         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     June 9, 2004 Session

               FREDDIE L. OSBORNE v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Montgomery County
                         No. 39059 John H. Gasaway, III, Judge



                    No. M2003-02088-CCA-R3-PC - Filed August 31, 2004


The petitioner was convicted for sale of a controlled substance and sentenced to 32 ½ years in the
Tennessee Department of Correction. The petitioner appealed his conviction to this Court. We
affirmed his conviction. The petitioner then filed a Petition for Post-conviction Relief. The post-
conviction court granted his petition. The State now appeals the post-conviction court’s decision,
arguing two issues: (1) Whether failure of trial defense counsel to follow the mandatory provisions
of Rule 609 amounted to ineffective assistance of counsel at trial, and (2) whether failure of trial
defense counsel to request the jury charge of facilitation amounted to ineffective assistance of
counsel at trial, where that charge would now be automatically given. We reverse and remand the
decision of the post-conviction court.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN ,
JJ., joined.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant, Assistant Attorney General;
John Carney, District Attorney General; and Daniel Brollier, Assistant District Attorney General,
for the appellant, State of Tennessee.

William L. Aldred, Jr. Clarksville, Tennessee, for the appellee, Freddie L. Osborne.
                                             OPINION

                                        Factual Background

        On July 30, 1998, a Montgomery County jury found the petitioner guilty of sale of a
controlled substance, a Class A felony. State v. Walter L. Meriweather, John Head, Jr., Freddie
Osborne, Nos. M1998-00323-CCA-R3-CD, M1998-00326-CCA-R3-CD, M1998-00332-CCA-R3-
CD at *1 (Tenn. Crim. App. at Nashville March 31, 2000), perm. to app. den. (Tenn. Nov. 6, 2000).
The trial court sentenced the petitioner to 32 ½ years in the Tennessee Department of Correction as
a Range II offender. Id. The petitioner appealed his conviction to this court in a joint appeal with
his co-defendants. Id. Their sole issue on appeal was whether the Drug-Free School Zone Act was
constitutional. The petitioner and his co-defendants were unsuccessful on this appeal.

        The petitioner then filed a Petition for Post-Conviction Relief on June 20, 2001. An amended
petition was filed on September 12, 2002. The petitioner’s argument in his petition was that he
received ineffective assistance of counsel. The post-conviction court held a hearing on October 15,
2002. After the hearing, the post-conviction court orally granted the petition. The State filed a
Motion to Reopen Proof and Reconsider Ruling on March 3, 2003. The post-conviction court made
oral findings granting the petitioner’s petition and denying the State’s motion on August 12, 2003,
and filed a written order reflecting the decision on August 22, 2003. The State now appeals the
granting of the petition.

                                            ANALYSIS

        The State argues two issues on appeal: (1) whether failure of trial defense counsel to follow
the mandatory provisions of Rule 609 amounted to ineffective assistance of counsel at trial, and (2)
whether failure of trial defense counsel to request the jury charge of facilitation amounted to
ineffective assistance of counsel at trial, where that charge would now be automatically given.

                                        Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issue raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).




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                                 Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674 (1984). “Because a petitioner must establish both prongs of the test to prevail on a claim of
ineffective assistance of counsel, failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This
Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes those
decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).


                                          Rule 609 Hearing

       Rule 609(a)(3) of the Tennessee Rules of Evidence reads:

       (a) General rule. – For the purpose of attacking the credibility of a witness, evidence
       that the witness has been convicted of a crime may be admitted if the following
       procedures and conditions are satisfied:
       ...
               (3) If the witness to be impeached is the accused in a criminal prosecution,
       the State must give the accused reasonable written notice of the impeaching
       conviction before trial, and the court upon request must determine that the
       conviction’s probative value on credibility outweighs its unfair prejudicial effect on


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        the substantive issues. The court may rule on the admissibility of such proof prior
        to the trial but in any event shall rule prior to the testimony of the accused. If the
        court makes a final determination that such proof is admissible for impeachment
        purposes, the accused need not actually testify at the trial to later challenge the
        propriety of the determination.


In the petitioner’s case, the district attorney’s office did give written notice of the intent to use the
petitioner’s prior convictions. The petitioner’s attorney at trial did not ask the trial court for a ruling
as to the admissibility of the prior convictions.

        At the post-conviction hearing, the petitioner testified that he did want to testify at his trial.
The petitioner said he stood up to testify, but his trial counsel grabbed his leg and pushed him down
saying that his trial counsel would handle the situation. At the hearing, the petitioner’s trial counsel
agreed that he had not introduced any evidence at trial to support the petitioner’s claim that he was
merely present at the drug transaction and not a participant. The petitioner’s trial counsel then went
on to state:

        Mr. Osborne, had he taken the stand, he has previously been convicted of a B felony
        sale of cocaine and two C felony sales of cocaine. I did not think that he would make
        a good witness. And, as I said, based on what I knew of those once he took the stand
        then he was going to be open to these other questions of things that he said and things
        that he did that would in fact undercut [his theory of the case], I felt like, severely.


The petitioner’s trial counsel went on to later testify that he assumed the prior convictions would not
come in because they were more prejudicial than probative. However, he never stated that he was
positive they would not come in and he included the existence of the prior convictions as a reason
for advising the petitioner to not take the stand.

        The post-conviction court made the following findings of fact at the conclusion of the post-
conviction hearing with regard to the failure of trial counsel to request a Rule 609 hearing at the
petitioner’s trial:

                 While it is true Mr. Osborne says today that he wanted to testify, and while
        it is also true that [trial counsel] doesn’t have any memory of whether Mr. Osborne
        indicated that he wanted to testify – in fact, [trial counsel]’s – the evidence from [trial
        counsel] is based on his habit. It is my habit to consult with my clients after there is
        a presentation of the case in chief, he said. It’s also my habit to try to talk to the
        client before the trial as well as when the State rests its case in chief and that’s
        probably what I did do.




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        [Trial counsel] cannot say today that he has any memory of doing that. So,
in the face of Mr. Osbornes’s protestations that he wanted to testify and [Trial
counsel] stopped him, and [Trial counsel] compounded it by saying I don’t remember
what happened, in the face of that is Mr. Osborne’s own testimony here today that
he – Mr. Osborne – remembers that he talked to [Trial counsel] about it decided to
take [Trial counsel’s] advise [sic].

       Now whether that advise [sic] by [Trial counsel] was – because [Trial
counsel] thought that the prior convictions would be used to impeach the credibility
of Mr. Osborne and told Mr. Osborne that, and Mr. Osborne believing that to be true
decided not to testify I suppose we’ll never know.

         What concerns the Court is that if that’s how it unfolded, if [Trial counsel]
said to Mr. Osborne you know, I don’t think you should testify because if you do the
State’s going to be throwing those prior convictions in your face, and that’s going to
be presented to the jury and the jury is going to learn about those prior convictions,
if that’s what [Trial counsel] told him, and he told him that without even trying to get
a ruling from the Court under rule 609 as to whether or not they would even be used,
I suppose we’ll never know that. What the evidence is here today is Mr. Osborne
saying I consulted with [Trial counsel]; he told me what he thought, and I decided not
to testify.

       [Whereupon Trial counsel was recalled to the stand and questioned regarding
       his advice to the petitioner not to testify]

       ....

       Rule 609(A)(3) reads in part as follows: The Court may rule on the
admissibility of such proof prior to the trial, but in any event shall rule prior to the
testimony of the accused.

        The clear intent of that is so that an accused has a clear appreciation of
whether or not prior convictions are going to be used should he or she take the stand.
That’s the clear intent of that rule.

       The Court can do it, if it wants to, at an earlier time but it has to do it, the
Court is mandated to make that decision before the accused testifies so that the
accused can factor that in in deciding whether to testify.

       [Trial counsel] should have gotten a ruling from the Court as to whether or
not these prior convictions could have been used by the State to impeach Mr.
Osborne’s testimony should he decide to testify, and without that this Defendant did



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        not make a knowing decision regarding that right. The petition is granted. A new
        trial is ordered.


        After reviewing the evidence presented at the post-conviction hearing, we agree with the
post-conviction court that the petitioner has proven less than adequate representation on the part of
his trial counsel. It is obvious from the trial counsel’s testimony that he considered the prior
convictions an issue during any cross-examination of the defendant. Any questions could have been
resolved on this matter had the trial counsel requested a hearing as is provided for in the Tennessee
Rules of Evidence. It is very likely that the trial court would have ruled that these prior convictions
were inadmissible. This Court has held that a defendant on trial for the sale of cocaine generally
should not be impeached by prior convictions for the sale of cocaine. State v. Walker, 29 S.W.3d
885, 891 (Tenn. Crim. App. 1999). This could have led to a very different decision on the part of
both the petitioner and his trial counsel. Clearly, the trial counsel’s failure to request a Rule 609
hearing was not up to par for a reasonable criminal defense attorney in these circumstances.

        However, our analysis does not stop there. We must also analyze whether any prejudice
against the petitioner resulted because of the trial counsel’s inadequate representation. The post-
conviction court did not include any actual findings of how the failure to request a hearing resulted
in prejudice other than that it may have affected the petitioner’s decision to testify.

         As we stated above, in order to demonstrate prejudice, the petitioner must show that there
is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different. See Strickland, 466 U.S. at 694. In this case, the petitioner has not
shown that there is a reasonable probability that the jury would have found the petitioner not guilty.
At the petitioner’s trial, the jury was shown a videotape of the drug transaction. All parties testified
at the post-conviction hearing that the petitioner is clearly visible in the videotape throughout the
drug transaction. The jury would be capable of determining whether the petitioner was involved in
the transaction even without the petitioner’s testimony in his own defense. In addition, the police
officers involved in the petitioner’s arrest also testified at the trial and clearly implicated the
petitioner in the crime.

         At the post-conviction hearing the petitioner stated that he would have testified to his version
of the facts. The petitioner stated that he would have testified that he was in the vicinity of the drug
transaction because his girlfriend lived in front of the apartment where the drugs were being sold.
The petitioner had run into one of his co-defendants, Mr. Walton, on the sidewalk about fifteen
minutes before he went into the apartment where the drugs were sold. The petitioner was also going
to testify that he had been drinking and was wobbly and tipsy. The petitioner wanted to tell the jury
that he did not have any drugs on him, Mr. Walton had the drugs. The petitioner also wanted to
testify that he received no money from the transaction.

         The evidence the petitioner provided at the post-conviction hearing has not shown that there
is a reasonable probability that the jury would have found the petitioner not guilty. Therefore, while


                                                  -6-
we do find that the trial counsel’s failure to request a Rule 609 hearing is deficient representation,
we cannot find prejudice as a result of this deficiency. Therefore, we reverse the decision of the
post-conviction court and find that the petitioner’s petition should have been denied on this ground.1

                                      Lesser-Included Offense Instruction

         In its August 12, 2003 ruling, the post-conviction court found that petitioner’s trial counsel’s
failure to request an instruction on facilitation was also ineffective assistance of counsel. The post-
conviction court stated in its findings that it was ineffective assistance of counsel for petitioner’s trial
counsel to fail to request an instruction on facilitation. The post-conviction court did not make any
findings as to how or why this failure was ineffective assistance of counsel or whether this failure
was prejudicial to the petitioner.

         To determine whether trial counsel should be found to have given ineffective assistance of
counsel, we must determine whether there was evidence to support a conviction for facilitation of
sale or delivery of a controlled substance necessitating a jury instruction on that offense. At the time
of petitioner’s trial, facilitation should have been charged, “where the facts could cause reasonable
minds to conclude that the defendant lacked the intent to promote, or assist in, or benefit from the
felony’s commission.” State v. Utley, 928 S.W.2d 448, 452 (Tenn. Crim. App. 1995).

        The primary evidence at trial was the testimony of Agent Maxey Gilleland and a videotape
of the sale. Agent Gilleland testified that the petitioner searched the agent for a wire and also
discussed selling three ounces of cocaine to the agent. The parties then entered the apartment with
the petitioner’s co-defendant, Mr. Walton. When the agent asked for more cocaine, Mr. Walton
looked at the petitioner and the petitioner placed more cocaine on the scales. Agent Gilleland
pointed out that portion of the videotape during the petitioner’s trial. We find that a reasonable mind
could not conclude that the petitioner lacked the intent to promote, or assist in or benefit from the
felony’s commission when presented the evidence outlined hereinabove.

        We find that trial counsel’s actions in failing to ask for an instruction on facilitation did not
amount to deficient representation. Even if trial counsel’s performance was deficient, the petitioner
would still have to prove prejudice to the extent that there is a reasonable probability that the
outcome of the trial would have been different if there had been an instruction for facilitation. See
Strickland, 466 U.S. at 694. Once again, as in the Rule 609 issue, the petitioner cannot prove that
the jury would probably have found him guilty only of facilitation of the sale or delivery of a
controlled substance as opposed to the sale or delivery of a controlled substance. Having considered
the evidence of the agent’s testimony and the videotape, we find it unlikely that the jury would have
found the petitioner guilty of facilitation. We find that the petitioner has failed to carry his burden
of proving prejudice with respect to this claim.


         1
         W e also point out that the petitioner’s trial occurred before the issuance of Momon v. State, 18 S.W .3d 152
(Tenn. 1999), which puts forth the procedural guidelines when a defendant waives his right to testify. 18 S.W .3d at 155.
Because Momon did not establish a new constitutional rule, the requirements are not retroactive. See Id. at 162-63.

                                                          -7-
       For the above reasons, we reverse the decision of the trial court and remand for further
proceedings in accordance with this opinion.



                                                    ___________________________________
                                                    JERRY L. SMITH, JUDGE




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