        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 2, 2010

              JAMES JOHNSON, JR. v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Shelby County
                       No. 00-03451 John T. Fowlkes, Jr., Judge



                   No. W2010-00380-CCA-R3-PC - Filed May 12, 2011


Petitioner, James Johnson, Jr., was convicted by a Shelby County Jury for one count of
second degree murder, and the trial court sentenced Petitioner to twenty-three years. State
v. James Johnson, No. W2003-02009-CCA-R3-CD, 2004 WL 2378256, at *1 (Tenn. Crim.
App., at Jackson, Oct. 20, 2004), perm. app. denied, (Tenn. Mar. 21, 2005). On appeal, this
Court modified Petitioner’s sentence to twenty-one years based upon the fact that the trial
court had misapplied certain enhancement factors during sentencing. Id. at *14. On March
27, 2006, Petitioner subsequently filed a petition for post-conviction relief arguing that he
received ineffective assistance of counsel. Following a hearing on the petition, the post-
conviction court denied the petition. Petitioner appeals this decision. After a thorough
review of the record, we conclude that Petitioner has not shown that trial counsel’s
representation was ineffective. Therefore, we affirm the denial of the petition for post-
conviction relief.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J. and
J OHN E VERETT W ILLIAMS, J., J OINED.

Gregg Carman, Memphis, Tennessee, for the appellant, James Johnson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter, Brian Clay Johnson, Assistant
Attorney General; William L. Gibbons, District Attorney General, and Rachel Newton,
Assistant District Attorney General, for the appellee, State of Tennessee.




                                         OPINION
                                     Factual Background

        The Shelby County Grand Jury indicted Petitioner for one count of first degree murder
for the March 2000, murder of Carolyn Payne. The autopsy showed that the victim had been
stabbed thirty-five times, nine of which were significant. Id. at *3. A jury convicted
Petitioner of the lesser included offense of second degree murder. Id. at *1. The trial court
sentenced Petitioner to twenty-three years. Id. Petitioner appealed both his conviction and
sentence to this Court. Id. The second degree murder conviction was affirmed, but this
Court modified Petitioner’s sentence to twenty-one years based upon the misapplication of
enhancement factors under Blakely v. Washington, 542 U.S. 296 (2004). Id. at. *14.

      On March 7, 2006, Petitioner filed a pro se petition for post-conviction relief.
Counsel was appointed, and an amended petition was filed on September 19, 2007. On
February 21, 2008, Petitioner filed an ex parte motion for expert defense services to hire an
independent medical expert for the post-conviction hearing to “examine his defensive
wounds”. The State filed a response requesting the denial of Petitioner’s request because
Tennessee Supreme Court Rule 13, section 5(2) and Davis v. Tennessee, 912 S.W.2d 689
(Tenn. 1995), do not authorize funding for experts in non-capital post-conviction
proceedings. Petitioner was not allowed funding for an expert.

        On November 13, 2009, the post-conviction court held a hearing on the petition.
Petitioner was the first witness. He testified that in his petition he alleged that he received
ineffective assistance of counsel. Petitioner maintained throughout the trial process that he
was defending himself from the victim’s attack when the stabbing occurred. He stated that
his main concern was that trial counsel did not procure an expert witness to testify regarding
the wounds he suffered in the altercation with the victim. Petitioner received a cut to his left
abdomen, a stab wound on his forearm, a stab wound on his right wrist, and a cut on the back
of a finger on his right hand. According to Petitioner, these wounds were sustained while
he was defending himself from the victim’s attack. The argument was about money that the
victim owed Petitioner. Petitioner stated that he informed trial counsel both by letter and in
person that he believed they needed an expert to testify about the defensive wounds to
support the theory of self-defense.

       On cross-examination, Petitioner stated that he testified on his own behalf at the trial.
He stated that trial counsel brought out information regarding the defensive wounds and even
had Petitioner show the wounds to the jury.

       Trial counsel also testified at the hearing. He stated that he had been an attorney for
sixteen or seventeen years and over ninety percent of his practice was criminal law. Trial
counsel stated that Petitioner maintained the same story throughout the proceedings that the

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victim attacked him first. Trial counsel determined that the theory for trial would be self-
defense. While preparing for trial, trial counsel was concerned that the testimony of the
medical examiner, Dr. O. C. Smith, would be detrimental to their self-defense case, primarily
because the autopsy showed that the victim had been stabbed thirty-five times. However, in
discussions with Dr. Smith, trial counsel discovered that Dr. Smith’s opinions were actually
favorable to Petitioner. Trial counsel stated the following at the hearing:


       [W]e met with Dr. Smith several times and right before trial, and like I said,
       . . . Dr. Smith’s opinions became favorable to us. I had asked him details
       surrounding the facts that [Petitioner] had given over to me and took those
       details to Dr. Smith and asked him, well, what if – if this were the set of facts,
       what would your opinion be? And it turned out that his opinion was favorable
       to us. Found that only I believe three of the 35 wounds ended up being fatal.
       He agreed with us that the wounds could be consistent with a struggle instead
       of – cause basically what happened is [the State] had gone with the theory that
       these extra wounds on the victim were what they call flick wounds. And Your
       Honor has probably heard of that many times. But it’s a method of torture is
       what their theory was. And after meeting with Dr. Smith several times telling
       him the information and facts that we knew about the case, Dr. Smith backed
       off the fact that these could be flick wounds and that it would support our
       theory that a fight had occurred.

              And I think we even asked him the questions in trial about [Petitioner’s]
       wounds and he agreed that they indeed could of been inflicted with a knife;
       they indeed could of been inflicted at the same time that his all occurred; that
       the wounds seemed to be the same age; that they could have dated back to
       when all of this had happened. So O. C. Smith became our expert is basically
       what we did. And at that point we’ve now – we don’t have a disfavorable
       witness to discredit at that point. Dr. Smith has become a favorable witness.
       And his opinion – we went to [the assistant district attorney] with his opinion
       and [the assistant district attorney] agreed to pull the death penalty off the table
       because of that. That was his reason for doing that. And he agreed that that
       was favorable to us and that now self-defense was a fact issue for the jury to
       determine and he withdrew the death penalty.

              ....

               . . . Dr. Smith was a witness called by the State. But a lot of times in
       these trials, you can take a State’s expert and it often looks better if the State

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       expert is favorable to your position. And he really became an expert that we
       used. And he was able to back up our theory of [Petitioner’s] wounds. He was
       able to back up our theory that there wasn’t torture here. He was able to back
       up our whole theory that there was a mutual combat altercation type of thing.
       That some of these wounds that occurred were defensive wounds to a knife,
       you know, someone holding their hand up. And we got all into that with Dr.
       Smith.

Trial counsel stated that he and co-counsel discussed whether or not to call an expert at
length. After their discussions with Dr. Smith, they determined that Dr. Smith’s testimony
was sufficient and an expert witness would not have added anything to their case.

       After the hearing on the petition, the post-conviction court denied the petition. The
post-conviction court made the following findings with regard to the failure to hire an expert
witness:


       This tactical move did not prejudice the defendant. In fact, trial counsel’s
       lengthy conversations with Dr. Smith may have played a role in the jury
       finding the Petitioner guilty of the lesser included offense of second degree
       murder, rather than first degree murder. As in Henley v. State, courts should
       not second guess tactical and strategic decisions of trial attorneys without first
       constructing the events [sic] made by counsel and looking at them through
       counsel’s perspective at the time. Henley v. State, 960 S.w.2d 572, 579 (Tenn.
       1997). When doing so, counsel’s conduct of not hiring a second expert does
       not rise to the level of ineffective assistance of counsel.


The Petitioner filed a timely notice of appeal.

                                         ANALYSIS

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issue raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the court’s findings unless the evidence in the record
preponderates against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim .App. 1997). This Court may not
reweigh or reevaluate the evidence, nor substitute its inferences for those drawn by the post-
conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the

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post-conviction court’s conclusions of law are reviewed under a purely de novo standard with
no presumption of correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580.

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins, 911 S.W.2d at 347. This Court may not
second-guess a reasonably based trial strategy, and we cannot grant relief based on a sound,
but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes
those decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992).

       We conclude that trial counsel’s decision not to retain an expert witness was a tactical
decision. It is clear that trial counsel was well-prepared for this decision having had multiple
conversations with Dr. Smith. He also discussed the decision with his co-counsel. Trial
counsel clearly stated that he believed it was preferable to have a State witness testify
favorably towards Petitioner as opposed to having a separate expert witness. For this reason,
Petitioner has failed to prove the first Strickland prong, that trial counsel was ineffective.




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                                      CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition
for post-conviction relief.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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