                                                                                        07/30/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 5, 2020

       LARRY DONNELL GOLDEN, JR. v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Carroll County
                    No. 14-CR-49       Donald E. Parish, Judge
                     ___________________________________

                           No. W2019-01531-CCA-R3-PC
                       ___________________________________


Petitioner, Larry Donnell Golden, Jr., appeals from the denial of his petition for post-
conviction relief from his 2016 convictions for second degree murder and reckless
endangerment. Petitioner contends that he received the ineffective assistance of counsel
at trial and on direct appeal. Following our review of the record, we affirm the denial of
the petition.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN,
and D. KELLY THOMAS, JR., JJ., joined.

Jasmine McMackins Hatcher, McKenzie, Tennessee, for the appellant, Larry Donnell
Golden, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Katherine K. Decker, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Carthel L. Smith,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Procedural history

       Petitioner’s convictions resulted from the shooting death of Houston Dewayne
Brown. A panel of this court affirmed Petitioner’s convictions and sentences on direct
appeal. The panel summarized the facts underlying Petitioner’s convictions as follows:

        The proof at trial showed that Houston Brown and his fiancée,
        Sharmaine Algee, hosted a Super Bowl party on February 2, 2014. An
argument broke out between two of the attendees, Jermaine Crawford
and Shemile Adams. Mr. Adams pinned Mr. Crawford against the wall
during the course of a verbal argument about a possible sexual assault
committed by Mr. Crawford sometime earlier. Ms. Algee asked Mr.
Crawford to leave, and Mr. Crawford went to Dorothy Williams’ house
across the street.

Ms. Algee determined that Mr. Adams might have been mistaken about
Mr. Crawford, so she and Mr. Adams went across the street to Ms.
Williams’ home to apologize to Mr. Crawford. Mr. Crawford told them,
“I’m not trying to hear that shit. It’s all about to be handled.” Ms.
Williams later went to Ms. Algee’s house and told her that she had
overheard Mr. Crawford on the phone telling someone to “come strapped
up,” meaning armed, but Ms. Algee did not take Ms. Williams’
information seriously.

Sometime later, [Petitioner], Cedric Harris, and Jermaine Crawford
showed up in Ms. Algee’s and Mr. Brown’s front yard. Mr. Brown, Mr.
Adams, and Landon Gilbreath went outside to meet them, and Mr.
Brown told [Petitioner] and the two men with him “that he couldn’t have
this at his house because he was on parole and he couldn’t afford for the
police to be there.” However, Mr. Adams and Mr. Harris started
fighting. Ms. Algee saw that [Petitioner] had a gun in his pocket and
went back inside to call the police. While Ms. Algee was on the phone
with the dispatcher, several gunshots sounded. After the gunfire
stopped, it was discovered that Mr. Brown had been fatally wounded.

Landon Gilbreath saw Mr. Adams and Mr. Harris exchanging words in
the yard before fighting each other. [Petitioner] was on the other side of
the cars parked in the driveway. Mr. Harris fell to the ground, and when
Mr. Adams hit or kicked him, Mr. Harris screamed something. After
that, [Petitioner] began firing. Mr. Gilbreath heard Mr. Brown say, “I’m
hit,” and then everyone “scattered.”

Ja’Leesa Cherry, who testified for [Petitioner], said that Mr. Harris was
down on the ground and Mr. Adams was kicking him. Mr. Harris yelled,
“Shoot,” after which Ms. Cherry saw flashes coming from where
[Petitioner] was standing and heard Mr. Brown say that he had been
shot.



                                  -2-
        Mr. Adams, who also testified for [Petitioner], said that his confrontation
        with Mr. Crawford at the Super Bowl party was motivated by an incident
        several nights earlier at a nightclub between Mr. Adams’s girlfriend and
        Mr. Crawford. Mr. Adams admitted pushing Mr. Crawford during the
        confrontation at the party but then went across the street to apologize to
        him. Sometime after returning to Mr. Brown’s house from apologizing
        to Mr. Crawford, Mr. Adams heard Mr. Brown “ranting and raving”
        about Mr. Crawford. Mr. Adams said that a short time later Mr. Brown
        and others left in a hurry when they saw a group of men, including
        [Petitioner] and Mr. Harris, approaching the front yard. Mr. Adams and
        Mr. Harris exchanged words and began fighting. Mr. Adams admitted to
        kicking Mr. Harris in the face while Mr. Harris was on the ground.
        When Mr. Adams kicked Mr. Harris in the head a second time, Mr.
        Harris yelled “shoot.”

        [Petitioner] did not introduce any evidence at trial refuting the fact that
        he fired a firearm during the altercation on February 2, 2014. The State
        presented proof that the Defendant made statements to several of his
        cellmates after he was taken into custody, in which he admitted to firing
        shots. In particular, [Petitioner] told one cellmate that he went to a party
        where a fight was taking place between rival gangs and “that he had to
        do what he had to do.”

        Five shell casings, all fired from the same gun, were found in the yard
        and driveway of the residence. Three bullets, as well as apparent bullet
        holes, were found in areas inside and outside the home. It was stipulated
        that Mr. Brown died from a gunshot wound to the chest.

State v. Larry Donnell Golden, Jr., No. W2016-01512-CCA-R3-CD, 2017 WL 2482992,
at *1-2 (Tenn. Crim. App. June 7, 2017), perm. app. denied (Tenn. Oct. 4, 2017).

       The trial court sentenced Petitioner to concurrent sentences of 23 years for his
murder conviction and 4 years for his reckless endangerment conviction. Petitioner
timely filed a petition seeking post-conviction relief, alleging that his trial counsel was
ineffective.

Post-conviction hearing

       Trial counsel testified that he represented Petitioner from Petitioner’s arraignment
in February, 2014, through his direct appeal. Trial counsel met with Petitioner several
times prior to trial. Trial counsel testified that his primary trial strategy was to “negate [ ]
                                             -3-
premeditation.” Trial counsel’s theory of the case was “[e]ssentially, that a fight erupted,
[Petitioner]’s friend is getting the worst end of the fight. He pulled a firearm to protect
his friend and that was that.” Trial counsel was “pleased” that Petitioner was convicted
of the lesser-included offense of second degree murder, but he testified, “I would have
liked to do better.” Trial counsel testified that because Petitioner admitted to having
“pulled the trigger that resulted in the death of the victim[,]” trial counsel did not expect
an acquittal.

       Trial counsel testified that he considered the theory of defense of a third party to
be “a viable trial strategy,” but he testified, it was not “the paramount part of [his]
strategy[.]” Trial counsel did not “go into great depth” on the theory of defense of a third
person with Petitioner because he did not believe that the facts supported the defense.
Trial counsel testified that he explained to Petitioner that a third party defense theory was
“a very difficult legal concept to even get around to” and that confusing the jury would
not be a good trial strategy.

        Trial counsel testified that because Petitioner and his friends instigated the
altercation, it was his “position that [Petitioner] didn’t avail himself of the [d]efense of
the [t]hird [p]arty[.]” Trial counsel also explained that the victim was not involved in the
fight. He testified, “the force was not used against the person doing the beating, namely
Shemile Adams.” Trial counsel nevertheless requested a jury instruction on the third
party defense to provide a “lower rung on the ladder to shoot for.” Trial counsel called
Shemile Adams to testify as a witness at Petitioner’s trial. Trial counsel recalled that Mr.
Adams testified that Mr. Harris was “completely disabled on the ground when [Mr.
Adams] kicked him the last time.” Trial counsel testified, “I believe we even got him to
testify that he kicked him one more time after he heard the first shot.”

        Trial counsel identified issues to be determined prior to trial and filed pretrial
motions, including a motion to suppress testimony regarding “test results” from
investigators at the crime scene to determine the projection of the bullets. Trial counsel
testified that investigators at the crime scene “took what they considered to be ballistics
by taking strings from where they thought the shooter was, and from where they found
bullet holes in certain areas around the property[.]” He testified that Investigator Johnny
Hill “was going to testify that based on this test he performed, that [Petitioner] was not
shooting aimlessly into the crowd, that he was specifically taking line shots at people
standing in the crowd[.]” Trial counsel testified that he did not believe the investigator
was qualified to give that testimony.

       Trial counsel testified his objective in filing the motion was to exclude
photographs of the strings used to determine the trajectory of the bullets and Investigator
Hill’s “theory behind what the strings represent[ed].” Trial counsel waited to file the
                                            -4-
motion until two weeks prior to trial “because . . . it doesn’t give the State the chance” to
obtain expert crime scene analysis in the event the trial court granted relief to Petitioner.
Trial counsel testified that he believed that the late filing of the motion benefitted
Petitioner. Trial counsel’s motion was granted. Investigator Hill testified at trial about
the location of the bullets; however, he was not permitted to testify that Petitioner
targeted the victim. During his cross-examination of Investigator Hill, trial counsel
attempted to establish that Petitioner was “just shooting in the air, shooting wildly about.”

       Trial counsel consulted an independent investigator and discussed possible
reconstruction of the crime scene, but he testified, “[i]f we would [have] had our expert
go look at the scene, they would have come up with similar results to [Investigator] Hill,
in my opinion, showing the travel of the bullets.” Trial counsel testified, “[t]he whole
idea was to keep that completely out.” Trial counsel testified, “I can see no way that the
path of the travel of bullets on these strings help[ed] our case.”

       Trial counsel testified that he also filed a motion to suppress the testimony of
Dorothy Williams that she overheard a phone call in which Mr. Crawford told Mr. Harris
to “get over here and make sure you strap up.” Trial counsel testified that he filed the
motion as late as possible so that if it was granted, the State would not have an
opportunity to seek another avenue to introduce the evidence. The trial court denied the
motion, as well as trial counsel’s request for permission to file an interlocutory appeal.
Trial counsel objected to the testimony at trial. He testified that he believed the
testimony was properly admitted, and he decided against raising the issue of its
admissibility on direct appeal.

        Trial counsel testified that he did not interview either of Petitioner’s co-
defendants, Jermaine Crawford or Cedric Harris, prior to trial. He testified that he did not
subpoena Mr. Crawford or Mr. Harris to testify at trial because he “thought it would be
fruitless.” Because Mr. Crawford’s trial was pending, trial counsel believed that Mr.
Crawford would have invoked his Fifth Amendment right, which trial counsel felt could
impact the jury in either a negative or a positive way. Trial counsel believed that Mr.
Harris’ “size and stature [ ] would have hurt our case[.]” Trial counsel portrayed the fight
between Mr. Harris and Mr. Adams as “one-sided,” and he did “not want the jury to lay
eyes on [Mr.] Harris.”

        Trial counsel testified that he could not recall whether he presented any evidence
at Petitioner’s sentencing hearing. Trial counsel also did not recall discussing with
Petitioner whether Petitioner would testify at the sentencing hearing. Trial counsel
testified that he did not attempt to introduce evidence of Petitioner’s military service
because he believed that “[t]he circumstances that led to [Petitioner’s] discharge . . .
would not have been favorable.” Trial counsel testified that he was familiar with the
                                            -5-
statutory mitigating factors. He testified that he did not present evidence at the
sentencing hearing to support application of the mitigating factor regarding justification
for Petitioner’s criminal conduct because he relied on the evidence presented at trial.

       Trial counsel testified that he “submitted the claims on appeal that [he] thought
contained merit.” He testified that he kept a running list during trial of all the possible
appealable issues. Trial counsel testified that he did not challenge the sufficiency of the
convicting evidence on direct appeal because he believed that the State presented
sufficient evidence of second degree murder. He testified that the issue of the sufficiency
of the evidence “lacked merit.” Trial counsel believed that the issue he raised regarding
the prosecutor’s statements during closing argument was the strongest issue presented on
appeal.

        Petitioner testified that trial counsel did not discuss with him the defense of a third
party theory. He testified that trial counsel told him that he should only testify if trial
counsel did not think they were “winning” the case and that trial counsel informed him
that he did not believe Petitioner’s testimony at trial was necessary. Petitioner testified
that he wanted both of his co-defendants to testify at trial, but trial counsel “never told
[Petitioner] whether or not he talked to them.” Petitioner testified that he provided trial
counsel with a list of witnesses to call at the sentencing hearing, and he provided counsel
with “some of [his] military documents,” but that trial counsel did not present any of the
witnesses or documents at the sentencing hearing. Petitioner testified that trial counsel
advised Petitioner not to testify at the sentencing hearing because trial counsel did not
“want [Petitioner] to say anything that might harm [him] [o]n appeal.” Petitioner testified
that trial counsel did not discuss with him what issues trial counsel wanted to include in
his appeal. When Petitioner received a copy of the appellate brief, he “was surprised that
it [ ] only listed a couple things and they really didn’t seem that big a deal except for the
whole [State’s] closing [argument].”

       Petitioner testified that on the date of the offense, he was aware that Mr. Crawford
“had an issue that was going on down there[,] and [Petitioner] wanted to know what it
was.” Petitioner testified that he and Mr. Harris went to the location of the party
together. After they arrived, Mr. Harris and Mr. Adams began fighting. Petitioner
acknowledged that he shot the victim. On cross-examination, Petitioner agreed with the
statement that there was “nothing [his co-defendants] could offer the jury that would
exclude the fact that” Petitioner fired the shot that killed the victim.

       Cedric Harris pleaded guilty to facilitation of second degree murder. He testified
that on the date of the offense, Mr. Crawford called him to say that some people were
“trying to jump him” and asked Mr. Harris to pick him up. Mr. Harris denied that Mr.
Crawford told him to bring a firearm. When they arrived, Mr. Harris attempted to diffuse
                                             -6-
the situation. He testified that while he was talking to the victim, Shemile Adams
“swung at” him. The two men began fighting, and Mr. Adams kicked him several times
in the head and face. Mr. Harris testified that he was unable to speak, and he did not yell
out for anyone to “shoot.” Mr. Harris testified that he was shorter than Mr. Adams, but
he outweighed Mr. Adams by 15 or 20 pounds. Mr. Harris heard gunfire while he “was
getting kicked in the face.” Following the gunfire, Petitioner and Jonathan Hughes
picked him up and carried him to someone’s car. Mr. Harris testified that he “was in a
concussion state.” He testified that he believed Petitioner “saved [his] life[.]”

        Mr. Harris testified that he was not contacted by Petitioner’s trial counsel or his
investigator about testifying at Petitioner’s trial. Mr. Harris testified that he was willing
to testify for Petitioner, despite his pending charges, but that he “never heard anything
more about it.” Mr. Harris testified that he did not go to the hospital for his injuries. Mr.
Harris acknowledged inconsistencies between his testimony and his statement to the
police. He denied that he wrote the statement to police.

        In a written order denying relief, the post-conviction court specifically credited
trial counsel’s testimony over Petitioner’s testimony. The post-conviction court found
that trial counsel thoroughly investigated Petitioner’s case and “developed and pursued a
reasonable trial strategy which was successful in avoiding a conviction for first degree
murder[.]” The post-conviction court concluded that Petitioner had failed to show by
clear and convincing evidence that trial counsel’s performance was deficient or that
Petitioner was prejudiced by any alleged deficiencies.

Analysis

       Petitioner contends that his trial counsel was deficient for (1) failing to develop an
effective trial strategy; (2) failing to introduce evidence of mitigating factors and advising
Petitioner not to testify at his sentencing hearing; and (3) omitting appealable errors on
direct appeal. The State responds that the post-conviction court properly denied post-
conviction relief.

       To obtain post-conviction relief, a petitioner must prove that his or her conviction
or sentence is void or voidable because of the abridgement of a right guaranteed by the
United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103 (2019);
Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner bears
the burden of proving his or her allegations of fact by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2019); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Grindstaff v. State, 297

                                            -7-
S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998)).

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. When a claim of ineffective assistance of counsel is made, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). Failure to satisfy either prong results
in the denial of relief. Strickland, 466 U.S. at 697. Accordingly, if we determine that
either factor is not satisfied, there is no need to consider the other factor. Finch v. State,
226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886
(Tenn. 2004)). Additionally, review of counsel’s performance “requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time.” Strickland, 466 U.S. at 689; see also Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). We will not second-guess a reasonable trial strategy, and we will not grant
relief based on a sound, yet ultimately unsuccessful, tactical decision. Granderson v.
State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        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 prejudice prong of the test is satisfied by showing a reasonable probability that “but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. A reasonable probability is a “probability
sufficient to undermine confidence in the outcome” of the trial. Id. The stronger the
proof of guilt presented at trial, the more difficult it is to prove the prejudice prong of
Strickland. When proof of guilt is overwhelming, proving prejudice is exceedingly
difficult. See Proctor v. State, 868 S.W.2d 669, 673 (Tenn. Crim. App. 1992); Randy
Bray v. State, No. M2011-00665-CCA-R3-PC, 2012 WL 1895948, at *6 (Tenn. Crim.
App. May 23, 2012), perm. app. denied (Tenn. Sept. 19, 2012) (finding that, in light of
overwhelming evidence, petitioner could not demonstrate prejudice); Raymond E. McNeil
v. State, No. M2010-00671-CCA-R3-PC, 2011 WL 704452, at *6 (Tenn. Crim. App.
Mar. 1, 2011) (finding that overwhelming evidence of guilt precluded showing of
prejudice from admission of item of evidence at trial).

       Petitioner contends that trial counsel failed to develop an effective trial strategy
by: 1) failing to timely file pretrial motions; 2) failing to present evidence of adequate
provocation to support a conviction for voluntary manslaughter; and 3) failing to present
                                            -8-
evidence to support defense of a third party. The State responds that the post-conviction
court properly denied Petitioner’s claims.

Trial strategy

        Trial counsel testified at the post-conviction hearing that he made a strategic
decision to wait to file pretrial motions in order to give the State less of an opportunity to
remedy any resulting issues. He testified, “that’s been my practice in every jury trial I’ve
had, and I’ve been successful in jury trials by employing that strategy.” Trial counsel
was successful in suppressing Investigator Hill’s testimony regarding the results of the
string tests performed by law enforcement. Petitioner argues that trial counsel’s “logic is
unreasonable when the outcome of the pre-trial issues leaves counsel without the ability
to timely investigate and/or develop a trial strategy.” Petitioner also asserts that trial
counsel should have presented expert testimony to show that Petitioner did not target or
intend to kill the victim. Trial counsel testified, however, that he consulted an
independent investigator, and trial counsel considered reconstructing the crime scene, but
he determined that it would yield the same results as those of the law enforcement
officers and that it would not have been favorable to Petitioner. Moreover, trial counsel
had decided not to obtain a crime scene reconstruction expert before the motion to
suppress was granted; therefore, the absence of an expert at trial was not related to the
timeliness of the motion.

       The post-conviction court found that trial counsel “was well prepared for and
thoroughly pursued a relevant pre-trial motion plan” and that trial counsel “argued pre-
trial motions in a timely manner.” Additionally, the post-conviction court found that trial
counsel “pursued a reasonable approach in dealing with the evidence of the shooting
scene and in not attempting to obtain a crime scene reconstruction expert[.]”

       The evidence presented at the post-conviction hearing does not preponderate
against the post-conviction court’s findings. Petitioner did not present a crime scene
reconstruction expert at the post-conviction hearing to establish what favorable
information an expert could have provided. In general, when an ineffective assistance of
counsel claim is predicated upon trial counsel’s failure to present witnesses or introduce
evidence, such witnesses’ testimony and evidence should be offered at the evidentiary
hearing in order for the post-conviction court to determine whether the failure to call a
witness or introduce evidence prejudiced the petitioner. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990).

       Regarding the motion to suppress testimony about a phone call between
Petitioner’s co-defendants, Mr. Crawford and Mr. Harris, which the trial court denied,
Petitioner asserts that “trial counsel had no time to seek interlocutory review of the
                                            -9-
decision and had no time to compel the testimony of the declarants.” The post-conviction
court found that trial counsel “was not ineffective in not seeking an interlocutory appeal
of any pre-trial rulings.” In fact, trial counsel sought permission to file an interlocutory
appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Trial counsel
testified at the post-conviction hearing that his motion to suppress contained a Rule 9
request for permission to appeal, and his “recollection [was that] it was denied.”
Petitioner makes no argument and cites no authority to support or establish that
interlocutory review of the issue would have been successful or benefitted his defense.

         Regarding trial counsel’s failure to call Petitioner’s co-defendants as witnesses at
trial, the post-conviction court found that the co-defendants “faced similar jeopardy and
would not likely have testified in [Petitioner]’s trial at a time when each was facing
murder charges.” Trial counsel testified that he did not interview either of Petitioner’s
co-defendants. He testified that he did not subpoena Mr. Crawford or Mr. Harris to
testify at Petitioner’s trial because he “thought it would be fruitless.” Trial counsel
testified that he believed that Mr. Crawford’s attorney would not allow him to testify on
behalf of Petitioner while Mr. Crawford’s trial was pending, and that Mr. Crawford
would have invoked his Fifth Amendment right not to testify, which trial counsel
testified, “could have impacted the jury in a positive way or a negative way.” Trial
counsel also believed that Mr. Harris’ large size would have harmed Petitioner’s case
because trial counsel portrayed the fight between Mr. Harris and Mr. Adams as “one-
sided,” and he did “not want the jury to lay eyes on [Mr.] Harris.”

       Finally, Petitioner has not established how their testimony would have benefitted
him in his defense. Black, 794 S.W.2d at 757. While Mr. Harris testified at the post-
conviction hearing that he would have testified at Petitioner’s trial despite his pending
charges, the trial court implicitly discredited that claim by finding that it was “not
persuaded by” Mr. Harris’s testimony. Moreover, Mr. Harris’s testimony at the post-
conviction hearing did not establish any fact that was not presented at trial. He testified
that he was on the ground being kicked by Mr. Adams when he heard gunfire. Petitioner
has not established how Mr. Harris’ testimony would have benefitted him at trial.

       Next, Petitioner contends that trial counsel was ineffective for failing to pursue a
conviction for voluntary manslaughter as opposed to second degree murder. Petitioner
argues the evidence at trial supported a conviction for voluntary manslaughter, but trial
counsel failed to make his theory of the case clear to the jury.

       Voluntary manslaughter is the “intentional or knowing killing of another in a state
of passion produced by adequate provocation sufficient to lead a reasonable person to act
in an irrational manner.” T.C.A. § 39-13-211(a). It has long been held that murder will
be reduced to voluntary manslaughter only when the provocation was caused by the
                                           - 10 -
victim. See State v. Tilson, 503 S.W.2d 921, 924 (Tenn. 1974); State v. Torvarius E.
Mason, No. W2017-01863-CCA-R3-CD, 2019 WL 350756, at *5 (Tenn. Crim. App. Jan.
28, 2019), perm. app. denied (Tenn. May 17, 2019).

      Petitioner argues that the proof at trial showed that Petitioner “fired the gun
aimlessly” after Mr. Harris “had suffered what appeared to be near fatal kicks to the
head.” Petitioner has presented no evidence that the victim, Mr. Brown, provoked him.
There was no evidence that the victim, Houston Brown, was fighting. The post-
conviction court found that trial counsel’s performance was not deficient, and the
evidence does not preponderate against that finding.

       Petitioner also contends that trial counsel was ineffective for failing to pursue the
theory of defense of a third party. Trial counsel testified that his “position is that under
the law it doesn’t exist under this set of facts.”

       Tennessee Code Annotated section 39-11-612 permits a person to use deadly force
“to protect a third person” when the person using deadly force “reasonably believes” that
the third person would be justified in using deadly force under the self-defense statute
and that “the intervention is immediately necessary to protect the third person.” “The
application of the right to defend another should be ‘determined in the same fashion as
the right of self-defense’ under [T.C.A. section] 39-11-611.” State v. Hawkins, 406
S.W.3d 121, 128 (Tenn. 2013) (quoting T.C.A. § 39-11-612 Sentencing Comm’n Cmts.).
“A person’s right to defense of a third party is no greater than the third party’s right to
defend himself or herself.” Id.

        The post-conviction court found that trial counsel “discussed with [Petitioner]
whether to vigorously pursue a defense of a third party theory,” that “the defense of a
third party theory would not have succeed[ed] because, at the time of the event,
[Petitioner] was not where he had a right to be and was not then engaged in a lawful
activity,” but nevertheless, the trial court instructed the jury on defense of a third party.

       Trial counsel testified that he discussed the defense with Petitioner, but he did not
believe that the facts supported the defense, explaining that the victim was not involved
in the fight between Mr. Harris and Mr. Adams. Trial counsel requested a jury
instruction on the defense to provide the jury with a “lower rung on the ladder.” Trial
counsel believed that the more effective strategy was to convince the jury that the murder
was not premeditated. Trial counsel’s decision to focus on negating premeditation was a
strategic one made after adequate investigation and preparation, and the post-conviction
court properly denied this claim.

Sentencing
                                           - 11 -
       Petitioner contends that his trial counsel was ineffective for failing to introduce
evidence of mitigating factors and for advising Petitioner not to testify at his sentencing
hearing. Petitioner asserts that trial counsel effectively “waived” Petitioner’s sentencing
hearing.

       Petitioner testified at the post-conviction hearing that he provided trial counsel
with his military documents and a list of possible witnesses at sentencing. However,
Petitioner did not present any of those witnesses or introduce the documents at the post-
conviction hearing, and the post-conviction court could not speculate as to what favorable
information those witnesses or documents could have provided. Black, 794 S.W.2d at
757. Trial counsel testified that he did not believe that Petitioner’s military documents
were favorable, and he did not have any mitigating evidence to present at the sentencing
hearing. Trial counsel testified that he relied on the evidence presented at trial to support
mitigation based on justification or defense of a third party. Petitioner does not point to
any of his own post-conviction testimony that could have benefitted him at sentencing.
Accordingly, Petitioner is not entitled to relief.

Direct appeal

       Petitioner contends that trial counsel, who also represented Petitioner on direct
appeal, was ineffective for omitting appealable errors on direct appeal. Specifically,
Petitioner asserts that counsel was ineffective for failing to challenge the sufficiency of
the evidence to support his convictions.

       The post-conviction court found that trial/appellate counsel “was reasonably
effective in representing the petitioner on appeal” and that trial counsel “did not appeal
on the grounds of insufficient evidence because he concluded that to be a non-meritorious
position,” finding that “[t]he evidence of guilt was substantial.”

       The same principles that apply in determining the effectiveness of trial counsel
apply when determining the effectiveness of appellate counsel. Campbell v. State, 904
S.W.2d 594, 596 (Tenn. 1995). The petitioner must prove that appellate counsel acted
below the range of competence and that but for appellate counsel’s performance, there
was a reasonable probability that the petitioner’s appeal would have been successful. See
Smith v. Robbins, 528 U.S. 259, 285 (2000).

       When a claim of ineffective assistance of counsel is premised on the failure to
raise an issue, the reviewing court should address the merits of the issue. Carpenter v.
State, 126 S.W.3d 879, 887 (Tenn. 2004). “Obviously, if an issue has no merit or is
weak, then appellate counsel’s performance will not be deficient if counsel fails to raise
                                           - 12 -
it.” Id. The strength of the omitted issue also has bearing on whether failure to raise the
issue resulted in prejudice.” Id.

        Trial/appellate counsel testified that he considered whether to raise the issue of
sufficiency of the evidence on appeal and decided that the issue had no merit. He
testified that he believed the strongest issue was concerning the State’s closing argument.

       Sufficient evidence exists to support a conviction if, after considering the
evidence, both direct and circumstantial, in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh
the evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes,
331 S.W.3d at 379. The verdict of the jury resolves any questions concerning the
credibility of the witnesses, the weight and value of the evidence, and the factual issues
raised by the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the
evidence contained in the record as well as all reasonable and legitimate inferences which
may be drawn from the evidence. Id.

       In its opinion on direct appeal, a panel of this court noted that “[t]he State
presented lengthy proof at trial from multiple witnesses to support the charge of
premeditated first degree murder. However, the jury’s verdict of second degree murder
renders most of this proof irrelevant to this appeal. . . .” Golden, 2017 WL 2482992, at
*1. While the panel did not analyze the sufficiency of the convicting evidence, because it
was not raised on appeal, the panel noted that “the evidence against [Petitioner] was quite
overwhelming” in holding that even if the prosecutor made improper remarks during
closing argument, any error was harmless. Id. at *5. A witness at the scene testified that
she saw a gun in Petitioner’s pocket. Id. at *1. Another witness testified that Petitioner
fired a gun while Mr. Adams and Mr. Harris were fighting, and another witness testified
that she saw flashes coming from where Petitioner was standing. Id. at *2. The State
presented proof that Petitioner made statements to several of his cellmates in which he
admitted to firing the shots, and Petitioner did not present any evidence at trial refuting
that he fired his gun. Id.

       “Second degree murder is . . . [a] knowing killing of another.” T.C.A. § 39-13-
210(a)(1). Petitioner asserts that second degree murder, “more often than not, involves
an identified and targeted victim as well as specific force directed at said victim. . . .” To
be guilty of second degree murder, a defendant must be aware that his or her conduct is
reasonably certain to cause death. See T.C.A. § 39-11-302(b). A rational jury could have
found beyond a reasonable doubt that Petitioner was aware that his conduct of firing a
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gun in the direction of the victim was reasonably certain to cause the victim’s death. See
e.g. State v. Jakeil Malik Waller, No. W2015-02361CCA-R3-CD, 2016 WL 7242816, at
*1 (Tenn. Crim. App. Dec. 15, 2016), perm. app. denied (Tenn. March 9, 2017)
(sufficient evidence of second degree murder where the defendant and his brother fired
multiple shots into a crowd of people who were watching a fight between two young
men, killing two bystanders).

       Viewing the evidence in the light most favorable to the State, we conclude that
Petitioner’s conviction for second degree murder is supported by sufficient evidence,
Appellate counsel was therefore not ineffective for omitting this issue for review on
appeal.

        As to other appealable errors that Petitioner claims counsel was ineffective for
failing to raise on appeal, we note that Petitioner has failed to support his assertions with
argument, authority, or citations to the record. See Tenn. Ct. Crim. App. R. 10(b)
(“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived.”); Tenn. R. App. P. 27(a)(7).

Cumulative error

        Petitioner contends that “trial counsel’s errors, even if harmless in isolation, had
the overall effect of ineffective assistance of counsel[.]” The doctrine of cumulative
errors recognizes that “there may be multiple errors committed in trial proceedings, each
of which in isolation constitutes mere harmless error, but which when aggregated, have a
cumulative effect on the proceedings so great as to require reversal in order to preserve a
defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010).
However, this court has held that a petitioner “who has failed to show that he received
constitutionally deficient representation on any single issue may not successfully claim
that his constitutional right to counsel was violated by the cumulative effect of counsel’s
errors.” Tracy F. Leonard v. State, No. M2006-00654-CCA-R3-PC, 2007 WL 1946662,
at *21 (Tenn. Crim. App. July 5, 2007), perm. app. denied (Tenn. Sept. 13, 2007).
Because we have discerned no error in this case, cumulative error analysis does not
apply. Petitioner is not entitled to relief on this issue.

                                      CONCLUSION

       Based upon the foregoing reasoning and authorities, we affirm the denial of the
Petitioner’s petition for post-conviction relief.

                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE
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