        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 8, 2013

               VERSHAWN MCCOY v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Shelby County
                        No. 08-00659 John Fowlkes, Jr., Judge



                   No. W2012-00609-CCA-R3-PC - Filed June 25, 2013


Petitioner, Vershawn McCoy, was convicted by a Shelby County jury for second degree
murder. The trial court sentenced him to a twenty-year sentence to be served at 100%. He
unsuccessfully appealed to this Court. State v. Vershawn McCoy, No. W2009-01222-CCA-
R3-CD, 2010 WL 4540076 (Tenn. Crim. App., at Jackson, Nov. 9, 2010). Subsequently, he
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 now appeals the denial of his petition. After a thorough review of the record, we
conclude that Petitioner has been unable to prove either deficient performance on the part of
trial counsel, or prejudice even if deficient performance had been found. Therefore, we
affirm the denial of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
D. K ELLY T HOMAS, J R., JJ., joined.

Robert C. Brooks, Memphis, Tennessee, for the appellant, Vershawn McCoy.

Robert E. Cooper, Jr., Attorney General and Reporter, David H. Findley, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and Jose Leon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

       On October 21, 2007, Lee M. Davis, the victim, was shot multiple times resulting in
his death. Vershawn McCoy, 2010 WL 4540076, at *1. A witness testified that prior to the
evening of the shooting Petitioner and the victim did not get along. The evening of the
shooting, Petitioner and his girlfriend had an argument, and Petitioner hit her. Id. at *2. The
victim confronted Petitioner about hitting the young lady, and each of the men grabbed her
by her shirt. She got away and ran until she heard gunshots. Id. Witnesses testified that they
saw Petitioner shoot the victim multiple times after the victim had fallen to the ground. A
jury convicted Petitioner of second degree murder as a result. Id. at *3. The trial court
sentenced Petitioner to twenty years to be served at 100%. Id. at *1.

        Petitioner appealed his conviction to this Court. Id. On appeal, Petitioner argued
“that the trial court erred by declining to give a supplemental jury instruction in response to
the jury’s question about the definition of ‘state of passion.’” Id. at *3. Because Petitioner
had failed to object at trial, this Court elected to analyze this issue under the plain error rule.
This Court concluded that Petitioner could not be successful on appeal because the trial
court’s failure to give a supplemental jury instruction “did not change the outcome of the
trial.” Id. at *6.

        Subsequently, Petitioner filed a petition for post-conviction relief on June 5, 2011.
In this petition, Petitioner argued that he received ineffective assistance of counsel because
trial counsel failed to request a supplemental jury instruction in response to the jury’s
question about the definition of “state of passion.”

        On September 8, 2011, the post-conviction court held an evidentiary hearing. Trial
counsel was the sole witness at the hearing. He testified that when the jury requested an
additional definition for “state of passion” he did not request a supplemental instruction or
object to the trial court’s decision to not give a supplemental instruction. Trial counsel stated
that when he discovered that the jury was asking about the definition of “state of passion,”
he believed that the jury was addressing each charge sequentially and had already acquitted
Petitioner of second degree murder and was looking at voluntary manslaughter. Trial counsel
chose not to ask for a supplemental instruction because he believed that the jury would not
be able to agree on the definition of “state of passion” and, therefore, the jury would not be
able to come to a unanimous verdict. Trial counsel believed that the question indicated that
the jury was confused and that the jury’s confusion about the definition of “state of passion”
was to Petitioner’s benefit. Trial counsel also stated that if faced with the same situation he
would make the same decision.

        On February 17, 2012, the post-conviction court filed an order denying the petition.
The post-conviction court determined that trial counsel had made a “sound strategic decision
in this case based on the evidence adduced at trial and his extensive trial experience.”
Furthermore, the trial court determined that Petitioner’s argument that the trial court was



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required to give a supplemental instruction as to the definition of “state of passion” was not
supported by law.

       Petitioner argues that the post-conviction court erred in denying his petition.

                                         ANALYSIS

       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 (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

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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).

        In the case at hand, we agree with the post-conviction court’s determination that trial
counsel’s decision not to request a supplemental instruction or object to the trial court’s
decision not to give a supplemental instruction was a tactical decision. At the hearing, trial
counsel set out the basis for his decision. We conclude that this decision was made after
adequate preparation. As stated above, this Court cannot second-guess a reasonably-based
trial strategy. Adkins, 911 S.W.2d at 347. Therefore, Petitioner cannot prove that this
decision constituted deficient performance.

       Furthermore, Petitioner cannot prove prejudice. On direct appeal to this Court,
Petitioner based his appeal on the trial court’s failure to give a supplemental instruction.
Vershawn McCoy, 2010 WL 4540076, at *1. Because there was no objection at trial and the
issue was not raised in the motion for new trial, this Court was confined to determining
whether to address the issue under the plain error rule. This Court stated the following:


               Consideration of the issue is not necessary to do substantial justice
       because a substantial right of the Defendant has not been adversely affected.
       This Court should only reverse the judgment of a trial court if the “ ‘plain
       error’ . . . [is] of such a great magnitude that it probably changed the outcome
       of the trial” and undermined the “fundamental fairness of the trial.” [State v.]
       Adkisson, 899 S.W.2d [626,] 64 [(Tenn. Crim. App. 1994]. When reviewing
       the evidence presented against the Defendant, it is clear that the trial court’s
       failure to further define “state of passion” probably did not change the
       outcome of the trial. The evidence proved that the Defendant and the victim
       were at Virgil’s trailer with Bailey and Slighton on the night before the
       murder. The Defendant was upset with the victim because the victim was
       attempting to take over his businesses of selling drugs and managing

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       prostitutes. At some point that evening, Clardy went to purchase drugs from
       the Defendant on credit, and, while there, Bailey told her that something was
       getting ready to “go down.” Clardy then heard an argument between the
       Defendant and the victim over drugs and prostitutes. Slighton testified that the
       Defendant and the victim engaged in a physical confrontation over the
       Defendant hitting her, she ran away, and stopped when she heard gunshots.
       Slighton said she turned around and saw the victim fall and the Defendant
       point a gun at the victim. She then heard another gunshot and ran away again.
       Clardy and Armour both saw the Defendant shoot the victim. This evidence
       overwhelmingly supports the jury’s convicting the Defendant of second degree
       murder, and substantial justice does not mandate our plain error review. The
       Defendant is not entitled to relief.


Id. at *6.

       This Court has already determined that a supplemental jury instruction was not
necessary to do substantial justice because even if such an instruction had been given, it
would not have changed the outcome of the trial. In order to demonstrate prejudice for
purposes of post-conviction relief, 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, 466 U.S. at 694. This is a very similar standard to the
plain error standard that the error must have “probably changed the outcome of the trial.”
Adkisson, 899 S.W.2d at 642. As on direct appeal, we conclude that the failure to request the
instruction would not have resulted in a different outcome because this Court has previously
determined that the evidence supported the conviction of second degree murder.

       Just as this Court determined that a supplemental instruction was not necessary to do
substantial justice, we now conclude that Petitioner has not shown that the outcome would
have been different had the supplemental instruction been given. Therefore, Petitioner has
been unable to demonstrate that he has been prejudiced even if trial counsel’s performance
was deemed deficient. To be successful on an ineffective assistance of counsel claim,
Petitioner must prove both prongs. Henley, 960 S.W.2d at 580. Therefore, this issue is
without merit.




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                               CONCLUSION

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




                                    ___________________________________
                                    JERRY L. SMITH, JUDGE




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