         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 8, 2007

                    KEVIN WILKINS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-25953 John P. Colton, Jr., Judge



                     No. W2006-00639-CCA-R3-PC - Filed April 18, 2008


The petitioner, Kevin Wilkins, filed in the Shelby County Criminal Court a petition for post-
conviction relief, challenging trial counsel’s failure to appeal the petitioner’s conviction for
especially aggravated kidnapping. The post-conviction court granted the petitioner post-conviction
relief, and the State appeals. Upon our review of the record and the parties’ briefs, we reverse the
judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
JERRY L. SMITH , J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Dennis Johnson, Assistant District Attorney
General, for the appellant, State of Tennessee.

John H. Parker, II, Memphis, Tennessee, for the appellee, Kevin Wilkins.

                                             OPINION

                                      I. Factual Background

                                       A. Procedural History

        The instant case began after the petitioner was convicted by a jury of first degree murder and
especially aggravated kidnapping. On direct appeal, the petitioner’s trial counsel raised the issue of
the sufficiency of the evidence supporting the conviction for first degree murder. However, counsel
did not raise the issue of the sufficiency of the evidence supporting the especially aggravated
kidnapping conviction. This court reversed the first degree murder conviction and stated that
“[w]hile this evidence supports the especially aggravated kidnapping conviction, it does not establish
beyond a reasonable doubt that the [petitioner] committed first degree murder.” State v. Kevin
Wilkins, No. W1999-01462-CCA-MR3-CD, 2000 WL 1229156, at *7 (Tenn. Crim. App. at Jackson,
Aug. 18, 2000).

        Subsequently, the petitioner filed a petition for post-conviction relief, alleging numerous
claims of ineffective assistance of counsel. Specifically, the petitioner alleged that counsel (1) did
not investigate the case or interview witnesses, (2) failed to meet with the petitioner, (3) failed to put
on any defense proof, (4) failed to file effective pretrial motions, and (5) failed to appeal any issues
relating to his especially aggravated kidnapping conviction. Following a hearing, the post-conviction
court granted relief based on counsel’s failure to raise any issues regarding the especially aggravated
kidnapping conviction.

        The State instigated the instant appeal, contending that because this court concluded on direct
appeal that the evidence was sufficient to support the petitioner’s conviction for especially
aggravated kidnapping, the post-conviction court erred in finding that the petitioner was prejudiced
by counsel’s failure to challenge the especially aggravated kidnapping conviction on appeal. The
petitioner contends that as a result of counsel’s failure, discrepancies between the law and the facts
presented against the petitioner at trial were not provided to this court on appeal.1 The petitioner
argues that he was prejudiced as a result of this failure when this court stated that the evidence was
sufficient to support his especially aggravated kidnapping conviction. The petitioner also argues that
this court’s statement regarding the especially aggravated kidnapping conviction was dicta because
the issue was not before this court; thus, the statement is not binding on this appeal.

                                                      B. Trial

       As we earlier stated, the petitioner was convicted by a jury of first degree murder and
especially aggravated kidnapping. Following a direct appeal, this court summarized the proof
adduced at trial as follows:

                          The evidence at trial established that sometime in the morning
                  hours of April 30, 1997, an altercation occurred between two young
                  children, who were two or three years old. This altercation led to an
                  altercation between the mothers of the two children, which in turn led
                  to an altercation between the boyfriends of the mothers of the
                  children. The boyfriends of the mothers of the children were
                  members of two rival gangs, the Vice-Lords and the Gangster
                  Disciples. The altercation escalated into a shooting in which the
                  uncle of the girlfriend of a Vice-Lord shot a Gangster Disciples
                  member’s hand. When the police arrived, the altercation was quelled.
                  This all occurred in the Hurt Village Apartment area in a section of
                  North Memphis in Shelby County, Tennessee.


         1
           The petitioner also filed a notice of appeal because of confusion surrounding what relief the post-conviction
court granted.

                                                          -2-
        Later that evening, a city-wide meeting of the Gangster
Disciples took place at the Hurt Village apartment of a girlfriend of
a member of the Gangster Disciples. About twenty to thirty members
of the Gangster Disciples were in attendance. Three of the members
who were there that evening testified for the State.

         Christopher James testified that he was a member of the
Gangster Disciples on April 30, 1997 and that he was present in the
apartment when the meeting took place. He said that another
member, called “Prentice,” whom Mr. James described as a
“coordinator” of the Hurt Village area gang members, came into the
apartment and said that Vernon Green, the victim in this case, was
“outside peeping around the corner watching at the apartment,
looking out for the [V]ice-[L]ords.” Mr. James said that he had
known Vernon Green for seven years, that Vernon Green was “a
friendly guy around the neighborhood,” and that he had never known
Vernon Green to be a member of any gang. Another member of the
Gangster Disciples, “Greg,” told some other members “to go snatch
[Vernon Green] up” and bring him into the apartment. Four members
left the apartment and returned with Vernon Green.

        Mr. James testified that once Vernon Green was brought into
the apartment, the gang member called “Greg” pushed Mr. Green
down on the couch and started hitting him. He stated that after
“Greg” finished hitting Mr. Green, other gang members started hitting
Mr. Green. Mr. James said that someone named “Jarvis,” someone
called “Big Folk,” and several people he did not know were hitting
Mr. Green. Mr. James testified that the person called “Big Folk” who
was striking Mr. Green was the [petitioner], and he positively
identified the [petitioner] as “Big Folk” in the courtroom. Although
he said that he did not know “Big Folk” before the evening in
question, he learned that night that the [petitioner] was called “Big
Folk” and that “Big Folk” was “a high powered gangster” from the
Mitchell Heights area of Shelby County.

        Mr. James said that after the gang members beat Mr. Green
for a period of time, two members took Mr. Green upstairs. Then,
several gang members, whom Mr. James identified as “Prentice,”
“Jarvis,” “Antonio,” “Big Folk,” and “Foo-Foo,” went into the
kitchen. When they returned, “Prentice” picked out six gang
members, including the [petitioner] and the other members who had
been in the kitchen. “Prentice” then told Mr. James to stand up,
which he did. The six members picked by “Prentice” proceeded to


                                 -3-
give Mr. James a “pumpkin head,” which he explained was where six
gang members hit a person on the head for six minutes, sixty seconds,
until the person’s head swells like a pumpkin. He said that he
received the “pumpkin head” because he did not assist another gang
member in the altercation earlier that day. He also said that the
[petitioner], or “Big Folk,” was the first person to hit him during the
“pumpkin head.”

          After the gang members finished giving Mr. James a
“pumpkin head,” the two members who had taken Mr. Green upstairs
brought him back downstairs. One member called “Pooh” put a black
T-shirt over Mr. Green’s face. Mr. James said that Mr. Green was
scared and shaking when he came back downstairs. Mr. James
testified that he saw “Jarvis” and “Antonio” take Mr. Green by the
arms and lead him out the door. “Foo-Foo” went out the door behind
Mr. Green, and another member went out in front of Mr. Green.
When Mr. Green was taken out the door, the [petitioner] was standing
by the door. The [petitioner] then left the apartment. Mr. James said
that “Antonio,” “Jarvis,” “Gregory,” “Foo-Foo,” and the [petitioner]
all left the apartment at the same time as Vernon Green. He did not
observe anything regarding these crimes after they left the apartment
with Vernon Green. Mr. James testified that he had not been charged
with any crime arising out of this incident.

        Another member of the Gangster Disciples, James Lee
White-Caradine, testified that he was also at the apartment in Hurt
Village on April 30, 1997. He admitted that he was currently
incarcerated for facilitation of especially aggravated kidnapping,
arising out of the same incident. He said that he knew the victim,
Vernon Green, as a “dude around the neighborhood.”

        Mr. White-Caradine testified that on the evening of April 30,
he was in a room upstairs at the apartment in Hurt Village smoking
marijuana with the females who were at the apartment. He said that
he was upstairs because another gang member told him to go upstairs.
At one point he tried to go downstairs because the women wanted to
leave, but a person called “Jayrock” told him, “Nobody ain’t going
nowhere.” “Jayrock” hit Mr. White-Caradine in the mouth with a
gun, and Mr. White-Caradine went back upstairs.                     Mr.
White-Caradine testified that he did not feel free to leave the upstairs
room.




                                  -4-
        Mr. White-Caradine said that when he went downstairs to try
to leave, he saw a person he knew as “Big Folk” standing behind
“Jayrock” at the end of the staircase. “Big Folk” had a pistol and was
telling people what to do. Other gang members had guns as well.
Mr. White-Caradine said that he saw Vernon Green in the corner at
the bottom of the staircase and that Mr. Green “was kneeling down
like he was scared of some dudes.” After he had gone back upstairs,
Mr. White-Caradine heard noises like someone was “laying on the
floor” in another room upstairs, and he heard someone say something
like, “Man shut up, man, before you die here.” He also heard noises
“like somebody was getting beat up.”

        Mr. White-Caradine testified that he peeked out the door of
the upstairs room at one point, and he saw Mr. Green going
downstairs with other gang members. After he heard the door close
downstairs, Mr. White-Caradine walked out of the room he was in
and went into the room next door. He looked out the window from
upstairs and saw Mr. Green walking outside with a shirt pulled up
over his head and his pants down. He said that “Prentice,” “Big
Folk,” “Red dude,” and some other people were outside with Mr.
Green. He then testified that Mr. Green got into a vehicle with some
of the gang members, including someone called “McAnthony,”
whose real name is Charles Pool. He said that “Big Folk” got into a
different vehicle with some other gang members and that “Big
Folk’s” vehicle left in a different direction from the vehicle in which
Mr. Green was traveling.

        Although Mr. White-Caradine testified that he knew “Big
Folk” and that “Big Folk” was at the apartment, he testified that the
[petitioner] was not “Big Folk.” He said that he thought “Big Folk’s”
rank was chief of security or something of that nature. He said that
he did not know the [petitioner]. He testified that the [petitioner] was
not at the apartment that night and that he had never seen the
[petitioner] before he saw him in the holding tank. He did say that he
knew Christopher James and that Mr. James received a “pumpkin
head” that evening because he did not help “Jayrock,” also known as
“Jarvis,” fight the Vice-Lords earlier that day. He said that he helped
clean up the blood that Mr. James left on the couch. He also said that
“Prentice” told the people who were left in the house that “anybody
that needs to discuss what happens in the house is going to be the
next person, because the same people that came and gone that time is
going to come back again.”



                                  -5-
        A third member of the Gangster Disciples, Charles Anthony
Pool, also known as “McAnthony,” testified that his rank in the gang
was “security” and that his job was to “[m]ake sure things are safe.”
He said he knew “Big Folk” and that “Big Folk’s” rank was also
“security.” He admitted that at the time of trial he was serving time
due to charges of conspiracy to commit murder in the first degree and
especially aggravated kidnapping, arising from the incident on April
30, 1997.

        Mr. Pool testified that Jarvis Shipp called a meeting of the
Gangster Disciples at the apartment in Hurt Village because of the
altercation that had happened earlier in the day. The gang members
came to the meeting from different areas of the city. Mr. Pool said
that he knew the victim, Vernon Green, and that Vernon Green was
in the apartment that evening. He testified that Jarvis Shipp and some
other members went out and brought Mr. Green back to the apartment
against his will. When Mr. Green was brought into the apartment,
Mr. Pool was in the kitchen talking on the telephone. Mr. Pool stated
that Mr. Green was beaten by the gang members after he was brought
into the apartment, but Mr. Pool could not remember which gang
members did the beating. He did say that the same members who
beat Mr. Green then beat Mr. James for something that Mr. James had
done earlier.

        Mr. Pool stated that he was at the apartment for about an hour,
and then he left. When he left, he left with Vernon Green, Jarvis
Shipp, and some other members. He got into the back seat of a car
with Vernon Green and Jarvis Shipp. He said that Mr. Green was in
the middle. Mr. Pool stated that he did not know the person who was
driving the car. That car, along with another car, drove to Bellevue
Park. Mr. Pool testified that Charlie Golden, “Big Folk,” and two
persons he did not know were in the other car, and “Big Folk” was
driving that car. He said that “Big Folk” arrived at the park first, and
the car he was in pulled up behind “Big Folk.” One of the members
from “Big Folk’s” car got some guns out of the trunk of “Big Folk’s”
car. Mr. Pool said he saw a shotgun and two hand pistols removed
from the trunk. He said that when Vernon Green was taken out of the
car, he was “begging for his life.”

        Mr. Pool testified that he was told “to go get on security.”
The cars were parked at the bottom of a hill, and the other gang
members took Vernon Green up the hill while Mr. Pool remained at
the bottom of the hill on “security.” Mr. Pool said that everyone “was


                                  -6-
               packing guns.” He said that “Big Folk,” Charlie Golden, also called
               “Foo-Foo,” and the other members were up on the hill with Vernon
               Green. “Big Folk” was standing “up above” Mr. Green on the hill.
               Mr. Pool heard Mr. Green getting shot. He stated that he heard two
               or three shots.

                       Vernon Green was found dead the next morning in Bellevue
               Park. He was found with his pants pulled down and his shirt pulled
               up over his shoulders. He had been shot in the buttocks, in the back,
               and in the head.

                       Although Mr. Pool testified about various things that “Big
               Folk” did that evening, he also insisted that the [petitioner] was not
               “Big Folk.” He said that he had seen the [petitioner] “driving
               around” before, but he did not know the [petitioner], and the
               [petitioner] was not in the apartment or on the hill that night. When
               the State attempted to question Mr. Pool about whether the
               [petitioner] was “Big Folk,” Mr. Pool responded, “the one that y’all
               saying is Big Folk, it doesn’t look like him. Like I was telling you
               over there, he’s too little to be him. That guy right there. I don’t
               know him. He’s too little to be Big Folk.”

Wilkins, No. W1999-01462-CCA-MR3-CD, 2000 WL 1229156, at **1-5.

       On direct appeal, the petitioner challenged the sufficiency of the evidence supporting the first
degree murder conviction. Upon review of the evidence, this court stated:

                        Looking at the evidence in the light most favorable to the
               State, the evidence establishes that the [petitioner] participated in the
               detention and beating of Vernon Green and that he left the apartment
               at the same time as Vernon Green. The evidence then establishes that
               someone called “Big Folk,” who was not the [petitioner], participated
               in the murder of Vernon Green. While this evidence supports the
               especially aggravated kidnapping conviction, it does not establish
               beyond a reasonable doubt that the [petitioner] committed first degree
               murder.

Id. at *7. Specifically, this court noted that James, who was not an accomplice, was “the only
witness tying the [petitioner] to any of the events in question on the night of April 30, 1997.” Id. at
*6. However, James was not present at the park and could not testify as to what transpired during
the murder of the victim. Id. The only witness who had personal knowledge of the murder at the
park was Pool, an accomplice whose testimony needed to be corroborated. Id. at *7. Pool testified
that the petitioner was not the “Big Folk” who was at the apartment or the park. Id. Additionally,


                                                 -7-
White-Caradine stated that the petitioner was not the “Big Folk” who escorted the victim from the
apartment. Id. Thus, this court determined that “there was no evidence directly establishing the
[petitioner’s] participation in the murder of Vernon Green.” Id. Accordingly, this court reversed the
petitioner’s conviction for first degree murder but affirmed his conviction for especially aggravated
kidnapping.

                                                C. Post-Conviction

        At the petitioner’s post-conviction hearing, the petitioner testified that he retained counsel
to represent him at trial.2 However, the petitioner said that trial counsel met with him only twice
within a ten-month period; therefore, the petitioner knew very little about his case. The petitioner
stated that prior to his incarceration he met with counsel three or four times. After his incarceration,
the petitioner and counsel met twice. The petitioner said that he wrote a letter to the Board of
Professional Responsibility, complaining that trial counsel would not meet with him.

        The petitioner said that after he sent the letter, counsel stopped by the jail and gave him the
“paperwork” associated with the case, including statements and transcripts. The petitioner said that
he had two days to review the materials, then counsel took back the paperwork. The petitioner
maintained that some of the witnesses’ statements indicated that “Big Folk” had “golds” and tattoos.
The petitioner testified that he had no tattoos and had only three gold teeth. He claimed that this
information confirmed his claim that he could not be the “Big Folk” referred to in the statements.
Additionally, the petitioner said that the paperwork included information that several people who
were shown a photospread identified someone else as “Big Folk.” The petitioner wanted to discuss
the statements and photospread with counsel; however, the petitioner asserted that he had no
opportunity to speak with counsel about how the case was to be defended. The petitioner asserted
that James was the only person at trial who identified the petitioner as “Big Folk”; White-Caradine
and Pool said that the petitioner was “too little” to be “Big Folk.” Counsel told the petitioner that
he had discovered “lots” of people who were called “Big Folk” and that there was a good chance the
State would not be able to prove their case because the two witnesses said the petitioner was not
“Big Folk.”

       The petitioner said he informed counsel that at the time of the offense, he was at home with
his wife, Tanya Morgan, and his daughter. The petitioner stated that he and Morgan met with
counsel; however, counsel did not call Morgan to testify at trial. The petitioner said that he did not
know why Morgan was not called to testify regarding his alibi.

       The petitioner testified that counsel did not hire an investigator; instead, counsel did all of
the investigation himself. The petitioner and counsel talked about individuals who were at the


         2
           On December 6, 2001, the petitioner filed a petition for post-conviction relief, which petition was dismissed
as untimely. On appeal, this court ruled that the petition had been timely filed and remanded the case for an evidentiary
hearing. Kevin Wilkins v. State, No. W 2002-00436-CCA-R3-PC, 2002 W L 31624971, at *1 (Tenn. Crim. App. at
Jackson, Nov. 14, 2002).

                                                          -8-
apartment but had not seen the petitioner there. Counsel told the petitioner that these individuals
were not called to testify at trial because counsel was unable to locate them.

        The petitioner said that counsel did not maintain contact with him during the pendency of
the appeal. The petitioner maintained that because of the lack of communication, “I never knew
what was going on [with the appeal].” The petitioner acknowledged that the result of his direct
appeal, namely that his first degree murder conviction was overturned, was favorable; however, the
petitioner complained that on appeal counsel did not raise any issues regarding the kidnapping
conviction. The petitioner was disappointed that counsel did not pursue a reversal of the especially
aggravated kidnapping conviction.

        The petitioner’s trial counsel testified that the petitioner was initially charged with especially
aggravated kidnapping and was released on bond. He was taken into custody after being indicted
on the first degree murder charge. Counsel said that before representing the petitioner, he had tried
two or three murder cases, but the petitioner’s case was his only capital case.

        Trial counsel’s first meeting with the petitioner was at counsel’s office, and they had
numerous meetings afterward. Counsel stated that he obtained information from the case through
his own investigation and by reviewing discovery he obtained from the State. Counsel explained that
he did not hire an investigator because the petitioner could not afford to hire one. Counsel said that
some witnesses were difficult or impossible to locate.

        The petitioner initially told counsel that he was not “Big Folk” and that he did not know
anything about the offenses. Counsel said that after they reviewed the discovery, the petitioner
“admit[ted] who he was. And he admitted what his part was that he had in it. . . . He was at the
kidnapping, okay. He was also at – he was also out there when they – when the murder. He said he
didn’t participate in the murder but he was there.”

         Counsel stated that when he spoke with Morgan regarding the petitioner’s whereabouts on
the night of the murder, she said that the petitioner was with her earlier in the evening but not at the
time of the offenses. Counsel said that as a result of his discussions with the petitioner and Morgan,
he did not believe that their testimony would be beneficial to the defense. He was also concerned
that if called to testify, they might lie about the petitioner’s whereabouts at the time of the offenses,
causing an ethical dilemma for counsel.

        The State questioned counsel about a photospread from which someone other than the
petitioner was identified as “Big Folk.” Counsel noted that the other person identified as “Big Folk”
was “a little skinny guy. . . . [H]e didn’t look any like a Big Folk[].” Thereafter, the following
colloquy occurred:

                [The State:] Okay. So in your opinion would it have been credible,
                would it have been any assistance to your client to put in that
                photospread to try and counter the state’s proof in any way?


                                                   -9-
                [Counsel:] No.

                [The State:] Okay. And why is that?

                [Counsel:] Because I mean, the thing is it would have been obvious
                that whoever pointed out this as Big Folk[] must have been just
                playing games with the police officer. Because there’s no way – if
                you looked at the guy you would know. Everyone had given a
                description of Big Folk[]. Even the guys – even Pool[] and the other
                guy, and Big Folk was always a big guy. This guy here, you look at
                him. There’s no way he could have been Big Folk[]. You would
                have known he was lying when he got on the stand.

                [The State:] Okay. So, the description of the guy Big Folk[] was
                always, no matter who you talked to prior to trial, was a large, dark
                skinned person with gold teeth and some [tattoos]; is that correct?

                [Counsel:] That’s who Big Folk[] was.

       Counsel said that on appeal he “talked about the kidnapping. The whole thing was
corroborating testimony. I mean, the whole issue in this case was whether there was corroborating
testimony as to identity.” Counsel recalled that on appeal, this court found that sufficient
corroborating evidence existed to support the petitioner’s conviction for especially aggravated
kidnapping but that there was insufficient evidence to support the murder conviction because no one
could put the petitioner at the scene of the shooting.

        Counsel acknowledged that “it’s significant to raise [on appeal] every argument that you
have.” Counsel said that in hindsight, he should probably have raised the issue of the sufficiency
of the evidence on the especially aggravated kidnapping conviction. He said, however, that he was
focused on the murder charge.

         After hearing the testimony, the post-conviction court granted the petitioner relief. The court
found:

                While Counsel does not have to argue every issue on appeal, a
                twenty-five year sentence [for the petitioner’s especially aggravated
                kidnapping conviction] is a serious penalty and warrants being
                addressed. Counsel addressed one issue on appeal, the biggest issue
                only, whether or not Petitioner could be linked to the murder. All
                issues surrounding the Especially Aggravated Kidnapping conviction
                were ignored. Not raising a single available issue in connection with
                a twenty-five year sentence is a serious error. Although the Court of
                [Criminal] Appeals reviewed the record and affirmed the Kidnapping


                                                  -10-
               conviction, Counsel failed to point out any of the possible
               discrepancies in the conviction. The Court finds this deficient
               performance by counsel resulting in prejudice.

       On appeal, the State challenges the post-conviction court’s grant of post-conviction relief.

                                             II. Analysis

         To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2006). “‘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.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. 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 (1984)). In evaluating whether the petitioner has met this
burden, this court must determine whether counsel’s performance was within the range of
competence required of attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). “[F]ailure to prove either deficiency or prejudice provides a sufficient basis to deny relief on
the ineffective assistance claim.” Goad, 938 S.W.2d at 370.

        In the instant case, the post-conviction court stated that it “reluctantly” found that the
petitioner had proven that his counsel was ineffective. The court stated that “[c]ounsel addressed
one issue on appeal, the biggest issue only, whether or not Petitioner could be linked to the murder.
All issues surrounding the Especially Aggravated Kidnapping conviction were ignored. Not raising
a single available issue in connection with a twenty-five year sentence is a serious error.” Given the
proof at trial, particularly the conflicting identifications of “Big Folk,” we agree with the post-
conviction court that counsel’s failure to raise the sufficiency of the evidence supporting the
especially aggravated kidnapping conviction was deficient. However, we must examine the
sufficiency of the evidence of the especially aggravated kidnapping conviction to determine whether
the petitioner suffered prejudice as a result of counsel’s deficiency.


                                                 -11-
        We note that the petitioner’s especially aggravated kidnapping conviction was based upon
the petitioner’s false imprisonment of the victim accomplished with a deadly weapon. See Tenn.
Code Ann. § 39-13-305(a)(1) (1997). On direct appeal, this court stated that there was sufficient
evidence to support the petitioner’s conviction for especially aggravated kidnapping. Wilkins, No.
W1999-01462-CCA-MR3-CD, 2000 WL 1229156, at *7. The petitioner claims that this court’s
previous statement is dicta and should not be considered binding. We note that

               [c]ourts sometimes go beyond the point necessary for a decision in a
               lawsuit and make expressions on certain things there involved which
               are not necessary for a determination of the lawsuit. Such statements
               by a court are known as dictum. The term ‘dictum’ is an abbreviation
               of ‘obiter dictum’ which means generally a remark or opinion uttered
               by the way. Obviously the very definition of the term shows that it
               has no bearing on the direct route or decision of the case but is made
               aside or on the way and is, therefore, not a controlling statement to
               courts when the question rises again that has been commented on by
               way of dictum. Frequently and naturally dictum is persuasive, but, as
               a general rule it is not binding as an authority or a precedent within
               the rule of stare decisis.

Staten v. State, 232 S.W.2d 18, 19 (Tenn. 1950); see also Black’s Law Dictionary 465, 1100 (7th
ed. 1999). As we have noted, on direct appeal the petitioner challenged only the sufficiency of the
evidence of the first degree murder conviction. The sufficiency of the evidence to support the
especially aggravated kidnapping conviction was not before this court and appears to be a remark
“made aside or on the way.” Thus, we conclude that the statement that the evidence was sufficient
to support the especially aggravated kidnapping conviction was dictum.

        Our review of the record reveals that the petitioner was positively identified by James, who
was not an accomplice, as the “Big Folk” who was present at the apartment during the victim’s
detention. The proof at trial clearly reflected that the victim was brought to the apartment and
detained against his will. White-Caradine testified that “Big Folk” stood by the front door of the
apartment, armed with a “big ole pistol. . . . He was telling them what to do.” Additionally, James,
Pool, and White-Caradine testified that “Big Folk” participated in beating the victim while he was
at the apartment.

        On direct appeal, this court noted that the only witness who had personal knowledge of the
murder was Pool, an accomplice whose testimony needed to be corroborated. Wilkins, No. W1999-
01462-CCA-MR3-CD, 2000 WL 1229156, at *7. Therefore, this court concluded that there was
insufficient evidence to support the petitioner’s first degree murder conviction. Id. We note that
generally, “a defendant cannot be convicted upon the uncorroborated testimony of [an]
accomplice[].” State v. McKnight, 900 S.W.2d 36, 47 (Tenn. Crim. App. 1994). However, this
court specifically noted on direct appeal that James was not an accomplice; thus, his testimony did
not need corroboration. See Prince v. State, 529 S.W.2d 729, 732 (Tenn. Crim. App. 1975). Further,


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the proof at trial indicates that White-Caradine was not an accomplice as a matter of law; therefore,
his testimony did not necessarily need corroboration. See State v, Robinson, 239 S.W.3d 211, 226
(Tenn. Crim. App. 2006).

          After our review of the record, we conclude that there was proof to support that the petitioner
was the “Big Folk” at the apartment. Specifically, the testimonies of James, White-Caradine, and
Pool, while not identical in minute detail, are so similar that it is clear that all three witnesses were
testifying about the same “Big Folk” engaging in the same behavior at the apartment. In fact, the
only substantial divergence in the witnesses’ testimony is the identification of the petitioner as “Big
Folk.” We note that “corroboration need not be conclusive, but it is sufficient if this evidence, of
itself, tends to connect the defendant with the commission of the offense, although the evidence is
slight and entitled, when standing alone, to but little consideration.” State v. Heflin, 15 S.W.3d 519,
524 (Tenn. Crim. App. 1999). Moreover, it is not necessary that an accomplice’s testimony be
corroborated in every detail; corroboration may be slight as long as it relates to some fact that
“tend[s] to connect the defendant with the commission of the crime.” Clapp v. State, 30 S.W. 214,
217 (Tenn. 1895). In the instant case, the jury heard the testimony of all three witnesses and,
obviously, as was their prerogative, accredited the testimony of James regarding the petitioner’s
identity as “Big Folk.” See State v. Bolin, 922 S.W.2d 870, 875 (Tenn. 1996) (noting that a “jury
is free to believe only part of a witness’ testimony”); State v. Adams, 45 S.W.3d 46, 56 (Tenn. Crim.
App. 2000) (stating that a jury is free to accept portions of a witness’ testimony while rejecting
others). Thus, when viewed in toto, we conclude that the testimony of all three witnesses was
sufficient to sustain the petitioner’s conviction for the especially aggravated kidnapping committed
by “Big Folk” in the apartment. Therefore, while counsel’s failure to raise on direct appeal any
issues regarding the especially aggravated kidnapping conviction may have been deficient, the
petitioner has failed to prove any prejudice related to the alleged deficiency. Accordingly, the
petitioner has not met his burden of establishing that counsel was ineffective. Thus, the post-
conviction court erred by granting the petitioner post-conviction relief.

                                           III. Conclusion

          Based upon the foregoing, we reverse the post-conviction court’s grant of post-conviction
relief.

                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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