         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs May 11, 2005

        TIMOTHY DEWAYNE GARDNER v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Robertson County
                            No. 00-0183 Michael R. Jones, Judge



                     No. M2004-00754-CCA-R3-PC - Filed August 8, 2005


The petitioner, Timothy Dewayne Gardner, was convicted by a jury in the Robertson County Circuit
Court of possessing over 300 grams of cocaine with intent to sell. The petitioner received a sentence
of seventeen years incarceration in the Tennessee Department of Correction. Subsequently, the
petitioner filed for post-conviction relief, alleging that he received ineffective assistance of counsel.
The post-conviction court denied the petition, and the petitioner now appeals. Upon review of the
record and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT
W. WEDEMEYER , JJ., joined.

Ann M. Kroeger, Springfield, Tennessee, for the appellant, Timothy Dewayne Gardner.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                       I. Factual Background

       On direct appeal, this court summarized the facts underlying the petitioner’s conviction as
follows:

                        During the summer of 1999, Darryl Terez Smith was the
                target of a joint undercover drug investigation by the Metropolitan
                Nashville and Springfield Police Departments.            During the
                investigation, Smith engaged in drug sales to confidential informants
                in both Davidson and Robertson counties. On July 26, 1999, a Metro
undercover officer met Smith at his apartment in Springfield and
ordered a quarter kilogram of cocaine for $6,500. Smith, along with
another unidentified individual, proceeded to the address of 202 10th
Avenue in Springfield. The building at this address was “a twenty by
ten foot concrete shed” and had only one door. Metro Detective
Jessie Birchwell in describing the building as a typical crack-house
explained:

       [T]here’s a window and it is boarded up, but actually
       inside of the window, it has a cut open a piece with a
       slide that slides up and down and it is typical of what
       you see in crack houses, that way you don’t have to
       actually enter the building. They just slide it open and
       put the money inside and slide the crack cocaine
       outside. That way you never have to actually go
       inside the building.

       Upon arriving at the building, Smith and the other individual
went inside for approximately two to three minutes. Both men exited,
with Smith carrying a small rectangular box, and they then returned
to Smith’s apartment. A search warrant was later executed at Smith’s
apartment, and the quarter kilo of cocaine was found in the box.

         The officers returned to the building at 202 10th Avenue,
approximately ten to fifteen minutes after leaving that location to
follow Smith back to his apartment. Upon arriving at the building,
the officers loudly knocked on the door and announced their
presence; no response was received. Detective Birchwell left after a
couple of minutes in order to obtain a search warrant for the building.
Sergeant Rob Forest was left at the location by himself. About an
hour after the police returned to the scene, the door suddenly opened,
and the [petitioner] and another individual ran out. The [petitioner]
was captured and handcuffed, but the other individual escaped.
Detective Birchwell again arrived at the scene. Officer Forest
testified that the following events then transpired:

       Q. Did you notice anything unusual inside the shed
       once the door was open?

       A. Yes, sir, the commode was running over, the water
       was running out on the floor.




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                       Q. Did you and Officer or Detective Birchwell do
                       anything regarding that?

                       A. Yes, sir, it looked like the bottom of the commode
                       was stopped up with what looked like cocaine, rock
                       cocaine. I scooped my hand down into the water and
                       retrieved as much as I could reach out of the
                       commode.

                       Q. And ultimately, did you take the commode
                       outside?

                       A. Yes, sir, we had to take it outside and actually
                       break the commode apart because in one of the
                       chambers where the water goes through to down into
                       the sewer, it was clogged full of cocaine, or what
                       looked like cocaine to me.

                       Q. Now, based on your observations, Sergeant, was
                       that commode overflowing at the time that the two
                       individuals ran out the door?

                       A. Yes, sir. It was very hot in there also. Mr. Gardner
                       was wringing wet with sweat and I don’t think they
                       had any air conditioner.

                        The substance discovered in the toilet was later determined to
               be 381 grams of cocaine, which had an estimated street value of “a
               little over three hundred thousand dollars.”

State v. Tim D. Gardner, No. M2001-01436-CCA-R3-CD, 2003 WL 367237, at **1-2 (Tenn. Crim.
App. at Nashville, Feb. 20, 2003). At the conclusion of the proof, the petitioner was convicted of
possessing over 300 grams of cocaine with intent to sell.

         Thereafter, the petitioner filed a petition for post-conviction relief, raising several issues,
including ineffective assistance of counsel. At the post-conviction hearing, the petitioner testified
that trial counsel met with him only twice prior to trial. The petitioner stated that he did not receive
a copy of the indictment or the warrant for his arrest. Additionally, the petitioner maintained that
counsel did not discuss with him the information counsel obtained after interviewing witnesses. The
petitioner stated that counsel should have hired an investigator, and that counsel “could’ve did a
better job than what he done” in preparation for trial. The petitioner asserted that he tried to contact
counsel regarding his appeal, “but it was like what I wanted to tell him really didn’t matter.”



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        The petitioner contended that trial counsel failed to object to numerous statements made
during the State’s proof. Specifically, the petitioner complained that counsel did not object when
the State asked the petitioner at trial if he had ever heard of a gang called the “Springfield Soldiers.”
The petitioner stated, “I ain’t never heard of nothing like that. . . . [I]t was like he was putting me in
organized crime or something, you know, just like I’m – again, I’m the bad guy. . . . I just go around
terrorizing the neighborhood.” However, the petitioner conceded that no testimony at trial
implicated the petitioner’s involvement with the “Springfield Soldiers.”

         The petitioner also contended that counsel should have objected when the State’s witnesses
testified that there was a microwave in the building where the cocaine was found, explaining that
crack cocaine could be “cooked” in a microwave. The petitioner complained that “I felt just because
it was a microwave in the building and – or whatever, he’s just going to holler that’s how they cook
up cocaine.” The petitioner maintained that counsel should have objected when Detective Birchwell
testified at trial that a measuring cup containing cocaine residue was found in the building where the
cocaine was discovered. The petitioner further maintained that counsel should have objected to
testimony regarding the discovery in the building of lots of little plastic baggies for the packaging
of crack cocaine. Counsel also failed to present “concrete evidence” regarding the medications
petitioner was taking on the day he was arrested.

         The petitioner argued that counsel should have objected when the State, during closing
arguments, said that the petitioner lied during his trial testimony. The petitioner complained that “to
me that’s persuading the jury to go against me by what he’s saying – by the words that coming out
of his mouth. . . . And, you know, when you got thirteen against one man, you know, it’s – it’s very
– it’s hard to beat.”

       The petitioner’s trial counsel testified at the post-conviction hearing that he and the petitioner
“met and talked on the phone on several occasions.” Counsel stated that he received extensive
discovery prior to trial. He said that he discussed the indictment with the petitioner on at least one
occasion. Trial counsel recalled that he interviewed the “main officers” in the case multiple times
and discussed the results of the interviews with the petitioner. Counsel stated, “I would not have
excluded him from knowing what these people were going to say when they came to trial.”
Additionally, counsel testified that he discussed the appeal with the petitioner several times.

         Counsel admitted that he did not object to the State presenting proof regarding the
“Springfield Soldiers,” the cooking of crack cocaine in the microwave, the measuring cup containing
cocaine residue, or the plastic baggies found in the building. Trial counsel explained that there was
no proof to connect the petitioner to any of the foregoing. Counsel further explained, “I think the
trial strategy was to show that the month-and-a-half or so long investigation that was conducted in
concert with both the officials here in Robertson County and those out of Davidson County produced
nothing to do with [the petitioner].”

        Counsel stated:



                                                   -4-
                      I felt like if the jury heard that someone else may have been
               doing this, that was good to [the petitioner’s] case.

                       If they could not connect him to either the microwave, the
               beaker or the baggies, because I asked about those things and they
               could give no testimony whatsoever that [the petitioner] was
               connected to either the cocaine directly or the baggies or the beaker
               or the microwave, and I felt like if the jury heard that it might help
               rather than hurt.

Counsel further asserted that he did not object to the testimony because it was relevant, and he did
not want to waste the trial court’s time objecting to relevant evidence.

        Counsel acknowledged that the petitioner had told him that he was taking several medications
on the day of his arrest, and he surmised that he could have gone into more detail at trial regarding
the type and amount of medications the petitioner was taking. The petitioner told counsel that the
medication, combined with the heat of the day, made him “get sleepy and want to lay down for a
while, which he said was common for him to have to do when he was on this medication just prior
to his organ transplant.”

         Finally, counsel recalled that he orally amended the petitioner’s motion for new trial to raise
the issue of the State’s comments during closing arguments. Counsel opined that the comments had
been made to point out that the State’s witnesses and the petitioner had told two opposing stories to
the jury; therefore, someone had to be lying. Counsel stated that he had previously done extensive
research on the issue of prosecutorial misconduct, and he decided that the comment “wasn’t enough
to carry any weight with any kind of appellate issue, so I did not object.” Counsel conceded that his
failure to object to the comment “might not have been exactly the best thing to do.”

        At the conclusion of the hearing, the post-conviction court found that the petitioner failed to
carry his burden of proving his claims and dismissed his petition. On appeal, the petitioner contends
solely that the post-conviction court erred in finding that counsel was effective.

                                             II. Analysis

        To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2003). “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings


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of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish
prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068. Moreover,

               [b]ecause a petitioner must establish both prongs of the test, a failure
               to prove either deficiency or prejudice provides a sufficient basis to
               deny relief on the ineffective assistance claim. Indeed, a court need
               not address the components in any particular order or even address
               both if the [petitioner] makes an insufficient showing of one
               component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

         On appeal, the petitioner complains of the following specific instances of ineffective
assistance: (1) trial counsel failed to adequately communicate with him; (2) trial counsel failed to
object to various statements made by the State during trial, namely (a) reference to a gang named
“Springfield Soldiers,” (b) comments regarding the occupants of the building “cooking stuff up in
the microwave,” (c) testimony concerning the discovery in the building of “lots and lots and lots of
little baggies” used for packaging crack cocaine, (d) statements about a measuring cup containing
cocaine residue which was found in the building, and (e) the closing argument comment that the
petitioner lied to the jury; (3) “trial counsel did not introduce evidence that the medications he was
taking at the time of the arrest made him sleepy”; and (4) the cumulative effect of the errors denied
the petitioner a fair trial.

       The petitioner’s first complaint concerns counsel’s failure to properly communicate with him.
Counsel testified that he met with and spoke with the petitioner on the telephone on several
occasions. Counsel stated that he discussed the indictment with the petitioner. Additionally, counsel


                                                 -6-
stated that he conducted interviews of the witnesses and kept the petitioner apprised of the substance
of those interviews. The post-conviction court, implicitly accrediting counsel’s testimony, found that
the petitioner “failed to establish that his attorney was ineffective by not spending more time in
preparing directly with the [p]etitioner.” We conclude that the evidence does not preponderate
against this finding.

         Next, we will address the petitioner’s concerns regarding counsel’s failure to object to
comments regarding the “Springfield Soldiers,” cooking crack in the microwave, cocaine residue on
a measuring cup, and plastic baggies for the packaging of crack cocaine. At the post-conviction
hearing, counsel stated that his strategy was to have the jury fully informed about the dealing of
crack cocaine from the building. The defense theory was that someone other than the appellant was
responsible for the manufacture and distribution of the cocaine from the building; the petitioner was
just an innocent bystander who happened to wander into the wrong place at the wrong time. Counsel
explained that he thought more evidence regarding the cocaine operation would help the petitioner
demonstrate that someone else was behind the venture. Generally, “[a]llegations of ineffective
assistance of counsel relating to matters of trial strategy or tactics do not provide a basis for post-
conviction relief.” Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991). Our supreme
court has explained:

               “Hindsight can always be utilized by those not in the fray so as to cast
               doubt on trial tactics a lawyer has used. Trial counsel’s strategy will
               vary even among the most skilled lawyers. When that judgment
               exercised turns out to be wrong or even poorly advised, this fact alone
               cannot support a belated claim of ineffective counsel.”

State v. Hellard, 629 S.W.2d 4, 9 (Tenn. 1982) (quoting Robinson v. United States, 448 F.2d 1255,
1256 (8th Cir. 1971)). Counsel’s decision to not object to the foregoing proof was clearly a strategic
one. We will not now second-guess that strategy.

        The petitioner also complains that counsel should have objected to the State’s comments
during closing argument that the petitioner lied during his trial testimony. Our review of the record
reveals that during closing argument the State pointed out the divergent account of events between
the testimony of the petitioner and the State’s witnesses. The prosecutor then suggested that after
reviewing the differing accounts, the jury would conclude that the petitioner was lying. In its
argument, the State contended that the testimony of the State’s witnesses was logical given the facts,
while the petitioner’s version of events was not. This court has previously concluded that “[t]he
bounds of proper argument largely depend upon the facts in evidence, the character of the trial, and
the conduct of opposing counsel.” Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995).
In our opinion, the State’s argument appears to be little more than a comment on the evidence. At
the post-conviction hearing, counsel asserted that he believed the State’s argument was not proper;
however, he did not believe that the error would entitle the petitioner to appellate relief. We agree.
Even if the comments were improper, the petitioner has shown no prejudice by counsel’s failure to
object to the State’s closing argument.


                                                 -7-
         The petitioner complains that counsel should have introduced more evidence concerning the
type and amount of medication that he was on at the time of his arrest. At trial, the petitioner
testified that he was in the area of the building where the drugs were found because he became ill
while using the car wash next to the building. After taking medication, the petitioner became sleepy
and went into the building to rest. He woke to find police outside of the door of the building. Police
entered and found the crack cocaine. Our review of the trial transcript reveals that counsel
questioned the petitioner thoroughly about the medicine he took prior to the arrival of the police and
about the petitioner’s health problems which necessitated the medicine. The post-conviction court
noted that “[t]here was no proof at the post conviction hearing concerning medications that would
cause [the petitioner] to fall asleep.” We conclude that the petitioner has failed to meet his burden
of proving by clear and convincing evidence that counsel was ineffective in this regard.

         Finally, the petitioner maintains that the cumulative effect of counsel’s errors entitles him
to relief. In response to this contention, the post-conviction court stated that “[t]he court has found
nothing upon which it could grant the Petition.” We agree with the post-conviction court. The
petitioner is not entitled to relief.

                                          III. Conclusion

       Finding no error, we affirm the judgment of the post-conviction court.



                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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