        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 3, 2015

                   LOUIS DANCY v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                    No. 0806462     J. Robert Carter, Jr., Judge



               No. W2014-00330-CCA-R3-PC - Filed March 16, 2015



The Petitioner, Louis Dancy, appeals the post-conviction court‟s denial of relief from his
conviction for second degree murder. On appeal, the Petitioner argues that he received
ineffective assistance of counsel at trial. Upon review, we affirm the judgment of the
post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN
and JOHN EVERETT WILLIAMS, JJ., joined.

Ruchee J. Patel, Memphis, Tennessee, for the Petitioner, Louis Dancy.

Robert E. Cooper, Attorney General and Reporter; Ahmed A. Safeeullah; Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Megan Fowler,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       This appeal stems from the shooting death of the victim, Charles Williams, on
April 4, 2008. The Petitioner was subsequently indicted by the Shelby County Grand
Jury for second degree murder in relation to this incident. This court summarized the
underlying facts of the Petitioner‟s case on direct appeal as follows:

            At approximately 10:40 a.m. on April 4, 2008, Officer Timeca
      Johnson of the Memphis Police Department was dispatched to an assault
      call where shots had been fired in front of Hattie‟s Grocery on South
      Lauderdale Street. Because she was passing the area as the crime occurred,
she was able to respond within a minute. When Officer Johnson arrived on
the scene, she saw Charles Williams, the victim, lying face down on the
walkway in front of the business, and six or seven people were standing
around. The victim was alive but unresponsive, so Officer Johnson rolled
him over and determined that he had been shot in the pelvic area. She did
not find any possessions on the victim. She assisted him until the fire
department arrived.

       Officer Johnson then interviewed witnesses and reviewed video
footage from the surveillance cameras at Hattie‟s Grocery. She noted that
some of the individuals in the video were still on the scene, and the video
also showed [the Petitioner] and Laquisha Cosey at the scene. Officer
Johnson later located a shell casing near her patrol car. She testified that
there was a lot of gang activity in the area of the shooting.

       Rachel Montgomery, the victim‟s aunt and guardian, testified that
she learned of the shooting on her way to church and went to the scene.
The victim‟s mother was there when Ms. Montgomery arrived, and
emergency personnel were still working on the victim. Ms. Montgomery
followed the ambulance to the Regional Medical Center where the victim
remained for two weeks before he passed away. Ms. Montgomery
explained that the victim was supposed to attend church with her that
Sunday morning but stayed home because he had a headache. Ms.
Montgomery later learned that the victim had walked to the store with
Nakiel Addison to buy some cigarettes and pizza. She said that the victim
also hung out with “Quick” Addison.

        Dr. Marco Ross performed an autopsy on the victim. He determined
that the victim had “sustained a gunshot wound to the abdomen for which
he had multiple surgeries performed and had multiple complications
resulting from the initial gunshot wound, that were the cause of his death.”
Dr. Ross testified that the victim developed an infection that became septic
due to the injury to his intestines. The loss of blood also caused the victim
to sustain brain damage.

       Eleven-year-old Nakiel Addison testified that he was in front of
Hattie‟s Grocery on April [4], 2008. He had walked to the store to get
something to eat, but it was closed, and he waited there to see if it would
open. Nakiel testified that the victim walked up and sat down. He knew
the victim who was friends with his cousin, “Quick” Addison. Nakiel and
                                     -2-
the victim were talking and laughing with another friend when a woman
walked up to the store and pulled on the door. She then asked Williams if
they were laughing at her, and he responded that they were not. Nakiel saw
the woman walk away and point to a man across the street. Nakiel testified
that the man then walked up to the store and shot the victim. Nakiel ran
home when he saw the gun and told his mother what had happened. While
he was running, Nakiel saw the shooter run away as well.

        Sergeant Steven Roach of the Felony Assault Unit drove to the Med
with Detective Weddle on April 6, 2008, to check on the victim. He
received the video and a statement from the store owner and reviewed the
video. He also interviewed Quincy “Quick” Addison, Nakiel Addison, and
Laquisha Cosey, who was [the Petitioner]‟s girlfriend. Sergeant Roach
testified that [the Petitioner] was taken into custody in Cleveland,
Mississippi, and Sergeant Roach drove there on April 28, 2008, and picked
him up. [The Petitioner] then signed a waiver and gave a statement.
Sergeant Roach testified that [the Petitioner] was very cooperative and
admitted to the shooting. [The Petitioner] said that no one else was
involved. [The Petitioner] told Sergeant Roach that he had followed Ms.
Cosey to the store where she was arguing with the victim. He said that the
victim “kept hollering get your fat ass off my block,” and Ms. Cosey said
that she was tired of “these folks” constantly “picking” on her.

       [The Petitioner] said that he walked up and saw the victim “grabbing
on his pants acting like he had a gun under his shirt,” and the victim said,
“[Y]ou ain‟t the only one who got a gun.” [The Petitioner] told Detective
Roach that he pulled a nine millimeter out of a black bag and fired one
round. He then ran down an alley and tossed the gun. [The Petitioner] said
that he ran to “Lemonyne Owen Park, I waited and laid low for a couple of
days until I heard a partner say he was going to Cleveland, Mississippi.”

       [The Petitioner] told Sergeant Roach that he never saw a gun on the
victim at the time of the shooting, but the victim and “Quick” Addison had
robbed and shot at him in the past. He also said that they were known gang
members and that police had taken drugs from them. [The Petitioner] also
said that he had called police on the victim and Addison in the past.
Sergeant Roach testified that he looked but did not find any police reports
on these incidents. [The Petitioner] told Sergeant Roach that [the
Petitioner] had a gun that day because he was going to his grandmother‟s
house and had to “pass by where the 20/20 mob hang at.” He was aware
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        that they had “jumped” his brother-in-law, and he knew that he would be
        next.

State v. Louis Dancy, No. W2010-01986-CCA-R3-CD (Tenn. Crim. App. June 26,
2012).

       Following deliberations, the jury convicted the Petitioner as charged, and he
received a sentence of 18 years and six months‟ confinement. Id. This court affirmed the
Petitioner‟s conviction on appeal, and the Tennessee Supreme Court denied the
Petitioner‟s application for permission to appeal. Id.; State v. Louis Dancy, No. W2010-
01986-SC-R11-CD (Tenn. Oct. 18, 2012). On February 25, 2013, the Petitioner filed a
timely pro se petition for post-conviction relief. On March 1, 2013, the post-conviction
court appointed counsel to represent the Petitioner, and a hearing was held on December
13, 2013.

       At the post-conviction hearing, the Petitioner testified that his family hired counsel
to represent him at trial. Counsel provided the Petitioner with a discovery packet and
reviewed the packet with him prior to trial. The Petitioner claimed, however, that several
photographs of the victim that were introduced at trial were not included in the discovery
materials he was provided, and he was “stunned” when he saw them at trial. The
Petitioner testified that had he known about the pictures prior to trial, he “probably”
would not have proceeded to trial.

       With regard to counsel‟s defense strategy, the Petitioner testified that he “felt like
[counsel] could have presented [the Petitioner‟s defense] a little differently.” He asked
counsel to call several witnesses at trial, including the landlord of a local apartment
complex and a police officer that arrested the Petitioner on another occasion, because
these witnesses could have testified about the victim‟s gang involvement. He believed
the victim‟s gang affiliation was not adequately presented to the jury. The Petitioner
claimed that counsel never explained to him why he did not call these witnesses. The
Petitioner also complained that counsel did not call Tasha Shorter, Tasha Ward, Laquisha
Cosey,1 and a woman by the name of Lana. He recalled that counsel explained that it
would not be in the Petitioner‟s best interest to call these witnesses because they could
bring up the Petitioner‟s past criminal history and prior conflicts with the victim. The
Petitioner testified that he “agreed” with counsel‟s decision not to call these witnesses
because he “felt like [counsel] kn[ew] better . . . what‟s best for [the Petitioner‟s case].”
        1
          Throughout the post-conviction hearing transcript, the witness‟s name is spelled “Laquesha
Cosie”; however, in this court‟s opinion on direct appeal, the witness‟s name is spelled “Laquisha Cosey.”
For consistency, we will utilize the spelling used by this court on direct appeal.

                                                   -4-
        The Petitioner further testified that counsel did not effectively cross-examine the
State‟s witness, Nakiel Addison.2 Nakiel had provided a prior statement to the police
indicating that he did not see the altercation between the Petitioner and the victim, but he
testified to the contrary at trial. Additionally, the Petitioner believed that counsel should
have challenged the Petitioner‟s indictment for second degree murder and requested an
indictment for manslaughter. He also believed that counsel should have attempted to
suppress the Petitioner‟s statement to police. The Petitioner testified that counsel did not
“fully represent” him because his family owed counsel money. The Petitioner testified
that he felt “forced” to proceed to trial. He recalled that counsel told him that the State
offered him a plea agreement for 13 and a half years, and he told counsel he would accept
the plea; however, when the Petitioner returned to court the next day, counsel informed
him that the offer had been revoked.

       Counsel testified that he was provided “open file” discovery by the State and was
not surprised by any evidence presented by the State at trial. He viewed the victim‟s
autopsy photographs prior to trial and did not believe they were “horrific.” He noted that
the Petitioner never disputed that he shot the victim. He agreed that the State introduced
a surveillance video, which depicted the entire incident between the Petitioner and the
victim and appeared to show the Petitioner communicating with another individual before
approaching the victim from “a ways off” and shooting him. Counsel agreed that based
upon the facts of the case, he was concerned that it could have been indicted as a first
degree murder case.

       Counsel testified that the Petitioner requested that counsel call several witnesses
on the Petitioner‟s behalf at trial. Counsel evaluated all of those witnesses and discussed
with the Petitioner the potential problems with calling them. Specifically, he recalled that
he did not want to call Ms. Cosey, the Petitioner‟s girlfriend, because the State had copies
of several letters written to her by the Petitioner in which he instructed her how to testify.
With regard to the landlord, counsel noted that only the Petitioner could testify about the
prior incident with the victim at his apartment complex unless the State challenged the
Petitioner‟s testimony. Counsel did not call the Petitioner to testify at trial because the
Petitioner‟s statement to police set out the Petitioner‟s “whole defense.” He and the
Petitioner discussed the concerns of him testifying, including subjecting him to cross-
examination and opening the door to statements he made to his girlfriend, and decided it
was not in his best interest. Counsel stated that the decision not to call any witnesses on
behalf of the Petitioner was “absolutely” strategic. He further noted that he did not want

        2
          The Petitioner called this witness “Nichols” during his testimony at the post-conviction hearing;
however, the post-conviction court clarified with the Petitioner and post-conviction counsel that the
Petitioner was referring to Nakiel Addison [II, 16, 20].
                                                   -5-
to suppress the Petitioner‟s statement to police because it raised the Petitioner‟s theory of
self-defense and brought up the victim‟s gang affiliation. Counsel believed he effectively
impeached the State‟s witnesses, including Nakiel Addison, and painted the victim as a
gang member.

        Counsel testified that he received a formal plea offer from the State in writing for
15 years, but he never received an offer for 13 and a half years. He recalled that the
Petitioner wanted a reduced charge of voluntary manslaughter or he wanted to proceed to
trial. Counsel explained to the Petitioner that voluntary manslaughter was “never an
option.” On cross-examination, counsel could not recall whether he showed the autopsy
photographs to the Petitioner. He explained that the autopsy photographs were not a “big
issue” because they just showed that the victim died of a gunshot wound, which the
Petitioner did not dispute. He also testified that the Petitioner never expressed his desire
to have his statement to police suppressed. He reiterated that the State‟s decision to put
the statement into evidence “sort of cured all our problems” because it fully presented the
Petitioner‟s defense without subjecting the Petitioner to cross-examination. Counsel
agreed that he did not present any witnesses on the Petitioner‟s behalf.

        Muriel Malone, the assistant district attorney that prosecuted the Petitioner‟s case,
testified that her office made a formal plea offer to the Petitioner for 15 years‟
confinement in exchange for his plea of guilty to second degree murder. She did not
recall an offer for 13 and a half years and had no written notes about such an offer.

       Following the hearing, the trial court took the matter under advisement and issued
an order denying relief on January 24, 2014. It is from this order that the Petitioner now
timely appeals.

                                                  ANALYSIS

       On appeal, the Petitioner argues that he received ineffective assistance of counsel.
Specifically, he alleges that counsel failed to present any witnesses on his behalf, failed to
provide him with all of the photographs in the discovery materials, and failed to promptly
inform him of the State‟s plea offer for 13 and a half years.3 The State responds that the
post-conviction court properly denied relief because the Petitioner failed to establish
ineffective assistance of counsel. We agree with the State.


        3
          The Petitioner raised a number of other issues and grounds of ineffective assistance of counsel in
his petition for post-conviction relief and at the post-conviction hearing. These issues were not raised on
appeal. Accordingly, we do not address them.
                                                    -6-
       Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. T.C.A. ' 40-30-103. The Tennessee Supreme Court has held:

             A post-conviction court‟s findings of fact are conclusive on appeal
      unless the evidence preponderates otherwise. When reviewing factual
      issues, the appellate court will not re-weigh or re-evaluate the evidence;
      moreover, factual questions involving the credibility of witnesses or the
      weight of their testimony are matters for the trial court to resolve. The
      appellate court‟s review of a legal issue, or of a mixed question of law or
      fact such as a claim of ineffective assistance of counsel, is de novo with no
      presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. ' 40-30-110(f);
Tenn. Sup. Ct. R. 28, ' 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

             The right of a person accused of a crime to representation by counsel
      is guaranteed by both the Sixth Amendment to the United States
      Constitution and article I, section 9, of the Tennessee Constitution. Both
      the United States Supreme Court and this Court have recognized that this
      right to representation encompasses the right to reasonably effective
      assistance, that is, within the range of competence demanded of attorneys in
      criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

      In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer‟s performance was deficient and (2) the deficient
performance prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668,
687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove
                                           -7-
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim. Indeed, a court need not address the components in any particular order
or even address both if the [petitioner] makes an insufficient showing of one component.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney‟s conduct fell below “an objective standard
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland,
466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated
once the petitioner establishes “„a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.‟” Id. at 370 (quoting Strickland, 466 U.S. at 694).

       We note that “[i]n evaluating an attorney‟s performance, a 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.” State v. Burns, 6 S.W.3d
453, 462 (Tenn.1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set
of detailed rules for counsel‟s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding
how best to represent a criminal defendant.” Strickland, 466 U.S. at 688–89. However,
we note that this “„deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation.‟” House v. State, 44 S.W.3d
508, 515 (Tenn.2001) (quoting Goad, 938 S.W.2d at 369).

        In the instant case, the Petitioner complains that counsel failed to call any
witnesses on his behalf. He maintains that these witnesses could have established that the
victim was a gang member and bolstered his theory of self-defense. The Petitioner also
complains that counsel failed to provide him with all of the discovery materials and
promptly inform him of a plea offer for 13 and a half years‟ confinement. He asserts that
had counsel properly communicated with him regarding discovery and the plea offer, he
would not have proceeded to trial. The post-conviction court found that the Petitioner
failed to establish that counsel‟s performance was deficient in any regard. We agree.

       At the post-conviction hearing, counsel testified that he evaluated the evidentiary
value of the Petitioner‟s potential witnesses and determined that it would not be in the
Petitioner‟s best interest to present these witnesses. He believed that the Petitioner‟s
statement adequately presented the Petitioner‟s theory of self-defense and that the
proposed witnesses would not have added anything further. Moreover, their testimony
may have opened the door to testimony detrimental to the Petitioner‟s case. This court
                                             -8-
must be highly deferential to counsel‟s performance, Burns, 6 S.W.3d at 462, and we will
not second-guess the informed tactical decisions of trial counsel. Pylant v. State, 263
S.W.3d 854, 874 (Tenn. 2008) (citing Henley v. State, 960 S.W.2 572, 579 (Tenn.
1997)). The record reflects that counsel adequately prepared for trial and made informed
strategic decisions.4

        Counsel also testified that he reviewed all of the discovery materials in the State‟s
file and was not surprised by the evidence presented at trial. He reviewed the materials
with the Petitioner. He could not recall whether he showed the Petitioner the autopsy
photographs, but he testified that the photographs were not a “big deal” because the
defense never disputed that the Petitioner shot the victim. Although the Petitioner
testified that he “probably” would not have proceeded to trial had he seen the
photographs prior to trial, in denying relief on this ground, the post-conviction court
implicitly accredited the testimony of counsel over that of the Petitioner. We will not
reweigh this evidence on appeal. See Vaughn, 202 S.W.3d at 115. Likewise, counsel
testified that he never received a plea offer from the State for 13 and a half years, and the
Petitioner did not want to accept the State‟s offer for 15 years. This testimony was
bolstered by Muriel Malone, the prosecuting attorney, who testified that her office never
made an offer for 13 and a half years. Again, the post-conviction court‟s denial of relief
implicitly accredited the testimony of counsel over that of the Petitioner, and we will not
reweigh or reevaluate this evidence on appeal. See id.

       In sum, we conclude that the Petitioner has failed to prove that counsel‟s
performance fell below “an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter, 523 S.W.2d at 936). Accordingly, he is not entitled to relief.




        4
           Because the Petitioner has made an insufficient showing of deficiency, we need not address the
issue of prejudice. See Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Nevertheless, we
note that the Petitioner failed to present any of these proposed witnesses at the post-conviction hearing.
This court has concluded that “[w]hen a petitioner contends that trial counsel failed to discover, interview,
or present witnesses in support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn.Crim.App.1990). “„As a general rule,
this is the only way the petitioner can establish that . . . the failure to have a known witness present or call
the witness to the stand resulted in the denial of critical evidence which inured to the prejudice of the
petitioner.‟” Pylant, 263 S.W.3d 854, 869 (Tenn.2008) (quoting Black, 794 S.W.2d at 757). Neither
the post-conviction court nor this court may speculate on “what a witness‟s testimony might have been if
introduced by defense counsel.” Black, 794 S.W.2d at 757.

                                                      -9-
                             CONCLUSION

       Based on the foregoing authority and analysis, we affirm the judgment of
the post-conviction court.
                                              _________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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