         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 3, 2004

                      TONY MABRY v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                        No. P-24164 Carolyn Wade Blackett, Judge



                  No. W2003-02197-CCA-R3-PC - Filed September 24, 2004


Petitioner, Tony Mabry, appeals the trial court’s dismissal of his petition for post-conviction relief.
Petitioner argues that his trial counsel rendered ineffective assistance of counsel because she (1)
failed to request a pre-trial voice line-up; (2) failed to cross-examine the victim about his prior
statements to the police; and (3) failed to subpoena the police officer who took the victim’s initial
statement to testify at trial. After a thorough review of the record, the judgment of the trial court is
affirmed.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
NORMA MCGEE OGLE, J., joined.

Scott Hall, Memphis, Tennessee, for the appellant, Tony Mabry.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Gail Vermaas, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                              OPINION

       Following a jury trial, Petitioner was convicted of especially aggravated robbery and
sentenced to thirty-nine years in the Tennessee Department of Correction. Upon appeal, Petitioner’s
conviction was upheld, but his sentence was modified to twenty-nine years because the trial court
misapplied four enhancement factors in determining the length of Petitioner’s sentence. State v.
Tony Mabry, No. W1999-01438-CCA-R3-CD, 2000 WL 33288754, *4 (Tenn. Crim. App., Jackson,
June 28, 2000), no perm. to appeal filed. The facts surrounding Petitioner’s conviction were
summarized by this Court in Petitioner’s direct appeal as follows:

              Late in the night of March 9, 1997, Curtis Sanders, a fifty-five year-old man,
       stopped at the apartment of Mary Brown. A repair man, he was to perform some
       work for her. When he knocked at her door, he received no answer from the
       apartment. But knocking again, he heard a man, the defendant, from upstairs, outside
       the apartment, saying, "Not at home!" Sanders, familiar with the defendant's face,
       knew the man as "Tony." Sanders began to walk away.

              While leaving, Sanders was approached by this man, "Tony," and another
       unidentified man. Sanders, surrounded and afraid, was unable to return to his
       vehicle, and therefore he returned quickly to Brown's door. At this door, he was
       attacked from behind, hit with a bottle, and kicked into submission by the two men.
       He attempted to fight back but, in the end, to no avail. The men stole Sanders' money,
       watch, and beeper and then fled.

               The defendant was arrested identified from a photo-array by Sanders, and
       identified by voice by Mary Brown.

Mabry, 2000 WL 33288754, at *1.

I. Post-Conviction Hearing

        Petitioner filed a pro se petition for post-conviction relief which was subsequently amended
alleging that his counsel rendered ineffective assistance at trial. Petitioner testified at the post-
conviction hearing that his counsel had not interviewed his mother or her friend, Ann Perry, until
the day of trial. As a result, trial counsel did not learn that there were two other alibi witnesses who
lived out-of-state. Petitioner said that he elected to proceed to trial anyway.

         Petitioner testified that the victim said that he did not know who robbed him in his initial
statement to the police, but identified Petitioner by name when he testified at trial. Petitioner said
that his trial counsel failed to point out the inconsistencies between Mr. Sanders’ trial testimony and
his prior statements. In addition, Petitioner said that his trial counsel did not subpoena the police
officer who took Mr. Sanders’ statement. Later, Petitioner conceded that his trial counsel questioned
Mr. Sanders about his earlier description of the perpetrator as five feet nine inches tall when
Petitioner was over six feet tall and provided Mr. Sanders with a copy of his prior statement.

         Petitioner testified that his trial counsel never interviewed Ms. Brown and never requested
a voice identification line-up prior to trial. Instead, Petitioner was required to stand up at trial and
repeat the words, “Shut up, sucker,” during Ms. Brown’s testimony. Ms. Brown identified Petitioner
at trial as the perpetrator based on her recognition of his voice.

        Petitioner initially testified that his counsel did not request a transcript of the preliminary
hearing but later conceded on cross-examination that he only knew that he did not receive a copy of
the transcript. Petitioner said that his trial counsel did not explore any defenses and urged him to
take the State’s offer of a plea agreement which carried a sentence of twenty-five years. Petitioner
said that he did not take the plea agreement because he was innocent.


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        Petitioner testified that his trial counsel failed to take his advice during voir dire as to which
potential jurors should be rejected. Petitioner also pointed out that his counsel failed to call an expert
witness to rebut the State’s evidence that Mr. Sanders was heavily sedated when he gave his initial
statement. Petitioner said that his medical expert would have testified that Mr. Sanders was not on
any drugs at the time he gave his statement to the police.

        On cross-examination, Petitioner conceded that his counsel met with him three or four times
prior to trial and kept him apprized of his case’s development. He admitted he did not personally
know whether or not counsel interviewed his mother prior to trial or whether counsel reviewed the
preliminary hearing transcript.

        Counsel testified that she had worked for the public defender’s office in Shelby County for
over ten years with the majority of time spent with cases involving violent crimes. Counsel said that
she met with Petitioner thirteen times prior to trial and spoke with Petitioner’s mother at least three
times before the trial began. Either she or her investigator interviewed all of the witnesses on
Petitioner’s list, but she did not know about the two out-of-state witnesses until the day of trial.
Counsel said that Petitioner decided to proceed to trial without these witnesses.

        Counsel testified that she reviewed the transcript of Petitioner’s preliminary hearing and
made notes in the margins of her typed copy. Counsel had no independent recollection of the
conversations that occurred during voir dire but stated that it was her usual practice to consult with
her clients during the process. Counsel assumed that she did so in Petitioner’s case. Counsel
advised Petitioner to accept the State’s offer of a plea agreement because the sentence extended by
the agreement was the minimum applicable to a Range II offender.

         Counsel said that Mr. Sanders, in his initial statement, said that he knew Petitioner when he
saw him but conceded that Mr. Sanders did not call Petitioner by name in his statement as he did at
trial. Counsel said, however, that Mr. Sanders’ statement was not too different from the substance
of his trial testimony. Petitioner was often at the apartment complex where the incident occurred
because his girlfriend lived there. Counsel said that she did cross-examine Mr. Sanders about the
discrepancies between the description of the perpetrator that he gave the police and Petitioner’s
actual appearance at trial. Counsel said that she did not talk to Mr. Sanders prior to trial because he
would not return her telephone calls. Counsel said that her investigator interviewed Ms. Brown
twice.

II. Findings of Fact

        Petitioner initially argues that the post-conviction court did not make specific findings of fact
as to his allegations that counsel was ineffective for failing to request a voice identification line-up
prior to trial and for failing to effectively impeach Mr. Sanders. The post-conviction court is
required to set forth all of the grounds presented by the petitioner and its findings of fact and
conclusions of law as to each ground in a written order or memorandum at the conclusion of the
post-conviction hearing. Tenn. Code Ann. § 40-30-211(b). The purpose of this requirement,


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however, is to facilitate appellate review, and this Court has previously concluded that reversal is
not required if the record is otherwise adequate for review. State v. Swanson, 680 S.W.2d 487, 489
(Tenn. Crim. App. 1984); Randy Caldwell and Stevie W. Caldwell v. State, No. M2001-00334-CCA-
R3-PC, 2002 WL 31730875, *13 (Tenn. Crim. App., Nashville, Dec. 4, 2002), perm. to appeal
denied (Tenn. 2003); State v. William Makransky, No. E2000-00048-CCA-R3-CD, 2001 WL
725303, *12 (Tenn. Crim. App., Knoxville, June 28), perm. to appeal denied (Tenn. 2001).

        Based on the evidence presented at the post-conviction hearing, the trial court accredited the
testimony of Petitioner’s counsel and found that she rendered assistance to Petitioner within the
range of competence expected from a criminal lawyer as outlined in Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1974), as to all issues raised by Petitioner. The trial court further found that Petitioner
had not proven any of his factual allegations of ineffective assistance of counsel by clear and
convincing evidence. The post-conviction court’s findings of fact and conclusions of law are
sufficient to allow for proper appellate review.

III. Standard of Review

        A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). However, the trial court’s
application of the law to the facts is reviewed de novo, without a presumption of correctness. Fields
v. State, 40 S.W.3d 450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is
a mixed question of fact and law and therefore also subject to de novo review. Id.; State v. Burns,
6 S.W.3d, 453, 461 (Tenn. 1999).

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

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



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components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at
2069.

IV. Analysis

        Petitioner argues that his trial counsel was ineffective for failing to request a pre-trial voice
identification line-up for Ms. Brown. Petitioner contends that the fact that Petitioner was required
to stand up in court and repeat the words, “Shut up, sucker,” which were spoken by the perpetrator
during the commission of the crime, was highly prejudicial. Petitioner also contends that the in-court
identification prevented Petitioner’s counsel from effectively challenging Ms. Brown’s credibility.

         At trial, Ms. Brown testified that she was familiar with Petitioner’s voice because her
apartment and Petitioner’s girlfriend’s apartment shared a common wall. Ms. Brown said that
Petitioner had a “heavy” voice, and she had heard him speak through the wall every day for the prior
six months. Petitioner’s counsel objected when the State asked Petitioner to speak in court, but the
objection was overruled. A defendant may be compelled to give evidence in court which is not
testimonial. State v. Meeks, 867 S.W.2d 361, 376 (Tenn. Crim. App. 1993) (citations omitted).
“[T]he privilege against self-incrimination [is] not violated by compelling a defendant to speak and
to utter words purportedly uttered by the assailant in order for witnesses to consider the utterances
for identification purposes.” Id. (citing United States v. Wade, 388 U.S. 218, 222-223, 87 S. Ct.
1926, 18 L. Ed. 2d 1149 (1967)).

        While the effect may have been less dramatic if Ms. Brown’s identification of Petitioner’s
voice had occurred during a pre-trial line-up as opposed to an in-court identification, Petitioner has
failed to show that he was prejudiced by counsel’s failure to request such a line-up. Ms. Brown was
not the only witness who identified Petitioner as the perpetrator. Mr. Sanders identified Petitioner
from a pre-trial photographic line-up and at trial. Both Ms. Brown and Mr. Sanders knew who
Petitioner was because he frequently visited his girlfriend at the apartments where the incident
occurred. Petitioner has not shown that the result of his trial would have been any different had Ms.
Brown identified Petitioner’s voice before the trial instead of during the trial. Petitioner is not
entitled to relief on this issue.

         Petitioner argues that his trial counsel was ineffective because she failed to effectively
impeach the victim by introducing his prior inconsistent statements. Petitioner said that Mr. Sanders
initially said that he did not know who the perpetrators were. At trial, however, Mr. Sanders referred
to the perpetrator by the name “Tony” and implied that he knew Petitioner very well. Petitioner
conceded, however, that his counsel cross-examined Mr. Sanders about the discrepancies between
the physical description of the perpetrator which he gave the police officers and Petitioner’s actual
appearance at trial. Petitioner’s counsel said that Mr. Sanders identified Petitioner at the preliminary
hearing.

       Mr. Sanders’ statement was taken eight days after the incident following Mr. Sanders’ release
from the hospital. In his statement, Mr. Sanders stated that he could identify one of the perpetrators


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and had identified that individual as Petitioner from a photographic line-up prior to his statement.
When asked whether he had seen Petitioner before, Mr. Sanders replied that he “may have.” At trial,
Mr. Sanders said that he had seen Petitioner at Ms. Brown’s apartment complex before the incident.
Petitioner argues that the victim’s evasiveness about what he said in his earlier police statement
during cross-examination should have prompted counsel to call the police officer who recorded Mr.
Sanders’ statement as a witness.

        Based upon our review of the record, we cannot conclude that Petitioner has shown by clear
and convincing evidence that his trial counsel’s assistance fell below the level of competence
required of criminal defense lawyers. Petitioner’s counsel thoroughly and ably cross-examined Mr.
Sanders about his prior inconsistent statements. Petitioner’s claims of ineffectiveness are addressed
for the most part to counsel’s choice of trial strategy or tactics which this Court will not second
guess, armed with the benefit of hindsight. Hellerd, 629 S.W.2d at 9. Moreover, Petitioner did not
produce the police officer who took Mr. Sanders’ statement at the post-conviction hearing. Without
any proof at the post-conviction hearing as to the testimony that a witness would have offered, the
petitioner cannot demonstrate that he was prejudiced by the failure of the witness to be interviewed
or called on his behalf. See Black, 794 S.W.2d at 757. Petitioner is not entitled to relief on this issue.

                                           CONCLUSION

        The judgment of the post-conviction court is affirmed.

                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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