         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 7, 2008

          HENRY FORD WILLIAMS, JR. v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Robertson County
                            No. 00-0150   Dee David Gay, Judge



                  No. M2007-02070-CCA-R3-PC - Filed December 19, 2008


The petitioner, Henry Ford Williams, Jr., appeals from the denial of his 2006 petition for post-
conviction relief, which challenged his 2002 convictions of possession with the intent to sell .5
grams or more of cocaine within 1,000 feet of a school zone and of simple possession of cocaine.
He asserts that he was denied the effective assistance of counsel at trial and that he was denied due
process because the jury pool was racially imbalanced. Finding that the petitioner has failed to show
by clear and convincing evidence that counsel was ineffective and that the petitioner has waived his
due process claim, we affirm the judgment of the post-conviction court.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which D. KELLY THOMAS, JR.,
and CAMILLE R. MCMULLEN , JJ., joined.

Joe R. Johnson, Springfield, Tennessee, for the appellant, Henry Ford Williams, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                On October 19, 2002, a Robertson County Circuit Court jury convicted the petitioner
of possession with the intent to sell .5 grams or more of cocaine, a Schedule II drug, within 1,000
feet of a school zone and of simple possession of cocaine. The petitioner also pled guilty to the
unlawful possession of a firearm in connection with the illegal drug charges. The trial court merged
the illegal drug convictions and imposed an effective sentence of 32.5 years as a Range II offender
to be served concurrently with a three-year sentence for the unlawful firearm conviction. See State
v. Henry Ford Williams, Jr., No. M2003-00515-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App.,
Nashville, May 8, 2005), perm. app. denied (Tenn. 2005). The petitioner filed a timely appeal to this
court, and we affirmed the convictions and sentences. Id. Following the denial of his application
for permission to appeal to our supreme court on August 22, 2005, the petitioner filed a timely
petition for post-conviction relief, mounting a two-issue challenge to his convictions. The trial court
found the petitioner’s claims colorable and appointed counsel, who subsequently amended the post-
conviction petition to state additional claims.

                 The evidence, as summarized by this court on direct appeal, established that Officer
Kyle Reeves of the Springfield Police Department executed a search warrant on the petitioner’s
residence, located within 1,000 feet of a school zone, on February 9, 2000. Id. “Officer Reeves
found a hand-rolled cigarette which appeared to be marijuana. Crack cocaine was found in the
fireplace, on the hearth, and underneath cushions in the sofa.” Id. The police officers found “a
security wand, a sawed-off shotgun, and $97 in cash.” Id. One week later, in an “unrelated
incident,” the petitioner told Officer Reeves, “‘Everybody knows I sell dope, but I don’t ever keep
any more on me than I can get rid of before y’all come in.’” Id., slip op. at 2. Other police officers
also testified that they “overheard the defendant acknowledge that he sold illegal drugs.” Id.

               The Tennessee Bureau of Investigation crime laboratory “confirmed that the
substance discovered at the defendant’s residence was cocaine,” and the weight of the cocaine, which
“included ‘crumbs’ and possibly cocaine residue,” totaled .57 grams. Id.

               The petitioner testified on his own behalf and “claimed that the cocaine found at his
residence was for his personal use, not for resale.” Id.

                 The petitioner filed a timely petition for post-conviction relief on January 25, 2006,
alleging ineffective assistance of counsel, claiming specifically that “trial counsel was ineffective
for failing to object and preserve a [Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986)]
violation” and that “trial counsel failed to seek the identity of the confidential informant that was
listed in the search warrant.” Appointed post-conviction counsel filed an amended petition for post-
conviction relief on July 20, 2007, reiterating the petitioner’s original claims and adding as additional
grounds for relief that “trial counsel was ineffective in that no Motion to Suppress was ever filed on
behalf of the [petitioner]” and that the petitioner “was denied a jury of his peers, as his jury was all-
white, and [petitioner] is African-American.”1

                In the July 24, 2007 evidentiary hearing, the petitioner testified, “I feel that jurors that
were African American were systemically excluded by the District Attorney’s Office, and I felt that
[trial counsel] did not object to none of this for the record . . . .” He testified that he remembered
only one African-American juror in the jury pool of approximately 50 potential jurors, a proportion
that he believed was unrepresentative of the population makeup of Robertson County. In the
hearing, the post-conviction court did not evaluate this claim as an ineffective assistance of counsel

         1
           The amended petition also alleged that “the conviction is unlawful in that the jury failed to separate the weights
of the ‘casual exchange’ cocaine and the ‘possession for resale’ cocaine. . . . The trial court improperly merged the two
counts together, thus equating an amount of cocaine over 0.5 grams.” The trial court noted that this issue was previously
determined by the Court of Criminal Appeals and denied relief. See T.C.A. § 40-30-108(c)(6) (2006). The petitioner
does not appeal this issue.

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claim for failing to make a Batson objection, but rather it evaluated it as a claim that the racial
makeup of the jury violated his right to due process. The petitioner agreed that, in his petition, he
objected to “a way that the system . . . in Robertson County systematically excluded certain people
of certain races.”

                Wanda Vaden, who had served as deputy clerk of the court for 44 years, testified
about the manner in which jurors had been selected in Robertson County. She testified that potential
jurors were drawn from a list of people, provided by the Tennessee Department of Safety, who had
drivers’ licences and state identification cards, and she agreed that this method “appear[ed] to be
used pretty widely across the state.” She testified that the system had no way of discriminating
against any “particular recognizable group” and that the system had been challenged before and had
never been deemed unconstitutional. She testified that the number of minorities represented in a jury
pool oscillated from month to month depending on “a random drawing.”

                 The petitioner also complained that trial counsel was ineffective. First, he posited
that trial counsel failed to seek the identity of the confidential informants relied upon in the February
9, 2000 search warrant that ultimately lead to the search of petitioner’s home and his arrest. He
testified, “[M]y understanding of the [C]onstitution of the United States of America is that I have
got the right to meet my accuser.” He also claimed that his trial counsel was ineffective because trial
counsel only met with the petitioner one time prior to his trial. Lastly, the petitioner stated that trial
counsel was ineffective in failing to seek suppression of his statements made to law enforcement
officers regarding his dealing illegal drugs. He testified that trial counsel informed him that the
officers’ statements would be mentioned in trial, but the issue of suppression was “never discussed.”

                 The petitioner’s trial counsel testified that he had practiced law for almost 18 years,
that he was licenced to practice law in both Tennessee and Kentucky, and that approximately 80
percent of his practice was devoted to criminal law. He stated that he served as a prosecutor for three
years and that he had participated in approximately 110 trials. According to his request for
compensation, he spent 8.4 hours in court and 28.8 hours in preparation for the petitioner’s trial. He
testified that his records reflected that he met with the petitioner three times in preparation for trial.

                Counsel stated that he did not seek the identity of any confidential informants because
he did not believe they would be “material witnesses to the crime charged when the search warrant
itself was executed on [the petitioner’s house].” Further, he testified that he did not believe the
informants would aid the petitioner in his defense because the warrant indicated that the informants
had witnessed the petitioner selling drugs. He testified that such information “would tend to
corroborate the State’s theory that the drugs there were there to be sold and not for personal use” and
could be potentially harmful to the petitioner’s defense.

               Counsel stated that he did not move to suppress the statements that the petitioner
made to police because they were “not suppressible.” He testified that to his understanding the
defendant made these statements to the police officers during a conversation while he was neither
in custody nor under interrogation. Although the officers’ testimony about these statements could


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have been hearsay, counsel testified that the statements would be permitted under “the party
opponent exception.”

                As to the petitioner’s complaint about the racial makeup of the jury, counsel testified
that he did not recall any Batson violations and agreed that “[h]ad it been a matter that concerned
him” he would have raised such concern with the trial court. His testimony indicated that jury
selection was not a “hotly contended issue” in the trial.

                The post-conviction court filed a written order denying post-conviction relief on
August 7, 2007. As to the petitioner’s claim that counsel’s performance was deficient in failing to
obtain the identity of the confidential informants listed in the warrant, the post-conviction court
noted that “these informants were present when drug activity took place at [p]eitioner’s residence
and [p]etitioner was identified in the affidavit as participating in the sale of cocaine from that
residence.” The court also noted that “the law is clear that identity of confidential informants need
not be revealed unless they had been witnesses at the execution of the search warrant at [p]etitioner’s
residence or they had been material to the [p]etitioner’s defense.” The court accredited counsel’s
testimony that the identity of the informants would have been prejudicial to petitioner’s defense and
the disclosure of the informants was not required under law.

               The post-conviction court also accredited counsel’s testimony that he had no grounds
on which to object to police officers’ testimony repeating the petitioner’s statements that he sold
illegal drugs. The court noted, “There was clearly no reason to file a motion to suppress this
statement.” The court concluded that the petitioner had not proved by clear and convincing evidence
that counsel was ineffective as to this issue. The post-conviction court also noted that “Motions to
Suppress had been filed and denied when [p]etitioner was represented by the Public Defender’s
office.”

                The post-conviction court further accredited Ms. Vaden’s testimony that Robertson
County’s method of selecting jury pools did not violate the petitioner’s due process rights. The court
ruled that “[t]his ground was not proved by clear or convincing evidence.”

                The petitioner filed a timely appeal to this court following the denial of relief. In this
appeal, he narrows his claims to the ineffective assistance of counsel and the denial of due process
due to the racial makeup of the jury.

                The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court
accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
By contrast, the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).



                                                   -4-
                                I. Ineffective Assistance of Counsel

                The petitioner contends that his trial counsel was ineffective by failing to adequately
meet with the petitioner to develop a defense, by failing to move to suppress the statements made
by the petitioner to law enforcement officers, and by failing to seek the identity of the confidential
informants mentioned in the search warrant.

               When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he must first establish that the services rendered or the advice given were below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). The error
must be so serious as to render an unreliable result. Id. at 687, 104 S. Ct. at 2064. It is not
necessary, however, that absent the deficiency, the trial would have resulted in an acquittal. Id. at
695, 104 S. Ct. at 2068. Should the petitioner fail to establish either factor, he is not entitled to
relief. Our supreme court described the standard of review as follows:

                               Because a petitioner must establish both prongs of the
               test, a failure to prove 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 defendant makes an insufficient
               showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

               On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of
counsel, however, applies only if the choices are made after adequate preparation for the case.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

               Claims of ineffective assistance of counsel are regarded as mixed questions of law
and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given no
presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762,
766 (Tenn. 2000).

               The petitioner first argues that, “[r]egardless of whether [counsel met with petitioner]
one or three times, this matter resulted in [the petitioner] being sentenced to 32.5 years inprison
[sic].” His sole argument on appeal is that, “It is difficult to imagine how an attorney can be fully


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prepared in a serious drug case such as this with only a handful of visits to the client.” This
argument fails to address whether counsel performed below the range of competence demanded of
attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Further, the petitioner has failed to
show how he suffered prejudice as a result of counsel only meeting him “a handful” of times. He
cites to no instances during the trial proceedings that suggest that counsel’s failure to meet with him
on more occasions affected his representation. Nothing in the record shows that defense counsel was
ill-prepared or that further meetings with the petitioner would have improved his performance.
Because the petitioner has failed to show any factor required in seeking post-conviction relief on this
issue, the claim of inadequate preparation is unfounded.

                Next, the petitioner argues counsel “was ineffective in not attempting to suppress
statements made by [the petitioner] to police officer Kyle Reeves” and maintains that “[t]his
testimony directly contradicted [the petitioner’s] entire case theory, yet [counsel] did not move to
suppress the statement.” However, trial counsel testified, and the post-conviction court agreed, that
said statements were not subject to suppression. We agree.

                 Counsel testified that the only conceivable motion to suppress would be based on the
fact that the petitioner was not apprised of his Miranda warnings before making to Officer Reeves
the statement, “‘Everybody knows I sell dope, but I don’t ever keep any more on me than I can get
rid of before y’all come in.’” See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Counsel
testified that these statements were not made while the petitioner was under custodial investigation;
therefore, the evidence was not inadmissible. The court agreed, and we will not disturb the finding
of the post-conviction court.

                The evidence showed that the disputed statement was made to Officer Reeves during
an encounter that took place more than a week after the execution of the February 9, 2000 search
warrant and that the statement was unsolicited by Officer Reeves. In determining whether Miranda
warnings are required, the court must look to whether the defendant was “in custody” at the time he
made the incriminating statement. State v. Anderson, 937 S.W.2d 851, 853 (Tenn. 1996). Custodial
interrogation is “questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S.
at 444, 86 S. Ct. at 1612. The post-conviction court, in its written order denying post-conviction
relief aptly noted:

                                The trial transcript . . . clearly reveals that these
               statements made by the Petitioner eight days after the execution of the
               search warrant at his residence were volunteered and [p]etitioner was
               not in custody and there was no interrogation. [Defense counsel]
               testified that he made no objection to this evidence as [p]etitioner was
               not in custody and being interrogated. There was clearly no reason to
               file a motion to suppress this statement.




                                                 -6-
Upon review, the trial court properly ruled that the defendant failed to meet the burden required to
show that counsel’s failure to file a motion to suppress was deficient or prejudicial.

               Lastly, the petitioner contends that counsel was ineffective in deciding “not to file a
motion seeking the identity of the confidential informant mentioned in the search warrant.” He
loosely cites as authority that “[t]he United States Constitution guarantees any Defendant in a
criminal case the right to confront their accusers,” and he maintains that a confidential informant is
an “accuser.”

                The post-conviction court noted that “the law is clear that identity of confidential
informants need not be revealed unless they had been witnesses at the execution of the search
warrant at [p]etitioner’s residence or they had been material to the [p]etitioner’s defense.” Indeed,
our supreme court has determined that the identity of a confidential informant is generally privileged
from discovery. House v. State, 44 S.W.3d 508, 512 (Tenn. 2001). The petitioner’s brief suggests
that he desires discovery of the confidential informant because “[w]ithout the search warrant there
would be no case against [the petitioner].” However, such disclosure shall be denied when a
defendant’s sole purpose of discovering a confidential informant’s identity is to challenge the
validity of a search warrant. See State v. Vanderford, 980 S.W.2d 390, 395-96 (Tenn. Crim. App.
1997).

                The petitioner cannot show that counsel’s failure to procure the identity of any
confidential informants listed in the search warrant was deficient performance or prejudicial because
the petitioner was not entitled to such information. Further, we will not disturb counsel’s tactical
decision not to pursue such information because any informants’ testimony would likely have
damaged the petitioner’s case.

                       II. Jury’s Racial Makeup as a Due Process Violation

               The petitioner argues that the racial makeup of the jury that convicted him violated
his due process rights, citing Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643 (1967) and State v.
Mann, 959 S.W.2d 503 (Tenn. 1997). His brief states,

                                In determining whether, pursuant to the Sixth and
               Fourteenth Amendments, a jury was properly selected from a fair
               cross-section of the community, courts utilize the following test:
                       (1) that the group alleged to be excluded is a “distinctive”
                       group in the community;
                       (2) that the representation of this group in venires from which
                       juries are selected is not fair and reasonable in relation to the
                       number of such persons in the community; and
                       (3) that this process of under representation is due to the
                       systmatic [sic] exclusion of this group in the jury-selection
                       process.


                                                 -7-
The petitioner suggests that, because he is African American and only one potential juror in the jury
pool was African American, Robertson County’s method of selecting potential jurors was
unconstitutional. The State argues that because the petitioner failed to raise this issue at trial or
direct appeal, the issue is waived for purposes of post-conviction relief. See T.C.A. § 40-30-106(g).
We agree with the State that the issue is waived.

                 Code section 40-30-106(g) states in pertinent part, “A ground for relief is waived if
the petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been presented.”
T.C.A. § 40-30-106(g). The petitioner had an opportunity to object to the racial makeup of the jury
at trial and on direct appeal; however, he failed to make such objections. We hold that the petitioner
has waived this issue and affirm the post-conviction court’s order denying relief on this ground.

                                          III. Conclusion

                Because the petitioner has failed to establish by clear and convincing evidence that
his counsel performed deficiently, he is not entitled to post-conviction relief on his claim of
ineffective assistance of counsel. Because the petitioner’s claim of a violation of his due process
rights due to the racial makeup of the jury was not presented at trial or on direct appeal, this claim
has been waived. Accordingly, the judgment of the post-conviction court is affirmed.


                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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