitioner receiving the ineffective assistance of counsel.
The Petitioner states that Counsel’s testimony at the post-conviction hearing supports his
assertion that the State asked leading questions and Counsel did not object. This, the
Petitioner contends, resulted in a failure “to subject the State’s case to ‘the crucible of
meaningful adversarial testing.’” The State responds that the Petitioner has failed to show
that he received deficient legal representation or was prejudiced in any way by Counsel’s
decisions regarding objections. The State further responds that the Petitioner has failed to
show that the outcome of his trial would have been different had Counsel made different
tactical decisions. We agree with the State.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and
weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless
we conclude that the evidence contained in the record preponderates against the judgment
entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,
this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony and the factual
issues raised by the evidence are to be resolved by the trial court judge, not the appellate
courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to
a purely de novo review by this Court, with no presumption of correctness. Fields v. State,
40 S.W.3d 450, 457 (Tenn. 2001).



                                              7
       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

               First, the [petitioner] must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the [petitioner] by the
       Sixth Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.

       Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d
793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective
assistance of counsel, ‘we address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United

                                                8
States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “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.”
House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

        In its order denying the Petitioner relief on this issue, the post-conviction court
credited Counsel’s testimony about his trial strategy and decisions. The post-conviction court
found that Counsel made strategic and tactical decisions not to object to the State’s questions
regarding the procedure followed by the Drug Task Force and that this was common trial
practice to prevent alienating the jury. The post-conviction court further found that failing
to object to the questions did not prejudice the Petitioner. The post-conviction court noted
that the State’s questions to the confidential informant damaged the informant’s credibility,
and, thus, Counsel had no reason to object, as attacking a confidential informant’s credibility
is also common trial practice. Throughout its order the post-conviction court noted that
Counsel made tactical decisions when he did not object to the State’s questions for a variety
of reasons including: Counsel did not want to irritate the jury; Counsel did not want to draw
the jury’s attention to negative facts that hurt the Petitioner; and Counsel wanted the jury to
hear certain facts elicited by the State’s questions.

        We conclude that the evidence does not preponderate against the post-conviction
court’s findings. Counsel was not deficient in his representation of the Petitioner when he
did not object to certain leading questions, as he testified that it was a matter of strategy to
limit the jury’s irritation and expose any issue of credibility for the State’s witness. Many
of the State’s leading questions were about the procedures used by the drug task force
investigators and Counsel stated that, had he raised an objection to the leading nature of the
questions, the facts would have come into evidence another way. Thus, as a matter of
strategy, it was Counsel’s decision not to object and slow down the testimony, as such might
have irritated the jury. Counsel’s decision not to object to the State’s questioning of the
confidential informant was a two-fold strategy: Counsel did not want to draw the jury’s

                                               9
attention in a negative way to the fact that the Petitioner had been in jail, and Counsel wanted
to shed negative light on the confidential informant by allowing testimony that he was a drug
dealer. Counsel’s strategy was to maximize the informant’s role as a drug dealer and attempt
to portray the Petitioner’s role as secondary. It is well-settled that the fact that a particular
strategy failed or even hurt the defense does not alone support a claim of ineffective
assistance of counsel. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). We
conclude that his strategy not to object at certain points during testimony was not indicative
of deficient performance but of a multi-pronged defense strategy for the Petitioner’s trial.

        Counsel further testified that he filed a motion for mistrial based on the confidential
informant’s comment about the Petitioner being in jail, and that motion was denied. It was
again part of Counsel’s strategy not to draw the jury’s attention to that comment in a negative
way, and Counsel testified that he did not request a curative instruction for that comment as
a result. We reiterate that matters of trial strategy or tactical decisions do not provide the
basis for allegations of ineffective assistance of counsel in post-conviction petitions. Taylor
v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991).

        The Petitioner has not shown by clear and convincing evidence that Counsel’s failure
to object to the State’s questions of witnesses at trial constituted representation that falls
below the standard of reasonableness. Accordingly, we do not conclude that Counsel’s
representation fell below an objective standard of reasonableness. Thus, the Petitioner is not
entitled to relief.

                                       III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied relief. Accordingly, we affirm the judgment of the
post-conviction court.




                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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