        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs August 2, 2016

                   BENNIE OSBY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 11-02364       James C. Beasley, Jr., Judge
                     ___________________________________

             No. W2015-02479-CCA-R3-PC - Filed December 29, 2016
                    ___________________________________


Bennie Osby (“the Petitioner”) was convicted after a jury trial of especially aggravated
kidnapping, attempted second degree murder, aggravated robbery, and employing a
firearm during the commission of a felony. He sought post-conviction relief alleging
ineffective assistance of counsel. The post-conviction court denied relief. On appeal, we
affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Carlissa Shaw, Memphis, Tennessee, for the appellant, Bennie Osby.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                        I. Factual and Procedural Background

                                          Trial

      This court provided a detailed summary of the testimony presented at trial in the
opinion from the Petitioner‟s direct appeal. State v. Bennie Osby, No. W2012-00408-
CCA-R3-CD, 2012 WL 5381371, at *1-4 (Tenn. Crim. App. Nov. 2, 2012), perm. app.
denied (Tenn. Mar. 5, 2013). To summarize, the Petitioner and another person
approached Marlon Toney and Eric Moody, pointed guns at them, and demanded that
they exit Mr. Moody‟s truck. The Petitioner and his companion ordered Mr. Toney and
Mr. Moody to lie on the ground and searched them. They then “marched” Mr. Toney and
Mr. Moody into Mr. Toney‟s backyard, where they “ordered the victims onto the ground
a second time and „started duct-taping [their] hands behind [their] backs.‟” Id. The
Petitioner and his companion took money and a cellular phone from the victims and
struck Mr. Toney in the head with their pistols. The Petitioner and his companion fled,
but Mr. Toney followed them, so the Petitioner and his companion fired their guns at Mr.
Toney. At that time, Mr. Toney observed the Petitioner fall to the ground and then run
away limping. Id. at *1-2.

       Candis Bowman testified that she heard gunshots on the night in question. Within
seconds of hearing the gunshots, the Petitioner knocked on her door and told her that he
had been shot. She observed gunshot wounds to his left shoulder and right hip. The
Petitioner told her that he had been shot by unknown assailants. Ms. Bowman called the
police, and the Petitioner was transported to the hospital. Police investigated the
Petitioner‟s claim that he was shot by an unknown person, but officers found no blood,
shell casings, bullets, or any other evidence that a shooting had taken place at the location
where the Petitioner claimed he was shot. Additionally, “only a single shooting was
reported on that night, and [the Petitioner] was the victim.” Id. at *3-4.

       The jury convicted the Petitioner of two counts of especially aggravated
kidnapping, two counts of aggravated robbery, attempted second degree murder, and
employing a firearm during the commission of attempted second degree murder. Id. at
*4. The trial court imposed an effective sentence of life without the possibility of parole
plus 105 years‟ incarceration. Id. This court affirmed the Petitioner‟s convictions on
appeal. Id. at *10.

                               Post-Conviction Proceedings

        The Petitioner filed a pro se “Petition for Relief from Conviction or Sentence.”
Post-conviction counsel was appointed, and an “Amended Petition for Post-Conviction
Relief” was filed. Collectively, the petitions alleged that trial counsel was ineffective for
failing to: (1) “interview a material witness[,] Mr. Walter Edwards[,] who was an eye
witness to the alleged crime”; (2) object to the imposition of two life sentences; (3)
present any legal argument at the hearing on the motion for new trial; (4) put the State‟s
case to a meaningful adversarial test; (5) object to the trial court‟s “misinterpretation of
the law in regards to the lesser-included charge of facilitation”; and (6) “argue suggestive
identification was used at the preliminary hearing.” The pro se petition also alleged that
appellate counsel was ineffective for failing to present “any legal argument” to support
the Petitioner‟s claim that the evidence was insufficient to support his convictions.
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       The transcript of the post-conviction hearing is not included in the record on
appeal.1 However, the post-conviction court‟s written order states:

                The [P]etitioner was convicted after a jury trial and alleges that he
        did not receive effective assistance of counsel in said trial. The court heard
        the testimony of [the Petitioner] and trial counsel and determined that the
        [P]etitioner did in fact receive effective assistance of counsel. The proof
        against the [P]etitioner was very strong[;] both direct and circumstantial
        evidence pointed to the [P]etitioner as one of the perpetrators. One of the
        robbers was shot during the course of the robbery[,] and the [P]etitioner
        showed up at a hospital with a gunshot wound that night. Strangely enough
        for Memphis and Shelby County there were no other gunshot injuries
        reported that particular night. The [P]etitioner was also identified by the
        victims. The witnesses were extensively cross[-]examined by [trial]
        counsel[,] and the [P]etitioner‟s explanation of how he was shot was very
        thoroughly explained [through] State‟s witnesses by trial counsel. The
        [P]etitioner alleges that [trial] counsel should have called a particular
        witness who would have exonerated him. However, no one has been able
        to locate said witness. He was not around for trial and over several months
        and attempts by an investigator for post[-]conviction counsel has not been
        located to this date, therefore, there is nothing to suggest that his testimony
        would have been favorable to the [P]etitioner. The opposite is true[;] he
        may not have wanted to testify for [the] [P]etitioner. This court finds that
        trial counsel did a thorough job in defending [the] [P]etitioner and has seen
        nothing that would have changed the verdict returned by the jury. The
        court entered oral findings of fact and conclusions of law at the hearing and
        hereby incorporates said ruling into this order.

The post-conviction court denied relief. This timely appeal followed.




        1
          By order entered September 16, 2016, this court pursuant to Rule 10(a) of the Court of Criminal
Appeals struck the brief filed by the Petitioner as “inexcusably substandard” because it failed to comply
with Tennessee Rule Appellate Procedure 27(a)(1),(2),(6),(7), and (8). On October 3, 2016, the Petitioner
filed a new brief and a motion to supplement the record with a transcript of the post-conviction hearing.
This court entered an order on October 4, 2016, allowing the Petitioner to supplement the record with a
transcript of the post-conviction hearing. On October 21, 2016, the trial court clerk filed a document
certifying the “absence of the supplemental transcript of the record of the post conviction hearing.”
Counsel for the Petitioner still has not supplemented the record with a transcript and has failed to comply
with Tennessee Rule of Appellate Procedure 24(b).
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                                        II. Analysis

        Although the Petitioner alleged several instances of ineffective assistance of
counsel in his original and amended petitions, on appeal the Petitioner argues only that
trial counsel was ineffective for failing to investigate and interview “relevant witnesses”
who would have provided exculpatory evidence for the defense. The State argues that
the Petitioner has waived his claim by failing to include a transcript of the post-
conviction relief hearing in the record. Additionally, the State contends that the
Petitioner is not entitled to relief because the Petitioner did not present the testimony of
any additional witnesses at the post-conviction hearing and therefore cannot establish
deficiency or prejudice.

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court‟s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court‟s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court‟s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel‟s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Additionally, review of counsel‟s performance “requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‟s
challenged conduct, and to evaluate the conduct from counsel‟s perspective at the time.”
Strickland, 466 U.S. at 689. We will not second-guess a reasonable trial strategy, and we
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will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision.
Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel‟s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel‟s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

       In cases where a petitioner contends that trial counsel failed to present a witness in
support of the petitioner‟s defense, the petitioner must present such witness at the post-
conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
Neither a trial nor an appellate judge can speculate as to whether that witness‟s testimony
would have been favorable to the defense. Id. Therefore, the petitioner must “produce a
material witness who . . . would have testified favorably in support of his defense if
called [at trial]. Otherwise, the petitioner fails to establish the prejudice requirement
mandated by Strickland v. Washington.” Id. at 758.

        We again note that the transcript of the post-conviction hearing is not included in
the record. The party seeking appellate review bears the burden of preparing a record
which conveys a fair, accurate, and complete account of what transpired with respect to
the issues forming the basis of the appeal. Tenn. R. App. P. 24(b). The post-conviction
court found that the Petitioner did not present any witness at the post-conviction hearing
that trial counsel supposedly failed to interview or investigate, and the evidence in the
record does not preponderate against the post-conviction court‟s finding. The Petitioner
cannot prove that he suffered prejudice without producing such witness at the post-
conviction hearing. See Black, 794 S.W.2d at 758. Therefore, the Petitioner‟s claim is
without merit.



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                                  III. Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.

                                        _____________________________________
                                        ROBERT L. HOLLOWAY JR., JUDGE




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