                                                                                         04/11/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 18, 2017

              JERRY KIRKPATRICK v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                         No. 105789    Steve Sword, Judge


                             No. E2016-00955-CCA-R3-PC


The petitioner, Jerry Kirkpatrick, appeals the denial of his petition for post-conviction
relief, which petition challenged the petitioner’s Knox County Criminal Court jury
conviction of theft of property valued at $1,000 or more but less than $10,000.
Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Jerry Kirkpatrick.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                A Knox County Criminal Court jury convicted the petitioner of theft of
property for his role in the November 25, 2008 theft of several items and an amount of
cash from the U.S. Golf store in Knoxville. At trial, accomplice Daniel Bryan Phelps
testified that the petitioner “participated in the burglary of U.S. Golf and that the stolen
items were taken back to the [petitioner’s] home on Corker Avenue and divided between
Mr. Phelps, the [petitioner], and the [petitioner’s] brother.” State v. Jerry Kirkpatrick,
No. E2013-01917-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Knoxville, Aug. 22,
2014). The petitioner enlisted the help of Leonard Freeman in selling some of the golf
clubs he stole from U.S. Golf. Mr. Freeman sold some of the clubs to Ronald Kent
Mabry, who, in turn, asked his girlfriend to sell some clubs on eBay. See id., slip op. at
7. “The serial number of the club [sold on eBay] matched the serial number of one of the
clubs stolen from U.S. Golf.” Id. Mr. Mabry purchased the clubs from Mr. Freeman at a
residence on Corker Avenue where the petitioner and his brother lived, and the petitioner
was at the residence during the sale. Based upon this proof, this court “conclude[d] that
Mr. Phelps’s testimony was sufficiently corroborated and that the evidence at trial
established that the [petitioner] exercised control over the stolen golf clubs without the
owner’s effective consent with the intent to deprive the owner of the property.” Id., slip
op. at 7-8. We affirmed the petitioner’s conviction and the accompanying seven-year,
Range II sentence.

               Following the denial of his application for permission to appeal to our
supreme court, the petitioner filed a timely petition for post-conviction relief, alleging
that he was deprived of the effective assistance of counsel at trial and that the State failed
to disclose favorable evidence. In an amended petition, the petitioner claimed that his
trial counsel performed deficiently by failing to present witnesses to establish that the
petitioner was home during the time of the burglary and by failing to call Mr. Freeman as
a witness at trial. In a second amended petition, the petitioner alleged that trial counsel
performed deficiently by failing to call witnesses to testify that they had not seen stolen
golf clubs in his residence.

                At the April 8, 2016 hearing on the petitioner’s petition, Dixie Hawks
testified that the petitioner was “the brother of [her] uncle by marriage” and that she “was
placed into his custody” when she was 12 years old. She said that she was still living
with the petitioner shortly before he was charged with the offenses in this case. She said
that she was removed from the petitioner’s custody on November 17, 2008, and did not
live there during the week of Thanksgiving that year. Ms. Hawks said that Mr. Freeman
“was never inside the residence and never resided there.” She agreed that Mr. Freeman
“was not welcome at the house.” Only the petitioner’s brother, Chris Kirkpatrick, lived
with them. She testified that she had access to every room in the petitioner’s house, that
none of the rooms had a bolt-lock, and that she had never seen golf clubs at the residence.
Ms. Hawks said that no one ever contacted her about testifying on the petitioner’s behalf.
Ms. Hawks admitted during cross-examination that she had no personal knowledge of
who might have visited or resided at the petitioner’s residence after she was removed
from his custody.

               The petitioner’s brother, John Earl Kirkpatrick, testified that he visited the
petitioner regularly before the offenses and that he had access to all the rooms in the
petitioner’s residence. Mr. Kirkpatrick said that he knew Mr. Freeman but that he had
never seen Mr. Freeman at the petitioner’s residence. He added that it was “kind of
uncommon” for the petitioner to have visitors. He testified that no one other than the
petitioner, Chris Kirkpatrick, and Ms. Hawks had lived at the residence and that no one
had ever stayed there overnight. Mr. Kirkpatrick said that he did not see golf clubs at the
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petitioner’s residence during November or December 2008. He recalled that he visited
the petitioner on Thanksgiving Day 2008 to take food to the petitioner, who had been sick
with “a respiratory infection” most of the week. Mr. Kirkpatrick said that no one
contacted him regarding the possibility of his testifying at the petitioner’s trial.

               The petitioner acknowledged that trial counsel shared the discovery
materials with him, but he maintained that he was unaware until trial that the State
alleged that the stolen golf clubs were in his residence and that Mr. Freeman was going to
testify against him. He said that he asked counsel to call several witnesses, including his
neighbors and friends, who had been in his house during that time period and who knew
that he had been ill at that time. He said that he was hospitalized on December 16, 2008,
for treatment of a lung infection that he had had for several weeks. He recalled that he
was seriously ill at the time and that he could not work or drive.

               The petitioner testified that he specifically asked trial counsel to call Ms.
Hawks as a witness because he had been granted temporary custody of her by the State.
He added that representatives from “Youth Villages” and the Department of Children’s
Services (“DCS”) visited his house weekly when Ms. Hawks lived there. In addition, he
said, Ms. Hawks had “knowledge of everything that was in the residence. . . . She had
knowledge of the people who come over.” He also asked trial counsel to call Mr.
Kirkpatrick because Mr. Kirkpatrick had visited the petitioner on Thanksgiving and could
have testified about his illness.

             The petitioner said that trial counsel was “a good lawyer” and that he had
“done a really great job” but that he should have tried to contact Ms. Hawks and Mr.
Kirkpatrick. He said that he told counsel that he had never seen Mr. Mabry until the
preliminary hearing and that neither Mr. Mabry nor Mr. Freeman had ever been to his
residence.

              During cross-examination, the petitioner said that Mr. Freeman had
previously sold crack cocaine to Chris Kirkpatrick. He said that he knew Mr. Phelps
because Ms. Hawks babysat for Mr. Phelps and his girlfriend, Heather Moore. He
recalled that he had offered Mr. Phelps a job just before he became ill and unable to
work.

              The petitioner testified that he met with trial counsel approximately 11
times between June 2011 and his October 2012 trial. During that time, he provided
counsel with the names of “[a]t least 30” potential witnesses. He said that counsel did
not tell him why he did not want to call the potential witnesses. He added that he did not
even know what counsel’s strategy was for this trial.

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               Trial counsel testified that he was appointed to represent the petitioner “on
about four or five cases all at once, but two of them went to trial.” He recalled that he
and the petitioner spent a significant amount of time discussing the potential testimony of
Messrs. Freeman, Phelps, and Mabry as well as Ms. Gonzalez. He said that the petitioner
“was very involved” in discussing trial strategy and that the petitioner “had done a fair
amount of research on his own” before meeting with trial counsel. He recalled that the
petitioner did tell him about “some of the witnesses beforehand,” but he said that he
could only recall Ms. Hawks and a man named Gilbert Taylor. He said that he told the
petitioner that it was not possible to mount an alibi defense because no one was at the
petitioner’s house at the time of the offenses. He stated that, because Ms. Hawks was
removed from the petitioner’s custody prior to the offenses, “the period of time that she
could talk about would not be the period of time that the allegations occurred in.” As a
result, “her relevance would have been very low.”

               Trial counsel testified that he explained to the petitioner that “presenting
the argument that none of these people had ever been” to the petitioner’s house or that
“none of these people were staying there was not a strong argument” given that Mr.
Mabry was able to take an investigator directly to the petitioner’s house and identify it as
the location where he purchased the stolen golf clubs. Mr. Mabry indicated that he
thought that “Mr. Freeman was living at the house, and that part of the house was secured
by a bolt lock such that Mr. Kirkpatrick couldn’t get into it.” Counsel said that he
thought the better trial strategy was to make an “argument that this is Mr. Freeman’s
room; that Mr. Freeman is the bad guy; that these are Mr. Freeman’s clubs, these aren’t
[the petitioner’s] clubs.” He said that he “tried to articulate to the jury” that the petitioner
“didn’t take part in the transaction; and that the clubs were in a room that [Mr. Mabry]
believed that Mr. Freeman could secure” from the petitioner. Because that was his
strategy, he “certainly wasn’t going to put on witnesses to try to say that there wasn’t a
bolt on that door or that Mr. Freeman didn’t have access to the house.”

               Counsel testified that the petitioner initially attempted to “fire” him on the
day of his trial on an unrelated charge. Their relationship became smoother after the
petitioner was acquitted of burglary in that case. Counsel said that he believed the
petitioner to be in agreement with the strategy in this case. He recalled that the petitioner
maintained his innocence, “[b]ut with him unable to take the stand, we had to craft a
defense based on the facts that were going to come out.” He stated that he initially
believed he might present an alibi defense but that his investigation made it “clear that
that was not going to be the case.” Counsel said that he also wanted to avoid presenting
any evidence that might have opened the door to the petitioner’s other burglary and theft
charges, so he did not want to bring in witnesses to testify about the petitioner’s good
character. Although he could not recall having a specific conversation with the petitioner

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about the witnesses, counsel said that he was “a fairly blunt person,” so he would have
told the petitioner which witnesses were “useful or not useful.”

                Counsel said that the petitioner knew prior to trial what Mr. Mabry’s
testimony would be because they had discussed it beforehand and how it was helpful to
their strategy.

               During cross-examination, counsel acknowledged that Mr. Freeman did not
testify at the petitioner’s trial. He said that he was aware that Mr. Mabry had told police
that Mr. Freeman took him to the petitioner’s house and that he saw golf clubs from a
locked room in the petitioner’s house. Mr. Mabry did not get golf clubs on that day; Mr.
Freeman brought them to him on a different day. Counsel acknowledged that because the
petitioner owned the house, the jury was free to infer that he could access any room
inside of it. Counsel agreed that, without proof that the petitioner had totally surrendered
control of the room to Mr. Freeman, the jury could have concluded that the petitioner
constructively possessed the golf clubs that were stored inside his residence. He said that
was why he wanted to use Mr. Mabry’s testimony to emphasize that there was a lock on
the room that prevented the petitioner from accessing it. He said it “would have been
great” if he could have shown that Mr. Mabry had the wrong house but that “nothing [he
had] been given that made that look like that was even a remote possibility.” He agreed
that it would have been a good defense if he could have shown that Mr. Mabry had
incorrectly identified the residence, but “it wouldn’t be a good defense” if counsel “could
not prove it.” Counsel said it was also possible that Mr. Mabry had lied about going to
the defendant’s residence, but he had no proof to make such a claim.

             Trial counsel said that neither he nor his investigator contacted Ms. Hawks
because the petitioner told counsel that Ms. Hawks had been removed from his custody
prior to Thanksgiving. He said that after learning that she had not been living in the
house during the relevant time frame, he determined “that she was a greater liability than
she was a benefit.” He added that he did not want to risk the jury’s learning that Ms.
Hawks had been “removed from his custody by DCS.”

                Counsel said that he did not attempt to contact John Kirkpatrick to testify at
the trial in this case because, after the petitioner’s acquittal in the first of his trials, “we
knew what our strategy was” and that strategy did not require Mr. Kirkpatrick’s
testimony. He said that he did not interview Mr. Freeman because “Mr. Freeman was the
guy we were going to pile it on.” He said that an “investigative summary” he was
provided in the discovery materials indicated that Mr. Freeman had referred to the
petitioner and Chris Kirkpatrick “by name as the people who were doing this.” Counsel
explained, “Mr. Freeman had nothing but bad news for us. We didn’t want him here to
defend himself.”
                                              -5-
                At the conclusion of the hearing, the post-conviction court denied relief,
finding that counsel’s trial strategy was “grounded in reason” and that “it was an
intelligent move” given the facts available to trial counsel. The court noted that “[t]he
fact that it was an unsuccessful strategy does not” prove that counsel performed
deficiently. The court observed that counsel’s cross-examination of Mr. Phelps was
successful and that the jury acquitted the petitioner of burglary. Counsel stated that Ms.
Hawks’s testimony “would not have helped at all in this . . . because she wasn’t there.”
The court accredited counsel’s testimony that he conferred with the petitioner about the
trial strategy and that the petitioner “probably was” on board with the strategy. The court
stated that, “even now, looking back at it,” the strategy developed by counsel “was
probably the best strategy.” The court stated that none of the testimony presented at the
hearing caused the court to believe “that the outcome would have been any different” had
the witnesses been called. As a result, the court determined that trial counsel did not
perform deficiently.

               In this timely appeal, the petitioner contends that the post-conviction court
erred by denying his petition for post-conviction relief, reiterating his claim that trial
counsel was ineffective for failing to present Ms. Hawks and Mr. Kirkpatrick as
witnesses at trial. The State asserts that the post-conviction court properly denied relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
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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. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In our view, the record fully supports the denial of relief in this case. The
post-conviction court accredited counsel’s testimony that, based upon his investigation,
he determined the best strategy for trial was to emphasize that Mr. Freeman was in
control of the stolen items rather than the petitioner. The court also concluded that, based
upon its recollection of the trial, counsel’s strategy “was probably the best strategy.” The
testimony offered at the evidentiary hearing by Ms. Hawks and Mr. Kirkpatrick did not
support that strategy and would not, therefore, have been helpful to the petitioner’s case
at trial. Importantly, this court will not second-guess a reasonably-based trial strategy or
sound, but unsuccessful, tactical decisions. Adkins, 911 S.W.2d at 34.

              Accordingly, the judgment of the post-conviction court is affirmed.



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       _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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