        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 7, 2016

                  SHELLY MINOR v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                   Nos. 08-06446, 09-07086  Lee V. Coffee, Judge


                 No. W2015-01580-CCA-R3-PC – Filed July 15, 2016



The petitioner, Shelly Minor, appeals the post-conviction court’s denial of his petition for
post-conviction relief, arguing that he was denied the effective assistance of counsel.
After review, we affirm the judgment of the post-conviction court denying the petition for
post-conviction relief.

 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 ROBERT W. WEDEMEYER
and J. ROSS DYER, JJ., joined.

Andrew R.E. Plunk, Memphis, Tennessee, for the appellant, Shelly Minor.

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

                                        OPINION

                                         FACTS

       The petitioner was convicted by a Shelby County Criminal Court jury of second
degree murder, leaving the scene of an accident involving injury or death, driving while a
habitual motor vehicle offender, driving under the influence (“DUI”), reckless driving,
vehicular homicide by intoxication, and vehicular homicide by reckless conduct. At
sentencing, the trial court merged the vehicular homicide convictions with the second
degree murder conviction and merged the reckless driving conviction with the DUI
conviction and sentenced the petitioner to an effective term of twenty-eight years, eleven
months, and twenty-eight days. This court affirmed the judgments of the trial court on
direct appeal, and the Tennessee Supreme Court denied his application for permission to
appeal. State v. Shelly Minor, No. W2010-01677-CCA-R3-CD, 2012 WL 3055776, at
*1 (Tenn. Crim. App. July 26, 2012), perm. app. denied (Tenn. Jan. 22, 2013).

      The underlying facts of the case were set out by this court on direct appeal as
follows:

             [The petitioner] and Lavatrice Street, the victim, were in a
      tumultuous relationship. Mrs. Street was married to Freddie Street, but the
      couple had been separated for ten to fifteen years at the time of the victim’s
      death. [The petitioner] and the victim lived together at the victim’s home
      from 2000 to November of 2007. According to friends and family
      members, the victim got tired of supporting [the petitioner] and told him to
      leave. [The petitioner] refused to leave the residence. After he was told to
      leave, [the petitioner] engaged in various abusive and violent behaviors
      directed at the victim ultimately culminating with the victim’s death in
      January of 2008.

              The police were called to the victim’s home on December 4, 2007,
      after [the petitioner] broke the victim’s cell phone and grabbed her by the
      neck. [The petitioner] threatened to beat her up or “do something” to her if
      she called the police. [The petitioner] even intentionally inflicted knife
      wounds on himself and tried to blame it on the victim. When the police
      arrived, [the petitioner] appeared to have been drinking. Police found a
      broken cell phone. The victim had urinated in her clothing out of fear of
      [the petitioner]. Police found the wet clothing in the house. During the
      police investigation, [the petitioner] admitted that he inflicted cuts on
      himself and tried to blame it on the victim. [The petitioner] was instructed
      by police to move his things out of the house. From that point on, [the
      petitioner] did not live with the victim.

              After [the petitioner] moved out, he engaged in a series of acts of
      vandalism directed toward the victim. On December 5, 2007, there was a
      burglary call placed from the victim’s home. The back window was
      broken, and there was blood on the door knob. The home was ransacked.
      The tags from the victim’s vehicle were stolen. [The petitioner] was
      responsible. That same day, he chased the victim with a drill, threatening
      to kill the victim. She was so frightened that she again urinated in her
      clothing.



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       [The petitioner] slashed tires and drilled holes in the tires of cars
belonging to the victim and two of her daughters. The victim had to buy
and replace at least five sets of tires for her own vehicle due to [the
petitioner’s] actions.

       On December 9, 2007, [the petitioner] came to the victim’s home
and banged on the door. When there was no answer, [the petitioner] cut the
tires on the victim’s car, cut the air conditioning and cable lines to the
house, and broke a window. The victim saw [the petitioner] cut the tires
and drain fluid from her car before going to the back of the home. The
victim replaced the tires that day. A second vandalism call was placed after
the victim’s tires were slashed for the second time that same day. On
December 10, 2007, the victim’s tires were slashed again. The cuts were
similar to the cuts in the tires made by [the petitioner] on previous
occasions.

      On December 11, 2007, the victim’s home burned to the ground.
The victim’s daughters claimed that the victim was afraid to rebuild the
home because she did not want [the petitioner] to know where she lived.

       After her house burned to the ground, the victim moved in with her
daughter, Knoishia Cunningham, and took a leave of absence from work,
effective December 10, 2007, through January 3, 2008. The victim
returned to work on January 2.

       On December 16, 2007, the police were called when [the petitioner]
discovered two bullet holes in his vehicle, a Volkswagen. [The petitioner]
claimed that the victim was responsible. At that time, police ran the tags on
[the petitioner’s] car and learned that they were actually the victim’s stolen
tags.

      The victim swore out a warrant against [the petitioner] for the events
on December 10. She also referenced the events that took place on
December 9 and 10 and filed for an order of protection. The victim did not
appear at the hearing on the order of protection, so it was dismissed.

      On December 24, 2007, Ms. Cunningham’s tires were slashed while
she was at work.




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      On January 16, 2008, the victim filed a theft report after the driver’s
side window was broken out of her Toyota 4Runner. The victim’s
checkbook, a cell phone, and some credit cards were stolen.

        The next day, security cameras from the victim’s place of
employment showed a Volkswagen vehicle entering the parking lot at shift
change. [The petitioner] drove a dark-colored Volkswagen.           The
Volkswagen followed a silver SUV out of the parking lot. A short time
later, around 7:00 a.m. on January 17, a 911 call was placed from the
victim’s cell phone. The operator heard a scream before hearing nothing
but noise like a television or a radio.

        Shortly thereafter, officers witnessed a black Volkswagen with front
end damage sitting on the side of Hacks Cross Road near Memphis. [The
petitioner] was standing next to the car. The victim’s Toyota 4Runner was
down the street about two tenths of a mile from [the petitioner’s] vehicle,
on its side. It appeared that the 4Runner had traveled off the road into a
utility pole. The victim was pinned under the vehicle with her head and
upper torso visible. The victim was removed from the vehicle and
transported to the hospital where she died of blunt force trauma.

      [The petitioner] walked away from the scene, walking all the way to
his mother’s house to change out of “muddy” clothing. A beer can was
found in [the petitioner’s] vehicle. A Bible and document entitled
“Dismissal of Order of Protection” were found in the victim’s vehicle.

       [The petitioner] was arrested shortly thereafter. He was indicted in
September of 2008 by the Shelby County Grand Jury on charges of first
degree murder, leaving the scene of an accident resulting in death, driving
while being declared a habitual motor vehicle offender, driving under the
influence, and reckless driving. In September of 2009, a separate
indictment was issued charging [the petitioner] with vehicular homicide by
intoxication and vehicular homicide by reckless conduct.

       While [the petitioner] was incarcerated prior to trial, he called his
mother from jail. During that telephone call, [the petitioner] told his
mother that it was not his intent to kill the victim. He told his mother that
the victim saw him driving behind her and rammed her vehicle into his
vehicle. [The petitioner] also wondered why there was no arrest warrant for
him if he were responsible for slashing the victim’s tires.

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              At trial, an expert for the State opined that both vehicles were
       traveling in the same direction when [the petitioner’s] vehicle hit the back
       of the victim’s vehicle. It appeared both from the lack of mud on the right
       side of [the petitioner’s] vehicle and the mud present on the left side of [the
       petitioner’s] vehicle, that [the petitioner’s] vehicle was close to the right
       side of the victim’s vehicle as the victim’s vehicle went off the road. In
       other words, the victim’s car left the road after being struck by [the
       petitioner’s] car.

              [The petitioner] hired his own accident reconstructionist, Ralph
       Cunningham, to testify at trial. He agreed that [the petitioner’s] vehicle
       struck the victim’s vehicle while both traveled in the northbound lane. He
       guessed that [the petitioner’s] vehicle was going approximately twenty-two
       miles per hour faster than the victim’s vehicle at impact. Based on the
       markings on the road and position of the vehicle, he opined that the crash
       was caused by inappropriate steering input. Mr. Cunningham also opined
       that the victim hit the utility pole at a speed of twenty-four to thirty miles
       per hour before traveling another fifty feet as it rotated and flipped. Mr.
       Cunningham was of the opinion that the victim would have survived the
       crash if she had been wearing a seatbelt. He based this opinion on his
       personal experience of witnessing crash tests with crash test drivers.

Id. at *1-3 (footnotes omitted).

       The petitioner filed a pro se petition for post-conviction relief on April 19, 2013,
followed by an amended petition on August 23, 2013, after the appointment of counsel.
Counsel subsequently withdrew, new counsel was appointed, and a “re-amended”
petition was filed on July 21, 2015. In his petitions, the petitioner alleged various claims
of ineffective assistance of trial counsel, including that counsel failed to apply for an out-
of-state warrant to secure the appearance of a key witness at trial.

        At the July 21, 2015 evidentiary hearing, trial counsel, who also represented the
petitioner on direct appeal, testified that he filed a motion to continue the trial in an effort
to locate a witness, Kelly Gilliam. Counsel said that Ms. Gilliam had observed what
appeared to be the petitioner’s vehicle strike the victim’s vehicle one time from behind,
which “pushed the victim’s car forward slightly, and then [the victim] start[ed] swerving
kind of left and right before she went off the road.” Trial counsel said that Ms. Gilliam’s
testimony was important to the defense because their theory was that “there was just a
single strike, that [the petitioner] wasn’t intending to kill [the victim], that he just kind of
hit her car and that she kind of overreacted and swerved, and [trial counsel] brought on an
expert that kind of confirmed that.” Trial counsel said that Ms. Gilliam had a conflict the
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week of trial, in that she lived in Georgia and her exams for air traffic control school were
scheduled for the same week. The trial court denied counsel’s motion for a continuance.
Counsel said that one of his issues raised on direct appeal was the denial of the motion
and that this court determined that the denial was not error.

        Trial counsel said that he did not file an out-of-state warrant for Ms. Gilliam
because it was near the start of trial, he was unsure if he could effectuate it quickly, and
he did not want to “sour[] one of the few good witnesses” the defense would have had.
Counsel said he decided to “go forward with the expert proof [they] had, because the
expert was pretty confident that it was a single strike.” Counsel had wanted Ms. Gilliam
to testify to corroborate the expert witness’s testimony, but her testimony “wouldn’t have
been that much more important than what the expert said.”

        In response to questioning by the post-conviction court, trial counsel testified that
he “litigated everything . . . about as fully as it could have been litigated.” Counsel said
he could not “think of a single thing” he could have done differently.

       At the conclusion of the hearing, the post-conviction court made oral findings,
including that the petitioner had “failed in his obligation to have witnesses in Court so
that the Court can make a determination as to whether or not that witness’s testimony
would have made a difference in trial,” and denied the petition. The court subsequently
entered a detailed written order on August 14, 2015.

                                       ANALYSIS

       The petitioner argues that trial counsel was ineffective for not securing Ms.
Gilliam’s appearance at trial. The State responds that because the petitioner did not call
Ms. Gilliam to testify at the evidentiary hearing, “the post-conviction court correctly held
that the petitioner had failed to meet his burden of showing he was entitled to post-
conviction relief.” 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
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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
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. 1975)).
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”).

        With regard to the petitioner’s claim, the post-conviction court’s detailed findings
are as follows:



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              “When 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). This Court cannot
      speculate on what benefit the witnesses might have offered to the
      Petitioner’s case nor guess as to what evidence further investigation may
      have uncovered. As the Petitioner has failed to produce Ms. Gilliam at the
      evidentiary hearing, the Petitioner asks the Court to engage in rank
      speculation as to how trial counsel’s tactical decision not to compel the
      appearance of Ms. Gilliam could have made a difference in the outcome of
      this trial. The Petitioner has not shown that he was prejudiced or is entitled
      to relief on this issue. The Petitioner has had over five (5) years after trial
      to present evidence of Ms. Gilliam’s likely testimony. The Petitioner has
      had over five (5) years after trial to secure an affidavit from Ms. Gilliam
      about what she saw on the day of the accident or to subpoena Ms. Gilliam
      to ensure her appearance at the post-conviction evidentiary hearing. Ms.
      Gilliam[’s] testimony or an affidavit was not offered at the evidentiary
      hearing. This issue is without merit.

             ....

              The evidence in this case was overwhelmingly strong. The
      Petitioner could have easily been convicted of First Degree Murder in the
      killing of [the victim]. Trial counsel provided exceptional representation in
      securing a conviction for the lesser offense of Second Degree Murder for
      this Petitioner. This Petitioner has wholly failed to prove that counsel were
      ineffective, the Petitioner has wholly failed to demonstrate any prejudice.

        The record supports the determination of the post-conviction court. The petitioner
has not shown a “probability sufficient to undermine confidence in the outcome” that the
result of the outcome would have been different had the jury heard the testimony he says
should have been presented. See Strickland, 466 U.S. at 694. We, therefore, affirm the
judgment of the post-conviction court denying the petition.

                                    CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.

                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE
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