         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 11, 2005

                 ANTONIO JACKSON v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                           No. P-25685     Joseph B. Dailey, Judge



                     No. W2004-00328-CCA-R3-PC - Filed March 29, 2005


The Appellant, Antonio Jackson, appeals the denial of his petition for post-conviction relief by the
Shelby County Criminal Court. On appeal, Jackson contends that he was denied the effective
assistance of counsel at trial. Specifically, he contends that his trial attorneys were ineffective by
failing to pursue an alibi defense and by failing to properly investigate and prepare the case for trial.
After review, we affirm the denial of the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
J. C. MCLIN , JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, Attorney for the Appellant, Antonio Jackson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesdale,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                                         Procedural History

       In 1997, the Appellant, along with six other co-defendants, was indicted for first degree
premeditated murder and especially aggravated kidnapping. The retaliation killing of the victim
stemmed from a conflict between two Memphis gangs, the Gangster Disciples and the Vice Lords.
Two fellow gang members, Christopher James and Jarvis Shipp, testified for the State and implicated
the Appellant in the crimes. Shipp testified that in the execution-styled murder, the victim was
placed on the ground, and the Appellant shot the victim in the head with a shotgun. Because the
Appellant was charged with capital murder, two attorneys were appointed to represent him.
Following a jury trial, the Appellant was convicted of facilitation of first degree murder and
especially aggravated kidnapping. As a result of these convictions, the Appellant is currently serving
an effective fifty-year sentence in the Department of Correction. The convictions were affirmed on
direct appeal. State v. Antonio Jackson, 52 S.W.3d 661 (Tenn. Crim. App. 2001).

        On September 21, 2001, the Appellant filed a pro se petition for post-conviction relief,
alleging among other grounds, the ineffective assistance of counsel. Following the appointment of
counsel, an amended petition was filed. On November 24, 2003, an evidentiary hearing was held,
at which the Appellant and his two trial attorneys testified. After taking the matter under
advisement, the post-conviction court denied relief by written order on January, 27, 2004. This
timely appeal followed.

                                               Analysis

        On appeal, the Appellant asserts that his trial attorneys were ineffective by failing to pursue
an alibi defense and by failing to adequately investigate the case and prepare for trial.

         In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,
by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-
110(f) (2003). To support a Sixth Amendment claim of ineffective assistance of counsel, the
Appellant must demonstrate that counsel’s representation fell below the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must
establish (1) deficient representation and (2) prejudice resulting from the deficiency. The petitioner
is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and
cannot criticize a sound, but unsuccessful, tactical decision made during the course of the
proceeding. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the
tactical decisions of trial counsel is dependant upon a showing that the decisions were made after
adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d)); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption of
correctness. Fields, 40 S.W.3d at 458.

I. Failure to present an alibi defense

         The Appellant contends that his trial attorneys’ failure to call an alibi witness constituted
ineffective assistance of counsel. He asserts that at the time the crimes were committed, he was with
his girlfriend, Latoya Knox, and that she would have testified to this fact at trial. When a petitioner
claims that trial counsel failed to present a particular witness in support of his defense, the Appellant


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should present that witness at the evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). Because the Appellant failed to present Latoya Knox at the evidentiary hearing,
we have no way of knowing whether her testimony would have supported an alibi defense.
Allegations of deficient performance must be proved by clear and convincing evidence.1

        Moreover, when questioned at the post-conviction hearing as to what Ms. Knox’s testimony
would have been, or what she might have said that day, the Appellant responded, “I can’t say what
she would have testified to. But I know she would have told him yeah, I didn’t have nothing to do
with what was going on.” When asked this question again, the Appellant responded, “I can’t say.
I don’t know. I don’t know what her intention would have been like that day.” With regard to the
proof on this issue, the post-conviction court concluded that “there [was] no credible proof in the
record to suggest that any alibi defense even existed. . . .” We agree. Accordingly, we find this
allegation of deficient performance without merit.

II. Failure to investigate and prepare for trial

         Next, the Appellant asserts that his trial attorneys failed to adequately investigate and prepare
his case for trial. Specifically, the Appellant alleges that trial counsels’ performance was deficient
due to the failure of his first-chair trial counsel to be present at each court date, failure to interview
a principal witness for the State, failure to attend the trials of the Appellant’s co-defendants, and
failure to confer pre-trial with the Appellant in order to sufficiently prepare for trial. We find these
allegations meritless.

        First, the Appellant argues that trial counsel “was absent at several court appearances.” At
the post-conviction hearing, the Appellant’s first-chair trial counsel testified, in total context, that
the second-chair counsel “may have appeared some for me and I may not have even been there on
some report dates. . . . [I]f there was nothing of significance to take place, there wouldn’t be any
reason . . . for both of us to be there.” We know of no rule of procedure or standard of competence
which requires the entire defense team to be present at every scheduled court appearance of a
defendant. Moreover, the Appellant offers no suggestion as to how the presence of only one attorney
at a scheduled report date had any bearing upon the jury’s verdict. This allegation is without merit.

        The Appellant also alleges ineffectiveness based upon trial counsels’ failure to interview a
State’s key witness, Christopher James. James was jointly indicted for the same crimes as the
Appellant. Six defendants, including the Appellant, were indicted for the murder and kidnapping
of the victim. A number of the co-defendants’ cases were severed for trial. Two of these trials were
conducted before the Appellant’s trial was held. Prior to the Appellant’s trial, the co-defendant
James negotiated a plea agreement with the State which resulted in him being called as a witness
against the Appellant. Both of the Appellant’s trial attorneys testified that after James negotiated
a plea agreement, he was placed in protective custody, which made him virtually inaccessible.
Nonetheless, the Appellant’s trial attorneys obtained the transcripts of James’ testimony from the


        1
            The Appellant’s brief misstates the burden as that of proof by a “preponderance of the evidence.”

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two prior trials, in addition to obtaining his pre-trial statements, and successfully used these
statements to impeach him at the Appellant’s trial. Christopher James was not called as a witness
by the Appellant at the post-conviction hearing. For this reason, we are without any clue as to what
beneficial information the Appellant’s trial attorneys could have obtained by personally interviewing
James, beyond that information which they had already gleaned from the trial transcripts.
Accordingly, we conclude the Appellant has failed to establish either deficient performance or
prejudice.

         Next, in a related matter, the Appellant asserts that trial counsels’ failure to attend the two
prior trials of his co-defendants constitutes deficient performance. As did the post-conviction court,
we find no deficiency. Trial counsels testified that they each attended portions of two of the co-
defendants’ trials and spoke with defense attorneys for the co-defendants. Moreover, as previously
noted, the Appellant’s trial attorneys obtained complete transcripts of the co-defendants’ trials, which
were used in successfully impeaching James in the Appellant’s trial. This allegation is without
merit.

         Further, the Appellant asserts that his trial attorneys failed to meet with him a sufficient
number of times in order to prepare for trial. The testimony of his trial attorneys refuted this
allegation. Both trial attorneys testified that they met with the Appellant as many times as was
needed to prepare for the case. Questions concerning the credibility of witnesses, the weight and
value given to their testimony, and the factual issues raised by the evidence are to be resolved by the
trial court. Henley, 960 S.W.2d at 578. The post-conviction court clearly accredited the testimony
of the trial attorneys, and we will not reweigh or reevaluate the evidence or substitute our inferences
for those drawn by the trial court. Again, the Appellant fails to suggest how many additional visits
to the jail his trial attorneys should have made or what information they could have gained on the
visits. This issue is without merit.

        Lastly, the Appellant asserts that the cumulative effect of the trial attorneys’ errors warrants
a finding of ineffective assistance. Having concluded that the record supports no single finding of
deficient performance, this issue is without merit. With regard to the overall performance of the
Appellant’s trial attorneys, the post-conviction court concluded that they:

       “were remarkably well-prepared for trial and did an outstanding job of cross-
       examining the State’s witnesses. They had benefit of the prior testimony of the
       State’s primary witness and were able to impeach his testimony thoroughly. They
       had met with their client, investigated the case, read the transcripts of the trials of
       codefendants that had previously been held, attended a seminar in preparation for
       issues relating to capital cases, and in every other regard were completely prepared
       to handle this case.”

Moreover, we are constrained to note that although the Appellant was facing the death penalty, and,
in fact, one of the co-defendants received a sentence of death, the Appellant is now serving a twenty-
five-year sentence for his role in the execution-style murder, as a result of the advocacy of his trial


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attorneys. In sum, we agree with the post-conviction court’s finding that the Appellant’s trial
attorneys were not deficient in their representation of the Appellant.

                                       CONCLUSION

       Based upon the foregoing, we affirm the Shelby County Criminal Court’s dismissal of the
Appellant’s petition for post-conviction relief.




                                                    ___________________________________
                                                    DAVID G. HAYES, JUDGE




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