         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 10, 2007

                  TERRANCE BURKE v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                           No. P 26889    W. Fred Axley, Judge



                    No. W2006-02131-CCA-R3-PC - Filed August 29, 2007


The Appellant, Terrance Burke, appeals the judgment of the Shelby County Criminal Court denying
his petition for post-conviction relief. On appeal, Burke argues that he was denied his Sixth
Amendment right to the effective assistance of counsel. After a review of the record, we affirm the
denial of post-conviction relief.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and NORMA
MCGEE OGLE, JJ., joined.

Paul K. Guibao, Memphis, Tennessee, for the Appellant, Terrance Burke.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Tracye Jones, Assistant District Attorney
General, for the Appellee, State of Tennessee.


                                             OPINION

                                        Procedural History

        The facts underlying the Appellant’s conviction were recited in the direct appeal to this court
as follows:

                       Officers Lowell Duke and Dorothy Hyman testified that at
               approximately 10:00 p.m. on January 19, 1998, they observed the
               [Appellant] run a red light in Memphis. The officers testified that
               they turned on their lights and sirens and pursued the [Appellant].
               Duke testified that the [Appellant] was speeding in excess of 100
               miles an hour and that he was driving erratically. Finally, the
               [Appellant’s] car appeared to have mechanical problems and stopped.
               Officers Duke and Hyman arrested the [Appellant].

State v. Terrance Burke, No. W2000-02614-CCA-R3-CD, (Tenn. Crim. App. at Jackson, Apr. 26,
2002). As the result of a police investigation, the Appellant was later implicated as being involved
in the shooting and robbery of Byron Lewis that occurred on January 5, 1998, and the subsequent
shooting of Samuel Jones.

         The Appellant was indicted by a Shelby County grand jury for criminal attempt to commit
first degree murder, especially aggravated robbery, and intentionally evading arrest in an automobile.
Following a jury trial, the Appellant was acquitted of criminal attempt to commit first degree murder
and especially aggravated robbery, but he was found guilty of intentionally evading arrest in an
automobile, a Class E felony. Based upon the trial court’s finding that the Appellant had six prior
felony convictions, the Appellant was sentenced to six years in confinement as a career offender.
On direct appeal, this court reversed the judgment and remanded to the trial court with instructions
that the Appellant be re-sentenced as a Range III, persistent offender. Id.

        On November 15, 2002, the Appellant filed a pro se petition for post-conviction relief,
alleging that he received ineffective assistance of counsel. The post-conviction court appointed
counsel to represent the Appellant, and an amended petition was filed. On March 9, 2006, the post-
conviction court held an evidentiary hearing at which the Appellant and trial counsel provided
testimony, and the transcript of trial counsel’s opening and closing statements from trial and a
motion for new trial were admitted as exhibits. On August 28, 2006, the post-conviction court
entered a written order denying the Appellant post-conviction relief.

                                               Analysis

         On appeal, the Appellant’s argument is limited to the issue of whether trial counsel ignored
or neglected to defend against the charge of intentionally evading arrest in an automobile at trial, in
pursuit of defending the Appellant from charges of attempted first degree murder and especially
aggravated robbery, the two crimes for which he was acquitted by the jury. The Appellant asserts
that the evading arrest charge “was not even mentioned in [trial counsel’s] opening statement,” and
that trial counsel “only briefly mentioned” this offense at trial. The Appellant acknowledged that
he discussed his defense to the evading arrest charge with trial counsel several times prior to trial,
but that trial counsel “largely ignored or brushed aside” his concerns as to this charge. The
Appellant cites his acquittal by the jury of the two more serious felonies and trial counsel’s testimony
from the post-conviction proceedings, that the jury did not consider the State’s witnesses to be
credible, in support of his assertion that “it is not unreasonable to think that had counsel worked as
diligently on the charge of intentionally evading arrest in an auto[mobile] the results of the trial
would have been different.”

       In order to prevail on a post-conviction petition, the petitioner must establish that his
conviction or sentence is void or voidable due to the abridgement of a constitutional right. T.C.A.


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§ 40-30-103 (2003); Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). The petitioner bears the
burden of proving factual allegations in the petition for post-conviction relief by clear and
convincing evidence. T.C.A. § 40-30-110(f) (2003). Clear and convincing evidence means evidence
in which there is no serious or substantial doubt about the correctness of the conclusions drawn from
the evidence. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).

       Our supreme court has articulated the appropriate standard to be applied when this court
reviews post-conviction proceedings:

               A trial court’s findings of fact are conclusive on appeal unless the
               evidence in the record preponderates against them. State v. Burns, 6
               S.W.3d 453, 461 (Tenn. 1999). When reviewing factual issues, the
               appellate court will not re-weigh or re-evaluate the evidence;
               moreover, factual questions involving the credibility of witnesses or
               the weight of their testimony are matters for the trial court to resolve.
               Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). When reviewing
               legal issues, however, or a mixed question of law and fact such as an
               ineffective assistance of counsel claim, the appellate court’s review
               is de novo with no presumption of correctness. State v. Burns, 6
               S.W.3d at 461.


Nichols v. State, 90 S.W.3d 576, 586 (Tenn. 2002).


        Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminally accused the right to representation by counsel. State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The United States Supreme Court and our supreme court
have recognized that the right to such representation encompasses the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases. Id.
To establish ineffective assistance of counsel, the petitioner bears the burden of proving both that
counsel’s performance was deficient and that the deficiency prejudiced the defense. Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler
v. State, 789 S.W.2d 898, 899 (Tenn. 1990)). To prove a deficiency in representation, the petitioner
must show that counsel’s acts or omissions were so serious as to fall below an objective standard of
reasonableness under prevailing professional norms. Goad, 938 S.W.2d at 369 (citing Strickland,
466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). To establish that a deficiency resulted in prejudice, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Goad, 938 S.W.2d at 370 (quoting Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068, 80 L. Ed. 2d at 698)).


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       Our supreme court has held that, in reviewing counsel’s conduct under the facts and
circumstances of a case:

               a “fair assessment . . . 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; see also Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
               1982) (counsel's conduct will not be measured by "20-20 hindsight").
               The fact that a particular strategy or tactic failed or hurt the defense,
               does not, standing alone, establish unreasonable representation.
               However, deference to matters of strategy and tactical choices applies
               only if the choices are informed ones based upon adequate
               preparation. Hellard, 629 S.W.2d at 9; Cooper v. State, 847 S.W.2d
               521, 528 (Tenn. Crim. App. 1992).

Goad, 938 S.W.2d at 369.

         In the post-conviction proceedings held below, the Appellant testified as to several aspects
of the representation provided by trial counsel, which he believed constituted deficient performance
by which he was prejudiced. The Appellant testified that during trial counsel’s opening statement,
“he never mentioned intentionally evading arrest in an auto[mobile]” and that “[t]he only thing he
mentioned was the first-degree murder and especially aggravated robbery.” The Appellant further
testified that, with regard to trial counsel’s closing statement, “[h]e didn’t add enough emphasis
concerning the details of [the Appellant’s] innocence far as [sic] in the closing statement when he
mentioned it.” The Appellant asserts that he had wanted to defend against the evading arrest charge
by claiming that his car windows had been so darkly tinted that he had not noticed the arresting
police officers’ blue lights when they attempted to pull him over. The Appellant testified that trial
counsel “didn’t say nothing [sic] about the car tint” during trial. He acknowledged that he had met
with trial counsel several times to discuss the case prior to trial. The Appellant claimed that he had
requested that trial counsel subpoena a particular witness, a passenger of the car named Mario
LaFleur, to provide testimony about this issue, but that trial counsel had not done so.

         Trial counsel provided testimony at the post-conviction hearing in which he denied the
Appellant’s assertions that he had not fully prepared a defense for the charge of intentionally evading
arrest in an automobile. He testified that he had met with the Appellant both in person and spoken
to him on the phone many times, and that he prepared a defense for all of the charges. Trial counsel
stated that the Appellant had been very helpful during their discussions, and that they had spent a
lot of time “reading over the discovery, reading all the transcripts of previous testimony, transcripts
from motions, discussing strategy, discussing witnesses and discussing everything that [they]
expected to happen at the trial.” Trial counsel testified that he and the Appellant did not discuss any
issues related to the car’s tinted windows. He stated that he had become aware that the Appellant’s
car windows were tinted from reading the statements of the arresting officers. However, he testified


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that any defense related to the tinted windows would have been inconsistent with the Appellant’s
position at trial, which had been that the Appellant had not immediately pulled over because he was
in a darkly lit area, that he had been afraid that the police officers might “beat [him] up or do
something to [him],” and that he had waited until he had reached a more illuminated area before
pulling his car to a stop. Trial counsel agreed that he did not discuss the evading arrest charge in his
opening statement, but that he addressed this charge in his closing argument.

        Trial counsel recalled that his decision not to call Mario LaFleur as a witness was based upon
LaFleur’s prior criminal record and a prior statement by LaFleur implicating the Appellant on the
especially aggravated robbery charge. Trial counsel stated that while LaFleur’s testimony “might
have been helpful for the evading arrest [charge], it was definitely going to be harmful for everything
else – for the especially aggravated robbery and the attempt[ed] murder [charges].” Trial counsel
testified that he had called two witnesses concerning the evading arrest charge: a police officer
named Howell, and the Appellant’s brother, Caleb Burke. Trial counsel further testified that the
purpose of his examination of these witnesses was to obtain testimony regarding the condition of the
Appellant’s car when it was impounded after his arrest. To counter the State’s position that the
Appellant had finally stopped his vehicle because his “engine had been blown or that the car was
destroyed in any way[,]” trial counsel questioned Caleb Burke, who testified that he had come to the
impound lot to retrieve the Appellant’s car and had driven it off the lot.

         The decisions not to pursue the purported tinted window defense and not to call Mr. LaFleur
as a defense witness were clearly tactical and strategic choices made by trial counsel. It is not the
function of this court to “second guess” tactical and strategic choices pertaining to defense matters
or measure a defense attorney’s representation by “20-20 hindsight” when deciding the effectiveness
of trial counsel. See Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Our deference to matters of strategy and tactical choices by counsel
applies if the choices are informed ones based upon adequate preparation. See Goad, 938 S.W.2d
at 369. The post-conviction court specifically found that the Appellant’s present argument, that trial
counsel had not adequately prepared a defense for the evading arrest charge, was without merit.
After a thorough review of the record and the arguments submitted by the parties, we have
determined that the evidence does not preponderate against this finding. Furthermore, because the
Appellant has failed to substantiate his claim that trial counsel was deficient in failing to mention
the evading arrest charge in his opening statement, we find this argument unavailing.

        Additionally, the Appellant failed to offer any evidence that he was prejudiced by the
decisions of trial counsel, relying instead on conclusory statements in his appellate brief. Again, to
establish ineffective assistance of counsel, the petitioner bears the burden of proving both that
counsel’s performance was deficient and that the deficiency prejudiced the defense. Goad, 938
S.W.2d at 369. The Appellant argues that “it is not unreasonable to think that had counsel worked
as diligently on the charge of intentionally evading arrest in an auto[mobile] the results of the trial
would have been different.” Conclusory statements in a petitioner’s testimony and conclusory
statements made by counsel in a petitioner’s brief are not evidence of ineffective assistance of
counsel or evidence of prejudice to the petitioner. State v. Kerley, 820 S.W.2d 753, 757 (Tenn.


                                                  -5-
Crim. App. 1991). Because the Appellant has failed to establish that trial counsel’s representation
constituted deficient performance, as well as any resulting prejudice, we affirm the judgment of the
post-conviction court denying the Appellant relief.

                                         CONCLUSION

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



                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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