         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 2, 2004

                   QUINCY L. LOVE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-23593    John P. Colton, Jr., Judge



                      No. W2002-02081-CCA-R3-PC - Filed May 7, 2004


The Appellant, Quincy L. Love, appeals the Shelby County Criminal Court’s denial of his petition
for post-conviction relief. On appeal, Love raises the single issue of whether he was denied the
effective assistance of counsel by trial counsel’s failure to properly advise him of his right not to
testify or to properly prepare him to give testimony. After review of the record, we find no error and
affirm the denial of the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

Robert B. Gaia, Memphis, Tennessee, for the Appellant, Quincy L. Love.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michael
Markham, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas
P. Hoover, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

       On November 21, 1996, the Appellant was involved in an altercation, which resulted in the
death of Mondrea Dwayne Cunningham. The following facts were established on direct appeal:

       The evidence introduced at trial clearly showed that the victim died of a single
       gunshot wound inflicted by the Defendant. The Defendant testified that the victim
       owed him a little over a hundred dollars for cocaine which he had sold to the victim.
       The Defendant saw the victim on the street and initiated a discussion about the debt.
       When the victim told the Defendant that he really did not have to pay the Defendant
       anything, the Defendant became angry and hit the victim in the face. During the
       ensuing fistfight, the victim was shot with the Defendant’s pistol, which the
       Defendant had been carrying under his shirt in the waistband of his pants. . . . The
       facts in this case are basically undisputed, except that the Defendant testified that
       during the struggle, his pistol accidently discharged.

State v. Quincy L. Love, No. 02C01-9809-CR-00282 (Tenn. Crim. App. at Jackson, July 19, 1999),
perm. to appeal denied, (Tenn. Feb. 7, 2000).

         On June 10, 1998, a Shelby County jury convicted the Appellant of second-degree murder,
and he was subsequently sentenced to a term of twenty-one years in the Tennessee Department of
Correction. A panel of this court affirmed the conviction on direct appeal. Id. On June 29, 2000,
the Appellant filed a pro se petition for post-conviction relief, which was subsequently amended
after the appointment of counsel. The petition alleged, among other grounds, that the Appellant was
denied the effective assistance of counsel. A hearing was held on May 10, 2002, at which only the
Appellant and trial counsel testified.

       After hearing the evidence presented, the post-conviction court entered an order on July 16,
2002, denying the petition. This appeal followed.

                                               Analysis

        On appeal, the Appellant asserts that trial counsel’s representation was deficient because
counsel failed to properly prepare him to testify or properly advise him of his right not to testify. As
to the prejudice prong, the Appellant argues that

        it is reasonable to infer that the jury convicted appellant at least partially based on
       his admission at trial. Such result would not have happened if counsel had properly
       advised and prepared appellant for his testimony, or properly advised him as to his
       right not to testify at all.

        To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden
of establishing the allegations set forth in his petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f) (2003). The Appellant must demonstrate that counsel’s representation fell
below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984), the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. The Appellant is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made
during the course of the proceeding. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
This deference to the tactical decisions of trial counsel is dependant upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).


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        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “[A] trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. R. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption that the post-
conviction court’s findings are correct. Id.

         At the evidentiary hearing, the Appellant conceded that, prior to taking the stand at trial, he
had been voir dired concerning his right to testify or not testify and that he had informed the court
that it was his desire to testify. However, he asserted that he only testified because trial counsel told
him “it would be better for” him if he did.

        Trial counsel testified that the only defense available to the Appellant, based upon the facts
of the case, was to try for a conviction of a lesser degree of homicide. Trial counsel further testified
that she “always advise[d] [her] clients [regarding] their right to testify and not to testify.” She stated
that she did not recall advising the Appellant that he needed to testify but stated that she might have
told him that his story regarding the accidental shooting would not get in front of the jury otherwise.
Trial counsel went on to testify that she had prepared the Appellant to testify by explaining the
questions she would ask, explaining that she would bring out his prior conviction to get it out of the
way, and explaining that he needed to tell what had happened. She further explained to him that the
State would cross-examine him and that while he was on the stand, “there wouldn’t be a whole lot
I would be able to do to protect him.”

        We find nothing in the record to preponderate against the post-conviction court’s findings
that the Appellant “failed to show that there were any serious errors committed by trial counsel.”
The Appellant was clearly advised of and was aware of his right not to testify. Trial counsel testified
that she communicated with him pre-trial regarding the decision, and the Appellant was questioned
in open court prior to giving testimony. We find nothing to indicate that trial counsel did not
adequately prepare the Appellant in this decision or in his trial testimony. The statement made by
trial counsel that the only way to get the Appellant’s story before the jury was to take the stand was
not inappropriate or coercive. Clearly, as the Appellant was aware, based upon the facts of this case,
it was a well-reasoned tactical decision for him to testify, as it was the defense theory that the
shooting occurred accidentally. Finding no deficiency in trial counsel’s performance, the claim of
ineffective assistance of counsel is without merit.




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                                            CONCLUSION

          Based upon the foregoing, we affirm the denial of the Appellant’s petition for post-conviction
relief.




                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




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