         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 27, 2004

            FARON DOUGLAS PIERCE v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Knox County
                             No. 76292    Ray L. Jenkins, Judge



                     No. E2004-00372-CCA-R3-PC - Filed March 31, 2008


Petitioner, Faron Douglas Pierce, appeals the post-conviction court’s denial of his petition for post-
conviction relief in which he alleged the ineffective assistance of counsel at trial when he was
convicted of robbery. After a thorough review, we affirm the denial of post-conviction relief.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E. GLENN ,
JJ., joined.

Albert J. Newman, Jr. (on appeal), and J. Liddell Kirk (at trial), Knoxville, Tennessee, for the
appellant, Faron Douglas Pierce.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                     I. Procedural Background

         A Knox County jury convicted the petitioner of robbery, a Class C felony on November, 15,
2000, and he was sentenced to fifteen years in the Tennessee Department of Correction as a Range
III persistent offender. On direct appeal, this Court affirmed the judgment of the trial court. State
v. Faron Douglas Pierce, No. E2001-00437-CCA-R3-CD, 2002 WL 523453 (Tenn. Crim. App., at
Knoxville, April 9, 2002). Following a direct appeal, appointed counsel withdrew without
authorization from representation. No Rule 11 application for permission to appeal to the Tennessee
Supreme Court was filed. On January 8, 2003, the petitioner filed a pro se petition for post-
conviction relief and new counsel was appointed on February 26, 2003. An amended petition was
filed alleging ineffective assistance of trial counsel. Specifically, the petitioner alleged that trial
counsel was ineffective in failing to allow him to testify and call witnesses on the petitioner’s behalf
at his sentencing hearing, and in failing to file a Rule 11 application for permission to appeal to the
Tennessee Supreme Court.

        This Court concluded on direct appeal that the petitioner was unilaterally deprived of his right
to seek second-tier review pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure and
granted a delayed appeal to seek review by the Tennessee Supreme Court. Pursuant to Tennessee
Supreme Court Rule 28, § 9(D)(2)(b)(I), the petitioner's remaining post-conviction issues were
stayed pending the final disposition of the delayed appeal. The Tennessee Supreme Court denied
the application on June 27, 2005. Following denial of certiorari, no further action has been taken
by the petitioner. Nevertheless, we now proceed to dispose of the remaining issues.

                                              II. Facts

       The facts underlying the petitioner’s conviction were summarized on direct appeal as follows:


               The victim, John Schober, testified that on October 22, 1998, he was working
       as the cashier at the Northshore Texaco in Knoxville. The victim testified that at
       about 7:30 p.m., defendant entered the store with another individual, co-defendant
       David C. McFalls. The two individuals walked to the back of the store and looked
       at products on the medicine aisle. One of the men held a package and addressed the
       clerk asking, “[d]oes this contain aspirin?” The victim put on his glasses, walked to
       the back of the store, and read the packet. He answered, “Yes” and returned to his
       position behind the counter at the front of the store. The two individuals returned to
       the front of the store, and the victim began to ring up their purchases. As the co-
       defendant stood in front of the counter, defendant came behind the counter and
       “sucker-punched” the victim, knocking him to the floor. Defendant tried to open the
       cash register but was unsuccessful because the victim locked the register just prior
       to the men entering the store. The victim testified that defendant stated, “[o]pen the
       M______ F______ drawer or I'll kill you,” and the victim opened the drawer. The
       victim testified that defendant emptied the cash drawer and told the victim to “stay
       on the floor or else [defendant would kill the victim].” The two men fled the store.


                Police recovered evidence from the scene, including a Tylenol container with
       defendant's fingerprints and a video from the store security camera operating at the
       time of the robbery. At a later date, the victim identified defendant in a photgraph
       [sic] lineup. The victim also identified defendant at trial and further testified after
       viewing the videotape at trial that the videotape was an accurate depiction of what
       happened the night of the robbery.


              The victim testified that it was the co-defendant who actually brought the
       Tylenol container to the counter. The victim also stated that it was common for many

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items in the store to be touched or picked up by different customers. On cross-
examination, the victim testified that the most distinguishing characteristic he could
recall about the individual who struck him was that the individual seemed to have no
teeth. He testified that he gave a description of the individual to the police. He stated
that he did not tell the police anything regarding the individual's facial hair. However,
the photo he picked out was of an individual with facial hair. He finally stated that
police did not ask any questions about other physical characteristics. On redirect, he
testified that he picked out the photo right away, with no help, and that he did not
know that the person he picked out in the photo would have fingerprints at the scene
on the counter.


         Eric Howard Tuck testified that he was at the Northshore Texaco on the night
of the robbery. He testified that, as he entered the Texaco, he saw two men run past
him, although he could not positively identify them.


        Tim Schade testified that he is a senior evidence technician at the Knoxville
Police Crime Lab. He testified that he examined the fingerprints lifted from the scene
and that the fingerprints taken from the Tylenol container matched with defendant.
It was a fourteen-point match, and the prints were “unquestionably” defendant's.


        Ken Slagle testified that he is an investigator with the Knoxville City Police
Department, where he has worked for thirty years. He testified that after the lab
ascertained whose fingerprints were on the Tylenol container, he obtained a photo of
defendant. He later interviewed the victim. He stated that the victim immediately
identified defendant's photo. On cross-examination, Detective Slagle testified that he
interviewed the victim at the crime scene, and the victim gave a description of the
suspect who had struck him as being a white male, twenty to thirty years old,
approximately five feet and six or seven inches tall, 140 to 150 pounds, with a
mustache and beard, wearing a blue shirt and a bandana, and having no teeth.


       Gary Price stated that he is a sergeant with the Knoxville City Police
Organized Crime Unit. He stated that he arrested defendant. He stated that defendant
had a missing tooth. Further, he stated that defendant denied the robbery.


        Defense witness Kimberly Swiney testified that she was a friend of defendant.
She testified that defendant stayed at her home during October because defendant's
mother requested that Ms. Swiney care for defendant after he was seriously injured.
She testified that defendant had a slight concussion, broken ribs, swollen eyes, and
would have shortness of breath when walking. She stated that his physical injuries
affected his ability to walk and move around, and that she never saw defendant run.

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        She stated that defendant's health improved after Halloween of 1998.


                 Defense witness David McFalls, who was originally charged as a co-
        defendant, testified that he pled guilty to robbery regarding his involvement with this
        case. He testified that he was one of two men involved in the incident but that
        defendant was not there and was not the other individual. On cross-examination,
        McFalls was asked if, after previously viewing the video of the robbery, he identified
        defendant to an assistant district attorney as being the other person on the security
        camera video. McFalls testified that the other person on the video “favored
        [defendant].” Over defendant's objection, the State was allowed to call the assistant
        district attorney who testified that McFalls, in fact, previously identified defendant
        as the other person on the security camera video.


               At the conclusion of the evidence, the jury returned a verdict of guilty for the
        crime of robbery.


State v. Faron Douglas Pierce, No. E2001-00437-CCA-R3-2002 WL 523453 at *1-3 (Tenn. Crim.
App., at Knoxville, April 9, 2002), perm. app. denied (Tenn. June 27, 2005).


                                    III. Post Conviction Hearing


         At the post-conviction hearing on February 12, 2004, it was stipulated that on November 15,
2000, the petitioner was convicted of simple robbery and sentenced to fifteen years as a Range III
offender. Petitioner requested to be heard on the following issues: (1) that petitioner was not allowed
to testify at his sentencing hearing; (2) to call witnesses on his behalf; and (3) that trial counsel did
not perfect petitioner’s application to appeal to the Tennessee Supreme Court. A delayed appeal was
granted as to the petitioner’s third issue and his application was denied on June 27, 2005. We now
address petitioner’s remaining issues for review.


         The evidence presented at the post-conviction hearing consisted of petitioner’s testimony and
that of trial counsel.


         Petitioner testified that his trial counsel failed to advise him that the petitioner could testify
at his sentencing hearing and have witnesses testify at sentencing on his behalf. Petitioner stated that
he wanted some family members and friends to speak on his behalf and that their testimony may
have kept him from getting the maximum sentence.




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       Petitioner further testified that he did not recall the trial judge asking him if he had anything
he wanted to say before imposing sentence. Petitioner stated that he was not disputing that he was
asked by the trial judge, but that he did not recall being asked.


        On cross-examination, petitioner testified that he had mentioned to trial counsel that his sister
wanted to be present and testify at his hearing. Further, petitioner stated that trial counsel stated that
he did not think that was a good idea.


        When asked on cross-examination what would the witnesses have said to the sentencing
judge that would have made a difference, the petitioner stated as follows:


        Defendant: Well, they would have told of my character, I’m sure.


The Assistant District Attorney proceeded to ask the following:


        Assistant D.A.: Your character, which included the six prior felony convictions that
        you had?
        Petitioner: I’m sure if you’d asked them that, they would probably would have.
        They wouldn’t have lied.
        Assistant D.A: Your character - - your character which would have told about the
        aggravated robbery conviction that you’d just gotten in June of 1999 over in Blount
        County?
        Petitioner: Once again, I’m sure they would have if you’d of asked them.
        Assistant D.A.: But - - but your family would have told the judge that that was your
        character?
        Petitioner: No, not necessarily just that. I had mentioned to [trial counsel] about my
        sister wanting to be over here and testify at my hearing. He didn’t think that was a
        good - - good thing. My sister and my family, yeah that’s who I would have liked
        to have had over here to speak for me.


         Trial counsel testified that his experience consisted of at least five criminal trials prior to this
one and that he had been practicing law full-time since the end of 1996, after being licensed. He
further testified that his previous trial before this one was an especially aggravated robbery case. He
testified that he believed that he had discussed sentencing with the petitioner over the Christmas
holidays prior to his hearing and that the petitioner had a “pretty realistic view” about what would
occur at the sentencing hearing. Further, that to his recollection, petitioner did not want to say
anything.


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        Trial counsel further testified that he did not believe that there was anything that any of the
petitioner’s family members could have said other than they did not want petitioner to go to jail or
receive the maximum sentence. Counsel stated that family members would have been cross-
examined regarding all of petitioner’s prior convictions to their knowledge of his previous history.
Trial counsel stated that the less emphasis placed on petitioner’s prior convictions, the better at that
point. Trial counsel stated that he asked the court not to give the maximum sentence and that the
state relied on the enhancing factors that were filed and the evidence that was presented at trial.
Further, counsel did not think there was anything that petitioner or any family member could have
said that would have made a difference.


                                             IV. Analysis


        On appeal, the only remaining issues being pursued by the petitioner are (1) that petitioner
was not allowed to testify at his sentencing hearing and (2) that he was not given the opportunity to
call character witnesses on his behalf during sentencing.


        When a petitioner seeks post-conviction relief , he or she must establish his or her allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f). The trial court’s application of the law
to the facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W. 3d
450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed question of
fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6 S.W. 3d 453, 461
(Tenn. 1999).


         A petitioner seeking post-conviction relief on the basis of ineffective assistance of counsel,
must establish that counsel’s performance fell below “the range of competence demanded of
attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In addition, he or
she must show that counsel’s ineffective performance actually adversely impacted the defense.
Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984). In
reviewing counsel’s performance, the distortions of hindsight must be avoided, and this Court will
not second-guess counsel’s decisions regarding trial strategies and tactics. Hellard v. State, 629
S.W. 2d 4, 9 (Tenn. 1982). A reviewing court, therefore, should not conclude that a particular act
or omission by counsel is unreasonable merely because the strategy was unsuccessful. Strickland,
466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged from
counsel’s perspective at the point of time they were made in light of all the facts and circumstances
at that time. Id. at 690, 104 S. Ct. at 2066.


       Furthermore, “[w]hen a [post-conviction] 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.

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Crim. App. 1990). Generally, presenting such witnesses at the post-conviction hearing is the only
way a petitioner can establish that “the failure to discover or interview a witness inured to his
prejudice or . . . the failure to have a known witness present or call the witness to the stand resulted
in the denial of critical evidence which inured to the prejudice of the petitioner.” Id. Accordingly,
a petitioner who establishes that trial counsel deficiently performed in failing to investigate or call
witnesses is entitled to no relief “unless he can produce a material witness who (a) could have been
found by a reasonable investigation and (b) would have testified favorably in support of his defense
if called.” Id. at 757-58.


        A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on
a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W. 2d 572, 580 (Tenn. 1997).
That is, a petitioner must not only show that his counsel’s performance fell below acceptable
standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either
prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the
components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at
2069.


       The record in this case regarding the remaining issues supports the post-conviction court’s
determination that the petitioner failed to show ineffective assistance of counsel by clear and
convincing evidence.


        Although the petitioner testified that he was not made aware that he could have testified at
his sentencing hearing or have witnesses testify on his behalf, this testimony is contradicted by the
record and trial counsel.


        At the sentencing hearing held on January 4, 2001, the trial court was specific regarding the
petitioner’s right to make a statement on his own behalf. Relevant portions of the sentencing
colloquy are as follows:
       ....
       The Court: All right. Now, section 40-35-210 requires the court to permit the
       defendant to make a statement in his own behalf about the sentencing phase, and I’ll
       hear him at this point if he wishes.
       Trial Counsel: No, your Honor.
       The Court: All right. All right, Mr. Pierce, please stand.
       Defendant: (standing)
       The Court: Is there anything further you would like to say?
       Defendant: No.



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         Trial counsel testified at the post-conviction hearing stating that he was reluctant to have
petitioner’s prior convictions and history highlighted during the sentencing phase because he
believed that doing so would not help the petitioner. Further, the record indicates that there was a
discussion between petitioner and trial counsel regarding what would take place during sentencing.
Trial counsel testified that to his knowledge, he discussed sentencing with the petitioner over the
Christmas holidays before sentencing and that petitioner did not want to testify. Additionally,
petitioner was asked by the trial judge at sentencing if he wanted to testify on his own behalf.
Petitioner responded, “No”. The fact that a particular strategy or tactical decision failed does not by
itself establish ineffective assistance of counsel. Goad v. State, 938 S.W. 2d 363, 369 (Tenn. 1996).


         Petitioner next argues that trial counsel was ineffective for failing to call witnesses to testify
on his behalf at the sentencing hearing. The record indicates that trial counsel and petitioner had a
discussion regarding calling witnesses and the possibility of their being cross-examined regarding
his prior convictions. Petitioner gives no indication as to what the witnesses would have testified,
or what specific testimony may have resulted in a lesser sentence. The petitioner had an obligation
to call his witnesses and document this testimony at the post-conviction hearing in order to establish
the prejudice requirement of Strickland.


      Because the petitioner failed to call the witnesses and failed to meet his burden of
demonstrating prejudice, he must be denied relief.


                                            CONCLUSION


        The petitioner has failed to meet his burden of proof regarding his claim of ineffective
assistance of counsel. Therefore, the judgment of the post-conviction court is affirmed.




                                                         ___________________________________
                                                         J.C. McLIN, JUDGE




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