        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 20, 2016

                 RUSSELL BROWN v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Bradley County
                   No. 15-CR-265    Andrew Mark Freiberg, Judge


                No. E2016-00437-CCA-R3-PC – Filed October 18, 2016



The petitioner, Russell Brown, appeals the denial of his petition for post-conviction
relief, arguing that the post-conviction court erred in finding that he received the effective
assistance of trial counsel. Following our review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

D. Mitchell Bryant, Athens, Tennessee, for the appellant, Russell Brown.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Stephen Davis Crump, District Attorney General; and Brooklynn Townsend,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       On May 21, 2013, the petitioner was convicted by a Bradley County jury of first
degree premeditated murder and aggravated arson, for which he received concurrent
sentences of life and twenty years. His convictions were affirmed by this court on direct
appeal, and our supreme court denied his application for permission to appeal. State v.
Russell Brown, No. E2013-02663-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App. Nov. 20,
2014), perm. app. denied (Tenn. Mar. 21, 2015).

       Our direct appeal opinion reveals that the petitioner‟s convictions were based on
his stabbing a friend to death in a motel room and then setting fire to his bed before
fleeing. Id. at 8-10. The petitioner turned himself in to the police approximately eighteen
hours later and testified in his own defense at trial, relating the following: He and the
victim had been friends since childhood, with their friendship eventually turning into “„a
sexual relationship, based on drugs.‟” Id. at 3. The petitioner explained that he did not
consider himself a homosexual, but he engaged in sexual encounters with the victim
because he was addicted to cocaine, which the victim provided for him. Id.

       On New Year‟s Eve, 2011, the petitioner and the victim purchased alcohol,
cocaine, and prescription pills and “socialized with the victim‟s roommates at his
apartment.” Id. at 3-4. At about 11:00 p.m., he and the victim checked into a motel,
where they continued to drink and use drugs. The petitioner then penetrated the victim
anally, and the victim performed fellatio on the petitioner. Id. at 4.

       The petitioner testified that he never allowed the victim to penetrate him anally
because he was not a homosexual. He said that the victim was aware that he was
“„opposed‟ to that „type of relationship[.]‟” Id. That night, however, he awoke to find
the victim penetrating him anally, which enraged him. He got the victim off of him, and
the two men began a physical altercation. When he saw that a pocketknife that they had
used earlier in the evening to cut their crack cocaine was open on the nightstand, he
picked it up and stabbed the victim nineteen times. He then set fire to the bed, took the
victim‟s car, and fled the scene. Id.

       On cross-examination, the petitioner claimed that the victim had informed him that
he had AIDS after letting the petitioner “perform on him, and attempting to have anal
intercourse” with the petitioner. Id. The petitioner conceded that he was larger than the
victim, that the victim was unarmed, that the fight was over when he picked up the knife
with the intent to harm the victim, and that he had intentionally set the fire. Id.

       The petitioner also presented in his defense a board-certified neurologist, Dr.
Louise Ledbetter, who opined that the petitioner was “unable to make good decisions”
and “lacked the ability to premeditate” due to his intoxication from the drugs and alcohol
he had consumed that night. Id. at 5. In rebuttal, the State presented board-certified
forensic psychiatrist Dr. Jerry Glynn Newman, Jr., who opined that the petitioner had the
capacity to premeditate at the time of the murder. Id.

        On June 29, 2015, the petitioner filed a pro se petition for post-conviction relief in
which he raised several claims, including ineffective assistance of trial counsel.
Specifically, he alleged that his trial counsel were ineffective for, among other things,
failing to properly investigate the case, failing to familiarize themselves with the
petitioner‟s psychiatric evaluation, failing to adequately raise the defense of self-defense,
failing to disclose a conflict of interest because of prior representation of the victim, and
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forcing the petitioner to testify in his own defense.

       Following the appointment of post-conviction counsel, an evidentiary hearing was
held on January 8, 2016. The petitioner‟s senior trial counsel, the public defender for the
10th Judicial District, testified that he was appointed to represent the petitioner while his
case was still in general sessions court. He said he was already familiar with the
petitioner because his office had represented him in other cases. Because of the severity
of the charges in the case at bar, he was assisted in his representation by an assistant
public defender, and it was the two of them who conducted the investigation of the facts
of the case.

        Senior trial counsel testified that his first conversation with the petitioner occurred
at the justice center shortly after the petitioner had been arrested. The petitioner related
what had happened and “was emphatic that he was under the influence of cocaine and
other substances when the [victim] was killed.” Senior trial counsel said the petitioner
had given a statement to the Cleveland Police Department at the time of his arrest, and he
was able to obtain a copy of that videotaped statement as part of discovery. After
discussions with the petitioner and their investigation of the facts, he and junior trial
counsel formulated a defense strategy of attempting to show that the petitioner had acted
in self-defense and that he lacked the capacity to premeditate due to his voluntary
intoxication.

       Senior trial counsel testified that he retained the services of Dr. Ledbetter to
review possible defenses of diminished capacity, legal insanity, and the inability to form
premeditation. He never had any doubts about the petitioner‟s mental capacity, however,
because he knew the petitioner and was unaware of his having any significant mental
health history. In addition, the intelligent petitioner had no difficulty relating what
occurred or discussing possible defenses. Before Dr. Ledbetter‟s meeting with the
petitioner, he provided her with discovery, including the victim‟s toxicology results. He
also informed the petitioner of the purpose of her visit and what questions she would be
asking. Dr. Ledbetter did not provide a written report, at senior trial counsel‟s request,
because counsel would have been required to turn over any written report to the State as
part of reciprocal discovery. The petitioner “certainly knew” the rules regarding
reciprocal discovery of reports, and there was “a meeting of the minds . . . between [the
petitioner], Dr. Ledbetter, and [himself][] concerning [Dr. Ledbetter‟s] value as a trial
witness and what [they] hoped to gain at trial from her . . . expert testimony.” Senior trial
counsel went on to explain that he called Dr. Ledbetter as an expert witness “largely on
the issue of premeditation and whether or not [the petitioner] could knowingly commit
the homicide.”



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       Senior trial counsel testified that, in response to his having engaged Dr. Ledbetter
as an expert witness, the State obtained its own expert who examined the petitioner,
prepared a report, and testified at trial to rebut Dr. Ledbetter‟s opinion regarding the
petitioner‟s inability to form the requisite intent. He and junior trial counsel discussed
the evaluation with the petitioner, and the petitioner “knew he was go[ing] to be
examined by a state expert.” Senior trial counsel stated that he withdrew his initial
objection to the introduction of the report of the State‟s expert witness because the report
basically contained just the petitioner‟s account of what had happened, including the
petitioner‟s claims of self-defense and voluntary intoxication.

       Senior trial counsel testified that he did not know until the petitioner‟s post-
conviction petition that junior trial counsel had represented the victim in an earlier case.
The petitioner never mentioned his office‟s prior representation of the victim. The
petitioner also never mentioned the victim‟s having ever engaged in any violent behavior,
and the individuals who had partied with the victim and the petitioner on the night of the
homicide reported to counsel that the two men had been friendly toward each other that
night. In addition, he could not recall from the victim‟s criminal history, which he and
junior trial counsel reviewed before trial, that the victim had any convictions for crimes
of violence.

       Senior trial counsel testified that he had a number of discussions with the
petitioner about testifying, including the advantages versus disadvantages of the
petitioner‟s taking the stand. However, because the State had made it clear to him that it
did not intend to introduce the petitioner‟s self-serving statement to police, and there had
been no blood drawn on the petitioner to show his level of intoxication, he encouraged
the petitioner to testify to present his defenses of self-defense and voluntary intoxication:

       But going into the trial, [the prosecutor] had made it clear to me he was not
       putting that statement in, so I do recall talking to [the petitioner] and
       encouraging him that he needed to testify if the defense is self-defense, for
       us to have a defense in this case. It was important. Certainly when we‟re
       using that expert, Dr. . . . Ledbetter, to talk about intoxication, that he
       would have to testify because . . . there was no blood drawn on [the
       petitioner] at the time he was arrested to show that there was anything in his
       system. All these results were from [the victim]. Dr. Ledbetter had
       certainly reviewed all that crime scene evidence, all of that, but obviously
       she spoke at length with [the petitioner] about what had occurred, how it
       occurred, substances that had been consumed, so I certainly thought it was
       important based on the fact that we‟re going forward with voluntary
       intoxication to negate premeditation, that we‟ve got a defense of self-
       defense and he needed to testify.
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        Senior trial counsel testified that he and the petitioner talked at length about how
“sordid” the facts were and how it was “a very difficult case.” He said he prepared the
petitioner for both his direct and cross-examination testimony, and the petitioner was
always consistent in his account of what occurred and that he had been under the
influence of intoxicants and had acted in self-defense. Senior trial counsel testified he
believed they put on adequate proof at trial for a jury instruction on self-defense, but the
trial court refused his request for that instruction.

        Senior trial counsel acknowledged that the petitioner expressed some
dissatisfaction with his representation, filing pro se motions to have him relieved as his
counsel and a complaint against him with the Board of Professional Responsibility. He
said that the petitioner raised his concerns before the trial court prior to trial and that they
attempted to resolve the matters. Overall, he and the petitioner “got along fine.” He felt
no animosity toward the petitioner, and the petitioner never expressed any animosity
toward him. He could not recall the petitioner‟s having made a complaint about not
wanting to testify in the case.

       Junior trial counsel testified that the petitioner never told him that he had
represented the victim on a sale and delivery of cocaine charge and that he was not aware
of that fact until he learned of the allegations in the post-conviction petition and looked
into the matter. He said he had researched the victim‟s criminal history before trial, but
only in terms of trying to find “some type of assaultive behavior” on the part of the
victim. On cross-examination, junior trial counsel testified that he looked only at the list
of the victim‟s convictions when checking his record; he did not pull the judgments in
order to see who represented the victim in each case.

         The petitioner testified that he believed the trial judge “would have been obligated
. . . to charge the jury with a self-defense instruction” had counsel presented his case
differently. He said that counsel, who met with him five to seven times for an hour each
time, never discussed a defense of self-defense but instead only voluntary intoxication.
Counsel did not inform him, however, that voluntary intoxication is not in and of itself a
defense. The petitioner stated that he was “very adamant” about not testifying because he
believed it would be “detrimental to [his] well[-]being[.]” He said he felt no confidence
in his ability to testify, but counsel told him that if he did not testify, Dr. Ledbetter would
be unable to testify regarding the voluntary intoxication and premeditation issues.
According to the petitioner, this information was “a convincing factor” in his decision to
testify.

      The petitioner testified that he was not properly prepared for his testimony
“because it was a last minute decision” and that “most of the prepping” consisted of
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counsel “just asking [him] about the events that occurred that night.” He said he was
prepared for his examination with Dr. Ledbetter, but counsel never told him that he
would be examined by the State‟s expert and did not prepare him for that examination.

        The petitioner testified that during one of junior trial counsel‟s visits with him,
junior trial counsel kept referring to the victim by his first name, which seemed to
indicate counsel had some personal knowledge of the victim, so he asked junior trial
counsel about it, and junior trial counsel “brought [his previous representation of the
victim] to [the petitioner‟s] attention.” The petitioner said that he had an issue with that
fact, so he brought it to senior trial counsel‟s attention by notifying him of it in a letter.
He also expressed his concerns to junior trial counsel. Both senior and junior trial
counsel, however, “pretty much brushed it off.”

       The petitioner also complained that trial counsel did not subpoena as witnesses the
individuals who had been at the party on the night of the victim‟s death, who, according
to the petitioner, could have testified that the victim was “an aggressive individual” and
“a known fighter.” Finally, the petitioner testified that he felt as if trial counsel‟s
representation was “kind of . . . mechanical” and that he was not satisfied with the public
defender‟s office from the beginning because he had “never had a positive experience
with them.”

       Upon questioning by the post-conviction court, the petitioner acknowledged that
evidence was brought before the jury about the statement of one of the New Year‟s Eve
party attendees that the petitioner appeared impaired at the party. He further
acknowledged that trial counsel vigorously questioned the State‟s witnesses about why
the petitioner‟s blood was not tested and a rape kit was not performed on him.

       On January 26, 2016, the post-conviction court entered a detailed and lengthy
written order denying the petition on the basis that the petitioner had waived all his
claims other than those relating to ineffective assistance of counsel and that the “proof
necessary to support [his] post-conviction claims [of ineffective assistance] was wholly
lacking.” Thereafter, the petitioner filed a timely appeal to this court.

                                        ANALYSIS

       The petitioner argues on appeal that trial counsel made a number of errors in
representation, the cumulative effect of which was to deprive him of the effective
assistance of counsel and a fair trial. Specifically, he argues that counsel were deficient
for not subpoenaing witnesses who could have given testimony about the victim‟s violent
nature to support a jury instruction on self-defense; for not adequately meeting with him
before trial; for not preparing him for the examination by the State‟s expert witness or
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attending his meeting with the expert; for not preparing him to testify in his own defense,
which resulted in his being “forced into testifying at the last minute”; and for not
addressing the concerns he raised prior to trial about junior trial counsel‟s having
represented the victim in the past. The State responds by arguing that the post-conviction
court properly found that trial counsel‟s performance was not deficient. We agree with
the State.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court‟s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court‟s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel‟s performance was deficient and that counsel‟s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App.1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

             First, the defendant must show that counsel‟s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant by
      the Sixth Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that counsel‟s
      errors were so serious as to deprive the defendant of a fair trial, a trial
      whose result is reliable.

466 U.S. at 687.

       The deficient performance prong of the test is satisfied by showing that “counsel‟s
acts or omissions were so serious as to fall below an objective standard of reasonableness
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under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1 975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome” that “but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       In finding that the petitioner failed to meet his burden of demonstrating ineffective
assistance of counsel, the post-conviction court, among other things, specifically
accredited the testimony of both trial counsel, resolving “[a]ny and all disputes and
conflicts in the proof and testimony” against the petitioner. After reviewing some of the
overwhelmingly negative facts of the case, the court found that, “[d]espite th[e] mountain
of proof pointing to the [p]etitioner‟s guilt, [senior trial counsel] formulated a cogent
defense trial strategy” and engaged in “a valiant effort” to mitigate the petitioner‟s
conduct by focusing the jury‟s attention on those facts that supported the petitioner‟s
defenses of self-defense and voluntary intoxication. In sum, the court concluded that trial
counsel “represented the [p]etitioner in an exceptional manner under very difficult
circumstances.”

       The record fully supports the findings and conclusions of the post-conviction
court. The testimony of senior trial counsel, an experienced defense attorney,
established, among other things: that he conducted a thorough investigation of the facts,
including whether the victim had any previous history of violent acts or violent crimes;
spoke at great length with the petitioner about the case, including whether or not the
petitioner should testify in his own defense; spoke with and prepared the petitioner for his
examination by the expert witnesses; prepared the petitioner for his direct and cross-
examination testimony; and was completely unaware of the fact that his office had
previously represented the victim in a drug case. Junior trial counsel‟s testimony also
established that he had no memory or awareness of having represented the victim until he
learned of the allegations in the post-conviction petition and reviewed the records.

        As for the petitioner‟s claim that trial counsel should have called witnesses to
testify about the victim‟s violent nature, we note that the petitioner did not present those
alleged witnesses at the evidentiary hearing. In order to succeed on a claim that counsel
did not properly investigate or call favorable witnesses at trial, a petitioner must generally
                                              8
elicit favorable testimony from those witnesses at the evidentiary hearing, as a post-
conviction court may not speculate “on the question of . . . what a witness‟s testimony
might have been if introduced” at trial. Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). Accordingly, we affirm the judgment of the post-conviction court
denying the petition.

                                    CONCLUSION

       Based on the foregoing authorities and reasoning, we conclude that the petitioner
has not met his burden of showing that he was denied the effective assistance of counsel.
Accordingly, we affirm the denial of the petition for post-conviction relief.


                                               _________________________________
                                               ALAN E. GLENN, JUDGE




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