        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs at Knoxville July 27, 2010

                  AARON T. JAMES v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                    No. 98-C-2345    J. Randall Wyatt, Jr., Judge


               No. M2009-00721-CCA-R3-PC - Filed December 23, 2010


The Petitioner, Aaron T. James, appeals the Davidson County Criminal Court’s denial of
post-conviction relief from his conviction for especially aggravated kidnapping and resulting
sixty-year sentence. He contends that the trial court committed plain error by (1) failing to
instruct the jury on the need for unanimity as to the theory of guilt, (2) failing to require the
State to elect a theory of guilt, and (3) failing to correct the prosecutor’s misstatement of law
during closing argument. He also contends that (4) trial counsel rendered ineffective
assistance by failing to object to or request corrections for the first three issues and (5)
appellate counsel rendered ineffective assistance by failing to raise these issues on appeal.
We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

David R. Heroux, Nashville, Tennessee, for the appellant, Aaron T. James.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        The Petitioner was convicted of especially aggravated kidnapping and sentenced as
a Range III, career offender to sixty years’ confinement, to be served consecutively to a fifty-
year sentence he was serving at the time of the offense. This court affirmed the judgment of
the trial court and recited the facts of this case in the Petitioner’s direct appeal:
       In March of 1998, the defendant and a co-defendant,
Tony Bobo, attempted to escape from Riverbend Maximum
Security Prison. They first cut through the fence in the exercise
yard before commandeering a delivery truck being driven by
Department of Correction employee . . . . Bobo, who was armed
with a prison-made knife, directed the victim into the cab of the
truck and then drove into the perimeter fence. The pair was
apprehended when guards overtook them before they were able
to penetrate the outermost security fence.

        At trial, Mark Hawood, who was working “mobile
patrol” at Riverbend on the day of the attempted escape,
described the facility as completely surrounded by two fences
equipped with concertina and razor wires and sensors. He
testified that the two fences are approximately twelve feet tall
and thirty feet apart. Hawood recalled that he was in his patrol
vehicle when he saw a delivery truck speeding toward the fence.
According to Hawood, the truck knocked the interior perimeter
fence “completely down.” He stated that the driver then put the
truck in reverse, drove around as if looking for a way to exit,
and then returned and struck the fence in the same location.
Hawood testified that he and another correctional officer opened
fire on the vehicle and continued to fire until the vehicle came
to a stop. The defendant was the first to exit the truck, followed
by the victim, whom Hawood described as “hysterical,” and
finally Bobo.

       Lieutenant Billy James McCleskey, who was employed
by the Department of Correction as an institutional investigator
and internal affairs liaison officer, testified that because both the
defendant and Bobo were classified as maximum security
inmates, they were allowed only one hour each day outside their
cells. Lieutenant McCleskey stated that when maximum
security inmates are released from their cells for recreation, they
are placed inside individual recreation cages, which he described
as two sets of four expanded steel cages with a walkway in the
center. During his investigation, Lieutenant McCleskey
discovered that the defendant had cut a hole in his exercise cage,
entered into Bobo’s cage and then cut a hole in Bobo’s cage for
entry into the exercise yard. The lieutenant testified that he

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found a “prison-made knife,” or “shank,” that was
approximately six inches long and one inch wide in the driver’s
side floorboard of the delivery truck.

       The victim . . . , a storekeeper at Riverbend, testified that
on the day of the offense she was delivering supplies to Unit 2,
where the defendant and Bobo were incarcerated. She recalled
that she turned off the ignition, put the keys in her pocket, and
locked the doors before exiting the truck. As she walked toward
the gate, she heard the fence rattle, saw the defendant and Bobo
jump over the fence, and “froze” as Bobo “stuck a sharp object
up to [her] neck.” She testified that the defendant got into the
truck first and she went in next so as to be seated between the
defendant and Bobo, who was driving. When the victim asked
the defendant why he was doing this, he responded, “[G]ot too
much time, got too much time. We’ve got to get out of here.”
She stated that the defendant assured her that she would not be
harmed.

       The victim confirmed that Bobo drove the truck into the
perimeter fence, knocking it down, and then backed up in order
to gain more speed. She estimated that the truck was traveling
approximately fifty miles per hour when it struck the fence a
second time, clearing the first fence and partially tearing down
the second. According to the victim, she then heard thumping
sounds and the defendant instructed her to get down before
convincing Bobo to surrender. The victim testified that the
defendant opened the passenger side door and lay on the ground
as she ran from the truck. She stated that the defendant never
gave any indication that he was being held against his will.

        During cross-examination, the victim conceded that Bobo
had threatened her with the knife, had ordered her into the truck,
and had driven the truck into the fence. She also acknowledged
that the defendant repeatedly expressed a desire to surrender.

       Bobo, as a witness for the defense, testified that prior to
the attempted escape, he had been convicted of “several”
murders, manslaughter, four counts of robbery, “and several
other charges.” He stated that two of his murder convictions

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were the result of killing other inmates, one of whom he
bludgeoned with a dumb bell and one of whom he stabbed with
a shank. He recalled that he met the defendant when the two
were housed together in the maximum security unit at
Riverbend. According to Bobo, he discussed the escape with
the defendant on two occasions prior to the day of the offense.
Bobo testified that “[t]he plan was to . . . open up the exercise
cages. . . . go out through the hole . . . and to go over the fences,
you know, and just go on from there.” Bobo claimed that the
pair planned to climb over the fences by going over the pole to
avoid setting off the alarms. He contended that the defendant
was unaware of his “backup plan,” which was to “grab the truck
and go through the fences.” Bobo also insisted that the
defendant did not know that he was carrying a shank.

        Bobo explained that he decided to carry out the alternate
plan because “it took so long to get the hole in the cages.” He
stated that the defendant did not want to take the truck and
“acted like he wanted to go back.” Bobo claimed that he
threatened the defendant with his weapon saying, “If your word
ain’t worth nothing, your life ain’t worth nothing.” Bobo
testified that he directed the defendant to go under the fence
between the exercise yard and the truck and then ordered both
the victim and the defendant to get into the truck. According to
Bobo, he started the truck and immediately began driving
toward the fence. He testified that when he struck the second
fence, the truck became stuck on the pole and the defendant told
Bobo that “it was over.” Bobo claimed that he refused to
surrender and did not terminate the attempted escape until
gunfire from correctional officers “busted the engine block.”
Bobo further contended that if the defendant had refused to
accompany him in the truck, he would have “hurt him.” Bobo
admitted that he pled guilty to aggravated robbery, aggravated
kidnapping, and attempted escape in connection with the
incident.

       During cross-examination, he acknowledged that he and
the defendant had discussed escaping even before they were
transferred to their cell block in Unit 2. Bobo claimed that they
planned to scale the fences, which were topped with razor wire

                                 -4-
               and equipped with alarms, with no extra padding under their
               clothing to protect them. He acknowledged that during the
               investigation prior to the trial, he did not inform investigators
               that he threatened the defendant.

State v. Aaron T. James, No. M2004-00808-CCA-R3-CD, Davidson County, slip op. at 1-3
(Tenn. Crim. App. Jun. 21, 2005), app. denied (Tenn. Dec. 5, 2005).

        The Petitioner filed a pro se petition for post-conviction relief on November 30, 2006,
and an amended petition through counsel on September 21, 2007. At the post-conviction
hearing, trial counsel testified that he did not object to the lack of an instruction for unanimity
on the theory of guilt because he believed the law did not require it. He said that for the same
reason, he did not object to the State’s failure to elect one theory of guilt. When asked about
the prosecutor’s statement to the jury that “from the State of Tennessee’s perspective, moving
down to the next [lesser included offense] is an equivalent of a not guilty,” trial counsel
acknowledged that his lack of objection was not based on a tactical reason. He said,
“[L]ooking at it now, I can see that it could have been misleading to a jury. I don’t think at
the time I appreciated that. But I think I probably just sat there and didn’t think I had a
reason to object and just let it happen.” He said he did not remember that his co-counsel
objected or that they discussed raising an objection.

       On cross-examination, trial counsel testified that he had been a criminal defense
attorney for eleven years. He said that he was the lead defense counsel of record at the trial
but that his co-counsel had a few more years’ experience and had served as co-counsel at the
Petitioner’s first trial for this offense.

       At the conclusion of the hearing, the trial court stated:

               The Court finds that the facts of the alleged crime [arose] from
               a single event. The Court therefore finds that the failure to
               instruct the jury on a unanimous theory of guilt in this case was
               not erroneous and that [counsel’s] failure to seek this instruction
               was not below the range of competence of an attorney in a
               criminal case.

               ...

               For the reasons stated above, the Court finds that the State is not
               required to elect between these two theories of guilt and that
               [counsel’s] failure to request that the trial court require this

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              election is not below the range of competence of an attorney in
              a criminal case.

              ...

              The Court finds that the prosecutor’s argument was made for the
              purpose of stating the personal effect on [the prosecutor] of a
              not guilty verdict for the charged count. The Court therefore
              finds that [counsel’s] failure to object to this statement [that to
              the State, a conviction for a lesser included offense would be
              equivalent to a not guilty verdict] was not below the range of
              competence of an attorney in a criminal case. Furthermore, the
              Court finds that the jury instructions adequately cured any
              doubts the jury had about whether a conviction of a lesser
              included offense is the equivalent of a not guilty verdict. The
              Court therefore also finds that the Petitioner did not suffer
              prejudice as a result of [counsel’s] failure to object.

              ...

              Because the Court finds that trial counsel was not ineffective in
              failing to raise these issues, the Court necessarily finds that
              [appellate counsel’s] actions in failing to preserve these issues
              on appeal were not below the range of competence of an
              attorney in a criminal case.

        The burden in a post-conviction proceeding is on the petitioner to prove the
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2010);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). A petitioner is required to provide
“allegations of fact explaining why each ground for relief was not previously presented in
any earlier proceeding.” T.C.A. § 40-30-104(e) (2010). 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, 456-57 (Tenn. 2001). Post-conviction
relief may only be given if a conviction or sentence is void or voidable because of a violation
of a constitutional right. T.C.A. § 40-30-103 (2010).




                                              -6-
                                              I-III

        The Petitioner contends that the trial court committed plain error by (1) failing to
instruct the jury on the need for unanimity on the theory of guilt, (2) failing to require the
State to elect a theory of guilt, and (3) failing to correct the prosecutor’s misstatement of law
during closing argument. The Petitioner concedes that the first two issues were not raised
on direct appeal but argues that this court should review them under the plain error doctrine.
The State contends that the Petitioner waived these issues by not raising them on direct
appeal and that plain error analysis does not apply to waived issues at post-conviction
proceedings. We agree that the first two issues are waived. See T.C.A. 40-30-106(g) (2010);
Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009) (stating that the plain error rule does
not apply in post-conviction proceedings to grounds that would otherwise be either waived
or previously determined).

        The Petitioner also concedes that the prosecutor’s comments on lesser included
offenses were addressed on direct appeal but argues that the prosecutor’s further statement
that “from the State of Tennessee’s perspective, moving down to the next [lesser included
offense] is an equivalent of a not guilty” warrants plain error review. The State contends that
the issue was previously determined on direct appeal and is therefore inappropriate for post-
conviction review or alternatively, that if the statement could have been raised as a separate
issue, the claim is waived. We agree that any claim about the prosecutor’s statement was
waived as a separate issue and is inappropriate for appellate review of a post-conviction
proceeding. See T.C.A. 40-30-106(g); Grindstaff, 297 S.W.3d at 219. We hold that the
Petitioner is not entitled to relief based on the trial court’s actions.

                                               IV

        The Petitioner contends that trial counsel rendered ineffective assistance by failing to
request a jury instruction on the need for unanimity as to the theory of guilt, failing to move
the trial court to require that the State elect a theory of guilt, and failing to object to the
prosecutor’s misstatement of law. The State contends that trial counsel was not ineffective
because the law did not require unanimity as to the theory of guilt or election of a theory and
because the prosecutor’s comment during closing argument was not a misstatement of the
law. We agree with the State.

        If a petitioner establishes the fact of counsel’s errors, the trial court must determine
whether those errors resulted in the ineffective assistance of counsel. Dellinger, 279 S.W.3d
at 293; see Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Because they relate
to mixed questions of law and fact, we review the trial court’s conclusions as to whether



                                               -7-
counsel’s performance was deficient and whether that deficiency was prejudicial under a de
novo standard with no presumption of correctness. Fields, 40 S.W.3d at 457.

        Under the Sixth Amendment to the United States Constitution, 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,
466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). 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, 579 (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. The prejudice prong
requires a petitioner to demonstrate that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694.

        Our supreme court has held 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). See Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 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. “Thus, the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they
are informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982); see DeCoster, 487 F.2d at 1201.

        The Petitioner argues that trial counsel failed to request that the court instruct the jury
that it must unanimously agree on the theory of guilt supporting the verdict. He argues that
the jury was instructed it could find guilt based on two competing theories: that the
Petitioner was the principal offender of the crime or that the Petitioner was criminally
responsible for the actions of his co-defendant. A defendant is criminally responsible for an
offense committed by another if, “[a]cting with intent to promote or assist the commission
of the offense, or to benefit in the proceeds or results of the offense, the [defendant] solicits,
directs, aids, or attempts to aid another person to commit the offense.” T.C.A. §
39-11-402(2) (2010). The Petitioner concedes that the United States and Tennessee

                                                -8-
constitutions have been interpreted such that instructions as to unanimity of the theory of
guilt based on criminal responsibility are not required when the facts of the alleged crime
arise from a single event. See State v. Lemacks, 996 S.W.2d 166, 168 (Tenn. 1999).

       The Petitioner argues that this interpretation is incorrect and that the requirement of
jury unanimity should apply to the theory of guilt upon which the facts supporting the
elements of the crime have been proven. The Petitioner offers no authority for this argument
and acknowledges that he seeks to preserve the issue for review by our state’s highest court.
We hold that trial counsel was not ineffective for failing to make this request because there
was no meritorious basis for such a request. For the same reason, we hold that trial counsel
was not ineffective for failing to request that the trial court order the State to elect a theory
of guilt.

        The Petitioner also argues that trial counsel rendered ineffective assistance by failing
to object to the prosecutor’s comment during closing argument that “from the State of
Tennessee’s perspective, moving down to the next [lesser included offense] is an equivalent
of a not guilty.” The State argues that the issue of the prosecutor’s comments was previously
decided on direct appeal and that this comment was a personal opinion, not a misstatement
of the law. We conclude that the comment’s effect was not previously determined, but we
agree with the State that the comment was an expression of opinion and that trial counsel was
not deficient for failing to object.

       The comment at issue directly followed the prosecutor’s explanation of lesser included
offenses. The record shows that in the context of the prosecutor’s entire closing argument,
the comment was a transition between that explanation and the prosecutor’s final comments,
which included that only one offense was proper and that the jury should find the Petitioner
guilty of especially aggravated kidnapping. The prosecutor qualified this transitional
statement with the phrase, “from the State of Tennessee’s perspective.” We conclude that
the evidence does not preponderate against the trial court’s finding that this comment was
not made as a statement of law.

        We also agree with the trial court that any possible confusion caused by the
prosecutor’s comment was resolved by the court’s instruction on lesser included offenses.
This court addressed the trial court’s instruction on direct appeal and concluded that it was
a correct statement of the law. See Aaron T. James, slip op. at 11. The record shows that the
trial court also instructed the jury that the law applicable to the case was stated in the jury
instructions and that jurors should disregard remarks of counsel if they believed the remarks
were not supported by the evidence. See State v. Welcome, 280 S.W.3d 215, 219-20 (Tenn.
Crim. App. 2007) (“For the purposes of determining whether a defendant has been afforded
[the right to a complete and accurate charge of the law], the jury charge should be ‘viewed

                                               -9-
in its entirety’ and ‘considered as a whole.’”) (quoting State v. Stephenson, 878 S.W.2d 530,
555 (Tenn. 1994)). We conclude that the Petitioner was not prejudiced by trial counsel’s
failure to object to the prosecutor’s comment. The Petitioner is not entitled to relief on this
issue.

                                               V

        The Petitioner contends that appellate counsel rendered ineffective assistance by
failing to raise on direct appeal the issues of a jury instruction for unanimity as to the theory
of guilt, election of a theory of guilt, and the prosecutor’s misstatement of law. The State
contends that appellate counsel did not perform below a reasonable range of professional
competence by failing to raise these issues on appeal. We agree.

         Due process of law requires that a criminal defendant be entitled to the effective
assistance of counsel on appeal. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995)
(citing Evitts v. Lucey, 469 U.S. 387 (1985)). The test by which we consider the
effectiveness of appellate counsel is the same two-prong, Strickland test that we apply for
trial counsel. Porterfield v. State, 897 S.W.2d 672, 677-78 (Tenn. 1995) (“Petitioner must
show that counsel’s performance was deficient and that Petitioner was prejudiced by this
deficiency.”) (citing Strickland, 466 U.S. 668; Cooper v. State, 849 S.W.2d 744, 746-47
(Tenn. Crim. App. 1993)).

        We have concluded that trial counsel was not deficient for failing to request a jury
instruction on unanimity as to theory of guilt or failing to request that the court order the
State to elect a theory of guilt because the law did not require such an instruction or election.
See Lemacks, 996 S.W.2d at 168. For the same reason, we hold that the trial court did not
err in ruling that appellate counsel was not deficient for failing to raise these issues on
appeal.

        We have also concluded that trial counsel was not deficient for failing to raise the
prosecutor’s comment that “from the State of Tennessee’s perspective, moving down to the
next [lesser included offense] is an equivalent of a not guilty” as a separate issue from the
comments considered on direct appeal. Because the Petitioner did not call appellate counsel
to testify at the post-conviction proceedings, no evidence is in the record to explain why
appellate counsel did not raise the comment’s effect as a separate issue, and the Petitioner
has offered no proof that appellate counsel’s decision fell outside the reasonable range of
professionally competent assistance. We hold that the trial court did not err by ruling that
appellate counsel’s representation was not deficient.




                                              -10-
        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                               ___________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -11-
