         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 7, 2006

                  JOSEPH JACKSON v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                              No. P-27485   Chris Craft, Judge



                   No. W2005-01181-CCA-R3-PC - Filed March 28, 2006


The petitioner, Joseph Jackson, appeals the Shelby County Criminal Court’s dismissal of his petition
for post-conviction relief from his convictions for two counts of attempted first degree murder and
resulting twenty-year concurrent sentences. On appeal, the defendant claims that his convictions
violate the Double Jeopardy provision of the federal constitution, that his indictments were
constitutionally defective, and that he received the ineffective assistance of counsel. We affirm the
judgment of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

Kamilah E. Turner, Memphis, Tennessee, for the appellant, Joseph Jackson.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Alanda Horne Dwyer, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       This case relates to the petitioner’s shooting at one victim, missing, and striking a passerby.
This court provided the following account of the events on direct appeal:

               On February 3, 2000, there was a large altercation between a number
               of gang members and other students in the parking lot of the MAPCO
               Express convenience store (MAPCO) on Raines Road in southeast
               Memphis. The altercation took place in the afternoon, about the time
               nearby schools were dismissing. The defendant had a “run in” the
               previous day with some rival gang members and, according to his
               statements to police, had been threatened by them. Due to that “run
in,” it was fairly common knowledge in the community that there
would be a fight at the MAPCO on February 3, thus there was quite
a large crowd in the parking lot.

        There is evidence that earlier on February 3, the defendant
told his friend, Lydell Yarbrough, there would be an altercation later
that day. Yarbrough brought a rifle to school and let the defendant
know he had it. It is unclear if Yarbrough brought the rifle because
of the potential altercation. The defendant then put it into his
backpack and carried it throughout the school day. In order for the
rifle to be carried in the backpack without detection, it had to be
disassembled.

        After school, as the crowd started assembling at the MAPCO,
a number of fights broke out, including one between the defendant
and Johnny Maxwell. According to at least two witnesses, a police
officer and Johnny Maxwell, Maxwell “beat up” the defendant in a
fight that lasted about a minute. At this time, the defendant was not
carrying the rifle. The crowd at the MAPCO had grown quite large by
this time.

         Immediately after the fight between the defendant and
Maxwell, the defendant walked to a nearby truck where two of his
friends, including Yarbrough, were sitting. The police officer stated
that Maxwell and his friends were taunting the defendant. The crowd
had still not diminished. The defendant then grabbed or was handed
the rifle, and walked back with the assembled rifle toward Maxwell.
There are differing versions as to who assembled the rifle and
whether Maxwell and his friends walked towards the defendant as the
defendant walked to the truck or were simply still hanging around the
MAPCO lot. Calmly, the defendant walked towards Maxwell, lifted
the rifle, and fired one shot in an attempt to kill Maxwell. He missed
Maxwell, but the bullet struck twelve-year-old Brittney Taylor, who
was walking behind the crowd, in the side. She had to be airlifted to
the hospital. The defendant then put the gun into the truck and was
almost immediately apprehended by the off-duty police officer who
had witnessed the scene. The defendant’s two friends drove away
from the scene in the truck but were pulled over a short distance from
the MAPCO.




                                 -2-
       ....

         The police officer testified that on February 3, 2000, he was
off duty near the fight scene, although he was still in uniform. He said
he noticed a large crowd at the MAPCO, with several different fights
occurring. He went to the scene and broke up one of the fights. He
said he saw the defendant arguing with two shirtless boys who were
jumping up and down and “throwing” gang signs at him. The officer
testified it appeared as though the defendant had been “gotten the
better of.” He then witnessed the defendant walk to a green truck and
then walk back to the boys who had been taunting him, getting “pretty
close” to them. The defendant then fired one shot at Maxwell and
“casually” walked back to the truck and put the rifle in it. The officer
stated the other two boys at the truck were laughing. After the
defendant put the gun back in the truck, the officer testified that he
immediately apprehended the defendant. He said the defendant
looked “whipped,” acted depressed, and said he did not mean to shoot
the victim.

       ....

         Lydell Yarbrough, who had pending charges for attempted
first degree murder for actions related to this case, testified to the
following: He said the defendant told him on the day in question that,
on the previous day, the defendant had an altercation with some other
boys and was letting Yarbrough know that something might happen
that day. Yarbrough testified he (Yarbrough) brought a rifle to school
that day, a disassembled one that he was able to keep in his backpack.
He told the defendant about the rifle, and the defendant then obtained
it and kept it in the defendant’s backpack. After school, they went to
the MAPCO where a crowd was forming in anticipation of the fights
they knew were coming. Yarbrough testified that a fight broke out
between the defendant and Maxwell. At that time, the defendant did
not have the gun; it was in a truck that Yarbrough and another friend
were sitting in at the MAPCO parking lot. After the fight between the
defendant and Maxwell ended, a fight Yarbrough said lasted about a
minute, the defendant walked over to the truck and got the gun. He
stated he believed the defendant had to reassemble the gun. The
defendant then walked back to Maxwell and Maxwell’s friends, and
Yarbrough said he then heard a gunshot. Yarbrough commented that,
after the fist fight, the defendant’s demeanor was calm. He also
testified that the State had not given him any deals to testify and that
he was only trying to tell the truth.


                                  -3-
                       ....

                       The final witness important for our analysis was Johnny
               Maxwell. Maxwell testified that he indeed had been in a fist fight
               with the defendant, one-on-one, that lasted a “few minutes.” He
               stated there were other fights going on at the same time, but his fight
               with the defendant was just between the two of them. Maxwell
               admitted that he had beaten the defendant in the fight. He stated that
               about a minute after the fist fight, he turned to walk away, but saw the
               defendant walk to the truck, where he was handed the gun by his
               “partner.” He stated he had not walked towards the defendant as the
               defendant went to the truck. According to Maxwell, the defendant
               walked to within “ten to fifteen” feet of him and fired the shot that
               ultimately hit and injured Brittney Taylor.

State v. Joseph Jackson, Jr., No. W2001-02779-CCA-R3-CD, Shelby County, slip op. at 1-4 (Tenn.
Crim. App. Dec. 17, 2002), as corrected (Jan. 10, 2003). This court affirmed the petitioner’s
convictions and sentences.

       On July 8, 2003, the petitioner filed a petition for post-conviction relief alleging that he
received the ineffective assistance of counsel, that the indictments were constitutionally defective,
and that his dual convictions violate Double Jeopardy. At the petitioner’s hearing for post-
conviction relief, he testified that his attorney never discussed with him his range for purposes of
sentencing. He said his attorney only told him that his sentence for each count of the indictment
would be between fifteen and sixty years. He said that his parents had hired a private investigator
who had located and interviewed various witnesses and that his attorney failed to investigate the
witnesses. The petitioner explained, for example, that one of the witnesses would have said that the
victim with whom he had been fighting was heading in the petitioner’s direction in a threatening
manner.

        The petitioner said his attorney failed to negate the prosecution’s case on the element of
premeditation, explaining that no evidence of premeditation existed in his case. He said his attorney
coerced him into not testifying on his own behalf. The petitioner said he wanted to testify and
explain to the jury that he was acting in self-defense. The petitioner said, however, that it was
ultimately his decision. He said his attorney never explained to him the elements of the crime that
the state would have to prove in order for the jury to find him guilty beyond a reasonable doubt.

        On cross-examination, the petitioner said his attorney never explained to him that his
sentencing range as a Range I, standard offender was fifteen to twenty-five years for each offense.
The petitioner said that one of the witnesses who was not interviewed would have testified to issues
regarding his lack of premeditation. Specifically, he said the witness would have testified that the
petitioner had not reassembled the gun before shooting. The petitioner also said another witness,
the victim who was shot, would have testified, if asked, that the other victim had taken his shirt off


                                                 -4-
after the initial fight and was running around and asking, “Where the dude at that hit me?” The
petitioner said this testimony also would have negated the prosecution’s case as to premeditation.
The petitioner acknowledged that at the trial, the trial court asked him questions concerning his right
to testify. He admitted telling the trial court that he made the decision not to testify.

        Sandra McClarien testified that she was the petitioner’s mother. She said she hired a private
investigator on the advice of the petitioner’s first attorney, who had to withdraw from the petitioner’s
case before trial because he was campaigning for judge. She said that the private investigator
interviewed various witnesses and that the tape recordings of the interviews had been in possession
of the first attorney.

         The petitioner’s trial attorney testified that he had informed the petitioner of the potential
sentences he could receive if convicted. The attorney said he had reviewed transcripts of interviews
from the witnesses located by the private investigator. He said that the petitioner’s sister talked to
him about a potential witness but that he was unable to locate the witness. The attorney said he
discussed with the petitioner the potential problems with him taking the stand because he felt the
petitioner could not effectively communicate. He said, however, that because passion was their best
defense at trial, he felt the petitioner needed to testify. The attorney said that after the state presented
its case-in-chief, he asked the petitioner, “Do you want to testify?” and that the petitioner responded,
“No, I don’t want to testify.” The attorney maintained he never told the petitioner not to testify, but
he said he did tell the petitioner his testifying would be dangerous unless he could effectively
communicate and express himself.

        On cross-examination, the petitioner’s attorney said he did not pursue the witness’s statement
that Johnny Maxwell was coming toward the defendant because he said Mr. Maxwell did not have
a gun at the time. The attorney said he told the defendant that the defendant had a right to appeal the
decision of the Tennessee Court of Criminal Appeals to the Tennessee Supreme Court.

        In its order denying the petitioner post-conviction relief, the trial court found that the
petitioner’s attorney’s performance was not deficient, that the issue regarding the defective
indictments was meritless because the petitioner had cited a statute having nothing to do with his
case, and that this court had previously determined the Double Jeopardy issue.

        On appeal, the petitioner contends that he received the ineffective assistance of counsel, that
his indictments are constitutionally defective, and that his convictions violate Double Jeopardy. The
state contends that the petitioner’s attorney’s performance was not constitutionally deficient and that
this court previously determined the Double Jeopardy issue. The state does not respond to the
petitioner’s defective indictments issue.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed


                                                    -5-
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

         Initially, we note that the Post-Conviction Procedure Act may not be used to re-litigate issues
that this court has “previously determined.” See T.C. A. § 40-30-106(f), (h); see also Miller v. State,
54 S.W.3d 743, 747-48 (Tenn. 2001) (holding that an issue previously determined by this court
“cannot be revisited in this post-conviction proceeding”). This court has previously determined that
no Double Jeopardy problem existed for the petitioner’s convictions. Jackson, slip op. at 6-8. The
petitioner is not entitled to relief.

                  I. CONSTITUTIONALLY DEFECTIVE INDICTMENT

       The petitioner contends his indictments are constitutionally defective and therefore void
because they “fail to allege the requisite mental state ‘knowingly’ required by T.C.A. § 39-17-
417(c).” The state does not respond to this issue.

        We note the petitioner has failed to include a copy of his indictments in the appellate record.
However, we may take judicial notice of the petitioner’s direct appeal record in this case. See State
ex rel. Wilkerson v. Bomar, 213 Tenn. 499, 505, 376 S.W.2d 451, 453 (Tenn. 1964). The Shelby
County Grand Jury returned two nearly identical indictments against the petitioner, the only
difference being the named victim. The indictment for the crime against the victim Johnny Maxwell
states:

               THE GRAND JURORS of the State of Tennessee, duly selected,
               empaneled, sworn and charged to inquire for the body of the county
               of Shelby, Tennessee, upon their oath, present that:

                                LYDELL RAMON YARBROUGH
                                    JOSEPH JACKSON, JR

               on February 3, 2000 in Shelby County, Tennessee, and before the
               finding of this indictment, did unlawfully attempt to commit the
               offense of First Degree Murder as defined in T.C.A. 39-13-202, in
               that they did unlawfully, intentionally, and with premeditation
               attempt to kill Johnny Maxwell in violation of T.C.A. 39-12-101,
               against the peace and dignity of the State of Tennessee.

       Initially, we note that section 39-17-417(c) provides for penalties for the manufacture,
delivery, sale, or possession with the intent to manufacture, deliver, or sell certain controlled
substances. It is, however, devoid of a definition of “knowing.” We also note that the state is not
required to prove the mental state of “knowing” in a prosecution for attempted first degree murder.



                                                  -6-
See T.C.A. §§ 39-12-101; 39-13-202. In any event, we discern no constitutional infirmities in the
petitioner’s indictments, and the petitioner is not entitled to relief on this issue.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

         The petitioner contends that he received the ineffective assistance of counsel. He claims his
trial attorney failed to investigate his case properly, failed to interview witnesses and develop their
testimony for trial, and failed to discuss with him the potential range of sentence he would receive.
The state contends the petitioner’s attorney’s performance was not constitutionally deficient.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). In other
words, a showing that counsel’s performance falls below a reasonable standard is not enough; rather,
the petitioner must also show that but for the substandard performance, “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Strickland standard
has been applied to the right to counsel under article I, section 9 of the Tennessee Constitution. State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after satisfying
both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). The
performance prong requires a petitioner raising a claim of ineffectiveness to show that the counsel’s
representation fell below an objective standard of reasonableness or “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The prejudice
prong requires a petitioner to demonstrate that “there is a reasonable probability that, but for
counsel’s professional errors, the result of the proceeding would have been different.” Id. at 694,
104 S. Ct at 2068. “A reasonable probability means a probability sufficient to undermine confidence
in the outcome.” Id. Failure to satisfy either prong results in the denial of relief. Id. at 697, 104 S.
Ct. at 2069.

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney 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, 104 S. Ct. at 2065. Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance. Deference is made to trial strategy or tactical choices if they are informed
ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201.


                                                  -7-
         Concerning the petitioner’s claim that his attorney’s performance was constitutionally
deficient, we note that a petitioner’s failure to present the testimony of any witness that he claimed
should have been at his trial is fatal to his complaints regarding his attorney’s investigation and
failure to call witnesses. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The
record reflects that the petitioner failed to call at the post-conviction hearing any of the witnesses he
claims a proper investigation by his attorney would have revealed. Regarding the petitioner’s other
arguments of ineffective assistance of counsel, we conclude the record does not preponderate against
the trial court’s finding that the petitioner’s attorney’s performance was not constitutionally deficient.
The petitioner is not entitled to relief on this issue.

        Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




                                                   -8-
