                                                                                       03/20/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 8, 2016

                CEDRIC WATKINS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2011-A-663    Cheryl Blackburn, Judge


                            No. M2016-00681-CCA-R3-PC



The petitioner, Cedric Watkins, appeals the denial of his petition for post-conviction
relief from his first degree premeditated murder conviction, arguing that the post-
conviction court erred in finding that he received effective assistance of trial counsel.
Following our review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT W. WEDEMEYER, J., joined.

David M. Hopkins, Murfreesboro, Tennessee, for the appellant, Cedric Watkins.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Megan M. King,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

        In 2013, the petitioner was convicted of the first degree premeditated murder of
Thomas Turner and sentenced to life imprisonment. Our direct appeal opinion reveals
that the conviction stemmed from the petitioner’s having shot the victim, who had bought
drugs from him, in the belief that the victim was a “snitch” who might have been
responsible for the arrest of two of the petitioner’s associates. State v. Cedric Wayne
Watkins, No. M2013-01268-CCA-R3-CD, 2014 WL 2547710, at *1-3 (Tenn. Crim. App.
June 4, 2014). Among the State’s witnesses at trial was the petitioner’s associate,
William Carter, who testified that after he let the petitioner out of his vehicle at the
victim’s hotel, the petitioner came running back to his car carrying a laptop computer, got
back inside, and said, “[T]wo shots to the head[;] he ain’t talking no more.” Id. at *3
(internal quotation marks omitted).

        Other State witnesses included Brianna Stanton and Stephanie Littlejohn, who
each heard the petitioner make incriminating statements about the killing. Among other
things, Ms. Littlejohn testified that the petitioner “told her that he had shot the victim
three times.” Id. at *2. Ms. Stanton testified that several days before she learned about
the victim’s death, the petitioner went somewhere with Mr. Carter and then returned to
their hotel room where he “said that they ‘were all supposed to take it to the grave.’” Id.
at *1. Ms. Stanton agreed she had testified at an earlier court hearing that the petitioner
“said something ‘along the lines of [ ] they had to do what they had to do to somebody
who was snitching’” before making the statement about taking the information to their
graves. Id. The State also introduced recorded jail telephone calls between the petitioner
and Ms. Stanton in which the petitioner “told Ms. Stanton to ‘stick to the script’ and said
that they would ‘fight this s*** to the end.’” Id. at *2.

      The petitioner presented as a witness in his behalf a woman named Deborah Cox,
who testified that Ms. Littlejohn told her that she had shot the victim and that the gun she
had used would never be found. Id. at *4.

        On January 20, 2015, the petitioner filed a pro se petition for post-conviction relief
in which he raised a number of claims, including ineffective assistance of counsel.
Following the appointment of post-conviction counsel, he filed an amended petition in
which he alleged that trial counsel was ineffective for failing to adequately investigate the
case or consult with the petitioner, failing to effectively cross-examine Ms. Cox on
inconsistencies in her trial testimonies, not objecting to hearsay testimony from a police
detective, and failing to call Clifford Parrish and Lashona Wooten as defense witnesses.
The petitioner alleged that Mr. Parrish would have testified that Ms. Littlejohn confessed
to him that she killed the victim. The petitioner alleged that Ms. Wooten, who testified at
his first trial that resulted in a hung jury, would have testified that she did not see the
petitioner at the scene of the crime, but instead “another individual she could identify and
an unidentified person.” Finally, the petitioner alleged that appellate counsel was
ineffective for failing to file a timely Rule 11 application for permission to appeal.

      At the evidentiary hearing, appellate counsel testified that she intended to file a
Rule 11 application in the petitioner’s case but got his case confused with another client’s
and overlooked it.

      Clifford Parrish, a long-time boyfriend of the petitioner’s aunt, testified that
Stephanie Littlejohn told him that she had committed the murder. He said he did not
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impart that information to the petitioner’s defense team because he thought Ms.
Littlejohn would take the initiative and tell them herself. On cross-examination, he
testified he later told the petitioner’s aunt about Ms. Littlejohn’s confession. He was
unsure, however, of when he divulged the information, testifying that it could have
possibly been during the first or the second trial.

        Lashona Smith,1 previously known by the married name of Lashona Wooten,
testified that she gave testimony at the petitioner’s first trial about having seen William
Carter driving away from the hotel with a passenger in his vehicle on the day the victim
was killed, but she was unable to see who the passenger was. She stated that she was
subpoenaed as a witness at the petitioner’s second trial, but, although the petitioner’s trial
counsel spoke to her outside the courtroom, she was never called to testify.

       Deborah Cox testified that she testified at both of the petitioner’s trials. She said
that both trial counsel and his investigator interviewed her and that she was asked at the
second trial about Ms. Littlejohn’s statement that she had killed the victim and disposed
of the gun.

        The petitioner testified that his first trial ended in a mistrial after the jury was
unable to reach a verdict. He said his family retained a different attorney for his second
trial and trial counsel began representing him only twenty-one days before the second
trial began. He claimed trial counsel visited him only two times before trial, in visits that
lasted thirty minutes or less. According to the petitioner, trial counsel never prepared him
for testifying and never even discussed before trial whether or not he would testify. He
said he consequently felt unprepared to testify, which is why he opted not to take the
stand in his own defense. Had he been prepared and testified, he would have told the jury
that he did not kill the victim.

       The petitioner also complained about trial counsel’s failure to call Ms. Wooten
and Mr. Parrish as witnesses and his failure to effectively impeach Ms. Cox’s testimony
with her testimony from the first trial. He said he wanted trial counsel to call Ms.
Wooten as a witness at his second trial because she had testified at his first trial, which
resulted in a hung jury, and he believed her testimony would have made a difference in
his second trial. He said counsel never explained to him why he failed to call her as a
witness.

      The petitioner testified he had no knowledge before either of his trials about the
information Mr. Parrish provided at the evidentiary hearing, but also no knowledge of

       1
        This witness’s first name is spelled phonetically in the transcript as “Lashawna” but as
“Lashona” in the petition for post-conviction relief and in the petitioner’s appellate brief.
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what kind, if any, investigation trial counsel conducted or if counsel could have
discovered Mr. Parrish as a potential witness. As for Ms. Cox, he believed that counsel
should have impeached her testimony at his second trial with her testimony from the first
trial. He explained that in the first trial, Ms. Cox simply testified that Ms. Littlejohn told
her that she had committed the crime, while in the second she testified that Ms. Littlejohn
told her that she had shot the victim in the back of the head. The petitioner said he
thought trial counsel should have asked Ms. Cox to read from her previous trial testimony
to show the jury the discrepancies in her accounts.

         The petitioner also complained that trial counsel failed to object to hearsay
testimony by Detective Corey Wall about having been told by Chaz Ellis to speak to Ms.
Littlejohn about the crime. Lastly, he claimed that trial counsel fell asleep during his
trial, testifying that counsel was “supposed to have been taking notes,” but his paper fell
to the floor twice while he was sitting at the defense table.

         On cross-examination, the petitioner denied that his family retained trial counsel
shortly before his second trial because he was not getting along with his former counsel.
Instead, he claimed that trial counsel “showed up alleging that he was his attorney” and
when he called his family to inquire, they told him that they had hired him. The
petitioner acknowledged that his first jury had voted 11 to 1 to convict him. Because his
first trial ended in a hung jury, he thought trial counsel should have “follow[ed] the same
platform [of the first trial] instead of subtracting from what ha[d] already been laid out as
a foundation.” He said he told trial counsel that his words of “stick to the script” meant
to tell the truth and that counsel told him he would find someone from the African-
American community to testify to that effect. The petitioner disagreed that Ms. Wooten’s
testimony that someone else was in the car with Mr. Carter helped the State’s case. On
redirect examination, he reiterated his belief that Ms. Cox’s testimony from the first trial
that she was unable to see who was in the car with Mr. Carter helped his defense in the
first trial.

       Trial counsel, called as a witness by the State, testified that he had been licensed to
practice law for approximately thirty-nine years. He said he was contacted by the
petitioner’s aunt and other family members who indicated that the petitioner’s
relationship with his former counsel was “strained” and asked him to take over the case.
During his appearance notice, three weeks before the scheduled trial, the trial court
addressed the fact that the trial had been set for a number of months and could not be
reset. Trial counsel stated that he thought his taking on the case was what the petitioner
needed and “a positive situation” due to the petitioner’s strained relationship with his
former counsel. Former counsel was very cooperative, furnishing him with “everything
he had,” and trial counsel devoted all of his time from the date he was retained until trial
in preparing for the case.
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        Trial counsel testified that he met with the petitioner three different times, for a
total of over three hours, in his preparation for the case. He characterized their meetings
as “very productive,” testifying that he and the petitioner communicated well and
reviewed together the first trial transcript “line by line.” Among other things, he and the
petitioner discussed the State’s evidence against the petitioner, potential witnesses and
theories of defense, and which factors in the first trial had not been favorable to the
petitioner. The petitioner was very interested in having Ms. Littlejohn and Ms. Cox as
witnesses, but he never mentioned Mr. Parrish. Trial counsel said he also “zeroed in” on
the petitioner’s “stick to the script” statement, spending “the better part” of one or two
days trying through his connection with the “Nashville Inner City Ministry” to find
someone to testify that in the African-American community the words could be
interpreted as “tell the truth as opposed to say what we had planned to say.” He could
not, however, “find anyone that would agree that they could do that in good conscience.”

        Trial counsel testified that he considered calling Ms. Wooten as a witness at the
second trial. However, after talking with her, he “had . . . chills” based on the way she
expressed herself and therefore believed that she would not “be anything but a possible
liability” for the petitioner if she testified. He said he spoke with Ms. Cox twice before
trial, provided her with gas money to travel to the trial from her home in Kentucky, and
called her as witness. He repeated that the petitioner never mentioned Mr. Parrish at all.

       Trial counsel further testified that he had extensive conversations with the
petitioner about the pros and cons of testifying in his own defense and that it was the
petitioner’s ultimate decision. In addition, the trial court conducted a “very, very
thorough examination” with the petitioner about his decision not to take the stand.

        On cross-examination, trial counsel testified he had never tried a first degree
murder case with only three weeks of preparation. He said he met with the petitioner
either the same day that the petitioner’s aunt retained him, or the following day. He also
informed the petitioner, upon assumption of the case, “that it was [his] understanding that
the Court would not grant a continuance because [he] came into the case.” Trial counsel
testified that he “would have liked a little more latitude in . . . developing Ms. Cox’s
testimony,” but he was limited by the trial court’s rulings. Trial counsel reiterated that
Ms. Wooten’s demeanor and body language on the day of the trial led him to believe,
based on his years of experience, that she would be a liability if he called her as a
witness. Finally, trial counsel categorically denied that he at any point fell asleep during
the trial.

        The petitioner’s aunt, Janice Gordon, called as a rebuttal witness by the petitioner,
testified that she noticed trial counsel drop his head and start to “drift off” at least three
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times during the trial. On cross-examination, Ms. Gordon testified that the petitioner was
in agreement with the family’s decision to hire trial counsel to replace the petitioner’s
original counsel, whom they believed was not representing the petitioner well.

        On April 4, 2016, the post-conviction court entered an order denying the petition
for post-conviction relief based on the allegations of ineffective assistance of trial
counsel. The court, however, granted the petitioner a delayed appeal to the supreme
court due to appellate counsel’s failure to file a Rule 11 application for permission to
appeal. That same day, the petitioner filed a timely notice of appeal to this court in which
he challenged the post-conviction court’s finding that he received effective assistance of
trial counsel.

                                       ANALYSIS

        The petitioner argues on appeal that trial counsel was deficient, thereby
prejudicing the outcome of his case, for the following: not adequately investigating the
case; not preparing the petitioner to testify so that he could explain the damaging “stick to
the script” statement; not locating Mr. Parrish as a witness; failing to elicit from Ms. Cox
that her statement that the victim was shot in the back of the head, which conflicted with
the medical examiner’s report, was only Ms. Cox’s opinion; not calling Ms. Wooten to
testify; failing to object to hearsay testimony by Detective Wall; and falling asleep during
the trial. The State responds by arguing that the evidence does not preponderate against
the findings and conclusions of the post-conviction court that the petitioner received
effective assistance of trial counsel. We agree with the State.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999).

      To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
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deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington , 466 U.S. 668, 687 (1984); see State v. Taylor , 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,
and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       The post-conviction court addressed each of the petitioner’s allegations in its
lengthy and detailed order denying relief. Among other things, the court specifically
accredited the testimony of trial counsel over that of the petitioner, finding that trial
counsel conducted a thorough investigation, adequately met with the petitioner to review
the previous trial transcript and the facts of the case, and effectively communicated with
the petitioner about the case, including his options regarding testifying at trial. The court
                                             -7-
also accredited trial counsel’s testimony that he never heard of Mr. Parrish as a potential
witness, that he made a strategic decision not to call Ms. Wooten based on her demeanor
and attitude on the day of the trial, and that he developed Ms. Cox’s testimony to the best
of his ability, given the trial court’s rulings.

       With respect to the petitioner’s claim that trial counsel was ineffective for failing
to object to hearsay testimony by the police detective, the post-conviction court noted
from its review of the trial transcript that “[t]he majority of the testimony concerned how
Detective Wall found individual[s’] names in the deceased’s phone and went to speak to
each one who directed him to the next individual.” The court further noted that the
detective, whose testimony was “general,” did not testify as to what each individual told
him, but instead what actions he took based on what each individual said. The court,
therefore, concluded that there was “no evidentiary error” in the testimony.

       The record fully supports the findings and conclusions of the post-conviction
court. Trial counsel was a very experienced trial attorney who conducted a thorough
investigation of the facts, reviewed the record from the first trial, and communicated with
the petitioner about the facts, defense theories, and the pros and cons of testifying in his
own defense. Trial counsel offered a reasonable explanation for why he did not call Ms.
Wooten as a witness and how he was limited in his examination of Ms. Cox by the trial
court’s evidentiary rulings. In sum, we agree with the post-conviction court that the
petitioner has not met his burden of demonstrating any deficiencies in counsel’s
performance or any resulting prejudice to his case.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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