        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                    July 9, 2013 Session

                  COREY FINLEY VS. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. 0305912    W. Otis Higgs, Jr., Judge




         No. W2012-02002-CCA-R3-PC - Filed September 26, 2013



Petitioner, Corey Finley, was convicted by a Shelby County jury of attempted first degree
murder. State v. Corey Finley, No. W2005-02804-CCA-R3-CD, 2007 WL 1651879, at *1
(Tenn. Crim. App., at Jackson, June 7, 2007), perm. app. granted, (Tenn. Oct. 15, 2007),
aff’d after remand, No. W2007-2321-CCA-RM-CD, 2008 WL 726567 (Tenn. Crim. App.,
at Jackson, Mar. 18, 2008), perm. app. denied, (Tenn. Sept. 29, 2008). He was sentenced to
twenty-three years. Id. at *8. Petitioner subsequently filed a petition for post-conviction
relief arguing that he was afforded ineffective assistance of counsel. The post-conviction
court denied the petition after an evidentiary hearing. Petitioner has appealed to this Court.
After a thorough review of the record on appeal, we conclude that Petitioner has not proven
that he was afforded ineffective assistance of counsel. Therefore, we affirm the post-
conviction court’s denial of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Lance R. Chism, Memphis, Tennessee, for appellant, Corey Finley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and David Zak, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                          OPINION

       This conviction stemmed from an altercation at a grocery store during which the proof
showed that Petitioner and two men were standing outside the grocery store and as the victim
entered the store, the two men exchanged words. Id. at *1-2. When the victim left the store,
one of Petitioner’s associates hit the victim, and the Petitioner came out of the store and shot
the victim. As stated above, Petitioner was convicted and the trial court sentenced him to
twenty-three years. Id. at *8. Petitioner appealed from both his conviction and sentence. Id.
at *1. This Court affirmed the judgment of the trial court. Id. at *9.

        Petitioner subsequently appealed to our supreme court, and the case was remanded in
light of State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). State v. Corey Finley, No. W2007-
02321-CCA-RM-CD, 2008 WL 726567, at *1 (Tenn. Crim. App., at Jackson, Mar. 18, 2008),
perm. app. denied, (Tenn. Sept. 29, 2008). After analyzing the sentence on remand, this Court
affirmed the twenty-three-year sentence. Id. at *4.

        Subsequently, Petitioner filed a timely pro se petition for post-conviction relief. Corey
Finley, No. W2010-00902-CCA-RM-PC, 2010 WL 4324342, at *1 (Tenn. Crim. App., at
Jackson, Nov. 1, 2010). The post-conviction court summarily dismissed the petition for
failure to state a colorable claim. Id. Petitioner appealed to this Court, and the judgment was
reversed and remanded for a hearing. Id. at *3. Counsel was appointed and an amended
petition was filed.

        The post-conviction court held an evidentiary hearing on the petition. Trial counsel was
the first witness. He stated that when he represented Petitioner, he had been practicing law for
about thirteen years. Trial counsel stated that he did not object to the use of Petitioner’s
nickname, A.K., before or during trial because he did not realize its possible significance.
Trial counsel testified that his recollection was that the nickname was used in the opening
statements by the prosecutor and in one officer’s testimony. He said that he also used the
nickname when he was cross-examining a witness.

        Furthermore, trial counsel recalled Lieutenant Cindy Capps referring to Petitioner’s
“booking photo” during her testimony. He stated that he did not object because he was
anticipating Petitioner testifying. He knew that Petitioner’s prior criminal history would most
likely come up when Petitioner testified. Also, he stated that he did not like to object multiple
times because it gave the impression that a defendant had something to hide and that the
defendant’s case was weak.

       Trial counsel stated that he recalled the jury charge. He did not realize that the trial
court did not read the definition of the lesser included offense of reckless endangerment to the

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jury. Trial counsel later stated in his testimony that the trial court did include the definition in
the written instructions given to the jury immediately prior to deliberation. Trial counsel also
stated that the fact that the instruction was omitted from the oral instructions did not affect the
outcome because Petitioner was convicted of the charge with which he was indicted.

        Petitioner also testified at the hearing. He stated that trial counsel met with him only
once before trial and convinced him to testify on his own behalf. Petitioner also testified that
trial counsel was not adequately prepared for trial. Petitioner stated that trial counsel should
have cross-examined the witnesses more carefully. He also stated that trial counsel did not
prepare him for the prosecutor’s tone when he questioned Petitioner. He stated that had trial
counsel better prepared him he would have realized the prosecutor was trying to provoke him
and he would not have raised his voice and spoken directly to the victim at trial. Petitioner
stated that he would not have told the victim at trial that he “was not trying to kill” him when
he shot him.

       On cross-examination, Petitioner stated that he admitted at trial that he shot the victim.
He further stated that he shot the victim multiple times as he was lying on the ground.

        The final witness at the hearing was the keeper of the records at the Shelby County Jail.
She stated that her records showed that trial counsel visited Petitioner one time. However, she
also stated that he could have visited with Petitioner other times, but it was not in the record.

       The post-conviction court filed a written order denying the petition. Petitioner appeals.

                                           ANALYSIS

       Petitioner argues that trial counsel was ineffective for: (1) failing to file a motion in
limine preventing the use of his nickname at trial; (2) failing to request a mistrial when the
State used Petitioner’s nickname during its opening statement and during its direct examination
of Lieutenant Capps; (3) asking a witness about his statement in which he referred to Petitioner
by his nickname; (4) failing to object or ask for a mistrial when Lieutenant Capps referred to
Petitioner’s “booking photo”; (5) failing to object when the trial court failed to define the
charge of reckless endangerment; and (6) failing to file a written motion requesting the trial
court to charge the jury on the offense of reckless endangerment.

       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

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(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).

                              Ineffective Assistance of Counsel

        Petitioner argues on appeal that he was afforded ineffective assistance of counsel when
trial counsel did not request a supplemental instruction as to the definition of “state of passion”
or object when the trial court decided not to give a supplemental instruction. 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).



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                                          Nickname

        Petitioner argues that trial counsel was deficient because he failed to object to the use
of Petitioner’s nickname, A.K., at various points in the trial. The post-conviction court stated
the following in regard to this issue:


               The Tennessee Court of Criminal Appeals held use of a defendant’s
       nickname was harmless error when the prosecution did not “saturat[e] the jury
       with the defendant’s nickname to the extent that the record affirmatively shows
       that it affected the jury’s verdict.” [State v. Joey Dewayne Thompson, No.
       E2003-00569-CCA-R3-CD, 2004 WL 1592817, at *10 (Tenn. Crim. App., at
       Knoxville, July 16, 2004)]. The same court also determined use of a
       defendant’s nickname was harmless error by finding any prejudice that would
       have resulted from mentioning the nickname would not have been significant
       when weighed against the overwhelming evidence against the defendant,
       despite the prosecution’s “attempt to make as much mileage as possible form
       the defendant’s unfortunate nickname.” [State v. Hodgkinson, 78 S.W.2d 54,
       63 (Tenn. Crim. App. 1989).] . . . .

              In Petitioner’s case, the record reflects the State mentioned Petitioner’s
       nickname twice without objection by [trial counsel]: in the State’s opening
       statement and during the State’s direct examination of Lieutenant Capps. Thus,
       this Court finds the State did not “saturate” the jury with Petitioner’s nickname
       or “make as much mileage as possible” by using the nickname so that the
       nickname references prejudiced Petitioner’s trial. Petitioner has failed to show
       by clear and convincing evidence how preventing use of his nickname would
       have affected the outcome of his trial.


(footnotes omitted).

       In State v. Joey Dewayne Thompson, No. E2003-00569-CCA-R3-CD, 2004 WL
1592817 (Tenn. Crim. App., at Knoxville, July 16, 2004), the defendant’s nickname was “Joe
Thug.” 2004 WL 1592817, at *9. At trial, the defendant’s nickname was used repeatedly,
during the examination of several witnesses and the defendant himself explained his nickname
when he testified on his own behalf. Id. at *9-10. The defendant argued on direct appeal that
introduction of his nickname was prejudicial. This Court concluded that “the prosecution’s
multiple use of the defendant’s nickname during its examination of several witnesses, although
improper, was harmless error . . . .” Id. at *10. Furthermore, this Court determined that the

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State did not “saturate the jury . . . to the extent that the record affirmatively shows that it
affected the jury’s verdict.” Id.

       In the case at hand, Petitioner’s nickname was used once in the State’s opening
statement to describe how Lieutenant Capps discovered his identity; in Lieutenant Capps’s
testimony to describe how she discovered his identity; and in the cross-examination of a
witness to the incident to identify Petitioner. The facts do not constitute a saturation of the jury
with Petitioner’s nickname.

        The nickname, “A.K ”., is not as obviously inflammatory as the nickname “Joe Thug.”
Furthermore, trial counsel stated that he did not even realize the possible relevance of
Petitioner’s nickname to the term A.K.-47. It is possible that many of the jurors did not realize
the significance. Petitioner did not present proof at the post-conviction hearing regarding this
issue. Most importantly, Petitioner admitted at trial that he shot the victim. Petitioner could
have left no question in the mind of the jurors that he would use a gun to shoot someone. When
we weigh the few times that the nickname was used at trial compared to the overwhelming
evidence at trial, we conclude that Petitioner did not demonstrate a reasonable probability that
the outcome of the trial would have been different had trial counsel objected to the nickname
or filed a motion to prevent the use of the nickname. In other words, Petitioner has not shown
that these failures resulted in prejudice as required in Strickland for one of the two prongs.

       Therefore, Petitioner is not entitled to relief on this issue.

                                         Booking Photo

       Petitioner argues that trial counsel provided ineffective assistance of counsel for failing
to object when Lieutenant Capps stated that she retrieved Petitioner’s booking photo for use
in a photographic lineup. The post-conviction court concluded that trial counsel’s failure to
object to this statement was a strategic decision.

       We agree with the post-conviction court. Trial counsel testified at the hearing that he
did not like to “object to just everything.” Trial counsel stated that he believed that multiple
objections give the appearance that the defense is trying to hide something and that the
defendant is guilty. He also noted that he expected the Petitioner to testify which most likely
would have raised the Petitioner's criminal history. Therefore, we agree with the post-
conviction court that trial counsel’s decision not to object was a tactical decision made with
adequate preparation. Therefore, Petitioner has not proven that trial counsel’s representation
was deficient in this regard.

       Furthermore, Petitioner argues that the use of the term “booking photo” would lead the

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jury to conclude that Petitioner was a violent criminal and intended to kill the victim. At trial,
Petitioner himself stated that he shot the victim multiple times. We conclude that one
reference to a booking photo, which implies a previous arrest, does not necessarily point to
violence. For this reason, there is not a reasonable probability to conclude that an objection
would have affected the outcome. Therefore, Petitioner cannot show that the result of the
proceedings would have been different had trial counsel objected to the use of the term
booking photo.

        Petitioner is unable to meet both prongs of Strickland. Therefore, he is not entitled to
relief on this issue.


                                       Jury Instruction

        Petitioner also argues that trial counsel was ineffective when he failed to object to the
trial court’s failure to include the definition of reckless endangerment in the oral instruction
and failed to request the inclusion of the instruction prior to trial.

        The post-conviction court concluded that because the jury convicted Petitioner of the
highest offense for which he was charged, Petitioner did not prove that he was prejudiced. The
post-conviction court based this conclusion in part on the fact that if the failure to instruct on
a lesser included offense came up on direct appeal it would be considered harmless error if the
jury convicts of the highest offense. “The error may be harmless when the jury, by finding the
defendant guilty of the highest offense to the exclusion of the immediately lesser offense,
necessarily rejected all other lesser-included offenses.” State v. Allen, 69 S.W.3d 181, 189
(Tenn. 2002) (citing State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998)).

         We agree with the post-conviction court. At the conclusion of the trial, the jury
convicted Petitioner of attempted first degree murder. In doing so, the jury rejected the lesser
included offenses of attempted second degree murder and attempted voluntary manslaughter.
It is highly unlikely that the jury would have found Petitioner guilty of reckless endangerment
having rejected the higher convictions. Petitioner has not shown that the outcome of his trial
would have been different had trial counsel objected to the missing reckless endangerment
instruction or to filed a request for reckless endangerment. Therefore, Petitioner is unable to
prove that trial counsel’s actions were prejudicial. Petitioner has not proven both prongs in
Strickland in order to prove ineffective assistance of counsel.

       Therefore, Petitioner is not entitled to relief on this issue.




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                               CONCLUSION

For the foregoing reasons, we affirm the post-conviction court’s denial of the petition.



                                         _______________________________
                                         JERRY L. SMITH, JUDGE




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